Blair v. Fairchilds , 25 N.C. App. 416 ( 1975 )

213 S.E.2d 428 (1975) 25 N.C. App. 416

Martha S. BLAIR (H. Neal Blair)
v.
Albert FAIRCHILDS and wife et al.

No. 7424SC987.

Court of Appeals of North Carolina.

April 16, 1975. Certiorari Denied June 6, 1975.

Louis H. Smith, Boone, and Larry S. Moore, North Wilkesboro, for plaintiff appellee.

Holshouser & Lamm by J. E. Holshouser, Sr., and Eggers & Eggers by Stacy C. Eggers, Jr., Boone, for defendant appellants.

Certiorari Denied by Supreme Court June 6, 1975.

MARTIN, Judge.

The controversy, by stipulation of the parties that boundary only was involved, became in effect a processioning proceeding. Harrill v. Taylor, 247 N.C. 748, 102 S.E.2d 223 (1958); Welborn v. Lumber Co., 238 N.C. 238, 77 S.E.2d 612 (1953); Goodwin v. Greene, 237 N.C. 244, 74 S.E.2d 630 (1953); Clegg v. Canady, 217 N.C. 433, 8 S.E.2d 246 (1940); Napoli v. Philbrick, 8 N.C.App. 9, 173 S.E.2d 574 (1970). It was therefore the duty of the judge to determine what constitutes the divisional line, and also as the trier of the facts, to say where it is actually located on the premises. Coley v. Telephone Co., 267 N.C. 701, 149 S.E.2d 14 (1966); Andrews v. Andrews, 252 N.C. 97, 113 S.E.2d 47 (1960); Jenkins v. Trantham, 244 N.C. 422, 94 S.E.2d 311 (1956); McCanless v. Ballard, 222 N.C. 701, 24 S.E.2d 525 (1943); Napoli v. Philbrick, supra. In a processioning proceeding title is not involved. The line dividing the properties should be located. Green v. Barker, 254 N.C. 603, 119 S.E.2d 456 (1961); Welborn v. Lumber Co., supra.

Referring to a map prepared by the court appointed surveyor, the trial court found that a red line located thereon represented the true boundary line between the property of plaintiff and that of defendants. However, according to the testimony of the court appointed surveyor, the red line commenced at a point contended for by plaintiff but was not run according to the calls in the stipulation.

Defendants argue that the court erred in admitting testimony as to a completely different boundary line than that stipulated by the parties and in finding and decreeing in the judgment a boundary line altogether different from that stipulated by the parties. Plaintiff contends otherwise and further argues that the stipulation merely eliminated the necessity of offering proof of title to the respective tracts of land owned by the parties. According to plaintiff, the sole legal effect of the stipulation was to convert the action into a processioning proceeding and to mandate the preparation of maps by the court appointed surveyor.

Where facts are stipulated, they are deemed established as fully as if determined by the verdict of a jury. A stipulation is a judicial admission. As such, it is binding in every sense, preventing the party who makes it from introducing evidence to dispute it, and relieving the opponent from the necessity of producing evidence to establish the admitted fact. Nationwide Homes v. Trust Co., 267 N.C. 528, 148 S.E.2d 693 (1966).

Courts look with favor on stipulations designed to simplify, shorten, or settle litigation and save cost to the parties, and such practice will be encouraged. Heating Co. v. Construction Co., 268 N.C. 23, 149 S.E.2d 625 (1966).

The plaintiff may have inadvertently stipulated to facts that in effect concede what constitutes the true dividing line. However, plaintiff has made no effort to seek relief from the stipulation. In R.R. Co. v. Horton and R.R. Co. v. Oakley, 3 N.C.App. 383, 165 S.E.2d 6 (1969), this Court said:

"``A party to a stipulation who desires to have it set aside should seek to do so by some direct proceeding, and, ordinarily, such relief may or should be sought by a motion to set aside the stipulation in the court in which the action is pending, on notice to the opposite party.' 83 C.J.S. Stipulations § 36, p. 93. ``Application to set aside a stipulation must be seasonably made; delay in asking for relief may defeat the right thereto.' 83 C.J.S. Stipulations § 36, p. 94."

The stipulation of the parties limited the issue in this controversy to a determination of the correct location of the line which begins "at a white oak on a stone knoll in the forks of the river, thence north 13 degrees east 66 poles crossing the east fork of the river to a white oak, thence north 60 degrees east 64 poles to a black oak, thence north 40 degrees east 70 poles to a white oak, thence, north 5 degrees west 28 poles to a stake in Norton's line." The court made no findings or conclusions as to the location of the stipulated beginning point.

Nor did the court make any findings or conclusions as to the location of the stipulated line. Instead, the court found facts from evidence which tended to establish and locate a line entirely different from that agreed upon in the stipulation.

The judgment fixed a boundary line which had been excluded from consideration of the court by the stipulation and one which was contrary to the judicial admission of the parties. This was error.

The judgment is reversed with directions to adjudicate the controversy consistent with the stipulation.

Reversed.

VAUGHN and ARNOLD, JJ., concur.