State v. Brooks

• Decision Date: 10 June 1971
• Docket Number: No. 43,43
• Citation: 181 S.E.2d 553,279 N.C. 45
• Parties: STATE of North Carolina v. Joe C. BROOKS, Sr. et al.
• Court: North Carolina Supreme Court

Page 553

181 S.E.2d 553

279 N.C. 45

STATE of North Carolina v. Joe C. BROOKS, Sr. et al.

No. 43.

Supreme Court of North Carolina.

June 10, 1971.

Atty. Gen. Robert Morgan, Asst. Atty. Gen. Millard R. Rich, Jr., and George Rountree, Jr., and John Richard Newton, Wilmington, of counsel, for plaintiff appellee.

E. J. Prevatte, Southport, for defendant appellants.

BOBBITT, Chief Justice.

The allegations in their cross action did not disclose the basis on which defendants asserted ownership of the tract of land described in the complaint. When tried by Judge Hall, the case was submitted to the jury to determine whether defendants had acquired ownership by thirty years adverse possession under known and visible lines and boundaries. On appeal, the crucial question was whether defendants had offered evidence sufficient to withstand plaintiff's motion to nonsuit defendants' cross action. The Court of Appeals held the evidence was sufficient. This Court reversed that decision and in effect nonsuited defendants' cross action. The formal judgment to this effect by Judge Bone was not necessary but was appropriate. The exception to the entry thereof is without. merit. The question now before us is whether plaintiff has established ownership of the described lands.

G.S. 146--79 in pertinent part provides: 'In all controversies and suits for any land to which the State or any State agency or its assigns shall be a party, the title to such lands shall be taken and deemed to be in the State or the State agency or its assigns until the other party shall show that he has a good and valid title to such lands in himself.'

Relying upon the quoted statutory provisions, plaintiff identified by stipulation and by map the tract of land in controversy and rested.

Defendants offered no evidence of adverse possession. They offered a grant dated April 9, 1770, signed 'Wm. Tryon,' from the State of North Carolina to 'William Gaus.' They offered various deeds which they contend connect them with the 'Gause' grant. They offered testimony which they contend shows the land in controversy is included in the Gause grant and that all or part thereof is included in the various deeds in evidence.

In only two of the deeds offered by defendants is the land described in substantial accord with the description in the complaint and with the Hewlett map. One is a deed dated August, 1967, from 'ELIZABETH BROOKS, widow of Joseph William Brooks, ERIC BROOKS and wife, MARY ALICE, MAE B. ALBURY, widow, RUTH CREECH and husband, LONNIE, M. ROXIE NEWCOMER, widow, all heirs-at-law of Henry Gore, all of Dade County, Florida,' to Joe C. Brooks, Sr., and wife, ann Brooks. The other is a deed dated August 25, 1969, from 'HENRY C. LONG and wife, AURIE M. LONG, of Tampa, Florida (the said Henry C. Long being an heir-at-law of the late Henry Gore),' to Joe C. Brooks, Sr., and wife, Ann Brooks. These two deeds were executed, acknowledged and recorded subsequent to the institution of this action, which was instituted on September 26, 1966. Seemingly, defendants now claim ownership by purchase from persons who purport to be heirs-at-law of Henry Gore.

Assuming, without deciding, that the subject land is included in the Gause grant, defendants, in order to show they have a good and valid title to the subject land in themselves, must connect themselves with the Gause grant. They must carry the burden of proof 'by showing a connected chain of title from the sovereign to (them) for the identical lands claimed by (them).' Sledge v. Miller, 249 N.C. 447, 451, 106 S.E.2d 868, 872 (1959). Accord; Gahagan v. Gosnell, 270 N.C. 117, 119, 153 S.E.2d 879, 880 (1967).

The land covered by the Gause grant is described therein as follows: '470 acres Brunswick being a tide marsh between Tubs Inlet and Mad Inlet joining and between Needham Gaus, John Simmons, His own, Peter Allston and Isaac Ludlams line, Beginning at a pine by the mouth of the Spring Branch on Peter Allstons line by the marsh side thence along with the up land and marsh joining Peter Allstons his own John Simmons and Needham Gaus lines to a pine on the marsh side by Shelleys Point 12 poles to eastward of Need Gaus westermost corner which on a straight line is south 74 west 882 poles, thence south 120 poles to a stake by his beach tract; thence along said line or beach north 68 east 320 poles, thence north 76 east 560 poles to a stake by Tubs Inlet by the mouth of Morgans Creek; thence along by the side of said creek about north 49 east 40 poles to the Beginning.' (Our italics.)

