Price v. Whisnant

• Decision Date: 05 November 1952
• Docket Number: No. 316,316
• Citation: 72 S.E.2d 851,236 N.C. 381
• Parties: PRICE, v. WHISNANT et al.
• Court: North Carolina Supreme Court

Page 851

72 S.E.2d 851

236 N.C. 381

PRICE, v. WHISNANT et al.

No. 316

Supreme Court of North Carolina.

Nov. 5, 1952

Burke & Burke, Taylorsville, and Hal B. Adams, Lenoir, for defendants- appellants.

Folger L. Townsend and Fate J. Beal, Lenoir, for plaintiff-appellee.

DENNY, Justice.

This case was before us at the Fall Term, 1950. We granted a new trial because of errors in the charge with respect to the burden of going forward with the evidence and as to what constituted constructive possession. The opinion on that appeal is reported in 232 N.C. 653, 62 S.E.2d 56.

In the former opinion, we interpreted the allegations of the complaint and the evidence introduced at the trial from which the appeal was taken, to show that the plaintiff was claiming title to the 175 acres of land described in the quitclaim deed from the Lee heirs, and that the quitclaim deed contained a description of all the land conveyed from Broyhill to Price in 1913, plus the 64.4 acres now in dispute. This interpretation led to the conclusion that Broyhill did not convey to Price, the plaintiff herein, but approximately 110 acres of land. The deed from Broyhill to Price was not introduced in evidence at the former trial. At the last trial, however, it was introduced in evidence by the defendants to show that the plaintiff did get from Broyhill all the land that Broyhill got from the Lee heirs, to-wit: 175 acres. And the survey thereof discloses that the original tract of 175 acres which the plaintiff Price purchased from Broyhill in 1913, lies north and northeast of the 64.4 acres of land now in dispute. And one of the southern boundary lines of the Broyhill tract runs with the Robert McRary line 185 poles which is identical with the northern boundary of the disputed area.

The deed introduced by the defendants explains and clarifies the testimony of the plaintiff with respect to the land he now claims under the two deeds. For the purposes of this law suit, the plaintiff only alleges that he is the owner of the 175 acres of land described in his quitclaim deed from the Lee heirs. This quitclaim deed purports to release, remise, and quitclaim unto the plaintiff the 64.4 acres of land now in dispute, plus so much of the acreage conveyed to plaintiff by Broyhill as was necessary to make 175 acres. Actually, according to the plaintiff's evidence, he claims to be the owner of the original tract of 175 acres, which he purchased from Broyhill, and of the 64.4 acres of land contained in the quitclaim deed which was not included in his original deed.

It is apparent from the record that the plaintiff got all of the 175 acres of land described in his deed from Broyhill, but none of the land now in dispute lies within the boundaries called for in that deed. This he discovered for the first time in 1921, when he had the land described in his deed from Broyhill surveyed. In the meantime, he had exercised ownership over much of the premises in dispute in the manner above set forth, under the mistaken belief that the description in his deed included the area. When he made this discovery, he could not obtain title to this additional area from Broyhill, since Broyhill had conveyed to him all the land he purchased from the Lee heirs. Consequently, he later obtained and recorded a quitclaim deed from the Lee heirs.

The defendants assign as error the failure of the court below to sustain their motion for judgment as of nonsuit interposed at the close of the plaintiff's evidence and renewed at the close of all the evidence. Therefore, it becomes necessary to consider whether the plaintiff offered sufficient evidence to show title to the disputed area by adverse possession for twenty years, or under color of title for seven years.

On the former appeal, exceptions to the failure of the court to sustain defendants' motion for judgment as of nonsuit, were assigned as error. However, they were not brought forward in the brief and argued as required by Rule 28 of the Rules of Practice in the Supreme Court, 221 N.C. 563; hence, they were taken as abandoned and were not discussed or considered.

The plaintiff makes it clear that when he went into possession of the Broyhill tract of land he intended to claim only the land described in his deed from Broyhill and he thought his deed covered the disputed area. There was no occasion for any change in his belief prior to his discovery in 1921 that the land now in dispute was not covered by his deed. As a consquence, so long as he thought his deed covered the disputed area, his possession was not adverse but a claim of rightful ownership. The court below so instructed the jury. This precise question was passed upon in Gibson v. Dudley, 233 N.C. 255, 63 S.E.2d 630, 631, where Stacy, Chief Justice, speaking for the Court, said: 'If his possession were exclusive, open and notorious, as he now contends, no one regarded it as hostile or adverse, not even the plaintiff himself, for he was not conscious of using his neighbor's land. ' I thought all the time it was mine'. These conclusions are impelled by the plaintiff's own testimony. ' See also Vanderbilt v. Chapman, 175 N.C. 11, 94 S.E. 703, and King v. Wells, 94 N.C. 344.

Therefore, no act of the plaintiff, however exclusive, open and notorious it may have been prior to the time he discovered the area now in dispute was not covered by the description in his deed, will be considered adverse.

In order to sustain the verdict below, the evidence must be sufficient to show that after 1921 the plaintiff openly, notoriously and continuously possessed the disputed land under known and visible lines and boundaries, adversely to all other persons for twenty years, or that he possessed it adversely under color of title for seven years.

What have been the acts of the plaintiff since 1921 to establish title by adverse possession for twenty years, or since 1926 under color of title for seven years? Fred Price, a son of the plaintiff, testified that 'we cut buck oak for crossties in 1916 and on up to 1926.' He testified to no act of adverse possession or use of the land in any respect after 1926. The plaintiff testified, 'He had done more or less work on the disputed land ever since he had been there and some before he moved on the Broyhill land.' However, he testified to no adverse act or use of the land after 1921 except having 'No Hunting' posters placed on the original tract of land purchased from Broyhill and on the disputed area in 1930 or 1931, and the sale of some hickory timber in 1938 or 1939. And according to the testimony of the purchaser of the hickory timber, its removal required about two days.

The plaintiff has only returned and paid taxes on the original 175 acres of land which he purchased from Broyhill in 1913. He testified, 'I kept on paying the same amount, returning it for the same amount after I took the quitclaim deed.' This negatives any contention that he has listed or paid taxes on the 64.4 acres of land now in dispute.

John Price, son of the plaintiff, testified, 'we started going on the place in 1918 and from that time on until a few months before the law suit started.' The sole acts tending to show adverse...