Lance v. Cogdill

71 S.E.2d 918 (1952) 236 N.C. 134

LANCE et al.
v.
COGDILL et al.

No. 162.

Supreme Court of North Carolina.

August 22, 1952.

J. W. Haynes, Asheville, and Monroe M. Redden, Hendersonville, for plaintiff appellants.

J. E. Shipman and R. L. Whitmire, Hendersonville, for C. M. Cogdill, defendant appellee.

Geo. H. Wright, John F. Shuford and Bernard & Parker, Asheville, for George G. Westfeldt, Thomas D. Westfeldt and Louise W. McIlhenny, defendant appellees.

VALENTINE, Justice.

This action was instituted before the clerk as a processioning proceeding under G.S. Chapter 38 to fix and determine the true boundary line between the lands of plaintiffs and the lands of defendants. Upon the filing of answers by defendants the clerk, acting upon the apprehension that the answers converted the proceeding into an action to try title to real property, transferred the cause to the civil issue docket for trial of the issues raised. But the premature transfer did not deprive the Superior Court of jurisdiction to try the cause at term before a jury. Woody v. Barnett, 235 N.C. 73, 68 S.E.2d 810.

When the answers filed by the defendants are correctly analyzed, it becomes apparent they do not change the essential nature of the proceeding. The action is now, as in the beginning, a processioning proceeding.

The defendants admit that the plaintiffs are the owners of the land described in the pleading lying on the northwest side of Kimsey Creek and assert that the true boundary line, under the record title of the parties, is the run or meanders of said creek. They further assert that if this is not true, then the run of said creek has become the true line by operation of law by virtue of the fact they have been in the open, notorious and adverse possession of all of the adjoining lands lying on the southeast side of the creek up to the run thereof for the statutory periods necessary to vest them with title and fix the run of the creek as the present boundary line. Appreciation of this fact materially simplifies the questions raised for decisions on this appeal.

What is the true dividing line between two contiguous tracts of land is a question of law for the court. Where that line, as determined by the court, is actually located on the premises in controversy is an issue of fact for the jury. It is the province of the court to declare the first and that of the jury to ascertain the second. Greer v. Hayes, 216 N.C. 396, 5 S.E.2d 169; Huffman v. Pearson, 222 N.C. 193, 22 S.E.2d 440; McCanless v. Ballard, 222 N.C. 701, 24 S.E.2d 525; Cornelison v. Hammond, 225 N.C. 535, 35 S.E.2d 633.

So then, what is the true dividing line between the two contiguous tracts of land owned by plaintiffs and defendants? The deeds in the chain of title relied on by plaintiffs contain the call, "Beginning in the meanders of Kimsey Creek in line of M. J. Lance and corners with Westfeldt and runs South 45 degrees West with the meanders of said creek 125 poles to the Westfeldt line." While the exact wording of the call may vary in the several deeds, the call is the same, "South 45 degrees West with the meanders of said creek 125 poles." This is the line at issue. Its termini are admitted. If the line is run according to the call and distance, it embraces within the deeds of plaintiffs lands lying on the southeast of the creek claimed by defendants. If the meanders of the creek are followed from one terminus to the other, the creek is, of course, the true dividing line. The real controversy is as to which call is controlling.

Whenever natural objects, such as rivers, creeks, rocks and the like, are distinctly called for and satisfactorily proved, they become landmarks, to which preference must be given because the certainty which they afford excludes the possibility of mistake. It follows that in case of a conflict, a call for courses and distances must always yield to one for a natural object. The course and distance controls only in the event the natural object can not be located. Cherry v. Slade's Adm'r, 7 N.C. 82; Brown v. Hodges, 233 N.C. 617, 65 S.E.2d 144, and cases cited.

There is abundant evidence in the record that Kimsey Creek has not altered its course; that the channel thereof is now the same as it has been for the past 50 or 60 years. While the issue in respect thereto submitted to the jury is not in the form best adapted to a processioning proceeding, Greer v. Hayes, supra; McCanless v. Ballard, supra, the answer thereto, when interpreted in the light of the evidence and the charge of the court, constitutes a finding in effect that the "meanders" of the creek between the two admitted corners has not changed and is the true boundary line between the lands of the plaintiffs and the lands of the defendants. We, therefore, deem the verdict sufficient to support the judgment.

In this connection we note that the plaintiffs or their predecessors in title in prior actions alleged that said stream was and is the true dividing line. Whether the judgments entered in those actions are res judicata as contended by defendants we need not now decide, for in any event the judgment in this action puts an end to the controversy.

When a deed is duly probated and recorded as required by law, the public record thereof is admissible in evidence and raises a rebuttable presumption that the original was duly executed and delivered. Federal Land Bank v. Griffin, 207 N.C. 265, 176 S.E. 555; Cannon v. Blair, 229 N.C. 606, 50 S.E.2d 732; Stansbury, Evidence, 229. Ordinarily, in actions involving title to real property the instrument as recorded in the public registry, unless assailed by the party against whom it is offered, is accepted as due proof of its genuineness. Even so, here the court in respect to the several deeds offered in evidence by plaintiffs charged the jury that while the record of a deed constitutes prima facie evidence that the original deed was actually executed and delivered in words and figures as the record of such deed tends to show, the burden rested on plaintiffs to prove that the several original deeds constituting plaintiffs' alleged chain of title were actually executed and delivered.

It may well be, as contended by plaintiffs, that the repetitious statement of this principle left the jury under the impression that the records alone were not sufficient, but that plaintiffs were required to go forward and offer additional evidence of the execution and delivery of the originals. Even so, we do not perceive that this constitutes any substantial error. Plaintiffs' title was admitted. The charge of the court in respect to the stream as the line was clear and to the point. The jury in a trial free of substantial error on the determinative question has resolved the conflicting evidence in favor of the defendants. Its verdict is fully sustained by the record. Therefore, the judgment entered must be affirmed.

No error.