Sipe v. Blankenship

246 S.E.2d 527 (1978)

Ray SIPE v. Espie D. BLANKENSHIP and Beulah Melo Blankenship. Ray SIPE v. Espie D. BLANKENSHIP, Beulah Melo Blankenship, and Troy Auton.

No. 7722SC330.

Court of Appeals of North Carolina.

August 15, 1978.

*530 Max F. Ferree, P.A. by William C. Gray, Jr., Wilkesboro, and Jerry A. Campbell, Taylorsville, for plaintiff-appellee.

Sanders & London by Robert G. Sanders and J. Andrew Porter, and James B. Ledford, Charlotte, for defendants-appellants.

PARKER, Judge.

Appellants first assign error to the denial of their motions for a directed verdict. In this there was no error. The pleadings and evidence make clear, and appellants in their brief filed on this appeal acknowledge, that the western line of the defendants is the same as the eastern line of the plaintiff. That a bona fide dispute exists as to the true location of that line is manifest. Therefore, this is in fact as well as in form a true processioning proceeding under G.S., Chap. 38, the primary purpose of which is to establish the correct location of the disputed dividing line. Such a proceeding may not be dismissed by a directed verdict. Cornelison v. Hammond, 225 N.C. 535, 35 S.E.2d 633 (1945). Plaintiff had the legal right to have the line ascertained and fixed by judicial decree regardless of the sufficiency of his evidence to establish the line as contended for by him. Moreover, in this case plaintiff's evidence was sufficient to support the jury's verdict finding the true line to be as contended for by him. The remaining issues in the case, being those raised by the pleadings in the civil action in which each party charged the other with trespass by cutting timber across the line, could only be resolved by first determining the true location of the divisional line. Only then could the jury determine what trees, and the value thereof, which each had cut across the line on the land of the other. In our opinion, the evidence was sufficient to enable the jury to make that determination, and the court did not err in denying defendants' motions for a directed verdict, either in the processioning proceeding or in the civil action. Defendants' first assignment of error is overruled.

Appellants' only remaining assignment of error is directed to the court's refusal to submit an issue to the jury as to whether defendants Blankenship and those under whom they claim had acquired title to the disputed area by adverse possession under known and visible lines and boundaries for more than twenty years. We find no error in the refusal of the court to submit this issue. In this connection, defendants Blankenship presented evidence to show that they acquired title to their tract in 1963 by deed from their mother, who in *531 turn had acquired title in 1890 in connection with the division of her father's estate. In 1916 or 1917 their mother and her brother, who then owned the tract now owned by plaintiff Sipe, had the line between their tracts surveyed and placed a fence on the line. Remains of this fence in the form of downed fence posts and barbed wire were still visible when the survey was made for the court map in this proceeding in 1975, and these are shown as lying along the line from Point A to Point B on the court map. Their mother pastured cattle on the east side of the fence, and her brother pastured sheep on the west. Their mother also had timber cut on her tract up to the A-B line. The property was checked two or three times each year, and she cut what needed to be thinned out. She had timber cut during the past fifteen years. After they acquired title from their mother, defendants Blankenship also had timber cut on their tract.

Obviously, if the jury had answered the first issue in defendants' favor and had found the correct location of the divisional line to be from Point A to Point B as contended by defendants, then defendants would have obtained title to the disputed area by virtue of the deed from their mother and no issue as to their obtaining title by adverse possession could have arisen. Therefore, it was only to take care of the eventuality that the jury might, as it in fact did, answer the first issue against them that defendants requested the court to submit an issue as to whether they had obtained title to the disputed area by adverse possession. "[I]n pursuing the method of proving title by adverse possession, under color of title, a deed offered as color of title is such only for the land designated and described in it." Williams v. Robertson, 235 N.C. 478, 483, 70 S.E.2d 692, 696 (1952). In the present case, the jury by its verdict on the first issue determined that the description in defendants' deed does not embrace the disputed area. Therefore, defendants could not and do not now contend that they obtained title to the disputed area by adverse possession for seven years under color of title under G.S. 1-38. Rather, they contend that they, and their mother under whom they claim, adversely possessed the disputed area under known and visible lines and boundaries for twenty years so as to give them title under G.S. 1-40. More specifically, they contend by their second assignment of error that the evidence was such as to entitle them to have an issue submitted to the jury on this question and that the refusal of the court to submit such an issue was error entitling them to a new trial. We do not agree.

At the outset we note that there was no evidence that defendants Blankenship themselves ever exercised possession over the disputed strip of land at any time prior to receiving the deed to their tract from their mother in 1963. Therefore, it is obvious they could not themselves have had possession of the disputed area for the requisite twenty years required to ripen title in them by adverse possession unless they can show such privity between themselves and their mother as would in law permit them to tack their possession to hers. On the present record the only privity shown between defendants Blankenship and their mother was that created by the deed given in 1963, the description in which, according to the jury's verdict on the first issue, does not include the disputed area. Although a grantee claiming land within the boundaries called for in the deed or other instrument constituting color of title may tack his grantor's possession of such land to that of his own for the purpose of establishing adverse possession for the requisite period, "the rule with us is that a deed does not of itself create privity between the grantor and the grantee as to land not described in the deed but occupied by the grantor in connection therewith, and this is so even though the grantee enters into possession of the land not described and uses it in connection with that conveyed." Newkirk v. Porter, 237 N.C. 115, 120, 74 S.E.2d 235, 238 (1953). Thus, on the present record defendants Blankenship have failed to show either that they themselves possessed the disputed area for twenty years or that they are in such privity with their mother as would in law entitle them to tack their possession to *532 hers. For this reason alone the court ruled correctly in refusing to submit an issue as to adverse possession.

For quite another reason, also, the court was correct in its ruling. It is the rule in this State that a grantee's occupation of land beyond the boundary called for in his deed under the mistaken belief that it was covered by the description in his deed will not be considered adverse. Thus, where a grantee goes into possession of a tract of land conveyed and also takes possession of a contiguous tract under the mistaken belief that the contiguous tract is also included within the description of his deed, no act on his part, however exclusive, open, and notorious, will constitute adverse possession of the contiguous tract prior to the time he discovers that the disputed area was not covered by the description in his deed. Price v. Whisnant, 236 N.C. 381, 72 S.E.2d 851 (1952); Gibson v. Dudley, 233 N.C. 255, 63 S.E.2d 630 (1951); Garris v. Butler, 15 N.C.App. 268, 189 S.E.2d 809 (1972); see Annot., 80 A.L.R.2d 1171 (1961). But see Dawson v. Abbott, 184 N.C. 192, 114 S.E. 15 (1922). In this connection, defendant, Espie D. Blankenship testified:

I am not claiming any of Mr. Sipe's land. Just ours. I'm claiming where the old line was set up. What's always been the old line. My mother pointed out to me where this old line was. * * * * * * . . . Sipe's east line and Blankenship's west line are the same deed. Out of the same corner. They are supposed to have the same corners. Says a pine knot and a stone in the Icenhour line in the south.

In view of this testimony, it is clear that the defendants Blankenship exercised possession over the disputed area solely because they believed, mistakenly as it turned out, that it was included in the description contained in their deed. Under Price v. Whisnant, supra, and Gibson v. Dudley, supra, such possession may not be considered adverse. For this reason also the court did not err in refusing to submit an issue as to adverse possession. Appellants' second assignment of error is overruled.

No Error.

MARTIN and ARNOLD, JJ., concur.