Appeal by defendants from judgment entered 21 June 1998 by
Judge William A. Leavell in Watauga County District Court. Heard
in the Court of Appeals 28 March 2002.
Di Santi Watson & Capua, by Anthony S. di Santi and Andrea N.
Capua, for plaintiff-appellees.
McElwee Firm, PLLC, by John M. Logsdon, for defendant-
appellants.
MARTIN, Judge.
This appeal arises out of a real property boundary dispute
originally between Daniel B. Cartin and defendants Shuford Edward
Harrison and Renee Edmiston Harrison, each of whom claimed superior
title to approximately seven acres of land. Cartin filed a
complaint on 19 May 1995, seeking a judgment declaring him owner of
the property, “free from the claim of the Defendants.” Defendants
filed an answer, counterclaim, and cross-claim, seeking a
declaration that they were the owners of the disputed property. On
3 March 1998, the trial court granted Cartin's motion to join
Donald and Ann Smart, who purchased the property from plaintiff and
who are now the real parties in interest (hereinafter,
“plaintiffs”). Following a pre-trial conference, the trial courtentered a consent order which provided that the court “shall hear
only issues related to plaintiffs' assertion that it has superior
record title to the property in dispute by reason of a connected
chain of title to the State of North Carolina.” The parties agreed
to bifurcate the trial, allowing defendants “the opportunity, if
necessary, to prosecute their counterclaims at a future jury
session of Watauga County District Court,” and, if necessary, to
pursue defendants' cross-claim against third-party defendants.
After the parties waived their rights to a jury trial on the
issue of whether plaintiffs could establish a connected chain of
title to the State of North Carolina, the trial court heard
evidence at a bench trial. Plaintiffs based their claim of
superior title upon a series of conveyances originating in three
grants from the State of North Carolina. Defendants acknowledge
that plaintiffs proved a connected chain of title from themselves
back to John Storie and from William Storie to the State; however,
defendants challenge plaintiffs' proof that a valid connection in
the chain of title was established between William Storie and John
Storie. With respect to that link in the chain, plaintiffs offered
evidence of a proceeding to partition the “landed estate of Wm. A.
Storie.” The evidence included a document which stated that it was
“[t]he foregoing Reports of the Jurors who laid and partitioned
real estate of Wm. Storie Dec. [deceased] among his heirs at law on
15th day of June 1880 . . . .” and it allotted to John Storie a
parcel of land from the William A. Storie property, and provided a
legal description of that parcel. Plaintiffs' expert, Joseph M.Parker, Jr., testified that all deeds in plaintiffs' chain of title
were valid deeds, and that the documents, taken together,
established a complete chain of title. Parker stated the partition
proceeding report “does include the property in question. And
although it may not be a deed, it does, I think, convey, pass on
the title.” On cross-examination, Parker admitted that the
partition proceeding documents do not indicate whether all heirs of
William Storie were included in the partition proceeding, and that
if an individual heir was not included in the proceeding, the
partition proceeding would not be effective. Nevertheless, Parker
stated that the possibility of a challenge to the partition was
“remote,” and that he “would pass on titles where you may not have
all the heirs but you feel reasonably assured that you did,
particularly if it's this old.” Parker stated that plaintiffs had
established “good title.” Following completion of the plaintiffs'
evidence, defendants presented evidence, including the testimony of
two licensed surveyors, Lewis Cox and James Murray Gray; neither
surveyor, however, conducted surveys of the parties' respective
properties.
The trial court found facts, concluded that plaintiffs had
established “a legally sufficient chain of title back to the State
of North Carolina, and Plaintiffs' title to the disputed property
is superior to Defendants;” and entered judgment declaring
plaintiffs to be the owners in fee simple of the property.
Defendants submitted to a voluntary dismissal without prejudice as
to their counter-claim and gave notice of appeal.
_______________
The standard of review on appeal from a judgment entered after
a non-jury trial is “whether there is competent evidence to support
the trial court's findings of fact and whether the findings support
the conclusions of law and ensuing judgment.”
Sessler v. Marsh,
144 N.C. App. 623, 628, 551 S.E.2d 160, 163,
disc. review denied,
354 N.C. 365, 556 S.E.2d 577 (2001).
Defendants first contend the trial court erred in holding that
plaintiffs proved an unbroken chain of title from the State of
North Carolina. A party may establish good title to real property
by several methods, one of which involves proof of a connected
chain of title from the party to the State of North Carolina.
