Powell v. Mills

75 S.E.2d 759 (1953) 237 N.C. 582

POWELL et ux.
v.
MILLS et al.

No. 311.

Supreme Court of North Carolina.

April 29, 1953.

L. T. Grantham, W. B. R. Guion and R. A. Nunn, New Bern, for plaintiffs appellees.

Henry P. Whitehurst, New Bern, J. D. Paul, Washington, Bland & Bland, Goldsboro, for defendants appellants.

WINBORNE, Justice.

While there are thirty-seven assignments of error based upon exceptions to rulings on matter of evidence adverse to defendants, and while the case on appeal discloses numerous rulings of the court on objections to matters of evidence to which assignments of error are not brought forward, from which it might be assumed that the rules of evidence were thrown to the winds, and the floodgates opened to admit incompetent testimony, the decision on this appeal turns on the assignments of error based upon exceptions to the rulings of the court in denying defendants' motions for judgment as of nonsuit at the close of plaintiffs' evidence, and renewed at the close of all the evidence. And these assignments effectively challenge the sufficiency of the description set out in the complaint to identify the land claimed by plaintiffs.

When in an action for the recovery of land and for trespass thereon defendant denies plaintiff's title and defendant's trespass, nothing else appearing, issues of fact arise both as to title of plaintiff and as to trespass by defendant,—the burden as to each being on plaintiff. Federal Farm Mortgage Corp. v. Barco, 218 N.C. 154, 10 S.E.2d 642; Smith v. Benson, 227 N.C. 56, 40 S.E.2d 451; Locklear v. Oxendine, 233 N.C. 710, 65 S.E.2d 673; Williams v. Robertson, 235 N.C. 478, 70 S.E.2d 692.

In such action plaintiff must rely upon the strength of his own title. This requirement may be met by various methods which are specifically set forth in Mobley v. Griffin, 104 N.C. 112, 10 S.E. 142. See also Prevatt v. Harrelson, 132 N.C. 250, 43 S.E. 800; Moore v. Miller, 179 N.C. 396, 102 S.E. 627; Smith v. Benson, supra, and many others, including Locklear v. Oxendine, supra, and Williams v. Robertson, supra.

Moreover, in all actions involving title to real property, title is conclusively presumed to be out of the State unless it be a party to the action, G.S. § 1-36, but "there is no presumption in favor of one party or the other, nor is a litigant seeking to recover land otherwise relieved of the burden of showing title in himself". Williams v. Robertson, supra [235 N.C. 478, 70 S.E.2d 696], and cases cited. In the light of such presumption, apparently plaintiffs in the present action, assuming the burden of proof, have elected to show title in themselves by adverse possession, under known and visible lines and boundaries, and under color of title, which is a method by which title may be shown. But in pursuing this method a deed offered as color of title is such only for the land designated and described in it. Davidson v. Arledge, 88 N.C. 326; Smith v. Fite, 92 N.C. 319; Barker v. Southern R. Co., 125 N.C. 596, 34 S.E. 701; Johnston v. Case, 131 N.C. 491, 42 S.E. 957; Smith v. Benson, supra; Locklear v. Oxendine, supra; Williams v. Robertson, supra.

Moreover, decisions of this Court generally recognize the principle that a deed conveying land within the meaning of the statute of frauds, G.S. § 22-2, must contain a description of the land, the subject matter of the deed, either certain in itself or capable of being reduced to certainty by reference to something extrinsic to which the deed refers. The office of description is to furnish, and is sufficient when it does furnish means of identifying the land intended to be conveyed. Where the language is patently ambiguous, parol evidence is not admissible" to aid the description. But when the terms used in the deed leave it uncertain what property is intended to be embraced in it, parol evidence is admissible to fit the description to the land. Such evidence cannot, however, be used to enlarge the scope of the descriptive words. The deed itself must point to the source from which evidence aliunde to make the description complete is to be sought. See North Carolina Self Help Corp. v. Brinkley, 215 N.C. 615, 2 S.E.2d 889, where the authorities are cited. See also Searcy v. Logan, 226 N.C. 562, 39 S.E.2d 593; Plemmons v. Cutshall, 234 N.C. 506, 67 S.E.2d 501; Linder v. Horne, 237 N.C. 129, 74 S.E.2d 227; Cherry v. Roanoke Tobacco Warehouse Co., 237 N.C. 362, 75 S.E.2d 124.

