WACHOVIA BANK OF NORTH CAROLINA,
N.A., as Trustee under Will of
MARY A. SHAW,
Plaintiff,
v
.
New Hanover County
No. 96 CVS 2391
MABEL D.S. WEEKS and husband,
and KAROLYN THOMAS,
Defendants,
SADIE GRAHAM HART,
Intervenor Plaintiff.
Stevens, McGhee, Morgan, Lennon, O'Quinn & Toll, LLP, by Alan
E. Toll, and James R. Boykins, for plaintiff-intervenor-
appellant.
Burrows & Hall, by Richard L. Burrows, and Sneeden & Bonner,
by David Sneeden, for defendant-appellee.
EAGLES, Chief Judge.
Sadie Graham Hart (“plaintiff-intervenor”) appeals from the
trial court's order granting summary judgment in favor of Mabel
D.S. Weeks (“defendant”). The sole issue on appeal is whether the
trial court erred in concluding that defendant was the sole fee
simple owner of the land in dispute by adverse possession. Aftercareful review of the record, briefs, and arguments of counsel, we
affirm.
At the center of this controversy is a thirty acre tract of
land (“disputed tract”) located in New Hanover County, North
Carolina. The evidence tends to show the following. The common
title to the disputed tract can be traced back as far as 1880;
however, for purposes of this appeal, we need only trace the
history of the tract back to 1905. In that year, the disputed
tract was subject to a partition proceeding. Pursuant to a Report
of Commissioners and confirming order of the Clerk of New Hanover
County Superior Court, recorded in Division of Lands and Dowers,
Book “A,” Page 511, the disputed thirty acre tract was partitioned
as follows: twenty-six acres to Frank Hill and four acres to Polly
Suggs, Mr. Hill's sister. After this partition proceeding, the
disputed tract developed two separate chains of title through which
plaintiff-intervenor, plaintiffs, and defendant claim title.
First, plaintiff-intervenor claims title to the entire
disputed tract through the 1905 Commissioners' Report and the
subsequent 1934 transfer of the tract from Frank Hill to Sarah Hill
Smith, plaintiff-intervenor's grandmother. In 1934, Frank Hill
died intestate. Since Mr. Hill was not married and had no children
at the time of his death, the record indicates that his interest in
the disputed tract (twenty-six acres) passed to Sarah Hill Smith,
his surviving sister.
Conversely, plaintiffs claim title to the entire disputed
tract through a 1939 deed (“Graham to Shaw deed”) recorded in Book302, Page 442 of the New Hanover County Registry of Deeds. On 15
December 1939, Sarah Hill Smith's nine grandchildren -- Morris
Graham, Frank Graham, Carrie Graham, Harlee Graham, Irine Graham,
Leroy Graham, Horace Graham, Mary Allen Graham, and plaintiff-
intervenor -- purported to deed the entire disputed tract (thirty
acres) to W.L. Shaw as payment for the burial of Janie Smith
Graham, their mother and Ms. Smith's daughter. Plaintiff-
intervenor contends that this deed was acquired by fraud. The 1939
Graham to Shaw deed, as well as all other deeds in this chain of
title, described the land to be transferred as follows:
Beginning at a black gum stump in the Eastern
edge of Gum Branch, being a point in James
Grant's line and running thence; southwardly
with said gum Branch about 1800 ft. to its
junction with the said two mile branch, thence
Northwardly with the Eastern edge of said
Smith's Bay to James Grant Line and thence;
with James Grant's line about 60 degrees East
1600 ft. to the beginning, containing about 30
acres.
Subsequently, the disputed tract was deeded to H.B. Shaw and
his wife Mary A. Shaw in 1972. Upon H.B. Shaw's death in 1978, Ms.
Shaw became the sole fee simple owner of the disputed tract. In
1982, Ms. Shaw died testate, and her will was duly probated in New
Hanover County. Under the terms of her will, Ms. Shaw devised fee
simple interest in the disputed tract to plaintiff Wachovia Bank of
North Carolina, N.A., as trustee for her estate. Pursuant to the
will, Wachovia Bank was directed to convey 1/6 interest in the
disputed tract to co-plaintiff Karolyn Thomas. In 1988, Wachovia
Bank did in fact convey the 1/6 interest to Ms. Thomas. Finally, defendant claims title to the entire disputed tract
through a 1950 deed (“Swart to Parker deed”) recorded in Book 465,
Page 18 of the New Hanover County Registry of Deeds.
Alternatively, defendant claims title by “adverse possession for a
period in excess of twenty years under the provisions of N.C.G.S.
§ 1-40.”
In 1950, Jan Swart deeded 668 acres of land to Hardy R.