Mobley v. Griffin, 104 N.C. 112, 10 S.E. 142 (1889). Defendants
concede in their brief to this Court that plaintiffs have proved a
connected chain of title from themselves back to John Storie and
from William Storie to the State. Defendants argue, however, that
plaintiffs did not establish a valid connection in the chain of
title between William Storie and John Storie.
The documentary evidence offered by plaintiffs included a
“decree for partition,” signed by “J.H. Hardin, CSC, Probate
Judge”; a “partition” of the “landed estate of Wm. A. Storie,”
which specifically allotted to John Storie a parcel of land from
the Wm. A. Storie property, and described that parcel; and a report
of the partition by the “duly appointed” commissioners, which
stated,
The foregoing Reports of the Jurors who laid
and
partitioned real estate of Wm. Storie Dec.[deceased] among his heirs at law on 15
th day
of June 1880 is enrolled and together with the
Judgment and decree confirming the same is
hereby certified to the Register of Deeds of
Watauga County and ordered to be registered in
the Register's office of said county (emphasis
added).
The report was dated 29 June 1880 and signed by “J.H. Hardin, CSC,
Probate Judge.” Plaintiffs' expert, Joseph M. Parker, Jr.,
testified that all deeds in plaintiffs' chain of title were valid
deeds, and that the documents established a complete chain of
title. Parker also testified regarding the connection in the chain
from William Storie to John Storie. Parker stated that the
Commissioner's report “does include the property in question. And
although it may not be a deed, it does, I think, convey, pass on
the title.” In fact, pressed on cross-examination about whether
the documents from the partition proceeding indicated that all
heirs of William Storie had been included, Parker stated that the
chances of a challenge to the partition were “remote,” and that
plaintiffs had established “good title” on the basis of “this
document and the full chain of title.” Parker explained,
if you go back into the 1880s and 1890s and
you worry about every time something may not
have been procedurally correct in accordance
with the procedural rules at that time and
there may have been a missing heir, we
wouldn't have many good titles.
Plaintiffs' chain of title is distinguishable from the title
found defective in
McDonald v. McCrummen, 235 N.C. 550, 70 S.E.2d
703 (1952), cited by defendants in support of their contention that
plaintiffs' chain was incomplete. In
McDonald, land was granted by
the State of North Carolina to Aaron Murchison, and years later an“O.B. Murchison” purported to convey this same land through a deed
to the plaintiff. There was no evidence, however, that O.B.
Murchison was an heir to Aaron Murchison or that he otherwise
acquired title from Aaron Murchison:
It may be that O. B. Murchison is the heir, or
an heir of the first, and as such could
maintain an action against a third party to
recover the land, [citation omitted] but the
testimony of plaintiff is that “I do not know
what kin O. B. Murchison was to A. A.
Murchison,--they were some of my own people.”
Titles to land may not rest in so thin veil of
uncertainty.
Id. at 553, 70 S.E.2d at 706. In
McDonald, because the plaintiff
provided no documentation of a conveyance from Aaron Murchison to
O.B. Murchison, there was an actual break in the chain from the
State to the plaintiff. As the Supreme Court explained, “the
trouble with this effort is that it does not connect.”
Id. at 553,
70 S.E.2d at 705.
In the present case, by contrast, the partition proceeding is
one of a series of documents conveying the land originally owned by
the State and currently owned by plaintiffs. The partition
proceeding states that the landed estate of William Storie,
deceased, was to be divided among his heirs at law, which included
John Storie. The trial court found facts establishing the chain of
title and concluded as a matter of law: “Plaintiffs' [sic] have a
legally sufficient chain of title back to the State of North
Carolina, and Plaintiffs' title to the disputed property is
superior to Defendants.” Unlike the plaintiff's chain in
McDonald,
the partition proceeding conveyance in the present plaintiffs'chain connected the title from William Storie to his heir at law,
John Storie. Defendants concede plaintiffs in the present case
provided a connected chain from the State to William Storie, and
from John Storie to plaintiffs. Thus, we affirm the trial court's
conclusion that plaintiffs have established a connected chain of
title to an original grant from the State of North Carolina,
superior to defendants' title,
Mobley v. Griffin, supra,
and
defendants assignments of error to the contrary are overruled.
In their second argument, defendants assert the trial court
erred in holding that plaintiffs proved that the property described
in their current deed is included within the descriptions in each
of the documents comprising their chain of title. Where title to
land is in dispute, the “claimant must show that the area claimed
lies within the area described in each conveyance in his chain of
title and he must fit the description contained in his deed to the
land claimed.”
