Day v. Godwin

128 S.E.2d 814 (1963) 258 N.C. 465

Nere E. DAY
v.
E. P. GODWIN and J. W. Blanchard.
Nere E. DAY
v.
INTERNATIONAL PAPER COMPANY.
Nere E. DAY
v.
J. W. BLANCHARD and E. P. Godwin.

No. 99.

Supreme Court of North Carolina.

January 11, 1963.

Ellis, Godwin & Hooper, Jacksonville, Poisson, Marshall, Barnhill & Williams, Wilmington, Hamilton, Hamilton & Phillips, Morehead City, and Paul G. Sylvester, Jacksonville, for plaintiff, appellant.

Wyatt E. Blake, Burgaw, E. E. Butler, Clinton, and C. R. Wheatly, Jr., Beaufort, for defendants, appellees.

HIGGINS, Justice.

The consolidated judgment dismissed the plaintiff's three actions because of his failure to prove title to any of the lands described in his pleadings. In actions involving land, a denial places upon the claimant the burden of establishing his title by one of the methods recognized by law. Mobley v. Griffin, 104 N.C. 112, 10 S.E. 142; West Virginia Pulp & Paper Co. v. Richmond Cedar Works, 239 N.C. 627, 80 S.E.2d 665; Meeker v. Wheeler, 236 N.C. 172, 72 S.E.2d 214; Keen v. Parker, 217 N.C. 378, 8 S.E.2d 209.

In these cases the plaintiff stipulated that his title had its source in Grant No. 732 for 78,115 acres issued by the State in 1795 to David Allison. Plaintiff introduced in evidence a photostatic copy of the Grant, to which was attached the surveyor's plat showing all perimeter lines and corners: "Beginning at a cypress near Sages in the county line, a corner of James Carroway's and David Wheaton's land on said county line, and runs South 49 East 480 poles to the 12-mile post on the road from Snead's Ferry to Sages." Then follow 26 calls, many of which are for corners of adjoining lands. The three closing calls are: "South 75 West 540 poles to a stake in Joshua Howard's line; then West to New Hanover County line and with said line South to the Beginning."

The defendants stipulate their titles have their source in a grant issued to David Wheaton in 1794. The Wheaton Grant was not introduced in evidence.

It is apparent from the stipulations and the calls of the Allison Grant that the two grants cover contiguous lands, Allison on the east and Wheaton on the west. Consequently the senior grant (Wheaton) controls in case of conflict. The junior, regardless of the call, must stop at the Wheaton line. The plaintiff has made the mistake of attempting to locate the western line of the Allison Grant by surveying, or attempting to survey, the calls of that grant. He may locate the line only by surveying the Wheaton line for which the Allison Grant calls. "A description contained in a junior conveyance cannot be used to locate the lines called for in a prior conveyance." Carney v. Edwards, 256 N.C. 20, 122 S.E.2d 786; Harris v. Raleigh, 251 N.C. 313, 111 S.E.2d 329; Cornelison v. Hammond, 224 N.C. 757, 32 S.E.2d 326. Resort may not be had to a junior conveyance for the purpose of locating a call in a senior deed. Bostic v. Blanton, 232 N.C. 441, 61 S.E.2d 443.

As pointed out in the referee's report, the plaintiff was unable to establish the calls in the Allison Grant and hence was unable to identify his source of title as covering the land he claims. "* * * a plaintiff must offer evidence which fits the description contained in his deeds to the land claimed. * * * If one or more of his deeds convey less than the whole, he must show that the land conveyed thereby lies within the bounds, and forms a part, of the locus in quo." Skipper v. Yow, 238 N.C. 659, 78 S.E.2d 600; Parsons v. Lumber Co., 214 N.C. 459, 199 S.E. 626. "Whether relying upon their deeds as proof of title or color of title, they were required to locate the land by fitting the description in the deeds to the earth's surface." Andrews v. Bruton, 242 N.C. 93, 86 S.E.2d 786; Batson v. Bell, 249 N.C. 718, 107 S.E.2d 562.

For the reasons assigned by the referee the defendants are not estopped by the Torrens judgment. The petition does not cover the lands in dispute. Neither the plaintiff nor the defendants, actually or by privity, occupied adversary positions in the proceeding. Their rights, as among themselves, were not placed in issue by their pleadings. On the issues raised in this case the torrens judgment is not an estoppel. "A judgment ordinarily settles nothing as to the relative rights and liabilities of the coplaintiffs or codefendants inter sese, unless their hostile or conflicting claims were actually brought in issue, litigated, and determined." Gunter v. Winders, 253 N.C. 782, 117 S.E.2d 787, citing many authorities.

Plaintiff's testimony that the lands in dispute are within the Allison Grant is rendered without probative force by his lack of knowledge as to the location of the lines of that Grant, one of which is the Onslow-New Hanover (now Pender) County line. When counsel for defendants cross-examined plaintiff with respect to the county line as fixed by the Legislature, he testified: "Those are the boundaries defined by the original act setting up the county in 1734. * * * That is the only legislative description that has ever been made of the county. It has since been changed by the sentiment of the people in the area not covered by the description at all."

Neither plaintiff nor his surveyor has ever attempted to survey the Allison Grant or the Wheaton Grant, the latter of which controls as the prior conveyance. Therefore, plaintiff cannot testify that his land is within the Allison Grant. Etheridge v. Wescott, 244 N.C. 637, 94 S.E.2d 846.

Instead of making an actual survey of the Allison Grant, the plaintiff's surveyor attempted to superimpose the plat attached to the grant upon an aerial photograph of the section of Onslow and Pender Counties involved. Having failed to locate the crucial corners and lines upon the ground, he does not explain and the record does not disclose how he may be able to do better on a picture or a drawing. "It is error to allow a jury on no evidence, or on only hypothetical evidence, to locate the lands described in a deed." Skipper v. Yow, supra.

The plaintiff has failed to show that he holds title to the lands in dispute. The consolidated judgment entered in the superior court is

Affirmed.

MOORE, J., having participated in one of the hearings while he was Superior Court Judge does not take part in the hearing and disposition in this Court.