Taylor v. Johnston

• Decision Date: 14 May 1976
• Docket Number: No. 26,26
• Parties: J. T. TAYLOR, Jr., Petitioner, v. R. G. JOHNSTON et al.
• Court: North Carolina Supreme Court

Page 567

224 S.E.2d 567

289 N.C. 690

J. T. TAYLOR, Jr., Petitioner, v. R. G. JOHNSTON et al.

No. 26.

Supreme Court of North Carolina.

May 14, 1976.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Roy A. Giles, Jr., Raleigh, for respondents-appellees.

BRANCH, Justice.

Petitioner proceeds under Chapter 43 of the General Statutes which is generally referred to as 'the Torrens Law.' Pursuant to the provisions of Chapter 43, anyone in peaceable possession of land in this State who claims an estate of inheritance therein may prosecute a special proceeding against all the world to establish his title thereto, to determine all adverse claims and to have the title registered. G.S. 43--6. When the Commission filed its answer, the allegations of the petition were controverted as to the lands lying north of Mouse Harbor Canal and the provisions of G.S. 43--11 were activated. Paper Co. v. Cedar Works, 239 N.C. 627, 80 S.E.2d 665. The pertinent portions of G.S. 43--11 provide:

(a) Referred to Examiner.--Upon the return day of the summons the petition shall be set down for hearing upon the pleadings and exhibits filed. If any person claiming an interest in the land described in the petition or any lien thereon, shall file an answer, the petition and answer, together with all exhibits filed, shall be referred to the examiner of titles, who shall proceed, after notice to the petitioner and the persons who have filed answer or answered, to hear the cause upon such parol or documentary evidence as may be offered or called for and taken by him, and in addition thereto make such independent examination of the title as may be necessary. Upon his request the clerk shall issue a commission under seal of the court for taking such testimony as shall be beyond the jurisdiction of such examiner.

(b) Examiner's Report.--The examiner shall, within thirty days after such hearing, unless for good cause the time shall be extended, file with the clerk a report of his conclusions of law and fact, setting forth the state of such title, any liens or encumbrances thereon, by whom held, amount due thereon, together with an abstract of title to the lands and any other information in regard thereto affecting its validity.

(c) Exceptions to Report.--Any of the parties to the proceeding may, within twenty days after such report is filed, file exceptions, either to the conclusions of law or fact. Whereupon the clerk shall transmit the record to the judge of the superior court for his determination thereof; such judge may on his own motion certify any issue of fact arising upon any such exceptions to the superior court of the county in which the proceeding is pending, for a trial of such issue by jury, and he shall so certify such issue of fact for trial by jury upon the demand of any party to the proceeding. If, upon consideration of such record, or the record and verdict of issues to be certified and tried by jury, the title be found in the petitioner, the judge shall enter a decree to that effect, ascertaining all limitations, liens, etc., declaring the land entitled to registration accordingly, and the same, together with the record, shall be docketed by the clerk of the court as in other cases, and a copy of the decree certified to the register of deeds of the county for registration as hereinafter provided. Any of the parties may appeal from such judgment to the Supreme Court, as in other special proceedings.

Any decree entered by the examiner must be 'approved by the judge of the superior court, who shall review the whole proceeding and have power to require any reformation of the process, pleadings, decrees or entries.' G.S. 43--12.

In Paper Co. v. Cedar Works, supra, Justice Ervin, speaking for the Court, concisely stated the law and rules governing contested hearings in a Torrens proceeding. We quote from that case:

On a hearing before an examiner in a contested proceeding to register a land title under the Torrens Law, the same rules for proving title apply as in actions of ejectment and other actions involving the establishment of land titles. Perry v. Morgan, 219 N.C. 377, 14 S.E.2d 46; Thomasson v. Coleman, 176 Ga. 375, 167 S.E. 879; Glos v. Cessna, 207 Ill. 69, 69 N.E. 634; 76 C.J.S. Registration of Land Titles §§ 18, 19.

These rules for proving title to land are presently relevant:

1. The general rule, is that the burden is on the plaintiff, in the trial of an action of ejectment or other action involving the establishment of a land title, to prove a title good against the world, or a title good against the defendant by estoppel. Shelley v. Grainger, 204 N.C. 488, 168 S.E. 736; Rumbough v. Sackett, 141 N.C. 495, 54 S.E. 421; Campbell v. Everhart, 139 N.C. 503, 52 S.E. 201; Mobley v. Griffin, 104 N.C. 112, 10 S.E. 142.

2. The plaintiff in an action of ejectment or other action involving the establishment of a land title may safely rest his case upon showing such facts and evidences of title as would establish his right to the relief sought by him if no further testimony were offered. Power Company v. Taylor, 196 N.C. 55, 144 S.E. 523; Singleton v. Roebuck, 178 N.C. 201, 100 S.E. 313; Moore v. McClain, 141 N.C. 473, 54 S.E. 382; Mobley v. Griffin, supra. 'This Prima facie showing of title may be made by either of several methods.' Mobley v. Griffin, supra. See also, in this connection: Conwell v. Mann, 100 N.C. 234, 6 S.E. 782.

