McLennan v. Josey ( 2014 )


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  •                             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.