Rowe v. Walker

• Decision Date: 15 March 1994
• Docket Number: No. 929SC918,929SC918
• Citation: 114 N.C.App. 36,441 S.E.2d 156
• Parties: Clyde E. ROWE, Jr., and Donna Grant Rowe v. John Thomas WALKER, C. Norman Walker, and Shirley Walker Kennedy.
• Court: North Carolina Court of Appeals

Page 156

441 S.E.2d 156

114 N.C.App. 36

Clyde E. ROWE, Jr., and Donna Grant Rowe v. John Thomas WALKER, C. Norman Walker, and Shirley Walker Kennedy.

No. 929SC918.

Court of Appeals of North Carolina.

March 15, 1994.

Manning, Fulton & Skinner, P.A. by John I. Mabe, Jr. and Alison R. Cayton, Raleigh, for plaintiffs-appellants.

Brown & Bunch by Charles Gordon Brown and Scott D. Zimmerman, Chapel Hill, for defendants-appellees.

WYNN, Judge.

In January 1970 Jack and Martha Chavis owned a 70.06 acre tract of farmland. Most of the tract lies in southern Person County, but approximately 7.7 acres lie in northern Orange County. On 19 January 1970, Clyde and Mary Walker (defendants' predecessors in title) acquired an approximately fifty-acre tract of property in Orange County, adjoining the Chavises' land to the south. Shortly thereafter, the Chavises granted the Walkers a twenty-foot wide easement across the Chavises' property to allow the Walkers to use a farm road providing access from the north through Person County to the Walkers' Orange County farmland. The easement was recorded in the Orange County Registry on 23 January 1970. Although a significant portion of the easement lies in Person County, it was not registered there at that time.

On 28 December 1979 the Chavises sold their land to Charles and Linda Hall. On 2 October 1987, plaintiffs purchased the land from the Halls. Plaintiffs promptly registered the deed in both Orange County and Person County.

The easement roadway passed over a dam in the vicinity of the Orange/Person county border. In October 1987, in order to drain a small pond, plaintiffs breached this dam, thereby destroying use of the road and use of the easement at that point. Defendants asked plaintiffs to rebuild the dam. Plaintiffs refused.

On 6 July 1988 defendants recorded their easement in Person County.

On 20 October 1988, defendant Norman Walker and others undertook reconstruction of the dam. On 21 December 1988, plaintiffs instituted this proceeding to enjoin defendants and their invitees from using the easement. Plaintiffs also sought an order quieting title to the portion of the property covered by the easement. Defendants counterclaimed for costs expended in repairing the dam.

The trial court concluded that defendants had a valid easement across both the Orange County and Person County portions of plaintiffs' property and awarded defendants $1650.00 with interest in compensation for repairs to the dam.

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N.C.Gen.Stat. § 47-27 provides that in order to be valid against a purchaser for valuable consideration, a deed of easement must be recorded in the county where the land affected is located:

All persons, firms, or corporations now owning or hereafter acquiring any deed or agreement for rights-of-way and easements of any character whatsoever shall record such deeds and agreements in the office of the register of deeds of the county where the land affected is situated.

. . . . .

No deed, agreement for right-of-way, or easement of any character shall be valid as against any creditor or purchaser for a valuable consideration but from the registration thereof within the county where the land affected thereby lies.

N.C.Gen.Stat. § 47-27 (1984). See also Patrick K. Hetrick & James B. McLaughlin, Jr., Webster's Real Estate Law in North Carolina § 369 (3d ed. 1988). Recordation in one county has "no effect beyond the borders of that county." Allen v. Roanoke R.R. & Lumber Co., 171 N.C. 339, 341, 88 S.E. 492, 493 (1916). Therefore, where a property interest spans more than one county, it is only effective against other claimants in the counties in which it has been recorded. Because defendants' easement was not duly recorded in Person County at the time plaintiffs recorded their deed there, the easement was not valid against plaintiffs in Person County. "If a conveyance is not recorded by a grantee, it is considered absolutely void with respect to purchasers for value or lien creditors of the same grantor who record their conveyances or docket their liens." Webster's Real Estate Law in North Carolina § 369.

North Carolina is a "pure race" jurisdiction, in which the first to record an interest in land holds an interest superior to all other purchasers for value, regardless of actual or constructive notice as to other, unrecorded conveyances. "Where a grantor conveys the same property to two different purchasers, the first purchaser to record his deed wins the 'race to the Register of Deeds' Office' and thereby defeats the other's claim to the property, even if he has actual notice of the conveyance to the other purchaser." Hill v. Pinelawn Memorial Park, Inc., 304 N.C. 159, 163, 282 S.E.2d 779, 782 (1981); Bourne v. Lay & Co., 264 N.C. 33, 140 S.E.2d 769 (1965). Since defendants failed to register their grant of easement in Person County before plaintiffs registered their deed there, plaintiffs won the "race to the courthouse," and their interest supersedes the later-recorded interest claimed by defendants.

