Price v. Tomrich Corp., 33

Citation167 S.E.2d 766,275 N.C. 385
Decision Date18 June 1969
Docket NumberNo. 33,33
CourtNorth Carolina Supreme Court
PartiesBessie PRICE (Widow) v. TOMRICH CORPORATION and Williams E. Arant, Jr., Trustee for First Union Bank.

Bryant, Lipton, Bryant & Battle, Durham, for plaintiff appellee.

Powe, Porter & Alphin by Willis P. Whichard, Durham, for defendant appellant.

SHARP, Justice.

The question presented is the sufficiency of plaintiff's evidence to withstand defendant's motion for nonsuit. The following facts are established by the pleadings and stipulations or are not controverted:

Plaintiff and defendant Corporation (defendant) own adjoining land in the Bragtown area of Durham County. They dispute a lappage of 2.82 acres. In September 1887 all the property now owned or claimed by the parties was owned by Hawkins Chisenhall. The division of this property is shown on a map, made 22 July 1968 by George C. Love, Jr., registered land surveyor (D--4). An outline of the pertinent portions of this map is reproduced herein. The disputed area, triangular in shape, is designated as Tract A on D--4. A map, made by J. W. Copley on 11 June 1968 (P--I), shows Tract A only. An outline of it is likewise reproduced.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Defendant, with an unbroken chain of title from Hawkins Chisenhall, has the superior record title to Tract A. Defendant also has record title to Tract B, 20.7 acres adjoining Tract A on the south, and to Tract C, a smaller area adjoining Tract B on the east. Defendant acquired record title to these three tracts on 13 March 1968 by two deeds, which described the property as one tract and referred to a map made December 1937. Each deed conveyed a one-half interest and excluded from the warranty of title the 2.82 acres 'claimed by J. Y. Hinson in Deed Book 200 at page 507, Durham County Registry.' Reference was also made to Plat Book 24 at page 49.

Plaintiff's claim to Tract A stems from a deed from Charles W. White, Commissioner, to her predecessor in title, Dr. J. Y. Hinson. This deed was executed and delivered to Hinson on 5 December 1952 pursuant to an order of the Clerk of the Superior Court of Durham County in a special proceeding brought by the administrator C.T.A. of David M. Chisenhall to sell decedent's land (supposed to contain about 75 acres) to make assets to pay debts. Before advertising the land for sale, the Commissioner employed a civil engineer, Hunter Jones, to locate the property, mark the lines, and provide an accurate description of it.

The map and description which Jones furnished showed a single tract of 77.75 acres. By mistake Jones included within its perimeter 2.82 acres (Tract A), which David M. Chisenhall did not own. The land was advertised and sold, and the deed to Hinson was prepared, in accordance with the Jones map which was recorded in Plat Book 24 at page 49, Durham County Registry.

As already noted, in both plaintiff's and defendant's deeds, the disputed 2.82 acres is not described as a separate lot but is included within the boundaries of the single tract described in each. On the map of the property described in defendant's deed, Tract A is shown as a projection which is the northeastern portion of defendant's land. Tract A is a triangle wedged into the southwestern portion of the 77.75-acre tract. One side of the triangle is a part of the outside boundaries of the larger tract. Thus, two sides of the lappage are defined by defendant's deed. The 77.75-acre tract embraces lots A, J. L, M, and H, as shown by D--4. Defendant stipulated that, by mesne conveyances from Hawkins Chisenhall, plaintiff has record title to Tract H, which adjoins Tract A on the north. Although there was no stipulation with reference to Tracts J, L, and M, the transcript discloses that defendant does not dispute plaintiff's title to these lots, and plaintiff does not challenge defendant's title to Tracts B and C.

Plaintiff first learned that defendant claimed Tract A in March or April 1968. In May 1968 defendant began leveling the property described in its deed, and plaintiff fenced the line between Tracts A and B. Defendant tore down the fence and continued its operations until restrained by Hall, J., upon the institution of this action.

Plaintiff is the sister of Dr. J. Y. Hinson, who died 29 March 1963. As the sole beneficiary under his will, which was probated 4 April 1963, she acquired his interest in the property conveyed to him by White, Commissioner.

Plaintiff claims ownership of Tract A by adverse possession for more than seven years under color of title. G.S. § 1--38. Color of title is generally defined as a written instrument which purports to convey the land described therein but fails to do so because of a want of title in the grantor or some defect in the mode of conveyance. Justice v. Mitchell, 238 N.C. 364, 78 S.E.2d 122; First-Citizens Bank & Trust Co. v. Parker, 235 N.C. 326, 69 S.E.2d 841; 1 Strong, N.C.Index, Adverse Possession § 15 (1957). When the description in a deed embraces not only land owned by the grantor but also contiguous land which he does not own, the instrument conveys the property to which grantor had title and constitutes color of title to that portion which he does not own. Lane v. Lane, 255 N.C. 444, 121 S.E.2d 893; Wachovia Bank & Trust Co. v. Miller, 243 N.C. 1, 89 S.E.2d 765. However, should the grantee in such a deed be required to establish his ownership of that portion of the tract which it actually conveyed, he could use the deed as color of title and avail himself of method 3 detailed in Mobley v. Griffin, 104 N.C. 112, 10 S.E. 142, for a valid deed--a muniment of title--may also serve as color of title. Cothran v. Akers Motor Lines, 257 N.C. 782, 127 S.E.2d 578; Lofton v. Barber, 226 N.C. 481, 39 S.E.2d 263. See Marr v. Shrader, 142 Colo, 106, 349 P.2d 706 (1960).

