Stone v. Conder , 46 N.C. App. 190 ( 1980 )

264 S.E.2d 760 (1980)

Garland L. STONE, Robert O. Stone, Raymond L. Stone, William M. Stone, Albert Archie Stone, Margie Ann Bryant and Mary Frances Wineberger
v.
Y. Mack CONDER and Rosalie W. Conder, Wayne S. Phillips and wife, Nadine C. Phillips, Jimmy Love, Trustee, Sanford Savings & Loan Association, William H. Woody and wife, Gisela S. Woody, W. W. Seymour, Trustee, First Federal Savings & Loan Association of Sanford, J. Allen Harrington, Trustee, The Carolina Bank, Heins Telephone Company, Carolina Power & Light Company and City of Sanford.

No. 7911SC744.

Court of Appeals of North Carolina.

April 15, 1980.

Grover C. McCain, Jr., and Robert B. Jervis, Durham, for plaintiffs-appellants.

George M. McDermott and J. W. Hoyle, Sanford, for defendants-appellees.

HILL, Judge.

Counsel have stipulated that the applicability of the Rule in Shelley's case shall not be presented to the Court at this time. Therefore, we do not discuss that issue.

One question is presented for our consideration. Did the trial court err in granting summary judgment for the defendants on the ground that the plaintiff's action was barred?

We note the trial judge made it clear that in summarizing the facts that he was not making findings of fact but merely reciting those material facts which he considered uncontroverted. In determining a motion for summary judgment, "the trial judge is not required to make finding of fact and conclusions of law and when he does make same, they are disregarded on appeal." Shuford, N.C. Practice and Procedure, § 56-6 (1979 Supp.); see Lee v. King, 23 N.C.App. 640, 643, 209 S.E.2d 831, cert. denied 286 N.C. 336 (1974). Rule 52(a)(2) does not apply to the decision on a summary judgment motion because, if findings of fact are necessary to resolve an issue, summary judgment is improper. "However, such findings and conclusions do not render a summary judgment void or voidable and may be helpful, if the facts are not at issue and support the judgment." (Citations omitted.) Mosley v. Finance Co., 36 N.C. App. 109, 111, 243 S.E.2d 145, 147, Disc. rev. denied 295 N.C. 467 (1978).

Plaintiffs are the grandchildren of Neil A. Stone and the children of William Warren Stone. They claim title to the lands as vested remaindermen under the will of Neil A. Stone. It must be noted that plaintiff's action was brought over 20 years after the death of the life tenant and over 14 years after the youngest child of William Warren Stone became an adult.

Plaintiffs contend the record title vests them with the legal title and cite as authority G.S. 1-42, which reads as follows:

In every action for the recovery or possession of real property, or damages for a trespass on such possession, the person establishing a legal title to the premises is presumed to have been possessed thereof within the time required by law; and the occupation of such premises by any other person is deemed to have been under, and in subordination to, the legal title, unless it appears that the premises have been held and possessed adversely to the legal title for the time prescribed by law before the commencement of the action. Provided that a record chain of title to the premises for a period of thirty years next preceding the commencement of the action, together with the identification of the lands described therein, shall be prima facie evidence of possession thereof within the time required by law.

Defendants contend that G.S. 1-39, reading as follows, applies:

Seizing within twenty years necessary. —No action for the recovery of possession of real property shall be maintained, unless it appears that the plaintiff, or those under whom he claims, was seized or possessed of the premises in question within twenty years before the commencement of the action, unless he was under the disabilities prescribed by law.

In fact, both statutes must be read together. Williams v. Board of Education, 266 N.C. 761, 767, 147 S.E.2d 381 (1966).

[I]t is not necessary that a plaintiff in action to recover land should allege in his complaint that he had possession within twenty years before action brought. For if he establishes on the trial a legal title to the premises, he will be presumed to have been possessed thereof within the time required by law, unless it is made to appear that such premises have been held and possessed adversely to such legal title for the time prescribed by law before the commencement of such action.

Johnston v. Pate, 83 N.C. 110, 112 (1879). In the case sub judice the burden, therefore, is on the defendants to show superior title by virtue of adverse possession.

Plaintiff contends the defendants have not established sufficient evidence of adverse possession to defeat plaintiff's title. In the case of Mizzell v. Ewell, 27 N.C.App. 507, 510, 219 S.E.2d 513, 515 (1975), Judge Arnold, quoting from Webster, Real Estate Law in North Carolina, § 258, p. 319, states that:

There must be an actual possession of the real property claimed; the possession must be hostile to the true owner; the claimant's possession must be exclusive; the possession must be open and notorious; the possession must be continuous and uninterrupted for the statutory period; and the possession must be with an intent to claim title to the land occupied.

