Coffey v. Greer , 249 N.C. 256 ( 1958 )

106 S.E.2d 209 (1958) 249 N.C. 256

Bynum COFFEY, Carrie E. Coffey and Virginia C. Burgess,
v.
Tom GREER, Mary Ann Greer, and R. T. Greer, Guardian ad litem, for Tom Greer and Mary Ann Greer.

No. 309.

Supreme Court of North Carolina.

December 10, 1958.

Louis H. Smith, Boone, for plaintiffs-appellants.

Bowie, Bowie & Vannoy, West Jefferson, Wade E. Brown, Boone, for defendants-appellees.

DENNY, Justice.

The appellants in the trial below excepted to the rulings of the court in excluding certain proffered evidence, which evidence is set out in the record. Assignments of error Nos. 1 and 2 based on these exceptions are not brought forward or discussed in the appellants' brief. Hence, they will be deemed as abandoned. Rule 28 of the Rules of Practice in the Supreme Court, 221 N.C. 562.

As a matter of fact, the appellants do not bring forward in their brief a single assignment of error or exception on which their assignments of error are based. They do, however, discuss generally and insist that their title is superior to that of the defendants' because their deed was recorded three days prior to the deed of defendants; that the court committed error in giving peremptory instructions to the jury, and in failing to accept the first verdict returned by the jury.

The validity of the plaintiffs' title or the superiority thereof is not involved in this action. The appellants seem to be disturbed over the statement in the former opinion in this cause to the effect that, "the fact that the description in the plaintiffs' deed calls for a corner in the defendants' land, as its beginning corner, and runs thence with a line of defendants' land, gives the plaintiffs' deed the status of a junior deed notwithstanding the fact that the respective deeds, from the common source, bear the same date." This statement has no particular legal significance except to point out that where the beginning corner of a tract of land is designated as a corner of another tract of land, such corner cannot be established by the calls in the deed which calls for the beginning corner in such other tract. The beginning corner must be established if possible from the description contained in the deed to such other tract of land. Coffey v. Greer, supra; Goodwin v. Greene, 237 N.C. 244, 74 S.E.2d 630; Bostic v. Blanton, 232 N.C. 441, 61 S.E.2d 443; Town of Belhaven v. Hodges, 226 N.C. 485, 39 S.E.2d 366; Cornelison v. Hammond, 224 N.C. 757, 32 S.E.2d 326; Thomas v. Hipp, 223 N.C. 515, 27 S.E.2d 528.

We are not dealing with adverse possession under color of title on this appeal. We are dealing only with the required legal method to locate the beginning corner of the plaintiffs' tract of land. Consequently, on this record, the fact that the plaintiffs' deed was registered prior to the defendants' deed has no bearing whatever on the question involved.

Under our decisions, the calls in the plaintiffs' deed are not competent as evidence to establish the location of the corner in the defendants' deed, which is the beginning corner of the plaintiffs' tract of land. Thomas v. Hipp, supra; Hill v. Dalton, 136 N.C. 339, 48 S.E. 784; Euliss v. McAdams, 108 N.C. 507, 13 S.E. 162; Corn v. McCrary, 48 N.C. 496; Doe ex dem. Dula v. McGhee, 34 N.C. 332; Sasser v. Herring, 14 N.C. 340.

The appellants' challenge to the peremptory instructions of the court, in our opinion, is without merit. It is true the first sentence of the instruction set out hereinabove, standing alone, is not in approved form for a peremptory instruction. Morris v. Tate, 230 N.C. 29, 51 S.E.2d 892. However, such instruction was followed immediately, in the very next sentence, by a proper form for a peremptory instruction, leaving it to the jury to determine the credibility and sufficiency of the evidence. Moreover, the plaintiffs do not challenge the correctness of the peremptory instruction as to form.

It is clear on this record that the plaintiffs are relying solely on the calls in their own deed to establish their contentions, together with the further contention that since their deed was recorded prior to the defendants' deed, it is superior in title to the defendants' deed. They take the position, therefore, that since their deed was registered first, the fact that the description in their deed calls for a corner in the defendants' land as their beginning corner, may be ignored. This position is untenable.

In our opinion the plaintiffs in the trial below did not offer any competent evidence to establish their contentions. On the other hand, the court surveyor, the plaintiffs' witness, did testify on cross-examination with respect to the location of the beginning corner of the plaintiffs' tract of land according to the contentions of the defendants, supported by the calls in their deed and the survey of the defendants' tract of land as shown on the court map.

The plaintiffs offered no evidence challenging the correctness of the defendants' contentions or the correctness of the survey of their tract of land, as shown on the court map, except the calls in their own deed as shown on said map. As heretofore pointed out, the calls in the plaintiffs' deed are not competent as evidence to establish the beginning corner of their tract of land. Therefore, on this record, the plaintiffs were not prejudiced by the peremptory instructions or the refusal to accept the first verdict of the jury. The defendants, who demurred to the plaintiffs' evidence, were entitled to a directed verdict since the plaintiffs failed to offer any competent evidence upon which a verdict in their favor could be sustained. Spruill v. Northwestern Mut. Life Insurance Co., 120 N.C. 141, 27 S.E. 39; Barbee v. Scoggins, 121 N.C. 135, 28 S.E. 259; Porter v. Armstrong, 129 N.C. 101, 39 S.E. 799; Crenshaw v. Asheville & B. Street R. & Transp. Co., 144 N.C. 314, 56 S.E. 945; Greer v. Hayes, 216 N.C. 396, 5 S.E.2d 169; McIntosh, North Carolina Practice and Procedure, 2nd Ed., Volume II, section 1516, at page 53.

In Greer v. Hayes, supra [216 N.C. 396, 5 S.E.2d 172], this Court, speaking through Barnhill, J., later C. J., said: "If the plaintiff is unable to show by the greater weight of the evidence the location of the true dividing line at a point more favorable to her than the line as contended for by the defendants, the jury, as a matter of law, should answer the issue as to the true dividing line in accord with the contentions of the defendants."

We have considered the questions discussed in the appellants' brief as though the assignments of error had been brought forward and discussed as required by the rules of this Court. We have followed this course because the title to property is involved. Edwards v. Butler, 244 N.C. 205, 92 S.E.2d 922.

In the trial below we find no error in law.

No error.

PARKER, J., not sitting.