McLennan v. Josey ( 2014 )

NO. COA13-1271
NORTH CAROLINA COURT OF APPEALS
Filed: 20 May 2014
ALEX D. McLENNAN, JR., DOROTHY N.
McLENNAN, and RUFUS T. CARR, JR.,
Plaintiffs,
v. Halifax County
No. 10-CVS-1051
C.K. JOSEY, JR., DEBORAH G. JOSEY,
JOSEY PROPERTIES, LLC, THOMAS D.
TEMPLE, IV, CRYSTAL TEMPLE, BETTY
JO TEMPLE, and JOSEPH LANIER
RIDDICK, III,
Defendants.
Appeal by defendants from order entered 10 June 2013 by
Judge J. Carlton Cole in Halifax County Superior Court. Heard
in the Court of Appeals 19 March 2014.
Rountree & Boyette L.L.P., by Charles S. Rountree, for
plaintiffs-appellees.
Etheridge, Hamlett & Muray, L.L.P., by Ernie K. Murray, for
defendants-appellants.
ELMORE, Judge.
Defendants appeal from order granting plaintiffs’ motion
for summary judgment. After careful consideration, we affirm.
I. Facts
Alex McLennan, Jr., Dorothy McLennan, and Rufus Carr, Jr.,
(collectively plaintiffs) and C.K. Josey, Jr., Deborah G. Josey,
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Josey Properties, LLC., Thomas D. Temple, IV, Crystal Temple,
Betty Jo Temple, and Joseph Lanier Riddick, III, (collectively
defendants) own adjoining tracts of land with a common boundary
located in Halifax County. In July 2010, defendants recorded a
map at Book 2009, Page 193, and a deed at Book 2321, Page 750,
in the Halifax County Registry that asserted ownership of an
area allegedly owned by plaintiffs. On 27 August 2010,
plaintiffs filed a “COMPLAINT TO ESTABLISH BOUNDARY AND QUIET
TITLE” pursuant to N.C. Gen. Stat. § 41-10. Plaintiffs alleged
that defendants “claimed ownership of lands owned by Plaintiffs
and have created a cloud on title to Plaintiff’s [sic]
property.” Thereafter, plaintiffs filed a motion for summary
judgment that was heard before Judge J. Carlton Cole on 25 and
26 February 2013. At the hearing, the evidence showed that both
parties obtained title to their tracts from a common source,
David Clark, on 10 November 1882. Following Clark’s death, his
lands were partitioned and divided among his heirs in the
“Report of Commissioners in Partition” (the partition).
Plaintiffs’ source of title is “Lot 4,” allocated to Anna Clark,
and defendants’ source of title is “Lot 8,” allotted to Dora
Clark. Plaintiffs’ southern boundary line and defendants’
northern boundary line are shared in common. The partition
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describes the common boundary line as “down the run of
[Gaynor’s] Gut to the Canal[.]” The dispute arises from the
parties’ disagreement as to the location on the ground of the
run of the gut to the canal. Both parties agree that the shared
boundary runs southwest to a point where the flow of the gut
diverges. However, plaintiffs argue that the gut forks left at
that divergent point and runs through a dam, a pond, and then
empties into the canal. Defendants contend that the gut forks
right at the split and then empties into the canal.
II. Analysis
a.) Prima Facie Case
Defendants argue that the trial court erred in granting
plaintiffs’ motion for summary judgment. Specifically,
defendants aver that plaintiffs failed to meet their burden of
establishing the on-the-ground location of the claimed boundary
line: the run of the gut to the canal. We disagree.
“Our standard of review of an appeal from summary judgment
is de novo; such judgment is appropriate only when the record
shows that ‘there is no genuine issue as to any material fact
and that any party is entitled to a judgment as a matter of
law.’” In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572,
576 (2008) (quoting Forbis v. Neal, 361 N.C. 519, 523-24, 649
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S.E.2d 382, 385 (2007)). We must consider “the pleadings,
affidavits and discovery materials available in the light most
favorable to the non-moving party[.]” Pine Knoll Ass'n, Inc. v.
Cardon, 126 N.C. App. 155, 158, 484 S.E.2d 446, 448 (1997).
