White v. Farabee
| Decision Date | 17 May 2011 |
| Docket Number | No. COA10–1213.,COA10–1213. |
| Citation | 713 S.E.2d 4 |
| Parties | Philippe WHITE, and Wife, Elizabeth S. White, Petitioners,v.Robert Leroy FARABEE, Unmarried; Richard Eugene Rasberry, and Spouse, if any; Hosea R. Rasberry, Unmarried; Charles Albert Isley, Jr., and Spouse, if any; Ernest Lemell Isley, and Spouse, if any; William Cecil Douglas Isley, and Wife, Cecelia Isley; Ralph Malcolm Pollard, Unmarried; Edwina M. Deloney, Unmarried; Frederick A. Smith, and Wife, Bertha M. Smith; Patricia S. Day, and Husband, John W. Day; Joyce L. Braswell Livingston, Unmarried; Kenneth E. Whiteside, and Wife, Joan D. Whiteside; Stephanie Marie Simmons, Unmarried; Ricardo Bennerman, Unmarried; Brent F. King, Trustee; United General Mortgage Corporation, Noteholder; Property Management Services, Inc., Judgment Creditor; United States of America, Lienholder; and Any Persons and Their Spouses, Firms or Corporations Who May Have Acquired Any Interest By Assignment, Transfer, Sale, Will, Devise, Bequest or Laws of Descent And Distribution Or In Any Manner Whatsoever, by, Through, Or Under Ceola Elizabeth Smith (Specifically Including But Not Limited to Those Acquiring Such An Interest By, Through, Or Under Ozella J. Smith Rasberry, Charlotte Beatrice Smith Pollard, Lewis E. Smith, Carl Shepard, Wade Shepard and/or Boy Smith, born August 4, 1917), Respondents. |
| Court | North Carolina Court of Appeals |
OPINION TEXT STARTS HERE
Appeal by petitioners from order entered 21 April 2010 by Judge Ronald E. Spivey in Guilford County Superior Court. Heard in the Court of Appeals 7 March 2011.
Robertson, Medlin & Bloss, PLLC, by John F. Bloss, Greensboro, for petitioner-appellants.
Land Loss Prevention Project, by Mary E. Henderson and Jeffrey M. Jandura, Durham, for Patricia Day and Kenneth and Joan Whiteside respondent-appellees.Tuggle Duggins & Meschan, PA, by John R. Barlow, II, and Michael S. Fox, Greensboro, for Natasha Braswell respondent-appellee.
Petitioners appeal from an order entered by the trial court in favor of respondents, finding that each of the four respondents had acquired title to portions of a certain piece of real property by adverse possession under color of title. After careful review, we reverse.
On 22 June 1961, Ceola Elizabeth Smith (“Ceola”) died intestate seized of a 70–acre parcel of real property located in Guilford County, North Carolina (“the Ceola Smith Property”). The Ceola Smith Property is undeveloped, having only a single driveway and no habitable buildings. In the years following Ceola's death, certain of her grandchildren continued to pay the taxes on the Ceola Smith Property. These grandchildren, comprising four groups of relatives, were: (1) respondents Patricia Day (“Day”) and her husband, John Day (collectively “the Days” 1); (2) respondents Frederick Smith, Jr. (“Smith”) and his wife, Bertha Smith (collectively, “the Smiths”); (3) Joyce Livingston (“Livingston”); and (4) respondents Edwina Deloney (“Deloney”) and Ralph Malcolm Pollard (“Pollard”).
Eventually, these four groups of family members decided to voluntarily divide the Ceola Smith Property into four tracts, each owned by one of the four groups of relatives that had been paying one-fourth of the property taxes on the Ceola Smith Property since Ceola's death. Despite their awareness of multiple other heirs of Ceola, these four groups of relatives assumed they were the only proper owners of the Ceola Smith Property by virtue of having paid all of the property taxes in the years following Ceola's death. Accordingly, in June 1998, these four groups of relatives collectively hired a surveyor to divide the Ceola Smith Property into four approximately equal parcels, and employed a lawyer to prepare four reciprocal deeds for those parcels.
One such reciprocal deed granted the Days an 18.69–acre parcel of the Ceola Smith Property (the “Day tract”). On 4 October 2004, the Days conveyed a 2.00–acre portion of this parcel (the “Whiteside tract”) to Day's daughter and son-in-law, respondents Joan and Kenneth Whiteside (“the Whitesides”). Another such reciprocal deed granted Livingston a 20.00–acre parcel of the Ceola Smith Property (the “Livingston tract”). Livingston died intestate on 12 January 2002, and one of her four children, respondent Natasha Braswell (“Braswell”), now claims ownership of the Livingston tract on behalf of her mother's estate.