Parker, Sr., defendant's husband. Included in the 668 acres was
the land described as follows:
BEGINNING at a Black gum in the eastern edge
of Gum Branch about 1800 feet to its junction
with the said Two Mile Branch; thence
Northwardly up the Two Mile Branch to Smith's
Bay; thence Northwardly with the Eastern edge
of said Smith's Bay to James Grant's line;
thence with James Grant's line about south 60
degrees East 1600 feet to the point of
beginning, containing about 30 acres. This is
the same land conveyed to Frank Hill by deed
filed for registration May 29, 1906, and
recorded in Book 47, at Page 491 of the
records of the Register of Deeds of New
Hanover County. It is the intention of the
parties of the first part hereof to convey
unto the party of the second part hereof all
right, title and interest in all lands owned
by Frank Hill and Polly Suggs which may be
situated in Harnett Township, in said County
and State, and was allocated to Polly Suggs
and Frank Hill by Commissioners on February
20, 1905 in Book of Lands and Dowers, Page
511; and also being the same lands conveyed to
M.H. Kennick and wife, Nelson Kennick, by deed
recorded June 16, 1943, in Book 353 Page 138,
of said New Hanover County Registry.
. . . .
BEGINNING at a Black gum stump in the eastern
edge of a Gum Branch about 1800 feet to its
junction with the said Two Mile Branch; thence
Northwardly up the Two Mile Branch to Smith's
Bay; thence Northwardly with the Eastern edgeof said Smith's Bay to James Grant's line; and
thence with James Grant's line about South 60
degrees East 1600 feet to the point of
beginning; containing about 30 acres. This is
the same land conveyed to Frank Hill by deed
filed for registration May 29, 1906, and
recorded in Book 47, Page 491 of the records
of the office of the Register of Deeds of New
Hanover County. It is the intention of the
parties of the first part hereof to convey
unto the party of the second part hereof all
right, title and interest in all lands owned
by Frank Hill and Polly Suggs which may be
situated in said Harnett Township, in said
County and State and was allocated to Polly
Suggs and Frank Hill by Commissioners February
20, 1903, in Book of Lands and Dowers, Page
511, and also being the same lands conveyed to
M.H. Kennick and wife, Nelson Kennick by deed
recorded in Book 334, Page 558, of New Hanover
County Registry.
This description encompasses the entire disputed thirty acres.
Pursuant to the Swart to Parker deed, defendant and her husband
took possession of the entire 668 acre tract, including the
disputed thirty acres, in 1950. Upon her husband's death in 1967,
defendant inherited title to the entire tract, including the
disputed thirty acres.
In 1996, plaintiff Wachovia Bank filed a complaint seeking a
declaratory judgment quieting title in the disputed tract and
determining the ownership interests of the parties. Subsequently,
Ms. Thomas was added as a named plaintiff in this action.
Thereafter, Sadie Graham Hart was added as a plaintiff-intervenor
claiming an interest in the disputed tract adverse to plaintiffs
and defendant. Ultimately, defendant filed a motion for summary
judgment and sought declarations that the description in the 1939Graham to Shaw deed was patently defective and that she was the
sole fee simple owner of the disputed tract by adverse possession.
A hearing on the motion was held during the 31 July 2000 Civil
Session of New Hanover County Superior Court, the Honorable James
E. Ragan presiding. On 9 August 2000, the trial court entered an
order granting summary judgment for defendant. Specifically, the
trial court granted summary judgment declaring that the description
contained in the 1939 Graham to Shaw deed was “patently defective
as a matter of law,” that defendant was the sole fee simple owner
of the disputed tract by adverse possession “free and clear of all
claims of the plaintiffs,” and dismissing plaintiffs' complaints
with prejudice. Plaintiff-intervenor and plaintiffs Wachovia Bank
and Ms. Thomas appealed. Subsequent to filing their notices of
appeal, plaintiffs assigned all of their rights in the disputed
tract and this action to plaintiff-intervenor. Consequently,
plaintiff-intervenor is the sole appellant bringing this appeal.
“At the outset, we note that the standard of review on appeal
from summary judgment is whether there is any genuine issue of
material fact and whether the moving party is entitled to a
judgment as a matter of law.” Bruce-Terminix Co. v. Zurich Ins.
Co., 130 N.C. App. 729, 733, 504 S.E.2d 574, 577 (1998). The
moving party “ultimately has the burden of establishing the lack of
any triable issue of fact.” Pembee Mfg. Corp. v. Cape Fear Const.
