T. HOYLE DOSHER,SR.,
HERMINE DOSHER HALL,
ALBERT DOSHER, and
RICHARD DOSHER,
Plaintiffs,
v
.
Brunswick County
No. 00 CVS 1215
ROBERT D. MORETZ,
Defendant.
Richard F. Green, for plaintiff-appellees.
Shipman, Gore, Mason & Wright, by Gary K. Shipman and William
Norton Mason, for defendant-appellant.
HUDSON, Judge.
On 31 July 2000, plaintiffs filed a complaint seeking damages
for slander of title to real property and trespass involving a
piece of property in Southport. Plaintiffs also sought to remove
the cloud upon title to their property caused by the existence of
a purported deed to the same property held by defendant Robert D.
Moretz. Defendant counterclaimed for slander of title, asking to
be declared owner of the property in question. On 15 October 2001,
plaintiffs moved for summary judgment, which motion the court
granted on 13 February 2002 following a hearing. By order filed 19
February 2002, the court declared plaintiffs the owners of theproperty described in the order, declared defendant's deed null and
void to the extent it purported to convey any part of plaintiffs'
property, and dismissing defendant's counterclaims. Defendant
appealed, and this Court dismissed that appeal as interlocutory
because the issue of damages remained. Dosher v. Moretz, __ N.C.
App. __, __ S.E.2d __ (filed 5 August 2003).
On 19 March 2004, defendant filed a motion pursuant to N.C.
Rule of Civil Procedure 60(b)(4) praying the court's order for
partial summary judgment be stricken for failure to join necessary
parties. Defendant argued that other parties held title to land
included in the court's 19 February 2001 order. By order nunc pro
tunc for 12 June 2004, the court denied defendant's motion. On 7
July 2004, Judge James Floyd Ammons entered a consent order in
which defendant reserved his right to appeal. Defendant appeals.
For the reasons discussed below, we affirm.
Plaintiffs base their claim to title of the disputed property
on a series of conveyances beginning with a grant from W. T. Pinner
to T. Hoyle Dosher recorded 5 April 1910 and describing the
property as follows:
[A]djoining the lands of Abram Galloway and
others, bounded and described as follows:
Beginning at a point in the east line of the
William Taylor grant where the south line of
back lot No. 5 of the Division among the heirs
of Wm Taylor intersects said east line, the
same being the southeast corner of back lot
No. 5 and the Northeast corner of back lot No.
1 of the said division runs thence south 86
west 396 feet to a stake, Galloways corner,
thence said Abram Galloway's line north 500
feet, thence south 86 east 280 ½ feet along
the Grimes line to the said Taylor east line,
thence with said line south 20 east to thebeginning and being the same land conveyed to
W.T. Pinner by D.R. Walker, Sheriff July 5,
1898, 00-40; and by Abram Galloway to Dr.
Souder Knox Aug, 9th, 1890, HH-479; and a part
of the land deeded to Abram Galloway by Robt.
W. Davis and wife Oct. 11th, 1880, Z-269,
records of Brunswick County.
In subsequent deeds, the description ends after the words “said
line south 20 east to the beginning.” Plaintiffs submitted
affidavits from T. Hoyle Dosher, Sr., and James R. Prevatte, Jr.,
establishing the chain of title back to the Pinner deed.
Plaintiffs also submitted an affidavit from Steve Norris, a
registered land surveyor, as evidence to locate the property on the
ground. Defendant bases his claim to the property on a series of
conveyances beginning with a grant from George H. Waldenmaier
recorded 18 June 1998.
Defendant first argues that the trial court erred in granting
summary judgment to plaintiffs. We disagree.
Plaintiffs assert that, having proved title through the
Marketable Title Act, N.C. Gen. Stat. Chapter 47B, and having
located the property on the ground, they are entitled to summary
judgment. Actions to quiet title are intended “to free the land of
the cloud resting upon it and make its title clear and
indisputable, so that it may enter the channels of commerce and
trade unfettered and without the handicap of suspicion.” Heath v.
Turner, 309 N.C. 483, 488, 308 S.E.2d 244, 247 (1983). “In such an
action, the plaintiff bears the burden of proof to establish his
title, either by traditional methods or by reliance on the Real
Property Marketable Title Act.” Id. Defendant acknowledges plaintiffs' continuous chain of title
back to the Pinner deed, but contends that the Marketable Title Act
(“MTA”) does not apply to this case. The MTA provides that
(a) Any person having the legal capacity to
own real property in this State, who, alone or
together with his predecessors in title, shall
have been vested with any estate in real
property of record for 30 years or more, shall
have a marketable record title to such estate
in real property.
