An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 1 August 2006
ELEANOR S. PEGG,
No. 04 CVS 891
JOHN DOE 1-10 and
JANE DOE 1-10 and
Appeal by defendant Ervin Jones from judgment entered 21 June
2005 by Judge Dennis J. Winner in Orange County Superior Court.
Heard in the Court of Appeals 18 May 2005.
Alexander and Miller, LLP, by Sydenham B. Alexander, Jr., and
Meg K. Howes, for plaintiff appellee.
Levine and Stewart, by John T. Stewart and James E. Tanner
III, for Ervin Jones defendant appellant.
Defendant Ervin Jones appeals from a superior court judgment
declaring that plaintiff Eleanor Pegg is fee simple owner of a two-
acre tract in Orange County, North Carolina. We vacate and remand.
The evidence presented in superior court tended to show the
following: In January of 1954, Ed J. Jones and Lourinda Jones
conveyed their interest in a fifty-acre tract of land to their son,
Paschal B. Jones, by a general warranty deed. The deed to Paschal
reserved a life estate for Ed and Lourinda. In 1958, Ed andLourinda deeded their life interest to Paschal via warranty deed.
Each of these conveyances was properly recorded.
On 3 June 1965, Paschal and his wife transferred their entire
interest in the fifty-acre tract to Carl and Eleanor Pegg by a duly
recorded warranty deed. There was evidence that, at the time of
this conveyance, Ed and Lourinda's son, Cecil, and his wife,
Alease, were living on a portion of the fifty-acre tract which
comprised between two and five acres. There was also testimony
that Cecil had a small home on the two-to-five acre tract, which he
had built in 1940 and had resided in ever since, and that, when the
Peggs purchased the tract of land from Paschal Jones, they knew
that Cecil and Alease were living on a portion of the property. On
23 September 1965, the Peggs executed a duly recorded deed
conveying a life estate to Cecil and Alease in a two-acre tract.
This conveyance was based upon a survey of the land being occupied
by Cecil and Alease.
Apparently, Carl Pegg came to discuss this arrangement with
Cecil and Alease in their home. There was testimony that, upon
hearing the word property, Cecil became ostensibly angry,
retrieved a loaded shotgun that he kept over his bedroom door,
pointed the firearm at Carl Pegg, and told Pegg to leave or he
would be shot. Carl Pegg left a copy of the recorded deed on the
kitchen table and left in a hurried fashion. Alease and her
daughter took this deed to have it reviewed.
After 1965, Cecil and Alease lived on the two-acre tract for
the duration of their lives. They raised their children on thetract and paid taxes on it. Cecil died in 1993, and Alease died in
1994. Their son, defendant Ervin Jones, remained on the land. The
Jones family paid taxes on the property through 2000, and Ervin
Jones (hereinafter Jones) paid the taxes on the two-acre tract in
1998, 1999, and 2000.
Sometime after 19 March 2001, Eleanor Pegg (hereinafter Pegg)
learned of the deaths of Cecil and Alease. She began paying taxes
on the property and filed quiet title and summary ejectment
actions. Jones filed an answer denying Pegg's claims and a
counterclaim in which he contended that he had acquired fee simple
title to the property via adverse possession.
Following a hearing, the superior court entered an order in
which it ruled that Pegg held fee simple title to the entire fifty-
acre tract and that, although Jones had occupied the two-acre tract
without Pegg's consent or permission, he had not done so long
enough to acquire title to the property by adverse possession.
Jones was ordered to vacate the property immediately.
Jones now appeals.
Standard of Review
On an appeal from a judgment entered after a non-jury trial,
this Court reviews the trial court's findings of fact for whether
they are supported by competent evidence in the record. Cartin v.
Harrison, 151 N.C. App. 697, 699, 567 S.E.2d 174, 176 (2002), disc.
review denied, 356 N.C. 434, 572 S.E.2d 428 (2002). We review the
trial court's conclusions of law for whether they are supported by
the court's findings and are consistent with applicable law. Id.