Co., 313 N.C. 488, 491, 329 S.E.2d 350, 353 (1985). “If the moving
party satisfies the burden of proof, then the burden shifts to the
non-moving party to 'set forth specific facts showing that there isa genuine issue for trial.' The nonmoving party 'may not rest upon
the mere allegations of his pleadings.'” Lowe v. Bradford, 305
N.C. 366, 369-70, 289 S.E.2d 363, 366 (1982) (emphasis and citation
omitted). “[T]he evidence presented by the parties must be viewed
in the light most favorable to the non-movant.” Bruce-Terminix
Co., 130 N.C. App. at 733, 504 S.E.2d at 577. Summary judgment is
only proper when “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that any party is entitled to a judgment as a
matter of law.” G.S. § 1A-1, Rule 56(c).
On appeal, plaintiff-intervenor contends that the trial court
erred in its grant of summary judgment declaring defendant the sole
fee simple owner of the disputed tract by adverse possession. We
disagree and affirm.
During the summary judgment hearing, defendant claimed title
to the disputed tract by “adverse possession for a period in excess
of twenty years under the provisions of N.C.G.S. § 1-40.” “In
order to acquire title to land through adverse possession, a party
must show actual, open, hostile, exclusive and continuous
possession of the land claimed for twenty years under known and
visible boundaries.” Chicago Title Ins. Co. v. Wetherington, 127
N.C. App. 457, 460, 490 S.E.2d 593, 596 (1997). “The party
attempting to establish title by adverse possession has the burden
of proof.” Town of Winton v. Scott, 80 N.C. App. 409, 415, 342
S.E.2d 560, 564 (1986). In their briefs, the parties agreed that a cotenancy existed
in the disputed tract. “The possession of one tenant in common is
in law the possession of all his cotenants unless and until there
has been an actual ouster or a sole adverse possession of twenty
years, receiving the rents and claiming the land as his own, from
which actual ouster would be presumed.” Morehead v. Harris, 262
N.C. 330, 343, 137 S.E.2d 174, 186 (1964).
“Although older cases speak of an actual ouster, North
Carolina adheres to the rule of constructive ouster.” Casstevens
v. Casstevens, 63 N.C. App. 169, 171, 304 S.E.2d 623, 625 (1983)
(citation omitted). The rule of constructive ouster “presumes the
requisite ouster 'if one tenant in common and those under who he
claims have been in sole and undisturbed possession and use of the
land for twenty years when there had been no demand for rents,
profits or possession.'” Id. (emphasis omitted) (quoting Collier v.
Welker, 19 N.C. App. 617, 621, 199 S.E.2d 691, 694-95 (1973)). The
purpose of this rule “is to prevent stale demands and to protect
possessors from the loss of evidence due to lapse of time.” Ellis
v. Poe, 73 N.C. App. 448, 450, 326 S.E.2d 80, 83 (1985).
Here, defendant's husband took actual possession of the land
in 1950. Upon his death in 1967, defendant inherited her husband's
interest in the entire tract, including the disputed thirty acres.
Accordingly, the record reflects that defendant has been in
continuous actual possession of the disputed tract since 1950. See
Ramsey v. Ramsey, 229 N.C. 270, 273, 49 S.E.2d 476, 478 (1948)
(“The privity necessary to warrant the tacking of the possession ofsuccessive claimants by adverse possession must be created by
grant, devise, purchase, or descent”).
In her affidavit, defendant admitted that “[a]t the time [she]
purchased the land [she was] advised by the attorney representing
[her] . . . that he was not certain that [she] had obtained a deed
for all of the interests in the” disputed tract. After this
acknowledgment of the cotenancy in 1950, defendant and her husband
(hereinafter collectively “defendant”) took immediate steps to act
inconsistently with the recognition that title was shared. For
instance, defendant had the entire 668 acre tract surveyed and
mapped in 1950. This 1950 survey map established the outer
boundaries of defendant's property, but the map did not acknowledge
the boundaries of the disputed tract which is located within the
property's outer boundaries. Also, defendant listed the entire 668
acres, including the disputed thirty acres, for property tax
purposes in 1950.
Since 1950, defendant has continuously paid taxes on the 668
acre tract, including the disputed thirty acres. In 1951,
defendant moved into a residence on the 668 acre tract.
Thereafter, defendant “continually maintained and used a roadway
from the house to and through the disputed” tract; during the
1960's, defendant “granted an easement to New Hanover County
authorizing it to dig” mosquito control canals on the disputed
tract; from 1965 to 1971, defendant sold approximately 200 acres of
her 668 acre tract, including a portion of the disputed thirty
acres, to Gregory-Murray Construction Company for construction ofWindemere subdivision; in 1953, 1954, 1959, and 1970, defendant
granted easements to Carolina Power & Light Company upon the 668
acre tract, including the disputed thirty acres; in 1965 and 1968,
defendant conveyed drainage easements upon the disputed tract; in
the 1960's, defendant cut and sold timber from the disputed tract;
after a 1982 fire, defendant removed damaged timber from the
disputed tract and reseeded the area; in 1986, defendant had the
remaining timber on the disputed tract cut and thinned; from the
1960's to the 1990's, defendant leased portions of her land,
including the disputed thirty acres, to hunters; defendant
maintained firelanes on the disputed tract; defendant erected “No
Trespassing” signs on the land indicating that she was the owner;
and defendant prosecuted trespassers.
