Allen v. Morgan

269 S.E.2d 753 (1980)

Thomas J. ALLEN, (also known as J. T. Allen)
v.
Juston MORGAN and wife, Bessie Morgan, Hazel O. Burch Henry and husband, Donald Henry, and Joseph W. Mitchell and wife, Colleen B. Mitchell.

No. 7929DC1137.

Court of Appeals of North Carolina.

September 16, 1980.

Ramsey, Smart, Ramsey & Hunt, by John K. Smart, Jr., Brevard, for plaintiff-appellant.

Ramsey, White & Cilley by Robert S. Cilley, Brevard, for defendants-appellees.

MORRIS, Chief Judge.

As in Allen v. Petit, filed this day, the sole question presented is whether the trial court committed error in entering judgment for defendants based on his finding that they had established adverse possession under color of title to the lands claimed by them.

Plaintiff offered a connected chain of title back to a grant from the State. This constituted a prima facie showing of senior title and, nothing else appearing, established his right to judgment in his favor. Mobley v. Griffin, 104 N.C. 112, 10 S.E. 142 (1889).

Defendants presented evidence of a quitclaim deed to property claimed by them. The deed contained a metes and bounds description. The surveyor, by stipulation characterized as an expert in land surveys, testified that the map introduced in evidence accurately represented plaintiff's property.

Here the disputed area is a lappage, and plaintiff has shown senior title. "When a junior grant incorporates a portion of a senior grant it is not necessary for the junior grantee claiming title by seven years adverse possession under color to show that the boundaries of the lappage were visible on the ground. (Citations omitted.) The claimant, however, must establish the required adverse possession within those lines. Here the lines of the lappage must be located from the calls in defendant's deed, the only instrument which defines them." Price v. Tomrich Corp., 275 N.C. 385, 394, 167 S.E.2d 766, 772 (1969).

Defendants, having introduced into evidence the deed they intended to use as color of title, were required to fit by proof the description contained in that deed to the land it allegedly covered "in accordance with appropriate law relating to course and distance and natural objects called for as the case may be", Trust Co. v. Miller, 243 N.C. 1, 7, 89 S.E.2d 765, 769 (1955), and then establish, if they could, the required adverse possession within those lines. These requirements defendants did not meet, and judgment in their favor was, therefore, erroneously entered.

Reversed.

CLARK and HARRY C. MARTIN, JJ., concur.