McDaris v. Breit Bar 'T' Corp., 122

• Decision Date: 22 September 1965
• Docket Number: No. 122,122
• Citation: 265 N.C. 298,144 S.E.2d 59
• Court: North Carolina Supreme Court
• Parties: Harvey McDARIS and P. Novie Pipes v. BREIT BAR 'T' CORPORATION and M. Jack Breitbart.

Page 59

144 S.E.2d 59

265 N.C. 298

Harvey McDARIS and P. Novie Pipes v. BREIT BAR 'T' CORPORATION and M. Jack Breitbart.

No. 122.

Supreme Court of North Carolina.

Sept. 22, 1965.

James, S. Howell and Oscar Stanton, Asheville, for plaintiffs.

Van Winkle, Walton, Buck & Wall and Herbert L. Hyde, Asheville, for defendants.

MOORE, Justice.

This is an action in ejectment, instituted 18 October 1963. Defendants appeal from judgment, conforming to the jury's verdict, declaring plaintiffs the owners and entitled to the possession of the land described in the complaint.

Plaintiffs' claim of ownership is based on adverse possession 'under known and visible lines and boundaries and under color of title, for seven years.' G.S. § 1-38; Mobley v. Griffin, 104 N.C. 112, 10 S.E. 142. For color of title plaintiffs rely on a deed from the Board of Tax Supervision of Buncombe County, executed and recorded 29 August 1946. The deed recites: 'The property herein was acquired by the party of the first part through foreclosure of tax lien.' Plaintiffs went into possession of land in 1946 and continued in possession until 1963 when they were ousted by defendants.

Defendants deny that plaintiffs have any title or interest in the land, and assert that plaintiffs' 'color of title' was divested by reason of the foreclosure of a subsequent tax lien (lien of taxes for the year 1946). Corporate defendant claims title by virtue of a deed from the Board of Tax Supervision for Buncombe County, dated 20 May 1963. Individual defendant is an agent of corporate defendant.

The land is described in plaintiffs' deed as follows:

'* * * in Buncombe County, North Carolina, to wit: 'Beginning on a chestnut tree, the beginning corner of lot number one, and runs with the line of lot number one as follows: South 15 degrees West 29 poles to a planted stone; thence South 1 degree West 45 polies to a stake in said S. P. Munday and Rice heirs line, corner of lot number one; thence East with Munday and Rice heirs line, 24 poles to a stake; thence North 20 degrees East 90 poles to a water oak in said Munday and Jump lines; thence North 87 degrees West 12 poles to a chestnut oak; thence North 86 degrees West 35 poles to the Beginning; and being the same property described in a certain deed of record in Deed Book 469, page 221, in the office of the Register of Deeds for Buncombe County, N. C., containing twenty acres, more of less, in Reems Creek Township.'

The same description is incorporated in corporate defendant's deed by reference.

The trial below proceeded upon the theory that the sole question fo determination is whether plaintiffs acquired ownership by adverse possession under color of title.

There are thirty-five assignments of error. Defendants stress their exception to the court's refusal to allow their motion for nonsuit. They contend that plaintiffs introduced no proof that the description in their deed fits the land they held in possession.

A deed offered as color of title is such only for the land designated and described in it. Norman v. Williams, 241 N.C. 732, 86 S.E.2d 593; Locklear v. Oxendine, 233 N.C. 710, 65 S.E.2d 673; Barfield v. Hill, 163 N.C. 262, 79 S.E. 677. 'A deed cannot be color of title to land in general, but must attach to some particular tract.' Barker v. Southern Railway, 125 N.C. 596, 34 S.E. 701. To constitute color of title a deed must contain a description identifying the land or referring to something that will identify it with certainty. Carrow v. Davis, 248 N.C. 740, 105 S.E.2d 60; Powell v. Mills, 237 N.C. 582, 75 S.E.2d 759. 'Parol evidence is admissible to fit the description to the land. G.S. § 8-39. 'Such evidence cannot, however, be used to enlarge the scope of the descriptive words.'' Baldwin v. Hinton, 243 N.C. 113, 90 S.E.2d 316. The purpose of parol evidence is to fit the description to the property, not to create a description. Thompson v. Umberger, 221 N.C. 178, 19 S.E.2d 484. Plaintiffs are required to locate the land by fitting the description to the earth's surface. Andrews v. Bruton, 242 N.C. 93, 86 S.E.2d 786. When a party introduces a deed in evidence which he intends to use as color of title, he must, in order to give legal efficacy to his possession, prove that the boundaries described in the deed cover the land in dispute. Smith v. Fite, 92 N.C. 319. He must not only offer the deed upon which he relies for color of title, he must be proof fit the description in the deed to the land it covers--in accordance with appropriate law relating to course and distance, and natural objects and other monuments called for in the deed. Wachovia Bank & Trust Co. v. Miller, 243 N.C. 1, 89 S.E.2d 765; Skipper v. Yow, 238 N.C. 659, 78 S.E.2d 600; Williams v. Robertson, 235 N.C. 478, 70 S.E.2d 692; Locklear v. Oxendine, supra; Smith v. Benson, 227 N.C. 56, 40 S.E.2d 451.

The only evidence in the record, favorable to plaintiffs, bearing upon the boundaries and location of the land described in the deed is certain testimony of Harvey McDaris, one of the plaintiffs. This testimony is in substance as follows (the greater portion is copied from the record verbatim): I am familiar with the lines of the property as contained in the deed introduced here. I had B. B. Bible, a surveyor, to go with me immediately after Marshall Orr and I got the deed. He went over the property with me. I had it surveyed. I was there with Mr. Bible. I knew him real well. He pointed out every corner to me on it. Defendants built a fence around it in 1963, put a narrow gate up and put a lock on the gate. The land lies north and south. It is more of a long strip of land. It goes down on the Reems Creek side below the spring quite a little ways and lies back up on the north side of the Rice Knob. The Scenic Highway runs through it. About a third of the property lies north of the highway. I did not mark the lines by putting a blaze on trees or anything like that. Mr, Bible pointed out each corner. I am not a surveyor. I had Mr. Bible survey the property. He didn't draw a map. He did not write up any report of that survey. Neither I nor Mr. Bible staked any corners. Mr. Bible knew the property. He told me he knew the property. Mr. Bible told me he had been on the property numbers of times and that he knew the property and could point out the corners to me. When he was on that property with me, he had his transit with him. Just the two of us together. Didn't have anyone else.

Mr. B. B. Bible was dead at the time of the trial below. Defendants introduced in evidence a deed (recorded in book 469, at page 221, of the Registry of Buncombe County) in their chain of title. It may be inferred from this deed that either B. B. Bible or his wife owned the land or an interest therein in 1934 and prior.

It was incumbent upon plaintiffs to show that the evidences of lines and corners on the land corresponded to the designations and descriptive terms in their deed. The description in plaintiffs' deed specifies the lines and boundaries by courses and disstances and refers to natural objects and monuments by which the property may be located and identified--'chestnut tree,' 'the beginning corner of lot number one,' 'the line of lot number one,' 'a planted stone,' 'S. P. Munday and Rice heirs line,' 'a water oak in Munday and Jump lines,' 'a chestnut oak.' We find in the record no evidence tending to explain, locate or make certain the said calls...