The trial court's conclusion that defendants' easement was valid in Person County was based on an erroneous belief that our law requires a purchaser for valuable consideration to be an "innocent purchaser." The court reasoned that because there were references to the easement within plaintiffs' chain of title, plaintiffs were on constructive notice as to its course through their Person County property. The court stated that buyers with constructive notice did not hold the status of innocent purchasers for valuable consideration. It concluded that therefore, even though defendants' easement had not been recorded, it was valid against these plaintiffs.

North Carolina does not require that a purchaser for valuable consideration be an "innocent purchaser." A "purchaser for value" or a "purchaser for valuable consideration" is defined by our case law simply as one who has paid a valuable consideration for the execution of an instrument of conveyance. Sansom v. Warren, 215 N.C. 432, 2 S.E.2d 459 (1939). Plaintiffs meet this definition and thus are purchasers for valuable consideration protected by § 47-27.

Constructive notice is relevant in determining priority of interests where duly recorded. Once an interest has been recorded, future claimants are considered to have notice of it and to take subject to it. Waldrop v. Town of Brevard, 233 N.C. 26, 62 S.E.2d 512 (1950); Yount v. Lowe, 288 N.C. 90, 215 S.E.2d 563 (1975). Because defendants' easement was properly recorded in Orange County, plaintiffs had constructive notice of it over their Orange County property. We affirm the trial court's conclusion that the portion of defendants' easement over the Orange County property is valid against plaintiffs.

As for the portion of the easement over the Person County property, we reverse the trial court as a matter of law and remand for an order instituting plaintiffs' requested injunctive relief and quieting title to the Person County property in favor of plaintiffs.

II.

Plaintiffs also contest the trial court's finding that defendants' easement ran over the dam that was breached, thus entitling defendants to $1650.00 for costs expended to repair the dam.

The trial court's finding relied on its conclusion that defendants' entire easement was valid. However, we hold that because the easement was valid only in Orange County, defendants can only be compensated if the dam lies in Orange County.

The parties in this action agree that it cannot be determined whether the dam in fact lies in Orange County. Although the dam is located in the vicinity of the Orange/Person county border, it cannot be determined which county it is in because the border has never been accurately surveyed.

Person County was created in 1791 when Caswell County was divided into two halves, Caswell County to the west, and Person County to the east. Caswell County itself had been created from Orange County in 1771. The General Assembly prescribed the Caswell County boundaries as follows:

... North of a Point Twelve Miles due North of Hillsborough, and bounded as follows, to-wit, Beginning at the aforesaid Point, running thence due East to Granville County Line, thence North along Granville County Line to the Virginia Line, thence West along the Virginia Line to Guilford County Line, thence South along Guilford County Line to a Point due West of the Beginning, thence due East to the Beginning....

Laws of North Carolina 1777, ch. XVII, published in The State Records of North Carolina (Walter Clark ed., 1905). However, the Orange/Caswell dividing line was never surveyed or mapped. Thus, the Orange/Person line cannot be accurately determined. The legal dividing line between Orange and Caswell/Person still commences at a point twelve miles due north of Hillsborough, a point whose location may never be known because of the virtual impossibility of replicating survey conditions of 1777, but a point that nonetheless is the only one presently recognized at law. The power to create, abolish, enlarge or diminish the boundaries of a county is vested exclusively in the legislature. See Moore v. Board of Educ. of Iredell County, 212 N.C. 499, 193 S.E. 732 (1937); Swain County v. Sheppard, 35 N.C.App. 391, 241 S.E.2d 525 (1978); N.C. Const. art. VII, § 1. Until the legislature commissions an accurate survey of the boundary, we cannot determine which county the dam is in and therefore whether defendants' easement passes over it.

As the pleading party, defendants have the burden of establishing that their easement is valid at the point that it crosses over the dam. Wells v. Clayton, 236 N.C. 102, 72 S.E.2d 16 (1952). Defendants cannot prove that the dam lies in Orange County; in fact, they have stipulated that the county in which it is located cannot be determined. Defendants therefore fail to carry their evidentiary burden, and we reverse accordingly.

For the reasons discussed herein, the judgment of the trial court...