Ferguson v. Champion Fibre Co.

• Decision Date: 21 December 1921
• Docket Number: 587.
• Parties: FERGUSON v. CHAMPION FIBRE CO.
• Court: North Carolina Supreme Court

110 S.E. 220

182 N.C. 731

FERGUSON v. CHAMPION FIBRE CO.

No. 587.

Supreme Court of North Carolina

December 21, 1921

Appeal from Superior Court, Jackson County; Long, Judge.

Action by J. W. Ferguson against the Champion Fibre Company. Judgment for plaintiff, and defendant appeals. Reversed.

The following is a map of the land in controversy:

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This action was brought by the plaintiff to recover damages for cutting timber, and other trespasses on the plaintiff's land, and to remove the claim of the defendant as a cloud on the plaintiff's title.

The cause was heard upon an agreed statement of facts, together with certain oral testimony as appears in the record; and, by consent, the judge rendered judgment therein out of term and outside of Jackson county, as of May term, 1921, of the superior court, adjudging the plaintiff the owner of the lands, and removing the claim of the defendant as a cloud upon the plaintiff's title as prayed for in the complaint.

As will appear from an examination of the agreed statement of facts the plaintiff and the defendant claim the land under a common source of title, to wit, what is known as the Olmstead grant No. 970, and by a claim of conveyances to the respective parties; the boundaries of the grant are stated in the third agreement as to the facts, and embrace the land in controversy.

But, to be more accurate:

First. Both parties claim title to said land by and through grant No. 970, issued by the state to E. B. Olmstead on the 10th day of November, 1867, and by and through the estate and heirs of R. Y. McAden, deceased, as aforesaid. The location of the Olmstead grant No. 970 is designated on Queen map aforesaid, commencing at point marked "Ch. Oak" at the capital letter A; thence to capital letters B, C, D, E and thence to F, at the point marked "Balsam Beach-Jones Knob," and thence to the capital letter G at the point marked "Ash at Balsam Gap"; thence west with the line marked "Olmstead or Cathcart line," to the capital letter H; thence with the Keener line to the beginning. It is admitted that the 114 acres of land more or less in controversy in this action lies inside of Olmstead grant No. 970.

Second. The title to the tract in dispute depends upon the construction of a deed made by the McAdens to plaintiff, J W. Ferguson, dated July 30, 1904, and it is admitted that the specific description in said deed does not cover the disputed area.

Third. Defendant also claims title to the disputed tract under deed from and agreement with the McAdens dated June 20, 1915, and it is admitted that the deed covers the land, and that title thereto passed by said deed, provided the same had not vested in J. W. Ferguson, under his deed from the McAdens, dated July 30, 1904.

Fourth. The plaintiff claims that the second description contained in his deed covers the disputed area. Defendant denies that this description covers the land, but admits that, if said description does cover the tract, plaintiff has a good title thereto.

The plaintiff holds and claims under a deed from John H. McAden executor and trustee, and others, to himself, dated July 30 1904, and relies for his recovery, among other things, upon a clause in that deed, which appears therein immediately after the description by metes and bounds, which is substantially as follows: The specific description in the Ferguson deed commences at A, "Ch. Oak" on map, and this point is by description located in the Cathcart or Indian boundary line; and it is admitted that line A to B on map is the line of Indian boundary, and also line of Cathcart grant 224, and runs with said line to B, with Keener grants to C, and with Keener and Plott grants to D, with the Love line to E, and to F; thence southwest and crossing the mountain with the line of the Davis tract (calling for definite monuments) to the beginning. It is admitted that this description does not cover the land in dispute. It is a definite description, except that there was, at the time of the execution of the deed, a dispute as to the north line of Davis tract No. 586, and, so soon as this dispute was settled, the "Floyd Cook line," shown on map, became the true north boundary line of the Davis tract No. 586, and the description, by metes and bounds, in the Ferguson deed became certain and fixed as the true location.

It being conceded that the description of the land by metes and bounds, above set forth, does not embrace the locus in quo, or any part thereof, the plaintiff contends that it is included within the second description in the deed, which is now fully set forth as follows:

"It being the intention of the parties of the first part to convey to the parties of the second part, his heirs, and assigns, in fee simple, so much of that part of the boundary of land embraced in state grant No. 970, issued by the state of North Carolina to E. B. Olmstead on the 10th day of November, 1867, for 10,580 acres of land that lies in between the lines of the Cathcart boundary, Indian boundary, and the two Keener tracts and the seven Plott tracts, or grants, of one hundred acres each on the Soco side of the mountain, and the line of the Love speculation land or Allison grant No. 251, as claimed by the Love estate, and the line of the Welch or Davis tract, grant No. 586, running from the top of the Jones Knob so as to exclude the Welch or Davis tract, grant 586, but to run with the line of the same, crossing the mountain in the closing line of the land herein conveyed."

The several tracts referred to in said description are shown and designated on the map to be printed as a part of the record. It was admitted at the trial that the line A to B is the line of the Indian boundary and the line of the Cathcart grant No. 224; that the broken line marked D E F G, is the line of the Love boundary; that the line G to H is also called the Cathcart line; and the Keener line, H. to A, is marked "Keener line." The Plott tracts also are located on the map; the southern line of the Davis tract is marked "Olmstead" or "Cathcart" line. This line crosses the mountain.

The disputed land is designated on the map by the words "Queen-Crawford and Cogdill, and Champion Fibre Co.," between the figures 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, and back to 1. It was admitted that the lands in dispute lie inside of Olmstead grant No. 970.

It is proper that we set forth the material part of the deed executed on June 20, 1915, by Henry M. McAden and others to the Champion Fibre Company, for the purpose of correcting a mistake in the description as contained in the deed of July 30, 1904, executed by John H. McAden, executor, and others to J. W. Ferguson, the plaintiff:

"This deed is executed by the parties of the first part, to the party of the second part, in order to correct the third call in the deed made and executed by John H. McAden, executor, etc., Henry M. McAden and others to J. W. Ferguson, bearing date July 30, 1904, for the tract of land known as the McAden-Balsam timber tract as aforesaid, so as to vest the title in fee in the said J. W. Ferguson and cover the land intended to be conveyed to him by said deed, and to perfect the title to the Champion Fibre Company to the stumpage rights on certain parts of the said McAden-Balsam timber tract of land as their respective rights may appear, and for the further purpose of conveying to the Champion Fibre Company, party of the second part, the scraps or pieces of land of a few hundred acres lying inside of grant No. 970 to E. B. Olmstead aforesaid, outside of the McAden-Balsam timber tract and the Davis lands--Welch grant No. 568--and other older and superior titles inside of grant No. 970, and in order to carry out the indenture and agreement of June 20, 1915, aforesaid."

There was evidence, on the one side, that the McAdens never listed the disputed land for taxes after the date of their deed to the plaintiff, July 30, 1904, and, on the other, that it was listed on what is known as the "Discovery List" but this may not be material in the view taken of the...