Defendants contend their evidence established all of the elements required to prove adverse possession and, in addition, rely on G.S. 1-38(b) and (c), which read as follows:

(b) If

(1) The marking of boundaries on the property by distinctive markings on trees or by the implacement of visible metal or concrete boundary markers in the boundary lines surrounding the property, such markings to be visible to a height of 18 inches above the ground, and

(2) The recording of a map prepared from an actual survey by a surveyor registered under the laws of North Carolina, in the book of maps in the office of the register of deeds in the county where the real property is located, with a certificate attached to said map by which the surveyor certifies that the boundaries as shown by the map are those described in the deed or other title instrument or proceeding from which the survey was made, the surveyor's certificate reciting the book and page or file number of the deed, other title instrument or proceeding from which the survey was made,

then the listing and paying of taxes on the real property marked and for which a survey and map have been certified and recorded as provided in subdivisions (1) and (2) above shall constitute prima facie evidence of possession of real property under known and visible lines and boundaries. Maps recorded prior to October 1, 1973 may be qualified under this statute by the recording of certificates prepared in accordance with subdivision (b)(2) above. Such certificates must contain the book and page number where the map is filed, in addition to the information required by subdivision (b)(2) above, and shall be recorded and indexed in the deed books. When a certificate is filed to qualify such a recorded map, the register of deeds shall make a marginal notation on the map in the following form: ``Certificate filed pursuant to G.S. 1-38(b), book ........ (enter book where filed), page .....' (Emphasis added.)

(c) Maps recorded prior to October 1, 1973 shall qualify as if they had been certified as herein provided if said maps can be proven to conform to the boundary lines on the ground and to conform to instruments of record conveying the land which is the subject matter of the map, to the person whose name is indicated on said recorded map as the owner thereof. Maps recorded after October 1, 1973 shall comply with the provisions for a certificate as hereinbefore set forth.

"The only rule of general applicability is that the acts relied upon to establish [adverse] possession must always be as distinct as the character of the land reasonably admits of, and be exercised with sufficient continuity to acquaint the true owner with the fact that a claim of ownership, in denial of his title, is being asserted." Alexander v. Cedar Works, 177 N.C. 137, 144-45, 98 S.E. 312, 315 (1919). Defendants rely on the actions set forth in the trial judge's findings of uncontroverted fact numbers 5, 7, 9 and 10 to establish their adverse possession.

The plaintiffs, in opposition to defendants' evidence, offered the affidavits of James A. Stone, Garland L. Stone, Jesse James Stone, and Willie Frank Jones, all kinsmen or heirs at law of Neil A. Stone. Garland L. Stone cut Christmas trees on nine occasions and gathered pine needles on fifteen occasions on the subject property. None of these affiants had observed anyone cutting timber, or planting or harvesting crops on the property over the past thirty years, although each passed along the road frequently.

It is a well established rule that possession of real property cannot be adverse to remaindermen until the death of the life tenant, even though during the lifetime of the life tenant he gave a deed purporting to convey a fee. Narron v. Musgrave, 236 N.C. 388, 73 S.E.2d 6 (1952); Lovett v. Stone, 239 N.C. 206, 79 S.E.2d 479 (1954). William Warren Stone died September 8, 1958. It should be noted that as of that date three of the plaintiffs were minors and under disability, the youngest not reaching her majority until October 8, 1964. A statute of limitations does not run against a minor during minority. Lovett, supra. Hence, we must determine if seven years' adverse possession under color of title has been established since October 8, 1964.

Plaintiffs contend the defendants and their predecessors in title have not shown they actually possessed the land. Admittedly, what is sufficient actual possession depends on the character of the land and upon the circumstances of its use. We hold that the facts as stated in the trial judge's findings of uncontroverted facts numbers 5, 7, 9 and 10 set forth sufficient actions to establish adverse possession by defendants.

The boundary of the property fronted on a public road near the home of at least one of the plaintiffs, and the property was viewed by him and several of his kinsfolk regularly over the years. Their affidavits do not deny adverse possession. The affiants simply say they have never seen anyone cutting timber or planting and harvesting crops on the property. The occasional going onto the property by one of the plaintiffs to cut a Christmas tree or rake pinestraw for a dog house does not interrupt the continued adverse possession by the defendants and their predecessors in title.

The defendants further rely on G.S. 1-38(b) and (c), contending they have offered prima facie evidence which serves to establish as a matter of law the fact of seven years' possession under color of title. William J. Womble testified that he had listed the property and paid taxes from 1950 through 1976; that corners were well marked with stakes 18 inches to 20 inches high. Subsequent owners offered evidence that they did likewise for subsequent years. Affidavits of the tax collector and tax supervisor corroborated this testimony for the years records were available—from 1969 to 1979. They further testified there were no back taxes due and payable. It is undisputed that the property was surveyed by a surveyor and a map prepared therefrom, which is recorded in the office of the register of deeds, meeting all the requirements of G.S. 1-38(b)(2). All of these facts together constitute prima facie evidence of adverse possession by the defendants for more than seven years subsequent to 1964, the day when the youngest child of Neil A. Stone reached his majority. The defendants have offered nothing that effectively rebuts either the affidavits showing possession or the prima facie case of adverse possession.

For the reasons stated above, the judgment of the trial judge is

Affirmed.

PARKER and HARRY C. MARTIN, JJ., concur.