Coffey v. Greer , 241 N.C. 744 ( 1955 )

86 S.E.2d 441 (1955) 241 N.C. 744

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

No. 309.

Supreme Court of North Carolina.

March 30, 1955.

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

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

DENNY, Justice.

It is stated in the description in the plaintiffs' deed to the 12-acre tract of land that it begins "on a stake in new Highway No. 321, just below old house and corner to the R. T. Greer tract (being the 16-acre tract now owned by the defendants) and runs with line of said R. T. Greer tract North 75 West 18 poles to a stake in old Highway 321 just below rock house"; etc.

It appears from undisputed evidence in the trial below that the field notes made by the surveyor when the lands of T. F. Greer were divided among his heirs by the execution of partition deeds, and from which notes the deeds were drawn, that such notes with respect to the last call in the described 12-acre tract now owned by the plaintiffs, called for only 6¼ poles North 14 East to a stake, the beginning, instead of 9¼ poles as stated in plaintiffs' deed. This difference of three poles constitutes the gravamen of the present controversy.

Since the plaintiffs and the defendants are adjoining landowners, and the court below so found, and there is no dispute as to the validity of the plaintiffs' title to the 12-acre tract, or as to the validity of the title of the defendants to the 16-acre tract, this action, in so far as it relates to the location of the beginning corner of the plaintiffs' tract of land, or to the division line between the two tracts, is in effect a processioning proceeding. Goodwin v. Greene, 237 N.C. 244, 74 S.E.2d 630; Clegg v. Canady, 217 N.C. 433, 8 S.E.2d 246; Cody v. England, 216 N.C. 604, 5 S.E.2d 833.

The law is well settled in this jurisdiction that when a line of another tract of land is called for, such line "controls course and distance, being considered the more certain description, and it makes no difference whether it is a marked or unmarked, or mathematical line, * * * provided it be the line which is called for." Corn v. McCrary, 48 N.C. 496; Bowen v. Gaylord, 122 N.C. 816, 29 S.E. 340; Whitaker v. Cover, 140 N.C. 280, 52 S.E. 581; Clegg v. Canady, supra; Goodwin v. Greene, supra. This same principle applies when a junior deed calls for a corner of another tract. Consequently, when a corner or line of another tract is called for in a deed, such corner or line must be established from the description in the deed to which reference is made, if possible, before the description or calls in the junior deed may be considered in establishing such corner or line. Goodwin v. Greene, supra; 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; Euliss v. McAdams, 108 N.C. 507, 13 S.E. 162; Corn v. McCrary, supra; Dula v. McGhee, 34 N.C. 332; Sasser v. Herring, 14 N.C. 340. And the fact that the description in the plaintiffs' deed calls for a corner in 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.

Applying the above principle of law to the present case, the beginning corner of the plaintiffs' tract of land must be located, if possible, from the description of the defendants' tract of land before it will be permissible to resort to any call in plaintiffs' deed for the purpose of establishing the corner of the defendants' tract of land, which is the beginning corner of plaintiffs' tract of land. And if any corner of the defendants' tract of land can be definitely located, the line may be reversed from that point if necessary, in order to locate the lines and corners called for in that tract. Goodwin v. Greene, supra; Linder v. Horne, 237 N.C. 129, 74 S.E.2d 227; Belhaven v. Hodges, supra; Thomas v. Hipp, supra; Jarvis v. Swain, 173 N.C. 9, 91 S.E. 358.

The facts found by the court below are not sufficient to support the legal conclusions reached by the trial court. Hence, the defendants' exception to the judgment entered must be sustained.

The judgment of the court below is reversed and this cause remanded for further proceedings in accord with this opinion.

Reversed and remanded.

BARNHILL, C. J., took no part in the consideration or decision of this case.