In Smith v. Fite, supra, this headnote epitomizes the opinion of the Court by Smith, C. J.: "Where a party introduces a deed in evidence, which he intends to be used as color of title, he must prove that its boundaries cover the land in dispute, to give legal efficacy to his possession." In other words, the plaintiff must not only offer the deed upon which he relies, he must by proof fit the description in the deed to the land it covers,—in accordance with appropriate law relating to course and distance, and natural objects called for as the case may be.

The general rule as to this is that in order to locate a boundary of land, the lines should be run with the calls in the regular order from a known beginning, and the test of reversing in the progress of the survey should be resorted to only when the terminus of a call cannot be ascertained by running forward, but can be fixed with certainty by running reversely the next succeeding line. Lindsay v. Austin, 139 N.C. 463, 51 S.E. 990; Asheville Land Co. v. Lang, 146 N.C. 311, 59 S.E. 703; Hanstein v. Ferrall, 149 N.C. 240, 62 S.E. 1070; Cornelison v. Hammond, 224 N.C. 757, 32 S.E.2d 326; Town of Belhaven v. Hodges, 226 N.C. 485, 39 S.E.2d 366; Locklear v. Oxendine, supra; Williams v. Robertson, supra.

Now adverting to the description set out in plaintiffs' complaint, we are constrained to hold that it is too vague to admit of proof at least as to any land south or southeast of the Dover-Fort Barnwell Road. There does not appear to be any controversy as to the beginning corner, that is, that it is at the figure 1 north of the road. And it would seem that the next two calls, "south 14 deg. east to the end of said ditch, and thence south 12 deg. east 96 poles to a pine on the east side of said road" take the line to the pine at point 7. But the terminus of the next call "thence south 36 deg. east to the back line" is vague and indefinite. Whose back line was intended? There is nothing in the description in the deed pointing to a source from which evidence aliunde may be sought to make certain such uncertainty in the call. Moreover, the next call "thence with said back line to B. F. Ormond's line in Poley Bridge Branch", in the light of the evidence, adds no clarity to the vagueness of the preceding call. "B. F. Ormond's line," if it be the W. H. Ormond land, runs with Poley Bridge Branch north to the road, and the call to "B. F. Ormond's line in Poley Bridge Branch" might terminate at any point between the letter G and the road at figure 3,—if it be that the headwaters of Poley Bridge Branch is at the letter G. Indeed, if the headwaters be at the Horse Pen Corner, figure 5, and B. F. Ormond owned land down to that corner, the terminus of the call might be at any point from figure 5 to the Dover-Fort Barnwell Road, figure 3. Furthermore, the next call "thence northwardly with Poley Bridge Branch to the line ditch between A. B. Hawkins and C. Marshburn" crosses the road, and terminates at point 2 north of it where Poley Bridge Branch intersects with the line ditch between A. B. Hawkins and C. Marshburn. This description may be sufficiently definite to admit of proof to make certain the terminus of this line. But even so, no distance is called for to reach the road at point 3. Hence by surveying the call in reverse, from figure 2, the road would be reached at point 3, but how far up the Poley Bridge Branch would the line continue? The description in the deed does not show how far. Thus there is no definite point in the description from which a survey in reverse would make certain the forward running of the lines.

In this connection, decisions of this Court hold that a deed which is inoperative because the land intended to be conveyed is incapable of identification from the description therein is inoperative as color of title. Katz v. Daughtrey, 198 N.C. 393, 151 S.E. 879, and Thomas v. Hipp, 223 N.C. 515, 27 S.E.2d 528, and cases cited.

In the Katz case, supra [198 N.C. 393, 151 S.E. 880], Stacy, C. J., writing for the Court expressed the principle in this manner: "If the land intended to be conveyed cannot be identified from the description contained in the deed, it follows as a necessary corollary that as the deed is, for this reason, inoperative, it is equally inoperative as color of title. If the land cannot be identified for one purpose, how can it be for another?" Cases are cited in support

Hence in the present action the description relied on by plaintiffs being inoperative as color of title, is equally inoperative to fix "known and visible lines and boundaries", G.S. § 1-40, as basis for a claim of adverse possession for twenty years.

Finally, the amended answer of defendants is in effect a disclaimer to any land not embraced within the lines therein designated. See Hipp v. Forester, 52 N.C. 599; Crawford v. Masters, 140 N.C. 205, 52 S.E. 663. And plaintiffs, not having shown that the description relied on by them covers any part of the land so designated by defendants, the motion of defendants for judgment as of nonsuit on the issues tendered by plaintiffs should have been allowed. Therefore, the judgment below is reversed.