Marlowe v. Clark

• Decision Date: 05 October 1993
• Docket Number: No. 9215SC929,9215SC929
• Citation: 435 S.E.2d 354,112 N.C.App. 181
• Parties: Catherine W. MARLOWE, Plaintiff, v. Billy Goodman CLARK and wife, Shirley Clark, Defendants.
• Court: North Carolina Court of Appeals

Page 354

435 S.E.2d 354

112 N.C.App. 181

Catherine W. MARLOWE, Plaintiff, v. Billy Goodman CLARK and wife, Shirley Clark, Defendants.

No. 9215SC929.

Court of Appeals of North Carolina.

Oct. 5, 1993.

Levine, Stewart & Davis by John T. Stewart and Donna Davis, Chapel Hill, for plaintiff-appellant.

Law Firm of Wade Barber by Wade Barber and Page Vernon, Pittsboro, for defendants-appellees.

LEWIS, Judge.

The issue here is the ownership of a three acre tract of land in Chatham County. The plaintiff in this action is the half-sister of the defendant, Billy Clark, both being children of Mae Goodman White, but having different fathers. Catherine W. Marlowe ("plaintiff") asserts an interest in the disputed property as an heir of W.R. White, Sr., whereas Billy Goodman Clark ("defendant") claims title to the property by virtue of adverse possession. We hold that defendant has the superior claim of title and affirm the trial court's entry of summary judgment.

On 14 February 1944, a fifty acre tract of land was conveyed to W.R. White, Sr. and Mae Goodman White as tenants by the entirety (hereafter "Entirety Property"). Upon Mr. White's death, Mrs. White owned this tract in fee simple. On 5 May 1947 Mr. White acquired an adjacent but separate 15.3 acre tract of land (hereafter "the County Home Tract"). On 5 March 1960, Mr. White died intestate survived by his widow, Mae Goodman White, and his two children; William Robert White, Jr. and plaintiff. Under the law existing at the time of Mr. White's death, Mae Goodman White was entitled to a dower interest of one-third the value of the real property held during coverture, but according to defendant this dower interest was never laid off.

In an attempt to provide a home for defendant and his wife, Mae Goodman White conveyed a three acre tract of land (hereafter "the Three Acre Tract") to defendant on 19 May 1976. The Three Acre Tract included a portion of the Entirety Property as well as a portion of the County Home Tract. After the property was conveyed to them, defendant and his wife recorded a deed of trust on the Three Acre Tract and began building a home. From 1977 until the present, defendant and his wife have lived continuously on the Three Acre Tract and have paid all applicable taxes.

In September 1981 Mae Goodman White died testate leaving all of her property to her children in the following proportions: two-fifths to plaintiff, one-fifth to defendant and two-fifths to W.R. White, Jr. Plaintiff's brother, W.R. White, Jr., has elected not to pursue the present action and for all intents and purposes has conveyed his interest to plaintiff. In January 1987, in an attempt to close her mother's estate, plaintiff filed a petition to partition 53.4 acres of Mae Goodman White's estate on behalf of herself and her brother. The petition property included portions of the Entirety Property and the County Home Tract, but the petition did not include the Three Acre Tract upon which defendant and his wife were residing. Shortly after the petition was filed, defendant filed a "counterclaim" to the petition asserting that he and his wife were the fee simple owners of the Three Acre Tract. Although defendant eventually voluntarily dismissed his "counterclaim" on 17 October 1990, he unsuccessfully attempted to establish his fee simple title to the Three Acre Tract by asking plaintiff to sign a quitclaim deed.

On 31 October 1991, plaintiff initiated the current action. In her complaint, plaintiff asserted an interest in the County Home Tract as an heir of W.R. White, Sr. and Mae Goodman White. After an amendment and a motion for more definite statement, it became clear that plaintiff was actually asserting an interest in the Three Acre Tract as an heir of W.R. White, Sr.

This matter came before the Honorable F. Gordon Battle on 27 April 1992 on defendant's motion for summary judgment. Judge Battle granted defendant's motion and plaintiff has appealed.

At the outset we note that there is no dispute as to that portion of the Three Acre Tract overlapping the Entirety Property. Mae Goodman White as sole owner of the Entirety Property was free to dispose of the property as she saw fit. Plaintiff conceded this point at oral argument. Thus, the only property in dispute is that portion of the Three Acre Tract which overlaps the County Home Tract.

