Bowers v. Mitchell , 258 N.C. 80 ( 1962 )

128 S.E.2d 6 (1962) 258 N.C. 80

E. Scott BOWERS
v.
Norman E. MITCHELL.

No. 165.

Supreme Court of North Carolina.

November 7, 1962.

J. A. Pritchett, Windsor, and Eric Norfleet, Jackson, for plaintiff-appellant.

Gay, Midyette & Turner, by Buxton Midyette, Jackson, for defendant-appellee.

RODMAN, Justice.

The denial of plaintiff's allegations of title and trespass placed the burden on plaintiff of establishing each of these allegations. Cothran v. Akers Motor Lines, N. C., 127 S.E.2d 578; Shingleton v. Wildlife Comm., 248 N.C. 89, 102 S.E.2d 402; Carson v. Mills & Burnett, 18 N.C. 546.

Plaintiff made no attempt to trace title to the sovereign or to show that defendant was estopped to deny plaintiff's title.

Plaintiff contends he acquired title to the 64.9 acres by his adverse possession under color of title for the statutory period or by deeds vesting him with his father's title acquired by adverse possession. To support his contention plaintiff offered: (1) A deed from his mother to him dated 31 December 1953. This deed purports to convey lots 13, 21, 22, 23, 24, and 25 shown on a map of the Woodruff Division. (2) A deed from his sister to him dated 18 September 1957 purporting to convey all her right, title, and interest in lots 19 and 20 of that division. (3) A deed from F. J. Bowers and wife to plaintiff dated 26 January 1962 purporting to convey all of grantors' right, title, and interest to lots 19 and 20 of the Woodruff Division. (4) A partition proceeding known as the Woodruff Division, made in 1902, and various deeds to plaintiff's father for lots 13, 19, 20, 21, 22, 23, 24, and 25 in that division.

The map and testimony of a surveyor suffice to show the location of these several lots. They are contiguous. The area described in the complaint is a composite of the areas of the eight separate tracts.

Plaintiff has no deed or other conveyance for a single tract as described in the complaint. Hence he does not have color of title for the land so described. What he has is color of title for eight separate and distinct pieces of land. Burns v. Crump, 245 N.C. 360, 95 S.E.2d 906.

Plaintiff put in evidence a deed from W. F. Kell and wife to George Foreman and others dated 26 November 1896. That deed purports to convey a tract containing 166 acres. Plaintiff offered no evidence to show the grantees in that conveyance ever had possession of the land there described. Because of the failure to offer evidence of possession by the grantees in that deed, it has no significance in disposing of this appeal. All the conveyances subsequent to 1896 were for small specific parts, i.e., for areas described in the partition proceeding.

Subject to the qualification noted in the third headnote to Boomer v. Gibbs, 114 N.C. 76, 19 S.E. 226, the possession of one claiming under color is constructively extended to the entire area described in the instrument under which he asserts title. But possession of a single tract is not constructively extended to a separate and distinct tract even though both tracts are described in the same conveyance. Carson v. Mills & Burnett, supra; Loftin v. Cobb, 46 N.C. 406; Roper Lumber Co. v. Richmond Cedar Works, 168 N.C. 344, 84 S.E. 523; 3 Am. Jur.2d 111, 112; 2 C.J.S. Adverse Possession § 187, p. 783.

Plaintiff was not required to show title to all of the land described in the complaint. The court should have overruled the motion to nonsuit and submitted the controversy to the jury as to those portions, if any, on which plaintiff had made a prima facie showing of title and trespass.

Hence we must examine the evidence to see if there is any showing of possession and trespass on any of the lots.

Plaintiff asserts title to lots 19 and 20 by virtue of deeds from his brother and sister. Their deeds were dated 1957 and 1962. This action was begun in July 1961. There is no suggestion that the brother or sister had color of title. Their father claimed these lots. But plaintiff's evidence shows the father died testate, leaving lots 13, 21, 22, 23, and 24 to plaintiff's mother. The will is not copied in the record. It is neither stated nor implied the father devised these lots to the plaintiff or to his brother or sister. Presumably the father disposed of all of his property by his will, leaving nothing for his children to inherit. Wachovia Bank & Trust Co. v. Waddell, 234 N.C. 454, 67 S.E.2d 651. There is no evidence to support a finding that plaintiff is the owner of lots 19 and 20.

Has plaintiff made a prima facie showing of title to lots 13, 21, 22, 23, 24, and 25 conveyed to him by his mother in 1953? Her deed is color of title and of sufficient age to permit plaintiff to acquire title by possession. He testified he had been in possession of the area "a number of years." He does not say how many years—two, three, four, or what. He does not in any way describe "possession" except to say he had it surveyed and gave permission to hunt. The authorization so given, but not exercised, is evidence of an adverse claim but can scarcely be described as possession. It is like payment of taxes. Chisholm v. Hall, 255 N.C. 374, 121 S.E.2d 726; Ruffin v. Overby, 88 N.C. 369. To convert the shadow of color of title into perfect title, possession must be continuous, open, and notorious, as well as adverse. It must be of such character as to put the true owner on notice of the adverse claim. It must suffice to subject the occupant to an action in ejectment as distinguished from a mere trespass quare clausum fregit. Lindsay v. Carswell, 240 N.C. 45, 81 S.E.2d 168, and cases cited; Bland v. Beasley, 145 N.C. 168, 58 S.E. 993.

The evidence is insufficient to establish prima facie plaintiff's possession under color for the requisite time to mature title. There is no evidence to show that the mother, in the four years that she had color, was ever in possession of the property. There is no evidence of any possession by the grantors of plaintiff's father. Unless the father had possession for sufficient time to mature title under color, plaintiff must fail. Plaintiff testified with respect to his father's possession as follows: "During my lifetime I know that they sold the timber when I was in high school. My father used to give permission to hunt there. * * * There has been no cleared land on it since I have known it. * * * The land is not located in such position that one would gather pinestraw from it. It is situate along a swamp approximately three miles long. It is not the sort of land you would gather pinestraw or build a hunting lodge." This evidence, standing alone, clearly would not suffice to show seven years' continuous, open, notorious, and adverse possession of any particular lot, nor of all the lots. To supplement this testimony, plaintiff offered in evidence two timber deeds: One, a deed to Camp Manufacturing Co. dated 31 July 1914, authorizing Camp to cut timber eight inches and over in diameter on lots 19, 21, and 23. The right to cut expired 15 May 1916. The other was a timber deed to L. H. Taylor dated in 1931. It authorized Taylor to cut and remove the timber from lots 19, 20, 21, 22, 23, and 24. The period in which grantee could cut and remove was limited to three years. Neither of these deeds purports to authorize the cutting of timber from lot 25. If plaintiff's testimony that timber was cut when he was in high school referred to cutting by Taylor, it does not show how long the grantee took to cut the timber from any of the lots nor does it show on which lot timber was cut. It affirmatively appears that the authorized time to cut was less than seven years. Plaintiff's evidence fails to establish possession of the kind and for the period requisite to ripen the color of title into true title.

Appellant does not suggest the proviso added to G.S. § 1-42 by c. 469, S.L. 1959, made a prima facie case of title requiring the court to submit his claim to the jury. We refer to the statute because defendant, appellee, makes reference to it in his brief, insisting that it has no application to the facts of this case. Suffice it to say, the statute does not declare that one who claims title, relying merely on a paper writing more than thirty years old, thereby acquires title to the land described in the instrument, nor does it establish title prima facie.

The judgment is

Affirmed.