Lindsay v. Carswell
| Decision Date | 07 April 1954 |
| Docket Number | No. 308,308 |
| Citation | 81 S.E.2d 168,240 N.C. 45 |
| Parties | LINDSAY, v. CARSWELL et al. |
| Court | North Carolina Supreme Court |
Mull, Patton & Craven, Morganton, for plaintiff-appellant.
O. Lee Horton and Russell Berry, Morganton, for defendants-appellees.
The plaintiff has preserved twelve of his nineteen exceptions and assignments of error based thereon. However, in disposing of this appeal we deem it necessary to consider only exceptions Nos. 14, 15, and 18.
Exception No. 14 is to the finding of fact set out in paragraph (c) hereinabove to the effect that the defendants' title and each mesne conveyance therein embraces the same boundaries and lands specifically described in the answer of Florence Ethel Butler and Roy Butler. The fallacy in this finding of fact is that the deeds offered by the defendants in an effort to show adverse possession by themselves and those under whom they claim since 1866, do not make out an unbroken chain of title to the 86 acres of land described in the deed to Florence Ethel Butler. There is not a scintilla of evidence in the record tending to show that Angeline Carswell conveyed the 31 acres of land she acquired from R. R. Carswell in 1866 to any of the predecessors in title of Florence Ethel Butler, or that any of them inherited the property from her. On the contrary, the defendants offered testimony to the effect that Alexander Butler purchased his land from the heirs of R. R. Carswell. Then who were those heirs? He obtained one deed from Joseph England and wife, Emily. Was Emily a daughter of R. R. Carswell? Apparently not, because the deed executed by these parties refer to the lands described therein as 'adjoining the land, old homeplace of Robert Carswell.' The other recorded deed executed by G. N. Carswell and wife, Eliza, to Alexander Butler, offered by the defendants as a source of their title, recites that it is for a 'one-sixth interest in the homeplace of Robert Carswell.' While the unrecorded deed from J. T. Carswell (a son of Robert R. Carswell, according to the record) to Alexander Butler simply purports to quitclaim all the right, title, and interest of J. T. Carswell in 32 acres of land, no evidence was offered to identify this tract of land as being a part of the lands of Robert R. Carswell or Angeline Carswell.
Furthermore, were J. K. Butler and others, who executed a conveyance to Julius and P. A. Butler (which deed was offered as a link in the defendants' chain of title) the other heirs of Alexander Butler? The evidence discloses that Julius and Pink Butler were sons of Alexander Butler, but there is no evidence from which we can ascertain from what source J. K. Butler and others obtained their interest, if any, in the land conveyed. Was P. A. Butler and Pink Butler one and the same person? If so, how and when did he acquire the one-half interest in the land conveyed to Julius Butler? The record is silent as to this information. Moreover, the record is also silent as to whose widow Minda Butler is, and how Neely Butler Cody and others acquired an interest, if any, in the land which they conveyed to Florence Ethel Butler.
It is true that the deed from J. K. Butler and others to Julius and P. A. Butler, and the deed from Minda Butler, widow, and others, to Florence Ethel Butler, each contains the following statement: 'This being a tract of land conveyed by R. R. Carswell to Angeline Carswell, deed dated 1866, Book G, page 219.' Each of these deeds, however, describes the tract of land conveyed as containing 86 acres, more or less, while the deed from R. R. Carswell to Angeline Carswell dated in 1866 and recorded in 1879, describes certain land by metes and bounds, and then states, 'containing 31 acres, more or less.' A comparison of the description in the deed from J. K. Butler and others to Julius and P. A. Butler, and from Minda Butler, widow, and others, to Florence Ethel Butler, with the description contained in the deed from R. R. Carswell to Angeline Carswell, leads to the conclusion that the 31-acre tract described in the deed to Angeline Carswell is included within the description contained in the above deeds. However, the evidence disclosed on the record does not support the finding complained of herein to the effect that the defendants' title and each mesne conveyance therein embraces the same boundaries and lands specifically described in the separate answer of Florence Ethel Butler and Roy Butler. Or to put it another way, the evidence is not sufficient to support the finding that the defendant Florence Ethel Butler has an unbroken chain of title to the 83 acres of land claimed by her back to 1866.
We will discuss exceptions Nos. 15 and 18 together. While the court found that the defendants (Florence Ethel Butler and Roy Butler) and their predecessors in title have been in the continuous and active possession and occupancy of the...
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Price v. Tomrich Corp., 33
...be so repeated as to show that they are done in the character of owner, and not merely as an occasional trespasser.' Lindsay v. Carswell, 240 N.C. 45, 51, 81 S.E.2d 168, 173. There must be 'a continuous possession of public notoriety.' 'Occasional entries upon the land will not serve, for t......
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