Cobb v. Spurlin, 8426SC617

• Citation: 327 S.E.2d 244,73 N.C.App. 560
• Decision Date: 19 March 1985
• Docket Number: No. 8426SC617,8426SC617
• Court: Court of Appeal of North Carolina (US)
• Parties: Edwin H. COBB and Wife Daisy D. Cobb v. Ted L. SPURLIN and Wife Mary F. Spurlin.

Page 244

327 S.E.2d 244

73 N.C.App. 560

Edwin H. COBB and Wife Daisy D. Cobb v. Ted L. SPURLIN and Wife Mary F. Spurlin.

No. 8426SC617.

Court of Appeals of North Carolina.

March 19, 1985.

Richard S. Clark and Bobby H. Griffin, Monroe, for petitioners-appellees.

Haywood, Carson & Merryman by Charles B. Merryman, Jr., Charlotte, for respondents-appellants.

EAGLES, Judge.

I

We note at the outset that petitioners filed before the Clerk of Superior Court, Mecklenburg County, for a determination of a boundary line. Where the only issue to be tried is the location of a dividing line, it is a processioning proceeding under G.S. 38-1, et seq. See, Cornelison v. Hammond, 225 N.C. 535, 35 S.E.2d 633 (1945). However, where title to the land is put in issue the clerk has no authority to pass on any question involved. He must transfer the proceeding to the regular session of superior court where it becomes in effect an action to quiet title pursuant to G.S. 41-10 Bumgarner v. Corpening, 246 N.C. 40, 97 S.E.2d 427 (1957); Roberts v. Sawyer, 229 N.C. 279, 49 S.E.2d 468 (1948).

In an order filed 11 April 1983, the Clerk of Superior Court, Mecklenburg County, found that "respondents' answer raised issues of law and of title to the property; and that this matter should be transferred to the Superior Court for proceedings consistent with these findings."

The respondents answered as follows:

4. That by deed dated 13 May 1982, F.C. Davis and his wife, Avis L. Davis conveyed that tract of land to Ted L. Spurlin and wife, Mary F. Spurlin described in Book 4534 at page 936 in the Mecklenburg Public Registry.

5. That the Respondents are the owners of that tract of land located in Long Creek Township, Mecklenburg County, State of North Carolina, and more particularly described as follows:

BEGINNING at an iron in the high water mark on the south side of the Catawba River, the corner of E.H. Johnson Property; running thence with the said high water line N. 72-15 E. 200 feet to an iron; thence S. 38-32 E. 200 feet to an iron; thence with two lines of A.F. Stephens property: (1) S. 73-35 W. 200 feet to an iron; (2) N. 26-59 W. 100 feet to an old iron, the corner of E.H. Johnson; thence with the E.H. Johnson line N. 50-59 W. 100 feet to the point of beginning.

(6) That the Respondents and their predecessor in title have paid the County Property Taxes on the above-described tract of land.

(7) That the Respondents and their precedessor in title have openly used the property described in paragraph 5 without restriction and without hinderance.

Based upon the answer filed by respondents, the action transferred by the Clerk of Superior Court to the civil issue docket of the Superior Court, Mecklenburg Court, was no longer a mere boundary line dispute pursuant to G.S. 38-1, et seq., but was properly an action to quiet title to the land claimed in respondents' answer.

II

The trial court divided the land in question into two lots, awarding lot "A" to petitioners and lot "B" to respondents. Respondent assigns this as error alleging that respondents should receive title to the land claimed in their deed under adverse possession for seven years under color of title or the Real Property Marketable Title Act. We agree that there was error and hold that respondents have title to that land described in their deed dated 13 May 1982 from F.C. Davis and wife and recorded at Book 4534, page 936 in the Mecklenburg Public Registry based on possession under seven years color of title. G.S. 1-38.

Where one, or his predecessor in title, enters upon land and asserts ownership of the whole under an instrument constituting color of title, the law will extend his occupation of a portion of the land to the outer bounds of his deed. Price v. Tomrich Corporation, 275 N.C. 385, 167 S.E.2d 766 (1969); Willis v. Johns, 55 N.C.App. 621, 286 S.E.2d 646 (1982). Adverse possession under color of title is occupancy under a writing that purports to pass title to the occupant but which does not actually do so either because the person executing the writing fails to have title or capacity to transfer the title or because of the defective mode of the conveyance used. Hensley v. Ramsey, 283 N.C. 714, 199 S.E.2d 1 (1973); Price v. Tomrich, supra.

The evidence at trial tended to show that respondents' predecessor in title, F.C. Davis, took the property in question by deed on 9 January 1952. The disputed portion, though described by the deed, was not owned by F.C. Davis' predecessor in title. F.C. Davis owned the property originally as a tenant in common with his brother-in-law and later solely in fee simple until 13 May 1982 when he conveyed the land by general warranty deed to respondents. The description in the deed to respondents was the same description contained in the deed of 9 January 1952.

The evidence further tended to show and the trial court found as fact that Fred (F.C.) Davis and his brother-in-law possessed the disputed tract and used it for recreational purposes, that Davis built a brick fireplace, sunk a water well, installed an outhouse, brought in a bus to use as a dressing room and built a pier and boat launching facility.

F.C. Davis testified that in 1981 petitioners' predecessor in title put a fence on the property in question. F.C. Davis had his attorney give notice that the fence be removed. The fence was never removed, but petitioners' predecessor in title approached F.C. Davis and attempted to buy the disputed land for $1500.00.

The trial court then concluded as a matter of law that "F.C. Davis and his brother-in-law held a portion of the realty in question, under color of title, for a period in excess of twenty-one (21) years."

This evidence shows adverse possession of the disputed land by respondents' predecessor in title for at least seven years under color of title. There is no evidence of adverse possession of the disputed land by another. Willis v. Johns, supra.

III

When a case is tried by the court, without a jury, findings of fact...