Lindsay v. Carswell

81 S.E.2d 168 (1954) 240 N.C. 45

LINDSAY
v.
CARSWELL et al.

No. 308.

Supreme Court of North Carolina.

April 7, 1954.

Mull, Patton & Craven, Morganton, for plaintiff-appellant.

O. Lee Horton and Russell Berry, Morganton, for defendants-appellees.

DENNY, Justice.

The plaintiff has preserved twelve of his nineteen exceptions and assignments of error based thereon. However, in disposing of this appeal we deem it necessary to consider only exceptions Nos. 14, 15, and 18.

Exception No. 14 is to the finding of fact set out in paragraph (c) hereinabove to the effect that the defendants' title and each mesne conveyance therein embraces the same boundaries and lands specifically described in the answer of Florence Ethel Butler and Roy Butler. The fallacy in this finding of fact is that the deeds offered by the defendants in an effort to show adverse possession by themselves and those under whom they claim since 1866, do not make out an unbroken chain of title to the 86 acres of land described in the deed to Florence Ethel Butler. There is not a scintilla of evidence in the record tending to show that Angeline Carswell conveyed the 31 acres of land she acquired from R. R. Carswell in 1866 to any of the predecessors in title of Florence Ethel Butler, or that any of them inherited the property from her. On the contrary, the defendants offered testimony to the effect that Alexander Butler purchased his land from the heirs of R. R. Carswell. Then who were those heirs? He obtained one deed from Joseph England and wife, Emily. Was Emily a daughter of R. R. Carswell? Apparently not, because the deed executed by these parties refer to the lands described therein as "adjoining the land, old homeplace of Robert Carswell." The other recorded deed executed by G. N. Carswell and wife, Eliza, to Alexander Butler, offered by the defendants as a source of their title, recites that it is for a "one-sixth interest in the homeplace of Robert Carswell." While the unrecorded deed from J. T. Carswell (a son of Robert R. Carswell, according to the record) to Alexander Butler simply purports to quitclaim all the right, title, and interest of J. T. Carswell in 32 acres of land, no evidence was offered to identify this tract of land as being a part of the lands of Robert R. Carswell or Angeline Carswell.

Furthermore, were J. K. Butler and others, who executed a conveyance to Julius and P. A. Butler (which deed was offered as a link in the defendants' chain of title) the other heirs of Alexander Butler? The evidence discloses that Julius and Pink Butler were sons of Alexander Butler, but there is no evidence from which we can ascertain from what source J. K. Butler and others obtained their interest, if any, in the land conveyed. Was P. A. Butler and Pink Butler one and the same person? If so, how and when did he acquire the one-half interest in the land conveyed to Julius Butler? The record is silent as to this information. Moreover, the record is also silent as to whose widow Minda Butler is, and how Neely Butler Cody and others acquired an interest, if any, in the land which they conveyed to Florence Ethel Butler.

It is true that the deed from J. K. Butler and others to Julius and P. A. Butler, and the deed from Minda Butler, widow, and others, to Florence Ethel Butler, each contains the following statement: "This being a tract of land conveyed by R. R. Carswell to Angeline Carswell, deed dated 1866, Book G, page 219." Each of these deeds, however, describes the tract of land conveyed as containing 86 acres, more or less, while the deed from R. R. Carswell to Angeline Carswell dated in 1866 and recorded in 1879, describes certain land by metes and bounds, and then states, "containing 31 acres, more or less." A comparison of the description in the deed from J. K. Butler and others to Julius and P. A. Butler, and from Minda Butler, widow, and others, to Florence Ethel Butler, with the description contained in the deed from R. R. Carswell to Angeline Carswell, leads to the conclusion that the 31-acre tract described in the deed to Angeline Carswell is included within the description contained in the above deeds. However, the evidence disclosed on the record does not support the finding complained of herein to the effect that the defendants' title and each mesne conveyance therein embraces the same boundaries and lands specifically described in the separate answer of Florence Ethel Butler and Roy Butler. Or to put it another way, the evidence is not sufficient to support the finding that the defendant Florence Ethel Butler has an unbroken chain of title to the 83 acres of land claimed by her back to 1866.