Pursuant to N.C. Gen. Stat. § 41-10, an individual can
institute an action to remove a cloud on title “against another
who claims an estate or interest in real property adverse to him
for the purpose of determining such adverse claims[.]” N.C.
Gen. Stat. § 41-10 (2013). The statute provides this express
authority in an attempt to “free the land of the cloud resting
upon it and make its title clear and indisputable, so that it
may enter the channels of commerce and trade unfettered and
without the handicap of suspicion[.]” Chicago Title Ins. Co. v.
Wetherington, 127 N.C. App. 457, 461, 490 S.E.2d 593, 597 (1997)
(citation and quotation omitted). Should the plaintiff
establish “a prima facie case for removing a cloud on title, the
burden rests upon the defendant to establish that his title to
the property defeats the plaintiff’s claim.” Id. (citation
omitted). The plaintiff establishes a prima facie case for
removing a cloud on title upon satisfying two prongs: “(1) the
plaintiff must own the land in controversy, or have some estate
or interest in it; and (2) the defendant must assert some claim
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in the land adverse to plaintiff’s title, estate or interest.”
Hensley v. Samel, 163 N.C. App. 303, 307, 593 S.E.2d 411, 414
(2004) (citation omitted). In order to establish ownership of
the disputed land under prong one, the plaintiff can utilize the
“common source of title” doctrine, which requires him “to
connect both [himself] and defendants with a common source of
title and then show in [himself] a better title from that
source.” Chappell v. Donnelly, 113 N.C. App. 626, 629-30, 439
S.E.2d 802, 805 (1994) (citation omitted). Additionally, the
plaintiff must show that “the disputed tract lies within the
boundaries of their property.” Id. (citations omitted).
Accordingly, the burden is on the plaintiff to establish “the
on-the-ground location of the boundary lines which they claim.”
Id. (citation omitted). He must “locate the land by fitting the
description in the deeds to the earth's surface.” Id. (citation
and quotation omitted). In locating such land:
courts endeavor to place themselves in the
position of the parties at the time of the
conveyance, in order to ascertain what is
intended to be conveyed; for, in describing
the property, parties are presumed to refer
to its condition at that time, and the
meaning of their terms of expression can
only be properly understood by a knowledge
of their position, and that of the property
conveyed.
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Cox v. McGowan, 116 N.C. 74, 76, 21 S.E. 108, 109 (1895)
(citation omitted). It necessarily follows that “[r]esort may
not be had to a junior conveyance for the purpose of locating a
call in a senior deed.” Bostic v. Blanton, 232 N.C. 441, 445,
61 S.E.2d 443, 446 (1950) (citations omitted).
In Poe v. Bryan, the plaintiff testified that she had
personal knowledge of the contended boundary line because she
lived on the tract of land during her youth and learned about
the boundary lines from her grandfather. 12 N.C. App. 462, 466,
183 S.E. 2d 790, 792-93 (1971). A surveyor also testified that
“the courses on the court map were normal variations from the
courses on the deed and that the land described in the deed is
the same tract of land shown as plaintiffs’ contended tract.”
Id. at 466-67, 183 S.E.2d at 793. We held that “the testimony
of the feme plaintiff and the [trial] court appointed surveyor
constitutes sufficient evidence that the description of the . .
. deed fits the land and embraces the land in controversy.” Id.
at 467, 183 S.E.2d at 793. Conversely, our Supreme Court in
Day v. Godwin held that the plaintiff failed to meet his burden
to locate the on-the-ground location of the disputed land
because no survey of the disputed land was conducted nor did
plaintiff have personal knowledge about the location of the
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disputed tract. 258 N.C. 465, 470-71, 128 S.E.2d 814, 817-18
(1963).
In the case at bar, plaintiff McClennan testified that he
worked on his grandfather’s farm and Lot 4 since 1958. During
that time, he “came to know the location of Gaynor’s Gut from
the Dam at Blue Pond to the Dam at Coon Pond, and from the Dam
at Coon Pond through Coon Pond to where Gaynor’s Gut enters
Clark’s Canal.” In 1967, he managed the farm on a full-time
basis, and it required that he “know the location of Gaynor’s
Gut and the other boundaries of the property being managed.”