N.C. Gen. Stat. § 47B-2 (2001). The MTA also lists exceptions,
including two which defendant contends apply to the land in dispute
here:
Such marketable record title shall not affect
or extinguish the following rights:
***
(3) Rights, estates, interests, claims or
charges of any person who is in present,
actual and open possession of the real
property so long as such person is in such
possession.
***
(10) Rights, estates, interests, claims or
charges created subsequent to the beginning of
such 30-year period.
N.C. Gen. Stat. § 47B-3 (2001). Plaintiffs' complaint avers that
defendant cut trees and “bush-hogged” a portion of the disputed
property, and posted a “for sale” sign on it in June 2000.
Defendant in his answer denied all activities except for placing
the “for sale” sign. Defendant contends these pleadings establish
that he was in present, actual and open possession of the property.
However, cutting trees, even if established, and posting a “for
sale” sign do not establish present, actual and open possession ofthe property. In addition, exception 3 applies only “so long as
such person is in such possession” of the disputed property, and
defendant's placing of the “for sale” sign occurred in June 2000,
more than a month prior to the filing of the complaint on 27 July
2000. Thus, because defendant was not in present, actual and open
possession of the property at the time of the complaint, exception
3 does not apply here to prevent application of the MTA.
Defendant also contends that the exception in subsection 10
applies because his claim on the property arises from a quitclaim
deed dated 9 November 1994 which is subsequent to the beginning of
the thirty-year period of plaintiffs' title. The exception applies
only to prevent extinguishing of “rights, estates, interests,
claims or charges created subsequent to the beginning of such
30-year period.” As an example, in Heath, the defendants claimed
their record title arose from a warranty deed recorded 4 November
1932, the date marking the beginning of such 30-year period, while
the plaintiffs' claim was based on a deed recorded on 8 December
1943. 309 N.C. at 494, 308 S.E.2d at 250. The Court stated that
because plaintiffs' interest was
'created subsequent to the beginning of such
30-year period,' by the clear language of G.S.
§ 47B-3, [it] was not affected or extinguished
by the marketable record title of defendants.
Id. Here, defendant's only purported right or interest in the
disputed property arises through a chain of title based upon a
quitclaim deed executed by the Ludlums in 1994. “A quitclaim deed
conveys only the interest of the grantor, whatever it is, no moreand no less.” Heath, 309 N.C. at 491, 488 S.E.2d at 248.
Defendant presents no evidence that the Ludlums had any interest
whatsoever in the property in question, and therefore defendant has
not shown that he has any right or interest in the property.
Defendant also contends that there remains an issue of
material fact as to whether plaintiffs can accurately locate their
property on the ground. We disagree and conclude that the
affidavit from plaintiffs' land surveyor Steve Norris locates
plaintiffs' claim on the ground. Having established title pursuant
to the MTA and having located the property on the ground,
plaintiffs presented a prima facie case for removing the cloud on
their title to the property. Id. at 497, 488 S.E.2d at 252.
Defendant not having rebutted the prima facie case, we conclude
that the court properly granted summary judgment to plaintiffs.
Defendant also argues that the court erred in denying his Rule
60(b)(4) motion. We disagree and conclude that defendant has
waived his right to appeal this issue.
On 19 March 2002, defendant filed a Rule 60(b)(4) motion
contending that the summary judgment order is void because the
court failed to join necessary parties whose property rights were
affected by the order. N.C. Gen. Stat. § 1A-1, Rule 60(b)(4)
(2003) (“The court may relieve a party . . . from a final judgment,
order, or proceeding . . . [when] the judgment is void[.]”). On 24
April 2004, the parties reached a settlement in which defendant
preserved only his right to appeal the partial summary judgment
order. On 20 May 2004, nunc pro tunc the court entered an orderdenying defendant's motion. The court entered a consent order on
7 July 2004 which again recited that defendant preserved his right
to appeal only the partial summary judgment order, not the denial
of his Rule 60(b)(4) motion. We also note that, even had defendant
preserved his right to appeal this issue, he could not prevail.
The order denying defendant's 60(b)(4) motion states on its face
that “none of the persons or entities alleged by the defendant to
be necessary parties . . . are bound by the judgment herein.”
Thus, the court's partial summary judgment order applies only to
plaintiffs and defendant and does not affect the property interests
of anyone other than the parties.
Affirmed.
Judges STEELMAN and JACKSON concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***