We will discuss exceptions Nos. 15 and 18 together. While the court found that the defendants (Florence Ethel Butler and Roy Butler) and their predecessors in title have been in the continuous and active possession and occupancy of the premises described in their answer since 1866, under known and visible lines and boundaries, the possession is not found to have been either adverse or hostile. Moreover, we do not think the evidence as to adverse possession, with respect to the disputed area, is sufficient to have ripened title in Florence Ethel Butler under color thereto or in any of her predecessors in title. What does the evidence disclose in this respect? (1) Whatever lands Alexander Butler purchased under the deeds dated in 1900 and 1901, which deeds were offered in evidence by the defendants to make out Florence Ethel Butler's chain of title, he did not live on such premises more than two or three years, for he moved therefrom fifty years ago, according to the defendants' evidence adduced in the trial below. (2) There is no evidence that any person claiming title to the premises under consideration, under color, ever resided thereon after Alexander Butler moved therefrom until Roy Butler lived on it. (3) The only acts offered to show adverse possession were these: (a) Alexander Butler, for ten or fifteen years, cut pine timber off of this land for shingle blocks, "just a few at a time." But there is no evidence that he cut any shingle blocks in the disputed area. (b) Pink Butler, who never lived on the premises while he held the paper title thereto, sold the timber thereon including the disputed area, in 1936. (c) Roy Butler and his wife sold the timber on the premises including the disputed area, in 1953. He testified that he lived on the premises, but not in the disputed area, for two years (but when is not stated), and that "since 1943 I cut wood anywhere on the property that I wanted to * * *." How much wood he cut, or how often he cut it, or from what part of the premises he obtained it is not made to appear.

Adverse possession means actual possession, with an intent to hold solely for the possessor to the exclusion of others and is denoted by the exercise of acts of dominion over the land in making the ordinary use and taking the ordinary profits of which it is susceptible, such acts to be so repeated as to show that they are done in the character of owner, and not merely as an occasional trespasser. Price v. Whisnant, 236 N.C. 381, 72 S.E.2d 851; Perry v. Alford, 225 N.C. 146, 33 S.E.2d 665; Berry v. Coppersmith, 212 N.C. 50, 193 S.E. 3; Alexander v. Richmond Cedar Works, 177 N.C. 137, 98 S.E. 312; Blue Ridge Land Co. v. Floyd, 167 N.C. 686, 83 S.E. 687; Locklear v. Savage, 159 N.C. 236, 74 S.E. 347; Monk v. Wilmington, 137 N.C. 322, 49 S.E. 345; Williams v. Wallace, 78 N.C. 354; Bartlett v. Simmons, 49 N.C. 295; Loftin v. Cobb, 46 N.C. 406, 62 Am.Dec. 173.

The law with respect to title of a disputed area covered by a lappage in deeds, was stated by Stacy, C. J., in Vance v. Guy, 224 N.C. 607, 31 S.E.2d 766, 768, in the following language: "Where the title deeds of two rival claimants to land lap upon each other, and neither is in the actual possession of any of the land covered by both deeds, the law adjudges the possession of the lappage to be in the one who has the better title", citing Penny v. Battle, 191 N.C. 220, 131 S.E. 627. See also Bostic v. Blanton, 232 N.C. 441, 61 S.E.2d 443; Whiteheart v. Grubbs, 232 N.C. 236, 60 S.E.2d 101; Ownbey v. Parkway Properties, 222 N.C. 54, 21 S.E.2d 900.

The plaintiff is entitled to a new trial and it is so ordered. In the meantime, Florence Ethel Butler, who is a necessary party to this action, should be formally made a party defendant.

New trial.