In her first argument, plaintiff alleges that the trial court erred in failing to find that plaintiff and defendant held the Three Acre Tract as tenants in common. In her complaint plaintiff alleged that she and defendant were both heirs of W.R. White, Sr. and that they held the Three Acre Tract as tenants in common. Therefore, it was impossible for defendant to have adversely possessed the property against her as there had been no ouster. In support of her position, plaintiff relies on McCann v. Travis, 63 N.C.App. 447, 305 S.E.2d 197 (1983).

We find there is no cotenancy. The only possible way which plaintiff and defendant could have held the Three Acre Tract as tenants in common would have been if both were the children of W.R. White, Sr. However, there is absolutely no evidence in the record to indicate such kinship. Whenever plaintiff was asked what her relationship was with defendant, she would emphatically respond: "He's not my daddy's son," or something similar. In her brief, plaintiff has made a reference inferring that defendant was adopted, but she has failed to cite any portion of the record supporting this assertion. In fact, after an extensive review of the record we have found no evidence that plaintiff and defendant were related by the whole blood or that defendant was adopted. We find it incredible that counsel for the plaintiff could argue that the mere assertion of a cotenancy relationship in her complaint was sufficient to defeat summary judgment when defendant had offered evidence to the contrary. See Wachovia Bank & Trust Co. v. Grose, 64 N.C.App. 289, 292, 307 S.E.2d 216, 217-18 (1983), disc. rev. denied, 311 N.C. 309, 317 S.E.2d 908 (1984) ("When the party moving for summary judgment presents an adequately supported motion, the opposing party must come forward with facts, not mere allegations, which controvert the facts set forth in the moving party's case, or otherwise suffer a summary judgment"). We find counsel's argument that plaintiff and defendant were cotenants in the Three Acre Tract frivolous and devoid of any merit.

In the event that we should disagree with her as to the existence of a cotenancy relationship, plaintiff argues that the elements of adverse possession have not been met, particularly the element of hostility. Although we disagree with plaintiff's argument, we find this a reasonable position.

Adverse possession may be defined as the "actual, open, notorious, exclusive, continuous and hostile occupation and possession of the land of another under claim of right or color of title for the entire period required by the statute." Federal Paper Bd. Co. v. Hartsfield, 87 N.C.App. 667, 671, 362 S.E.2d 169, 171 (1987) (citation omitted). If possession is under color of title then the statutory period of possession is seven years. N.C.G.S. § 1-38 (1983). Otherwise possession for 20 years is necessary to acquire title by adverse possession. N.C.G.S. § 1-40. Adverse possession under color of title has been defined as "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." Cobb v. Spurlin, 73 N.C.App. 560, 564, 327 S.E.2d 244, 247 (1985). It is well established that a deed may constitute color of title. Taylor v. Brittain, 76 N.C.App. 574, 334 S.E.2d 242 (1985), modified and aff'd, 317 N.C. 146, 343 S.E.2d 536 (1986). The only requirement is that the deed contain an adequate description of the land. McDaris v. Breit Bar "T" Corp., 265 N.C. 298, 144 S.E.2d 59 (1965).

In this matter, defendant was given a deed to the Three Acre Tract by Mae Goodman White. Since the deed contained an adequate description of the Three Acre Tract, we hold that defendant has color of title. With color of title, the period of possession is only seven years. The only elements of adverse possession which are actually disputed are hostile possession and the time of possession. It is clear that defendant has met the remaining elements.

Plaintiff asserts that there cannot be hostile possession unless the true owner of the property is aware that he has an interest in the property. In this case plaintiff claims that she was not aware of her interest until 1987, and that she filed her action asserting that interest well before the seven year period expired. Although plaintiff's view of hostile possession is innovative, she has been unable to offer any North Carolina authority to support her position. In State v. Brooks, 275 N.C. 175, 166 S.E.2d 70 (1969), our Supreme Court stated that hostile possession does not mean ill will or animosity, but only that one claims an exclusive right to the property. Also, Webster's describes hostile possession as that possession which excludes any recognition of the true owner's rights. Webster's Real Property Law in North Carolina § 289 (1988). It is clear that defendant's occupation and possession has been exclusive and without any recognition as to plaintiff's rights.

Until recently, North Carolina followed the minority position that an individual had to have an intent to claim against the true owner. This was altered by the Supreme Court's holding in Walls v. Grohman, 315 N.C. 239, 337 S.E.2d 556 (1985), wherein the Court stated that:

[w]hen a landowner, acting under a mistake as to the true boundary between his property and that of another, takes possession of the land believing it to be his own and claims title thereto, his possession and claim of title is adverse. If such...