Plaintiff McClennan testified that the disputed boundary line
encompassing plaintiffs’ land “has been a well known, well
marked and agreed upon line between our lands since the division
of the David Clark lands in the 1800’s.” Additionally, a
professional surveyor, Donald S. Hilhorst, surveyed Gaynor’s Gut
in 2010 using various recorded documents in the Halifax County
Register of Deeds Office. He found the boundary line to comport
with plaintiff McClennan’s testimony. Hilhorst’s survey was
also consistent with “the legal description of Gaynor’s Gut”
found in a 1909 deed and “the recorded survey of the Mrs. Anna
C. Arnold [map].”
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The 1909 deed divided defendants’ predecessors’ Lot 8 into
two parcels and gave one 805-acre parcel to the Wilts Veneer
Company with the remaining tract to be held by defendants’
predecessors. The deed explicitly indicated a shared boundary
line between Wilts Veneer Company and Anna Arnold’s (plaintiffs’
predecessor in title) Lot 4, which necessarily included the
disputed land as part of Lot 4. It also contained a course and
distance description of the run of Gaynor’s Gut that places the
disputed tract within Lot 4.
The Anna Arnold map was created in 1918 to reflect a
portion of Lot 4 that was given by Anna Arnold to Wilts Veneer
Company in a timber rights conveyance. It included a metes and
bounds description of Gaynor’s Gut from Lot 4’s northeast corner
down to its run to the Canal. The metes and bounds description
reflected on the map shows the disputed land to have been owned
by Anna Arnold.
Although Hilhorst used junior conveyances by referencing
the 1909 and 1918 documents in his survey, they did not enlarge
the plaintiffs’ boundary lines, but rather provided an
unambiguous specific description of Gaynor’s Gut, which comports
with the general description found in the partition. See Carney
v. Edwards, 256 N.C. 20, 24, 122 S.E.2d 786, 788-89 (1961) (“It
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is . . . well settled that a general description will not
enlarge a specific description when the latter is in fact
sufficient to identify the land which it purports to convey.
Only when the attempted specific description is ambiguous and
uncertain will the general prevail.” (citation omitted)). In
totality, plaintiffs’ evidence was sufficient to meet their
burden to show that the disputed area lies within the boundaries
of their land.
b.) Defendants’ Burden
Since plaintiffs established a prima facie case of title to
the disputed land, defendants were required to establish that
their title was superior.
On appeal, however, defendants present no evidence by way
of deeds in their chain of title to establish their superior
claim to the disputed land. Moreover, defendants’ recorded map
in 2010 and subsequent deeds using the map’s boundary
description to convey the disputed land are junior to the 1909
and 1918 documents that describe the run of Gaynor’s Gut. Thus,
the descriptions found in the 1909 and 1918 documents control.
See Goodwin v. Greene, 237 N.C. 244, 250, 74 S.E.2d 630, 634
(1953) (“Where a junior deed calls for a corner or line in a
prior deed . . . it is not permissible to resort to a call in
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the junior deed for the purpose of establishing the call or line
in the prior deed.”). The 1909 deed is included by reference in
each deed within defendants’ chain of title. Their chain of
title specifically excludes defendants and their predecessors
from the tract that was given to the Wilts Veneer Company in the
1909 deed. As previously mentioned, the 1909 deed establishes
that the disputed land was never a part of defendants’ Lot 8.
Although defendants offer parol evidence in the form of a
2010 elevation study, affidavits of individuals with personal
knowledge of the boundary line, and other extrinsic testimony to
show that the disputed land belongs to them, reliance on such
evidence is improper. See Overton v. Boyce, 289 N.C. 291, 293-
94, 221 S.E.2d 347, 349 (1976) (“When the deed itself, including
its references . . . describes with certainty the property
intended to be conveyed, parol evidence is admissible to fit the
description in the deed to the land” but is inadmissible to
“enlarge the scope of the description in the deed.” (citations
omitted)). Thus, defendants failed to establish that their
title to the disputed property was superior to plaintiffs’
title. Accordingly, the trial court properly granted summary
judgment to plaintiffs.
III. Conclusion
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In sum, we affirm the trial court’s order granting
plaintiffs’ motion for summary judgment because no genuine issue
of material fact exists as to the true location of the boundary
line as contemplated by the partition.
Affirmed.
Judges McCULLOUGH and DAVIS concur.