Cutts v. Casey, 271 N.C. 165, 167, 155 S.E.2d 519,
521 (1967) (citations omitted). Nevertheless,
[t]he fact that the descriptions in deeds
forming the chain of title are not identical
is not material if the differing language may
in fact fit the same body of land, and if it
is apparent from an examination of the
descriptions in the several deeds that the
respective grantors intended to convey the
identical land, effect will be given to the
intent.
E. I. Du Pont De Nemours & Co. v. Moore, 57 N.C. App. 84, 88, 291
S.E.2d 174, 176,
cert. denied, 306 N.C. 383, 294 S.E.2d 207 (1982)
(citation omitted).
The trial court made the following findings of fact: 29. Plaintiffs' expert witness, surveyor
Frank Hayes, has located the subject property
and all of the properties within Plaintiffs'
chain of title on the earth's surface by
reliance,
inter alia, on the following:
a. All documents in Plaintiffs [sic]
chain of title as reflected in the public
records;
b. Various documents in the chains of
title of surrounding property owners;
c. Various unrecorded maps relating to
the subject property;
d. Location of physical monuments on the
ground, being those reflected on the various
surveys, maps and charts entered into
evidence;
e. Location of a ridge (as described in
Grant 1050);
f. Location of Grants 119 on the ground
(adjacent to Plaintiffs' property on the
western boundary), and reliance on consistent
calls between Grant 119 and Plaintiffs'
Grants;
g. Use of aerial photographs depicting
use of Plaintiffs' property in the 1940's and
1950's; h. Location of marked trees along the
northern boundaries of Grant 33;
In addition, the trial court found that all of the disputed
property “is included in Plaintiffs' Property,” but that the legal
description of defendants' property does not include “all of the
disputed land.”
Frank Hayes, who was permitted to testify as an expert witness
in the field of land surveying, testified that he was familiar with
every legal description in plaintiffs' chain of title. First,
Hayes testified that the three most recent deeds in plaintiffs'
chain of title had the same legal description. The 1885 deed,conveying the parcel of land from John Storie to J.B. Storie, was
“very similar” to the later descriptions, according to Hayes.
Referring to the deed, dated 9 December 1885, Hayes stated, “It is
my opinion that it is the intent of the Cartin deed to convey the
same property that is shown here.” Hayes testified that he
discovered a “very good description” in the partition proceeding
documents from William Storie to John Storie. Hayes also reviewed
the description in Grant 1050 from the State of North Carolina,
dated 27 November 1880, as well as the deed from Joshua Storie to
William Storie. Joshua Storie acquired his land from two grants
from the State of North Carolina, Grant 33 and Grant 3676, which is
referred to as the “Rich Hillside Tract.” Hayes testified that he
was able to use the description of Grant 3676 to locate the Rich
Hillside Tract on the ground, in spite of the fact that he did not
find corners in the Tract based on specific existing
“monumentation”:
Now, you've got to understand that the Rich
Hillside Tract was laid out in-_there are
stumps in the woods and to say that there's
not a stump close to the northeast corner of
the Rich Hillside Tract-_there are stumps, but
again, these are monuments that were in
existence in 1833 and/or 1835-_anyway, in the
1830s. That would [sic]_-165 years plus.
Hayes testified that the description in plaintiffs' deed “fits into
the composite of the deeds of the back title.”
Defendants' evidence included the testimony of Lewis Cox, a
licensed surveyor. Cox did not undertake a survey of the parties'
respective properties; instead, Cox merely reviewed existing
surveys prepared by the parties. Further, James Murray Gray, alsoa licensed surveyor employed by defendants, testified that he did
not conduct a survey of either plaintiffs' property or defendants'
property, but rather conducted surveys of adjoining properties. In
fact, Gray stated that he had no opinion as to who owned the
overlapping area which was the subject of the cause of action.
The weight and credibility to be accorded the testimony of
each of these witnesses was for the trial court as fact finder.
Scott v. Scott, 336 N.C. 284, 442 S.E.2d 493 (1994). The trial
court's findings that the disputed property could be located within
the description of plaintiffs' property going back through
plaintiffs' chain of title is supported by competent evidence and
those findings support its conclusion that the location of the
disputed property on the ground is as reflected on the surveys done
by Walter McCracken and Frank Hayes. Defendants' assignments of
error are overruled.
Because we determine plaintiffs have established superior
chain of title using the traditional method of connecting the chain
to a grant from the State of North Carolina, and have presented
sufficient evidence to locate the property on the ground, we need
not reach defendants' remaining assignments of error.
Affirmed.
Judges TYSON and THOMAS concur.
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