The deed from White, Commissioner, to Dr. J. Y. Hinson constituted color of title to all the land described therein. Johnson v. McLamb, 247 N.C. 534, 101 S.E.2d 311; First-Citizens Bank & Trust Co. v. Parker, Supra. Plaintiff, being in privity with Dr. Hinson, is entitled to tack her adverse possession of the lappage to such possession by Dr. Hinson as she is able to establish. Wachovia Bank & Trust Co. v. Miller, Supra; Newkirk v. Porter, 237 N.C. 115, 74 S.E.2d 235; 1 Strong, N.C Index, Adverse Possession § 6 (1957); 3 Am.Jur.2d Adverse Possession § 58 (1962).

Plaintiff offered plenary evidence that Dr. Hinson entered upon, and adversely possessed for more than seven years, that portion of the land described in his deed To which his grantor had title. From November 1953 (at least) until his death in 1963 he lived on the farm, cultivated portions of it by tenants, raised cattle, which he pastured on the northern part of the tract, constructed three ponds, and paid taxes on all of it. When plaintiff succeeded to his title, she also farmed it through tenants. Inter alia, she cut the timber and pulpwood, permitted hunting on the entire farm, including Tract A, and allowed fishing in the ponds upon payment of a fee. Since Setember 1965, she has lived in the dwelling which Dr. Hinson had occupied.

If defendant had the senior title to the entire tract of 77.75 acres described in Dr. Hinson's deed, plaintiff's evidence of adverse possession under color would be sufficient to transfer title to the entire acreage to her. When one enters upon a tract of land and asserts his ownership of the whole under an instrument which constitutes color of title, the law will extend his occupation of a portion thereof to the outer bounds of his deed--provided no part of the premises is held adversely by another. His exclusive possession, if continued uninterruptedly for seven years, will ripen title to all the land embraced within the deed. Price v. Whisnant, 232 N.C. 653, 62 S.E.2d 56; Vance v. Guy, 224 N.C. 607, 31 S.E.2d 766; Ware v. Knight, 199 NC. 251, 154 S.E. 35; Mintz v. Russ, 161 N.C. 538, 77 S.E. 851. Simmons v. Definance Box Company, 153 N.C. 257, 69 S.E. 146. Here, however, the disputed area (Tract A) is a lappage, and the following rules fix the rights of the parties:

'1. Where the title deeds of two rival claimants to land lap upon each other, and neither is in the actual possession of any of the land covered by both deeds, the law adjudges the possession of the lappage to be in the one who has the better title. * * *

'2. If one be seated on the lappage and the other not, the possession of the whole interference is in the former. * * *

'3. If both have actual possession of some part of the lappage, the possession of the true owner, by virtue of his superior title, extends to all not actually occupied by the other. * * * ' Vance v. Guy, Supra at 611, 31 S.E.2d at 768. Accord, Lane v. Lane, Supra; Shelly v. Grainger, 204 N.C. 488, 168 S.E. 736; Penny v. Battle, 191 N.C. 220, 131 S.E. 627; Currie v. Gilchrist, 147 N.C. 648, 61 S.E. 581; Boomer v. Gibbs, 114 N.C. 76, 19 S.E. 226.

Plaintiff's case seems to have been tried in the Superior Court upon the theory that possession of any portion of the 77.75-acre tract described in Dr. Hinson's deed extended his or her possession to its outer boundaries. However, since defendant has the superior title, no possession by plaintiff or Dr. Hinson outside the lappage will extend their possession to the lappage. As Hoke, C.J., said in Georgia-Carolina Land & Timber Co. v. Potter, 189 N.C. 56, 62, 127 S.E. 343, 346, when a portion of the boundary of a junior grant laps on a superior title 'to mature a title under the junior grant, there must be shown adverse and exclusive possession of the lappage, or the law will presume possession to be in the true owner as to all that portion of the lappage not actually occupied by the junior claimant.' Accord, Boomer v. Gibbs, Supra; McLean v. Smith, 106 N.C. 172, 11 S.E. 184; Sucro v. Worthington, 104 F.2d...

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24 cases
  • Woodring v. Swieter
    • United States
    • North Carolina Court of Appeals
    • December 5, 2006
    ...defect in the mode of conveyance.'" Hensley v. Ramsey, 283 N.C. 714, 732, 199 S.E.2d 1, 12 (1973) (quoting Price v. Tomrich Corp., 275 N.C. 385, 391, 167 S.E.2d 766, 770 (1969)). The Swieter defendants contend they have color of title for a waterline easement by virtue of their deed from th......
  • Cozart v. Chapin
    • United States
    • North Carolina Court of Appeals
    • February 6, 1979
    ...of every fact and inference of fact pertaining to the issues, which may be reasonably deducted from the evidence. Price v. Tomrich Corp., 275 N.C. 385, 167 S.E.2d 766 (1969); Bowen v. Gardner, 275 N.C. 363, 168 S.E.2d 47 (1969). Defendant's evidence may be considered to the extent that it i......
  • Adams Creek Assocs., Carolina Ltd. v. Davis
    • United States
    • North Carolina Court of Appeals
    • June 4, 2013
    ...arises, the law of lappage sets forth rules to determine the relative rights of the competing claimants. See Price v. Tomrich Corp., 275 N.C. 385, 392–93, 167 S.E.2d 766, 771 (1969) (setting forth the law of lappage rules). In this case, defendants raise the issue of lappage by asserting th......
  • Smithers v. Collins
    • United States
    • North Carolina Court of Appeals
    • June 2, 1981
    ...may be drawn from the evidence." Wilson v. Hospital, 232 N.C. 362, 365, 61 S.E.2d 102, 104 (1950). See also Price v. Tomrich Corp., 275 N.C. 385, 167 S.E.2d 766 (1969); Bowen v. Gardner, 275 N.C. 363, 168 S.E.2d 47 (1969). To the well-established rule giving the plaintiff the benefit of the......
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