An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA04-1519


Filed: 2 August 2005


v .                         Brunswick County
                            No. 00 CVS 1215

    Appeal by defendant from an order entered 19 February 2002 by Judge D. Jack Hooks, Sr., in the Superior Court in Brunswick County. Heard in the Court of Appeals 9 June 2005.

    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.
    Judges STEELMAN and JACKSON concur.
    Report per Rule 30(e).

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