Brown v. Hurley , 243 N.C. 138 ( 1955 )

90 S.E.2d 324 (1955) 243 N.C. 138

P. E. BROWN
v.
W. H. HURLEY, Mrs. W. H. Hurley and Robert N. Holland.

No. 385.

Supreme Court of North Carolina.

November 23, 1955.

Ralph Davis and W. H. McElwee, Jr., North Wilkesboro, for defendants-appellants.

Whicker & Whicker, North Wilkesboro, for plaintiff-appellee.

BARNHILL, Chief Justice.

The contention of the defendants that the description in the complaint and in the plaintiff's deed is too vague to permit proof aliunde as to the land intended to be conveyed thereby is without merit. That the boundaries do not go entirely around the land does not invalidate the description. G.S. § 39-2. Parol evidence to identify the land sued for and to fit it to the description contained in the paper writing offered as evidence of title was admissible. G.S. § 8-39. Buckhorn Land & Timber Co. v. Yarbrough, 179 N.C. 335, 102 S.E. 630; Peel v. Calais, 224 N.C. 421, 31 S.E.2d 440; Williams v. Robertson, 235 N.C. 478, 70 S.E.2d 692; North Carolina Self Help Corp. v. Brinkley, 215 N.C. 615, 2 S.E.2d 889.

The plaintiff testified that he had been in possession of the locus since it was conveyed to him by Elmore, and there was other evidence of possession sufficient to sustain the finding of the judge, acting as a jury, that plaintiff had been in the adverse possession of said land under color of title for more than seven years next preceding the institution of this action.

Possession "is exercising that dominion over the thing and taking that use and profit which it is capable of yielding in its present state. It is all that can be done until the subject shall be changed. It is like the case stated in the books of cutting rushes from a marsh. This is sufficient, though it might appear that dykes and banks would make the marsh arable." Loftin v. Cobb, 46 N.C. 406; Locklear v. Savage, 159 N.C. 236, 74 S.E. 347.

"Adverse possession means actual possession, with an intent to hold solely for the possessor to the exclusion of others and is denoted by the exercise of acts of dominion over the land in making the ordinary use and taking the ordinary profits of which it is susceptible, such acts to be so repeated as to show that they are done in the character of owner, and not merely as an occasional trespasser. * * *" Lindsay v. Carswell, 240 N.C. 45, 81 S.E.2d 168, 173.

"Where it is established that the land in controversy is swamp land [here mountain land], valuable only for timber, evidence that plaintiff, claiming under known and visible lines and boundaries under color, from time to time cut and sold timber from the tract for over seven years, is sufficient to take the case to the jury." Berry v. Coppersmith, 212 N.C. 50, 193 S.E. 3. (Headnote.)

"* * * A witness may tell what use has been made—what acts of ownership have been exercised over the property. Then it is for the jury [here the judge] to say under proper instructions whether that constitutes open, notorious and adverse possession." Memory v. Wells, 242 N.C. 277, 87 S.E.2d 497, 501.

We conclude, therefore, that the plaintiff offered sufficient testimony of adverse possession under color to sustain the first finding of fact made by the judge, acting as a jury, to the effect that the plaintiff had been in the open, notorious, continuous adverse possession of the land in controversy under known and visible boundary lines and under color of title conveyed to him by the deed from Elmore dated 26 July 1943 for more than seven years.

In view of our conclusion on the first finding of fact, it is unnecessary for us to consider or discuss questions raised as to whether (1) the names of the heirs of a deceased person may be proved by general reputation, or (2) the failure of proof that the grantors in the deed to Elmore were the only heirs at law and next of kin of Anderson Winkler. In this connection it is to be noted that the reference to a deed to Laura Winkler Bullis contained in the description in the deed from Herman Elmore to the plaintiff would seem to indicate that she claimed the property by purchase and not by inheritance.

In any event, the first finding of fact made by the judge is sufficient to sustain the judgment entered. For that reason the judgment must be

Affirmed.