To show a connected chain of title from William Gause to them, defendants offered the following deeds:

1. A deed dated July 25, 1796, from William Gause to Samuel Gause which purports to convey 'a certain plantation and tract of land' containing 610 acres, more or less, 'that is to say, 110 acres on the Plead, also 200 acres Of the marsh and islands Tubbs Inlet joining the above and granted by patent dated the 9th of April 1770 to said William Gause. Also 300 acres * * *.' (Our italics.)

2. A deed dated September 10, 1807, from Samuel Gause to William Tilly which purports to convey 'a plantation tract or parcel of land' containing 610 acres, more or less, 'that is to say 110 acres on the head of the east branch of Little River granted by patent to John Ludlum the 26th day of May, 1757, 200 acres of the tide marsh and island near Tubbs Inlet, and joining the above, granted by patent bearing date 9th day of April, 1770, to William Gause.' (Note: No reference is made to the additional 300 acres referred to in the deed from William Gause to Samuel Gause.)

3. A deed dated July 31, 1848, from Sterling B. Everett, Clerk and Master in Equity, to William Frink, which purports to convey a tract of land 'near Shallotte and opposite Tubbs Inlet and known as the Tilly Place and Gold Plantation whereon Andrew L. Gold last resided and died, bounded on the south and west by the lands of William Frink, on the north and east by the lands of Henry Nutt, and on the south by the Atlantic Ocean, containing about 800 acres, more or less, * * *.' This deed recites that it was made pursuant to a sale under a decree of the Court of Equity of Brunswick County on petition of Eliza L. Gold, by her guardian and next friend, Bryan Gause, and Uriah Morse and wife, Margaret Ann Morse.

4. A deed dated June 7, 1853, from William Frink to Henry Gore which purports to convey a tract of land described therein as follows: 'BEGINNING at a stake at the mouth of Roaring Branch run thence up said branch about North 16 West 140 poles to a pine; thence North 17 West 214 poles to a pine in a large swamp; thence South 53 West 168 poles to a red oak; thence North 1 30 East 230 Poles to a gum in the mouth of Walling Branch; thence up said branch crossing the public road to a stake in the head of said branch; thence South 69 West 232 poles to a stake in William Frink's line; thence with his line South 24 East 640 poles to a stake on the marsh; thence to Simmons Creek; thence with said Creek to the main river; thence with said river to opposite the mouth of Roaring Branch; thence to the Beginning, containing 1062 acres, more or less, known as the Gold Land, * * *.'

Two instances of the failure to show a connected chain of title from William Gause to defendants are pointed out in the following numbered paragraphs:

1. The description in each of two deeds, namely, the deed from William Gause to Samuel Gause and the deed from Samuel Gause to William Tilly, is patently and fatally defective. The only relevant portion of the description in each of these deeds is the reference to 200 acres Of the land granted on April 9, 1770, to William Gause. The principles applicable in determining the sufficiency of the description are well established. Hodges v. Stewart, 218 N.C. 290, 10 S.E.2d 723 (1940), and cases cited therein. 'The description must identify the land, or it must refer to something that will identify it with certainty. Otherwise the description is void for uncertainty.' Deans v. Deans, 241 N.C. 1, 84 S.E.2d 321 (1954). Accord, Carlton v. Anderson, 276 N.C. 564, 173 S.E.2d 783 (1970). 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. The deed itself must point to the source from which evidence Aliunde to make the description complete is to be sought.' North Carolina Self Helf Corp. v. Brinkley, 215 N.C. 615, 2 S.E.2d 889 (1939). Accord, Baldwin v. Hinton, 243 N.C. 113, 119, 90 S.E.2d 316, 320 (1955). Thus, in Hodges v. Stewart, supra, the devise of 25 acres out of the home tract of 82 acres, the land devised to include 'the dwelling and outhouses,' was held void for vagueness and uncertainty in the description of the property.

2. There is At least one missing link in defendants' purported connected chain of title. 'Where a link is missing the chain is severed, and no benefit can accrue from the earlier conveyances.' Sledge v. Miller, supra 249 N.C. at 452, 106 S.E.2d at 873. The validity of the deed from Sterling B. Everett, Clerk and Master in Equity, to William Frink, is predicated in ownership of the 800 acres, more or less, described therein, by Eliza L. Gold, Uriah Morse and Margaret Ann Morse, or by one or more of them. The record is silent as to how these persons or any of them acquired title. Thus, there is a hiatus or break between William Tilly and William Frink. Lindsay v. Carswell, 240 N.C. 45, 81 S.E.2d 168 (1954); Sledge v. Miller, supra; Bowers v. Mitchell, 258 N.C. 80, 128 S.E.2d 6 (1962).

Since defendants have failed to show they have a good and valid title to the subject land in themselves, our next inquiry is whether title vests in plaintiff, the State of North Carolina, As a matter of law by virtue of G.S. 146--79.

With reference to plaintiff's claim of ownership, we take judicial notice of the statutory provisions set forth and discussed...