A. W. BUMGARNER
v.
Dr. W. M. CORPENING and wife, Avis Corpening.
No. 314.
Supreme Court of North Carolina.
April 10, 1957.*429 L. M. Abernathy, Granite Falls, and Hal B. Adams, Lenoir, for defendants-appellants.
W. H. Strickland, Lenoir, for plaintiff-appellee.
RODMAN, Justice.
The court charged the jury: "Ordinarily, gentlemen, we have somebody that has an older title and somebody that has been in possession of the land in dispute. In this case, gentlemen, they both go back to a common source of title. They both claim from one of the great-grandfathers, Bumgarner, so neither has on older title than the other, and neither has exercised any possession of it up until the last three or four years and it takes at least seven years to acquire title by possession * * *."
Defendants excepted to the quoted portion of the charge, insisting that the court had misconstrued the nature of the controversy and failed to give effect to evidence in support of the title asserted by defendants. The exception is appropriately taken. The issues and judgment establish that title was put in issue. The charge proceeds upon the assumption that only a question of boundary is involved.
In processioning proceedings the proper issue is: "Where is the true location of the dividing line between the lands of the plaintiff and those of the defendants?" Welborn v. Bate Lumber Co., 238 N.C. 238, 77 S.E.2d 612; Goodwin v. Greene, 237 N.C. 244, 74 S.E.2d 630; Cornelison v. Hammond, 225 N.C. 535, 35 S.E.2d 633; McCanless v. Ballard, 222 N.C. 701, 24 S.E.2d 525.
Title or ownership is not directly put in issue in a processioning proceeding. Nesbitt v. Fairview Farms, Inc., 239 N.C. 481, 80 S.E.2d 472; Brown v. Hodges, 230 N.C. 746, 55 S.E.2d 498; Roberts v. Sawyer, 229 N.C. 279, 49 S.E.2d 468; Geddie v. Williams, 189 N.C. 333, 127 S.E. 423; Nash v. Shute, 182 N.C. 528, 109 S.E. 353; Parker v. Parker, 176 N.C. 198, 97 S.E. 223; Cole v. Seawell, 152 N.C. 349, 67 S.E. 753.
Where a special proceeding is begun to fix the location of the dividing line between two tracts of land, and defendant, by his answer, puts title to the disputed area in issue by alleging ownership, the proceeding in effect becomes an action to quiet title as provided by G.S. § 41-10. Simmons v. Lee, 230 N.C. 216, 53 S.E.2d 79; Roberts v. Sawyer, supra; Clark v. Dill, 208 N.C. 421, 181 S.E. 281. When the question of title is raised, the clerk should transfer the proceeding to the Superior Court in term. G.S. § 1-399.
The issue involving ownership was properly submitted to the jury. This is so because defendant, by his answer, asserts ownership of a specific tract of land which includes the area in dispute. Boundary was also at issue.
The evidence discloses that the land to which petitioner asserts title was originally owned by Thomas Bumgarner. The land to which defendants assert title was likewise originally owned by Thomas Bumgarner. In August 1889 Thomas Bumgarner made a deed to T. C. Bumgarner and wife, Polly, for lot number 6, describing *430 it by metes and bounds. The pertinent part of the description in that deed reads:
"* * * to a whiteoak by the sid of Lovelady N. then E 39 north with the road 26 P. posteoak corner of Lot No. 1 and 2 same course 14 P. to pine then North 56 E with the road 70 P to a maple near the ford of Big Gunpowder Creek * * *."
The pine referred to is indicated on the court map by the figure 1 and the letter A. Its location is not in controversy. Defendants, as hereafter noted, connect their claim of ownership with the foregoing deed, but it is not their only source of title to the disputed area.
Petitioner traces his title to a deed from Thomas Bumgarner to M. L. D. Bumgarner dated August 1889. The pertinent portion of the description in that deed is: "* * * North 60 E. with the Road 14 poles to a pine then North 86 E. with R. 70 poles to maple near Big Gunpowder ford * * *."