The four reciprocal deeds all state on their face that they were “made” on 15 December 1998. Day testified during trial that she and her brother, Smith, picked up the unsigned deeds from the preparing lawyer's office some time in December 1998. At one point, Day testified she signed the deeds on that day, after picking them up from the lawyer's office. Day then mailed the deeds for signature to Livingston, Deloney, and Pollard, each of whom lived at different locations in New Jersey.
The signed deeds, bearing the signatures of Livingston, Deloney, and Pollard, were then returned to Day by mail. Upon receipt, Day and the remaining parties to the deeds—her husband John Day and the Smiths—took the deeds to a notary in Guilford County. Day then testified that she and her husband and the Smiths all signed the four deeds before the notary on 1 March 1999 and vouched for the authenticity of the absent parties' signatures. The deeds were then signed and acknowledged by the notary on 1 March 1999, and thereafter recorded at the courthouse.
Prior to the actions by these four groups of family members, in August 1992, petitioner Philippe White (“White”) and his wife, Elizabeth White (collectively, “petitioners”), purchased the interest of Nancy Louise Glanz (“Glanz”) in several tracts of land, including an undivided tenant-in-common interest in the Ceola Smith Property. When petitioners purchased Glanz's interest in the Ceola Smith Property, they knew that they were purchasing a percentage interest in the entire 70–acre tract, but they did not know at the time the precise percentage of ownership that they were buying. The special warranty deed evidencing the conveyance to petitioners of Glanz's interest in the Ceola Smith Property and the contiguous tracts was recorded on 7 October 1992. White initiated a title search to determine his percentage interest in the Ceola Smith Property, but due to the complexity of ownership by multiple heirs and the costs involved, White suspended the search before getting an answer.
In June 2003, White hired an attorney to try to ascertain the ownership interests in the Ceola Smith Property. Upon studying the tax maps and records, White had discovered the attempted division of the Ceola Smith Property by the four groups of family members. Upon White's request, Day attended a meeting with White and his attorney regarding the ownership interests of the Ceola Smith Property. Day testified she refused to argue about the property interests at the meeting because she had a deed to her parcel and therefore “knew [she] owned it.” During the meeting, White made notes listing the names of Ceola's heirs that may have an interest in the Ceola Smith Property for follow-up.
Petitioners initiated the present action by filing a verified petition for partition in Guilford County Superior Court on 30 January 2006. The petition asks that the trial court determine the proportionate interests of the petitioners and the many various respondents and to then partition the property accordingly. On 2 March 2006, respondents Day and her husband and the Whitesides filed a response to the petition for partition. In their response, Day and the Whitesides asserted a counterclaim, alleging that they had acquired all right, title, and interest in 18.69 acres of the Ceola Smith Property by adverse possession under color of title. On 8 February 2008, respondent Braswell filed a response to the petition for partition denying the title of petitioners.
The parties stipulated prior to trial that the family members who executed the reciprocal deeds in 1998 were not the complete and proper heirs to the Ceola Smith Property—only Deloney, Pollard, and Livingston actually owned any interest in the Ceola Smith Property at that time. Prior to executing the reciprocal deeds, the Days and the Smiths had no actual interest in the Ceola Smith Property. Unknown to them at the time the reciprocal deeds were executed, the father of Day and Smith had deeded his interest in the Ceola Smith Property to some of the other family members, thereby eliminating their interest in the Ceola Smith Property.
The matter came on for trial on 4 March 2010 on the sole issue of the claims of respondents Day, the Whitesides, and Braswell that they are the sole owners, by reason of adverse possession under color of title, of three tracts consisting of approximately 38.69 acres of the Ceola Smith Property. Based on the evidence adduced at trial, the trial court entered an order on 21 April 2010 finding that respondents Day, the Whitesides, and Braswell each owned title to their respective parcels by adverse possession under color of title. Petitioners appeal.
The order being appealed in the present case is interlocutory, as it only addresses the counterclaims asserted by respondents Day and the Whitesides, as well as their and respondent Braswell's interests in the subject Ceola Smith Property, leaving for determination the interests of petitioners and the remaining respondents in the subject Ceola Smith Property for partition. An order is interlocutory if “it does not dispose of the case, but leaves it for further action for the trial court in order to settle and determine the entire controversy.' ” Davidson v. Knauff Ins. Agency, 93 N.C.App. 20, 24, 376 S.E.2d 488, 490 (1989) (quoting Veazey v. City of Durham, 231 N.C. 357, 361–62, 57 S.E.2d 377, 381 (1950)). “ ‘Generally, there is no right of immediate appeal from interlocutory orders and judgments.’ ” Plomaritis v. Plomaritis, 200 N.C.App. 426, 428, 684 S.E.2d...
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