Davis v. Morgan
| Decision Date | 29 October 1947 |
| Docket Number | 310 |
| Citation | 44 S.E.2d 593,228 N.C. 78 |
| Parties | DAVIS et al. v. MORGAN. |
| Court | North Carolina Supreme Court |
This was an action to establish plaintiffs' title to a tract of land, containing 45 acres, lying and being in the waters of Beaufort Harbor, and to restrain the defendant from trespassing thereon.
Plaintiffs claimed title to the land described in the complaint under a grant from the State issued in 1853 to Joel H. Davis and J P. Roberson and by descent and mesne conveyances from those original grantees. The defendant denied plaintiffs' title on the ground that the grant of 1853 was void under the statute G.S. s 146-1 as attempting to grant land covered by navigable waters; that the grant could not be located; that if the grant could be located at all it did not cover the lands described in the complaint, or if so only a small part thereof. Defendant further alleged that plaintiffs were estopped by the record and final judgment in a proceeding under the Torrens law entitled Perry and Rumley vs. Morgan Davis and Howe, rendered in 1941; and that the defendant was the owner of the land described in the complaint as being within the bounds of a grant issued to the defendant by the State in 1937.
The grant of 1853 described the land thereby granted as follows Containing fifty acres, lying and being in the County of Carteret on the east side of Newport Channel and northeast of Bogue Channel and about southwest of Town Marsh. Beginning on the south side of the mouth of a slue that runs on the south side of Reed Marsh where said slue empties into Newport Channel, running thence the various courses of the Channel viz: south twenty-six degrees west sixty-eight poles, south five degs. east fifty-eight poles, south forty-seven and a half degs., east one hundred and ten poles, then north thirty-five degs. east twenty-seven poles, then north fifty-five degs. west one hundred and seven poles, then north forty-seven and a half degs. west sixty-eight degs. east sixty poles, and thence to the beginning.
The land to which plaintiffs in this action seek to establish their title, as embraced within the grant of 1853, is described in the complaint as follows: Lying in Beaufort Harbor, beginning at the north end of the Government Breakwater on the west side of Bulkhead Channel, running with said breakwater and low water mark, south 14, east 1790 feet to the south end of said breakwater; thence with the low water mark of Fort Channel north 40 west 1875 feet to a stake; thence north 1, east 2100 feet to the low water mark of the slough; thence with said low water mark of the slough and bulkhead or Beaufort Channel southeastwardly to the beginning, containing 45 acres, more or less.
The grant under which defendant claims was issued in April 1937, and describes the land granted as follows: Containing fifty-eight and nine-tenths (58.9) acres, lying and being in the County of Carteret, Beaufort Township: Beginning at an iron stake at the southwest corner of the S.W. Morgan property and running with the Morgan southern line south eighty-seven (87) degrees east six hundred and forty-four (644) feet to Morgan's southeast corner; thence south four (4) degrees east two thousand two hundred and fifty-two (2,252) feet to an iron stake at the northern point of breakwater; thence with the breakwater south fourteen (14) degrees east one thousand seven hundred and ninety (1,790) feet to the southern end of the breakwater; thence north forty (40) degrees west one thousand eight hundred and seventy-five (1,875) feet to an iron stake; thence north one (1) degree east two thousand five hundred and thirty-seven (2,537) feet to the beginning.
Upon issues submitted to the jury there was verdict that plaintiffs were the owners of the land described in the complaint, and that defendant had wrongfully trespassed thereon. No damages were allowed.
From judgment on the verdict, defendant appealed.
C. R. Wheatley, Jr., of Beaufort, and D. M. Clark of Greenville, for plaintiffs-appellees.
J. F. Duncan, of Beaufort, and R. A. Nunn, of Newbern, for defendant-appellant.
In the trial below defendant moved for judgment of nonsuit on the ground that the evidence was insufficient to show location of the grant of 1853 under which plaintiffs' claim, so as to include any of the land described in their complaint, and on the further ground that the grant was void as attempting to convey land covered by navigable waters in violation of the prohibition contained in the statute G.S. s 146-1. However, upon the evidence offered by the plaintiffs, giving to it that favorable consideration required by the rule on motions to nonsuit, we think the ruling of the trial judge on this point must be upheld. This is in accord with what was held by this Court in Perry v. Morgan, 219 N.C. 377, 14 S.E.2d 46, where the same question on similar evidence as to an adjoining portion of the land conveyed by the grant of 1853 was presented.
Likewise, the defendant's plea that plaintiffs are estopped by the record and final judgment in Perry v. Morgan cannot be sustained. True, in that case, the defendant Morgan and the plaintiffs Davis and Howe were parties defendant, and the title of Davis and Howe to land under the grant of 1853 was involved, but that was a proceeding under Chap. 43 of the General Statutes, known as the Torrens law, a proceeding in rem, instituted by F. K. Perry and J. H. Rumley to register title to land, the description of which did not include the land claimed by plaintiffs in this suit. Cape Lookout Co. v. Gold, 167 N.C. 63, 83 S.E. 3. In that proceeding Davis and Howe became parties and alleged title in themselves under the grant of 1853 as against the petition of Perry and Rumley. The title to the land described in the present complaint was not in issue. In the proceeding under the Torrens law these plaintiffs, Davis and Howe, would have had no right to file a cross-complaint against Morgan to try the title to land not described in Perry's petition. It was said in Jenkins v. Jenkins, 225 N.C. 681, 36 S.E.2d 233, 234: 'The judgment is conclusive only on the points raised by the pleadings or which might justly be predicated on them, and the rule does not embrace matters not properly introduced and not cognizable in the former action and as to which no judgment was rendered. ' Jefferson v. Southern Land Sales Corp., 220 N.C. 76, 16 S.E.2d 462; Stancil v. Wilder, 222 N.C. 706, 24 S.E.2d 527; Gillam v. Edmonson, 154 N.C. 127, 69 S.E. 924; Tyler v. Capehart, 125 N.C. 64, 34 S.E. 108.
The defendant also points to the failure of plaintiff Howe to show title in himself to an interest in the land claimed under the grant of 1853, but this would not entitle defendant to a nonsuit, as one tenant in common owning only an undivided...
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