3. The several methods of showing Prima facie title to land in actions of ejectment and other actions involving the establishment of land titles are enumerated in the famous case of Mobley v. Griffin, supra.

4. This is one of the enumerated methods: The plaintiff proves a Prima facie title to land by tracing his title back to the State as the sovereign of the soil. McDonald v. McCrummen, 235 N.C. 550, 70 S.E.2d 703; Moore v. Miller, 179 N.C. 396, 102 S.E. 627; Caudle v. Long, 132 N.C. 675, 44 S.E. 368; Prevatt v. Harrelson, 132 N.C. 250, 43 S.E. 800; Mobley v. Griffin, supra; Graybeal v. Davis, 95 N.C. 508. The plaintiff satisfies the requirements of this method of proving a Prima facie title when his evidence shows a grant from the State covering the land described in his complaint and Mesne conveyances of that land to himself. Power Company v. Taylor, supra; Buchanan v. Hedden, 169 N.C. 222, 85 N.C. 417; Land Co. v. Cloyd, 165 N.C. 595, 81 S.E. 752; Deaver v. Jones, 119 N.C. 598, 26 S.E. 156.

5. The plaintiff in an action of ejectment or other action involving the establishment of a land title need not prove a title alleged by him if it is judicially admitted by the defendant. Collins v. Swanson, 121 N.C. 67, 28 S.E. 65; 28 C.J.S. Ejectment § 81.

6. Where it appears from the showing of a Prima facie title by the plaintiff or the judicial admission of the defendant that the land in dispute in an action of ejectment or other action involving the establishment of a land title is within the external boundaries of the plaintiff's deed and that the defendant claims it under an exception in such deed, the burden is on the defendant to bring himself within such exception by proper proof. Boyd v. Lumber Co., 185 N.C. 559, 117 S.E. 714; Bright v. Lumber Co., 184 N.C. 614, 113 S.E. 506; Southgate v. Elfenbein, 184 N.C. 129, 113 S.E. 594; Lumber Co. v. Cedar Company, 142 N.C. 411, 55 S.E. 304; Batts v. Batts, 128 N.C. 21, 38 S.E. 132; Wyman v. Taylor, 124 N.C. 426, 32 S.E. 740; Bernhardt v. Brown, 122 N.C. 587, 29 S.E. 884; 65 Am.S.R. 725; Basnight v. Smith, 112 N.C. 229, 16 S.E. 902; Steel & Iron Co. v. Edwards, 110 N.C. 353, 14 S.E. 861; Midgett v. Wharton, 102 N.C. 14, 8 S.E. 778; King v. Wells, 94 N.C. 344; Gudger v. Hensley, 82 N.C. 481; McCormick v. Monroe, 46 N.C. 13. To do this, the defendant must present evidence sufficient to identify the Locus in quo and locate it upon the surface of the earth inside the exception. McBrayer v. Blanton, 157 N.C. 320, 72 S.E. 1070; Steel and Iron Co. v. Edwards, supra.

If there be a hiatus or break in petitioner's chain of title, there can be no benefit from earlier conveyances. State v. Brooks, 279 N.C. 45, 181 S.E.2d 553; Sledge v. Miller, 249 N.C. 447, 106 S.E.2d 868; Norman v. Williams, 241 N.C. 732, 86 S.E.2d 593; Mobley v. Griffin, 104 N.C. 112, 10 S.E.2d 142.

The Court of Appeals held that petitioner's chain of title was first severed by the document purporting to be the will of John Gray Blount. The record shows this document to actually be the report of commissioners appointed by the Beaufort Court of Equity to divide the lands of John Gray Blount, deceased. The commissioners returned their report to the Fall Term Session of the Beaufort Court of Equity and by their report allotted to Thomas H. Blount that portion of the lands of John Gray Blount known as the 'Pamlico and Porpose (sic) Marshes,' being Grant 602. In its decree of confirmation the court ordered that the parties 'execute to each other deeds for their respective shares.'

Petitioner introduced no evidence tending to show compliance by the parties or that the court ever entered any order of attachment to enforce its decree.

In Volume 68 C.J.S. Partition § 164, page 274, it is stated:

In equitable proceedings for partition, since an order or decree confirming the report of commissioners appointed to make partition does not of itself, in absence of statute, vest legal title . . . the execution of conveyances is necessary therefor except where, by force of statute, the necessity of a conveyance is obviated. . . . In (a proceeding) at law, however, no conveyance is necessary unless required by statute, inasmuch as the parties are seized of their shares and the partition only adjust their rights.

See also 59 Am.Jur.2d, Partition, § 88, at 845.

The United States Supreme Court considered a proceeding in equity to divide real estate in the case of Gay v. Parpart, 106 U.S. 679, 27 L.Ed. 256, 1 S.Ct. 456. There the Court, Inter alia, stated:

It was another principle of the chancery jurisdiction in...