As between the grantees of Thomas Bumgarner, the Lovelady Road was the true dividing line. Wachovia Bank & Trust Co. v. Miller, 243 N.C. 1, 89 S.E.2d 765; Newkirk v. Porter, 237 N.C. 115, 74 S.E.2d 235; Lance v. Cogdill, 236 N.C. 134, 71 S.E.2d 918; Gray v. Coleman, 171 N.C. 344, 88 S.E. 489. Petitioner offered evidence to support his contention that the Lovelady Road in 1889 was not a straight line but conformed with the location shown on the map by the figures 1, 2, 3, 4, and 5. Defendants offered evidence to support their contention that the correct location of the Lovelady Road in 1889 was a straight line from the pine, letter A, to letter B on Gunpowder Creek.
If defendants' contention as to the location of the road was correct, he had the superior title to the disputed area as all of the deeds under which petitioner asserted title fixed the road, as his northern boundary and he asserted no other source of title. It was proper for the court to submit this aspect of the case to the jury. He did so in this language: "Now, gentlemen of the jury, this case relates to where the lines of Lot #6 of the old Bumgarner lands is; that is the question that you have to decide, that is the line in question, the one between Mr. Bumgarner and Dr. Corpening."
Defendants excepted to this instruction. Their exception is well taken. As stated, the location of Lovelady Road was one phase of the case, but it was not necessarily conclusive, and the court should not have so limited it. Defendants do not limit their claim to the disputed area to the title derived from Thomas Bumgarner. They rely on the descriptions contained in the subsequent deeds and possession thereunder as an additional source of title.
In July 1938 Mrs. T. C. Bumgarner conveyed to Mrs. Coyt Wallace the lands claimed by the defendants. The pertinent calls in that deed are: "* * * then down said creek South 3 deg. West 46 poles to a large maple at the West bank of creek; thence South 40 deg. West 76 poles to a stake formerly a pine * * *." This description is used in the deed from Mrs. Coyt Wallace to T. A. Bean dated in 1943 and in the deed from Martin, commissioner, to the defendants dated 20 June 1947. The absence of the reference to the road in these deeds leaves nothing to control course and distance. Hence, if the Lovelady Road was located in 1889 as petitioner contends, defendants had good title south as far as the road (the boundary fixed by Thomas Bumgarner, the common source), and color of title from 5 July 1938 (the date of the deed from Mrs. Bumgarner to Mrs. Wallace) to that area lying between the road and the southern line called for in the deed. Wachovia Bank & Trust Co. v. Miller, supra; Whiteheart v. Grubbs, 232 N.C. 236, 60 S.E.2d 101; Vance v. Guy, 223 N.C. 409, 27 S.E.2d 117; Ingram v. Colson, 14 N.C. 520.
*431 Defendants, having color of title, could acquire good title by seven years' continuous adverse possession under their color, but such possession, in order to perfect title, must be an actual possession of the disputed area. Whiteheart v. Grubbs, supra; Berry v. Coppersmith, 212 N.C. 50, 193 S.E. 3; Boomer v. Gibbs, 114 N.C. 76, 19 S.E. 226. Actual possession of the land acquired from the common source would not be constructively extended so as to constitute possession of the land to which defendants only had color of title.
E. M. Bean, a witness for defendants, testified: "This land that is in controversy here has been in our possession for years, I mean the T. C. Bumgarner heirs. It was his before he died, and it was in Aunt Pollys' possession before she died. After she died it went to Coyt Wallace. She had it divided up herself, and it has been in the possession of T. C. Bumgarner and Mrs. T. C. Bumgarner and Mrs. Wallace, and T. A. Bean and on down to Dr. Corpening."
Thus there was evidence that the defendants' ancestors in title had had possession of the land in controversy under color for more than seven years.
Defendant W. M. Corpening testified that he had had possession of the land "as surveyed" since the date of his deed in 1947. The action was instituted 7 June 1955. True, the defendant, on cross-examination, testified that he had only had the area in controversy under fence some two or three years before the institution of the action, but the conflict in the testimony, if there was conflict, as to the character or extent of the possession was a question for the jury.
Defendants were at liberty to establish their title to the land in controversy without having to plead the source or manner in which they acquired title. Jones v. Percy, 237 N.C. 239, 74 S.E.2d 700; Richards v. Smith, 98 N.C. 509, 4 S.E. 625.
On the record presented, defendants were entitled to have the jury determine not only the location of the Lovelady Road with the burden on the petitioner, but the possession of the area in controversy under color for the statutory period with the burden of establishing that fact on defendants.
New trial.