Calaway v. Harris

• Court: North Carolina Supreme Court
• Writing for the Court: STACY, Chief Justice
• Citation: Calaway v. Harris, 229 N.C. 117, 47 S.E.2d 796 (N.C. 1948)
• Decision Date: 19 May 1948
• Docket Number: No. 666.,666.
• Parties: CALAWAY et al. v. HARRIS et al.

47 S.E.2d 796

229 N.C. 117

CALAWAY et al.

v.HARRIS et al.

No. 666.

Supreme Court of North Carolina.

May 19, 1948.

Appeal from Superior Court, Hoke County; Chester Morris, Judge.

Special proceeding by C. J. Calaway and others against C. W. Harris and others to establish dividing line between adjoining landowners, wherein respondents answered claiming title to both tracts of land and the proceeding was converted into a civil action to quiet title. From modification of referee's report, respondents appeal.

Error and remanded.

The substance of the petition is, that respondents are the owners of land in Hoke County, Tract No. 1, as shown on map, and the petitioners are the owners of an adjacent Tract No. 2, as shown thereon, and that a dispute exists as to the true location of the dividing line between the two tracts.

The respondents answered and claimed title to both tracts. The proceeding was thereupon converted into a civil action to quiet title, Woody v. Fountain, 143 N.C 66, 55 S.E. 425, and was accordingly transferred to the civil issue docket for trial.

On May 7, 1946, respondents were allowed, by order of court, "to file (2d) amended answer as served on counsel for petitioners". In this second amended answer, the respondents specified that their claim to Tract No. 2 was by virtue of adverse possession. This pleading was not verified; the others were, including the petitioners' reply.

Thereafter, a compulsory reference was ordered under the statute. The referee concluded, upon the facts found, that the respondents were the owners of Tract No. 1 "by reason of title, color of title and adverse possession since 1917", and that C. W. Harris, one of the respondents, was the owner of Tract No. 2, "by reason of adverse possession for more than twenty years".

Exceptions to the referee's report were filed by both sides.

Upon hearing the exceptions to the referee's report, the respondents askedto be permitted to verify their second amended answer. Motion denied.

The court thereupon concluded, inter alia:

"2. That the question of the ownership of the defendants by adverse possession of tract No. 2 as shown upon the map or plat, does not arise upon the pleadings for that defendants' Amended Answer No. 2 should be stricken out and not considered by the Court, the same not having been verified, for that the verification of said amended answer goes to the substance of and not to the form of the pleading and that said failure to have said amended answer verified is jurisdictional and this Court is without authority to consider said answer."

This would seem to give the respondents title to Tract No. 1, as shown on the map, and the petitioners title to Tract No. 2, as shown thereon, without establishing the dividing line between them as was originally contemplated or sought at the institution of the proceeding.

From the modification of the referee's report, the respondents appeal, assigning errors.

Arthur D. Gore, of Raeford and Oscar O. Efird, of Winston-Salem, for petitioners-appellees.

H. W. B. Whitley, of Raeford, and H. F. Seawell, Jr., of Carthage, for respondents-appellants.

STACY, Chief Justice.

The question for decision is the correctness of rulings on exceptions to the referee's report.

The trial court's second conclusion above set out, would seem to be an inadvertence which was perhaps occasioned by a misapprehension of the record. No doubt the respondents omitted to point out that their first amended answer, which was verified, alleged ownership and possession of Tract No. 2 (as well as Tract No. 1); that the second unverified amended answer simply amplified this allegation by stating how title was acquired to wit, by adverse possession; that the respondents were allowed, by order of court, to file this second amended answer, which was before the court, unverified, at the time of the order; that the petitioners waived the verification by filing reply and allowing the matter to go two hearings before the referee, McMillan v. Baker, 92 N.C. Ill, and that only after an adverse referee's report did they interpose any objection. In fact, it does not...