Whiteheart v. Grubbs

• Decision Date: 09 June 1950
• Docket Number: No. 748,748
• Citation: 232 N.C. 236,60 S.E.2d 101
• Parties: WHITEHEART et ux. v. GRUBBS.
• Court: North Carolina Supreme Court

Page 101

60 S.E.2d 101

232 N.C. 236

WHITEHEART et ux. v. GRUBBS.

No. 748

Supreme Court of North Carolina.

June 9, 1950

Ingle, Rucker & Ingle, Winston-Salem, for plaintiffs-appellants.

Parker & Lucas, Winston-Salem, for defendant-appellee.

WINBORNE, Justice.

Appellants state in their brief five questions as being presented by their assignments of error on this appeal. The first three appear to be predicated upon their exception to the denial of their motions for judgment as of nonsuit as to respondent's further defense based on her pleas of adverse possession of the land in controversy. The fourth relates to the exclusion of certain evidence. And the fifth relates to alleged failure of the trial judge to properly charge the jury. After careful examination of the questions so raised, we hold that prejudicial error is not made to appear.

As to the three questions relating to nonsuit: The first and basic contention of appellants is that the description in the deeds under which the respondent claims does not cover the land in controversy represented by the letters A to B to C and back to A. This contention, apparently, is based upon the assumption that the specific or particular description in these deeds is controlled by the general description which follows.

In this connection, the rule is that where there is a particular and a general description in a deed, the particular description prevails over the general. Carter v. White, 101 N.C. 30, 7 S.E. 473; Cox v. McGowan, 116 N.C. 131, 21 S.E. 108; Midgett v. Twiford, 120 N.C. 4, 26 S.E. 626; Loan Ass'n v. Bethel, 120 N.C. 344, 27 S.E. 29; Johnston v. Case, 131 N.C. 491, 42 S.E. 957; John L. Roper Lumber Co. v. McGowan, 168 N.C. 86, 83 S.E. 8; Potter v. Bonner, 174 N.C. 20, 93 S.E. 370; Bailey v. Hayman, 218 N.C. 175, 10 S.E.2d 667; Lewis v. Furr, 228 N.C. 89, 44 S.E.2d 604; Lee v. McDonald, 230 N.C. 517, 53 S.E.2d 845.

It is only when the specific description is ambiguous, or insufficient, or the reference is to a fuller and more accurate description, that the general clause is allowed to control or is given significance in determining the boundaries. 18 C.J. 284; 26 C.J.S., Deeds, § 100; Campbell v. McArthur, 9 N.C. 33, 11 Am.Dec. 738; Den em dem. Ritter v. Barrett, 20 N.C. 266; Quelch v. Futch, 172 N.C. 316, 90 S.E. 259; Crews v. Crews, 210 N.C. 217, 186 S.E. 156; Lewis v. Furr, supra.

Applying this principle to description in the deeds under consideration, the particular description is clear and specific, and, when considered in connection with the admitted plat, leaves no room to doubt that it covers the land in controversy. Such being the case, it prevails over the general description which follows.

The second question, taking for granted that the description in respondent's deed covers the land in controversy, assumes that the 'evidence fails to disclose the essential elements of notoriety with respect to the boundaries under adverse possession'.

In this connection, since the deeds under which petitioners claim and the deeds under which respondent claims cover the land in controversy, the subject of the relative rights of the parties in respect to the lappage is presented. The pertinent rules in this respect, established by decisions of this Court, are set forth by Stacy, C. J., in Vance v. Guy, 224 N.C. 607, 31 S.E.2d 766, 768, in this manner:

'1. Where the title deeds of two rival claimants to land lap upon each other, and neither is in the actual possession of any of the land covered by both deeds, the law adjudges the possession of the lappage to be in the one who has the better title. * * *

'2. If one be seated on the lappage and the other not, the possession of the whole interference is in the former. * * *

'3. If both have actual possession of some part of the lappage, the possession of the true owner, by virtue of his superior title, extends to all not actually occupied by the other.'

And the subject is fully discussed in the case of Currie v. Gilchrist, 147 N.C. 648, 61 S.E. 581, 584, and summarized in part as follows: 'We may therefore take it to be settled by this court by a long and unvarying line of decisions that if the person who claims under the elder title have no actual possession on the lappage, such possession, although of a part only, by him who has the junior title, if adverse and continued for seven years, will confer a valid title for the whole of the interference, the title being out of the state'. See Berry v. Coppersmith, 212 N.C. 50, 193 S.E. 3, and cases cited.

Testing the case in hand by these rules, there is no evidence that petitioners or those under whom they claim have been in actual occupation of any of the lappage. And there is evidence that respondent has been in actual occupation of it.

Hence, her possession, if adverse and continued for...