Whiteheart v. Grubbs , 232 N.C. 236 ( 1950 )

60 S.E.2d 101 (1950) 232 N.C. 236

WHITEHEART et ux.
v.
GRUBBS.

No. 748.

Supreme Court of North Carolina.

June 9, 1950.

Ingle, Rucker & Ingle, Winston-Salem, for plaintiffs-appellants.

Parker & Lucas, Winston-Salem, for defendant-appellee.

WINBORNE, Justice.

Appellants state in their brief five questions as being presented by their assignments of error on this appeal. The first three appear to be predicated upon their exception to the denial of their motions for judgment as of nonsuit as to respondent's further defense based on her pleas of adverse possession of the land in controversy. The fourth relates to the exclusion of certain evidence. And the fifth relates to alleged failure of the trial judge to properly charge the jury. After careful examination of the questions so raised, we hold that prejudicial error is not made to appear.

As to the three questions relating to nonsuit: The first and basic contention of appellants is that the description in the deeds under which the respondent claims does not cover the land in controversy represented by the letters A to B to C and back to A. This contention, apparently, is based upon the assumption that the specific or particular description in these deeds is controlled by the general description which follows.

In this connection, the rule is that where there is a particular and a general description in a deed, the particular description prevails over the general. Carter v. White, 101 N.C. 30, 7 S.E. 473; Cox v. McGowan, 116 N.C. 131, 21 S.E. 108; Midgett v. Twiford, 120 N.C. 4, 26 S.E. 626; Loan Ass'n v. Bethel, 120 N.C. 344, 27 S.E. 29; Johnston v. Case, 131 N.C. 491, 42 S.E. 957; John L. Roper Lumber Co. v. McGowan, 168 N.C. 86, 83 S.E. 8; Potter v. Bonner, 174 N.C. 20, 93 S.E. 370; Bailey v. Hayman, 218 N.C. 175, 10 S.E.2d 667; Lewis v. Furr, 228 N.C. 89, 44 S.E.2d 604; Lee v. McDonald, 230 N.C. 517, 53 S.E.2d 845.

It is only when the specific description is ambiguous, or insufficient, or the reference is to a fuller and more accurate description, that the general clause is allowed to control or is given significance in determining the boundaries. 18 C.J. 284; 26 C.J.S., Deeds, § 100; Campbell v. Mc-Arthur, 9 N.C. 33, 11 Am.Dec. 738; Den em dem. Ritter v. Barrett, 20 N.C. 266; Quelch v. Futch, 172 N.C. 316, 90 S.E. 259; Crews v. Crews, 210 N.C. 217, 186 S.E. 156; Lewis v. Furr, supra.

Applying this principle to description in the deeds under consideration, the particular description is clear and specific, and, when considered in connection with the admitted plat, leaves no room to doubt that it covers the land in controversy. Such being the case, it prevails over the general description which follows.

The second question, taking for granted that the description in respondent's deed covers the land in controversy, assumes that the "evidence fails to disclose the essential elements of notoriety with respect to the boundaries under adverse possession".

In this connection, since the deeds under which petitioners claim and the deeds under which respondent claims cover the land in controversy, the subject of the relative rights of the parties in respect to the lappage is presented. The pertinent rules in this respect, established by decisions of this Court, are set forth by Stacy, C. J., in Vance v. Guy, 224 N.C. 607, 31 S.E.2d 766, 768, in this manner:

"1. Where the title deeds of two rival claimants to land lap upon each other, and neither is in the actual possession of any of the land covered by both deeds, the law adjudges the possession of the lappage to be in the one who has the better title. * * *

"2. If one be seated on the lappage and the other not, the possession of the whole interference is in the former. * * *

"3. If both have actual possession of some part of the lappage, the possession of the true owner, by virtue of his superior title, extends to all not actually occupied by the other."

And the subject is fully discussed in the case of Currie v. Gilchrist, 147 N.C. 648, 61 S.E. 581, 584, and summarized in part as follows: "We may therefore take it to be settled by this court by a long and unvarying line of decisions that if the person who claims under the elder title have no actual possession on the lappage, such possession, although of a part only, by him who has the junior title, if adverse and continued for seven years, will confer a valid title for the whole of the interference, the title being out of the state". See Berry v. Coppersmith, 212 N.C. 50, 193 S.E. 3, and cases cited.

Testing the case in hand by these rules, there is no evidence that petitioners or those under whom they claim have been in actual occupation of any of the lappage. And there is evidence that respondent has been in actual occupation of it.

Hence, her possession, if adverse and continued for seven years, would confer a valid title for the whole of the lappage. Adverse possession must be under known and visible lines and boundaries, and under colorable title. G.S. § 1-38. In the present case the lines and boundaries, as the evidence tends to show, are well defined, visible, and known. And the deed to respondent under which she claims is sufficient to constitute color of title. Lofton v. Barber, 226 N.C. 481, 39 S.E.2d 263.

The third question is based upon the express assumption that "the testimony of the defendant (respondent), as a witness on her own behalf, discloses that she had no intent of claiming possession against the true owner".

While respondent, under crossexamination, said that it has never been her intention to claim anything except what she owns, that if she could not hold this land honestly, she does not want it, and that she did not want the property if it were not hers, she does say that she bought it and paid for it. At most these statements were fit to be considered by the jury in passing on the question as to whether her possession was adverse. See Dawson v. Abbott, 184 N.C. 192, 114 S.E. 15.

The fourth question is a challenge to the ruling of the court in sustaining objection to this question: "If you had known that an earlier deed had conveyed this property that is in dispute to Mr. Whiteheart or somebody owned it before him, a deed that was earlier than your deed from Mr. Miller, it wouldn't have been your purpose to claim that property, would it, that is in dispute?" The record does not disclose what the answer of the witness would have been. In the absence of such a showing error is not made to appear. Wilson v. Scarboro, 169 N.C. 654, 86 S.E. 611.

The fifth question is directed to the charge of the court,—to portions of the charge given, and to failure to state the evidence and to comply with provisions of G.S.§ 1-180. Reading the portions to which exceptions are taken in proper connection with that which precedes and that which follows each, prejudicial error is not made to appear. And in connection with the alleged failure to comply with provisions of G.S.§ 1-180, it must be noted that this statute was rewritten by Chapter 107 of 1949 Session Laws of North Carolina. Under this statute, as so rewritten, the judge is not required to state the evidence given in the case "except to the extent necessary to explain the application of the law thereto". Testing the charge by this provision of the statute, it may not be successfully contended that the presiding judge failed in his duty in this respect.

All assignments of error have been given due consideration and in the judgment below, we find

No error.