The dispositive issue on appeal is whether the trial court
failed to make findings of fact which were sufficient to dispose of
Jones' claim of adverse possession. We hold that the trial court
did fail to make sufficient findings in light of the evidence
In all actions tried upon the facts without a jury . . . ,
the court shall find the facts specially and state separately its
conclusions of law thereon and direct the entry of the appropriate
judgment. N.C. Gen. Stat. § 1A-1, Rule 52(a)(1) (2005). Rule
52(a) does not, of course, require the trial court to recite in its
order all evidentiary facts presented at hearing. Quick v. Quick,
305 N.C. 446, 451, 290 S.E.2d 653, 657 (1982). The facts required
to be found specially are those material and ultimate facts from
which it can be determined whether the findings are supported by
the evidence and whether they support the conclusions of law
The elements of a claim for adverse possession are established
by section 1-40 of the North Carolina General Statutes:
No action for the recovery or possession
of real property, or the issues and profits
thereof, shall be maintained when the person
in possession thereof, or defendant in the
action, or those under whom he claims, has
possessed the property under known and visible
lines and boundaries adversely to all other
persons for 20 years; and such possession so
held gives a title in fee to the possessor, in
such property, against all persons not under
N.C. Gen. Stat. § 1-40 (2005). 'In order for adverse possession
to ripen title in the possessor, the possession must be actual,
open, hostile, exclusive and continuous. . . .' Campbell v.
Mayberry, 12 N.C. App. 469, 475, 183 S.E.2d 867, 871 (citation
omitted), cert. denied, 279 N.C. 726, 184 S.E.2d 883 (1971).
To establish that a use is 'hostile' rather
than permissive, 'it is not necessary to show
that there was a heated controversy, or a
manifestation of ill will, or that the
claimant was in any sense an enemy of the
owner of the servient estate.' A 'hostile' use
is simply a use of such nature and exercised
under such circumstances as to manifest and
give notice that the use is being made under a
claim of right. There must be some evidence
accompanying the user which tends to show that
the use is hostile in character and tends to
repel the inference that it is permissive and
with the owner's consent. A mere permissive
use of a way over another's land, however long
it may be continued, can never ripen into an
easement by prescription.
Dickinson v. Pake, 284 N.C. 576, 580-81, 201 S.E.2d 897, 900 (1974)
In the instant case, the evidence tended to show that the
Peggs acquired title to the tract at issue on 3 June 1965 and
thereafter gave a life interest in the tract of land at issue to
Cecil and Alease by a deed which was recorded on 28 September 1965.
In addition, Jones presented evidence that Cecil believed that he
was given the tract of land at issue from Ed and Lourinda in 1940;
that Cecil and Alease thereafter had been in possession of the
tract where they had maintained a home and had reared their
children; and that Cecil and Alease did not believe that the 1958
transfer from Ed and Lourinda to Paschal affected their rights tothe land. Further, Jones presented evidence that Cecil had forced
Carl Pegg to leave the property, under threat of being shot, when
Carl Pegg came to explain and deliver the deed conveying the life
After hearing the evidence, the trial court made only the
following five findings of fact:
1. The Plaintiff, Eleanor S. Pegg,
acquired title to the property in question by
a deed dated the 3rd day of June, 1965
recorded at the Register of Deeds of Orange
County in Book 202 at page 188.
2. Thereafter, the Plaintiff and her
husband, Carl H. Pegg, conveyed a limited life
interest in a two acre tract to Cecil Jones
and wife, Alease L. Jones. This deed was
recorded in the Orange County Register of
Deeds in Book 203 at Page 788 on or about the
28th day of September, 1965. A copy of this
deed was delivered to Cecil Jones and his
wife, Alease L. Jones, by Carl H. Pegg.
3. Cecil Jones died on June 15, 1993.
4. Alease L. Jones died on December 21,
5. The Defendant, Ervin Jones, the son
of Cecil and Alease Jones, has occupied the
property since the death of his mother. He
has done so without the permission or consent
of the Plaintiff.
Based on these findings, the trial court concluded that Jones had
not acquired the land by adverse possession.
The trial court's findings fail to resolve the factual issues
raised by Jones' evidence, namely (1) whether Cecil and Alease
began adversely possessing the tract at issue on or before the date
upon which the Peggs received title to the tract at issue, and (2)whether Cecil and Alease rejected the Peggs' attempt to convey a
life estate by forcing Carl Pegg to leave the property. Without
resolving these issues, the trial court's order could not properly
dispose of Jones' adverse possession claim.
We note that our decision in this regard should not be
construed as expressing an opinion on the issue of whether Jones
has a valid adverse possession claim. We note also that our
disposition of the case makes it unnecessary for us to address the
remaining arguments on appeal, and we express no opinion on the
issues presented by these arguments.
The trial court's order is vacated, and this case is remanded
for additional findings concerning Jones' adverse possession claim.
Vacated and remanded.
Judge TYSON concurs.
Judge HUDSON concurs in result only.
Report per Rule 30(e).
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