“If a cotenant occupies the entire property for twenty years
to the exclusion of a cotenant it is presumed there was an ouster
at the time of the entry and it is presumed the action of the
occupying cotenant during this period includes everything necessary
to establish adverse possession.” Herbert v. Babson, 74 N.C. App.
519, 521, 328 S.E.2d 796, 798 (1985). In order for this
presumption to arise, “the sole possession for 20 years must have
continued without any acknowledgment on the possessor's part of
title in his cotenant.” Hi-Fort, Inc. v. Burnette, 42 N.C. App.
428, 434, 257 S.E.2d 85, 90 (1979).
Here, aside from the period in 1950 when defendant first took
possession of the disputed tract, there was no express or active
acknowledgment by defendant of shared title with any cotenantduring the ensuing thirty-six years, 1950 to 1986. In 1986,
plaintiff Wachovia Bank did request that the New Hanover County tax
department note on defendant's tax card that the title to the
disputed tract was in dispute. However, this was the first attempt
in thirty-six years in which any party asserted any adverse claim
to the disputed tract. During the prior thirty-six years,
plaintiff-intervenor and plaintiffs never made any demands of
defendant for rents, profits, or possession. To that point,
defendant had been in sole and undisturbed possession and use of
the disputed tract for thirty-six years.
“Once the tenant in common has possessed the land for the
requisite twenty year period, the ouster relates back to the
initial date of taking of possession.” Ellis, 73 N.C. App. at 450,
326 S.E.2d at 83. Thus, viewing the evidence in the light most
favorable to plaintiff-intervenor, defendant is entitled to the
presumption that she constructively ousted all cotenants at her
time of entry in 1950 and that her actions included everything
necessary to establish adverse possession of the disputed tract for
thirty-six years, 1950 to 1986.
Since this was a summary judgment proceeding and defendant
satisfied her initial burden of showing adverse possession by means
of a constructive ouster, the burden shifted to plaintiff-
intervenor to rebut the presumption and to establish that a genuine
issue of material fact existed for trial. See Lowe v. Bradford,
305 N.C. 366, 369-70, 289 S.E.2d 363, 366. While the record
indicates that the Shaws and plaintiff Wachovia Bank paid taxes onthe disputed tract continuously since 1941, no genuine issue of
material fact exists as to the fact that plaintiff-intervenor and
plaintiffs did not make any claim to the disputed tract until 1986.
In its Responses to Defendant's Discovery, plaintiff Wachovia
Bank admitted that it had never “been in actual physical possession
of any part of the land in which plaintiffs claim ownership . . .
within the past twenty years prior to filing the complaint in this
case.” Additionally, plaintiff-intervenor testified in her
deposition that she had never been to the disputed tract; that
since her mother's death in 1939, she never made any claims to the
disputed tract; that since 1939, she never paid any property taxes
on the disputed tract; that she never cut or sold timber from the
disputed tract; and that prior to her involvement in this lawsuit,
she never claimed any ownership interest in the disputed tract.
Here, no conflicting evidence exists. Plaintiff-intervenor
failed to rebut the presumption that she was constructively ousted
in 1950 and that defendant did everything necessary to establish
adverse possession in the disputed tract for a period of thirty-six
years, 1950 to 1986. Accordingly, we conclude that the trial court
correctly granted summary judgment in defendant's favor.
Finally, we note that plaintiffs also assigned error to the
trial court's grant of summary judgment declaring the description
contained in the 1939 Graham to Shaw deed “patently defective as a
matter of law.” However, plaintiff-intervenor did not set out this
assignment nor did she present any argument or discussion to
support this position in her brief. “Assignments of error not setout in the appellant's brief, or in support of which no reason or
argument is stated or authority cited, will be taken as abandoned.”
N.C.R. App. P. 28(b)(6). Thus, plaintiff-intervenor-appellant has
waived any assignment of error relating to the 1939 deed.
In sum, we affirm the trial court's grant of summary judgment
declaring defendant the sole fee simple owner of the disputed tract
by adverse possession.
Affirmed.
Judges McCULLOUGH and CAMPBELL concur.
Report per Rule 30(e).
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