An unpublished opinion of the North Carolina Court of Appeals does not constitute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.
NO. COA13-510
NORTH CAROLINA COURT OF APPEALS
Filed: 7 January 2014
GAYLORD J. PERRY, SR., and wife,
DEBORAH W. PERRY,
Plaintiff,
v. Dare County
No. 07 CVS 902
ORVILLE L. TILLETT, MARSHALL
TILLETT and JEANNETTE TILLETT
AMBROSE,
Defendant.
Appeal by defendants from Order and Judgment entered 11
September 2012 by Judge J. Carlton Cole in Dare County Superior
Court. Heard in the Court of Appeals 21 October 2013.
Hornthal, Riley, Ellis & Maland, LLP, by M. H. Hood Ellis,
for plaintiff-appellees.
Aldridge, Seawell, Spence and Hudspeth, LLP, by Christopher
L. Seawell and W. Mark Spence, for defendant-appellants.
STEELMAN, Judge.
Where a deed explicitly defined the boundary line between
two tracts of real estate with reference to the natural features
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of a ditch and a creek, the trial court erred in not partially
granting defendants’ motion for a directed verdict.
I. Factual and Procedural Background
In 2001, Gaylord J. Perry, Sr. and wife Deborah W. Perry
(plaintiffs) purchased a tract of land in Dare County from
Joseph L. Land and Vanecia C. Land, by deed recorded in Deed
Book 1353 at page 330 of the Dare County Registry (Land Tract).
In 2004, plaintiffs purchased a tract of land in Dare County
from William Morris Tillett, Kenny Tillett and Ann Tillett, by
deed recorded in Deed Book 1561 at page 393 of the Dare County
Registry (Tillett Tract). Together, these tracts ran in a
generally east-west direction from Shipyard Road to the Croatan
Sound. The Estate of Orville L. Tillett, Marshall Tillett and
Jeanette Tillett Ambrose (defendants) own properties that abut
the southern boundary of plaintiffs’ property.
There is no dispute that the common source of title for the
properties of plaintiffs and defendants was lands owned by
Samuel and Elizabeth Mann. Defendants’ property was conveyed
out first by deed dated 9 January 1878 from Samuel Mann and wife
Elizabeth Mann to Willis Tillett, recorded in Book A at page 507
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of the Dare County Registry. The northern boundary of that
tract was described as follows:
... thence N. 62 E. along a line of marked
trees to a Juniper Post on the new main road
to the S.E. corner, thence North Easterly to
the head of the Fanny Payne ditch on the
south side of said ditch running the S. side
of said ditch to the Hammock Creek, thence
along said creek and the S. side to Juniper
Post & with the Hammock Creek ditch to the
sound...
The title to plaintiffs’ Land Tract comes from a deed dated
14 November 1887 from Samuel Mann and Elizabeth Mann to Samuel
Tillett recorded in Book C at page 15 of the Dare County
Registry. The title to plaintiffs’ Tillett Tract comes from the
Will of Samuel Mann, probated 8 October 1888 and recorded in
Will Book 1 at page 52 in the Office of the Clerk of Superior
Court of Dare County.
In the course of surveying these tracts, it was revealed
that there was a substantial overlap of the descriptions for the
properties of plaintiffs and defendants. On 14 November 2007,
plaintiffs filed a complaint seeking to quiet title to their
lands pursuant to N.C. Gen. Stat. § 41-10. Defendants filed
answer on 1 May 2008. This matter was heard at the 20 August
2012 session of Superior Court before Judge Cole and a jury.
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The following issues were submitted to, and answered by the
jury:
ISSUE ONE:
Do the plaintiffs have marketable record
title to the tract of land described in the
March 13, 2001 deed to plaintiffs from
Joseph L. and Vanecia C. Land in Book 1353,
Page 330 of the Dare County Public Registry
(which I will hereafter simply refer to as
the "Land Tract")?
ANSWER: YES
ISSUE TWO:
Is the plaintiffs' title to tract of land
described in the March 13, 2001 deed to
plaintiffs from Joseph L. and Vanecia C.
Land in Book 1353, Page 330 of the Dare
County Public Registry (which I will
hereafter simply refer to as the "Land
Tract") superior to the title claimed by the
defendants?
ANSWER: YES
ISSUE THREE:
Is the plaintiffs' title to tract of land
described in the April 16, 2004 deed to
plaintiffs from William Morris Tillett and
Kenny Tillett in Book 1561, Page 393 of the
Dare County Public Registry (which I will
hereafter simply refer to as the "W.M.
Tillett Heirs Tract") superior to the title
claimed by the defendants?
ANSWER: YES
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Defendants moved for a directed verdict at the close of
plaintiffs’ evidence, and at the close of all of the evidence.
These motions were denied by the trial court.
On 11 September 2012, the trial court entered judgment in
this matter, removing all of defendants’ “claim of title, estate
or interest” in plaintiffs’ lands.
Defendants appeal.
II. Scope of Defendants’ Appeal
On appeal, defendants do not contest the trial court’s
judgment as to plaintiffs’ “Land Tract” as reflected in the
jury’s answers to issues one and two. Pursuant to Rule 28(b)(6)
of the North Carolina Rules of Appellate Procedure, any
objection to the judgment with regard to plaintiffs’ Land Tract
is deemed abandoned, and we hold that the judgment of the trial
court is without error.
III. Denial of Defendants’ Motion for
Directed Verdict as to “Tillett Tract”
A. Standard of Review
In determining the sufficiency of the
evidence to withstand a motion for a
directed verdict, all of the evidence which
supports the non-movant’s claim must be
taken as true and considered in the light
most favorable to the non-movant, giving the
non-movant the benefit of every reasonable
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inference which may legitimately be drawn
therefrom and resolving contradictions,
conflicts, and inconsistencies in the non-
movant’s favor.
Turner v. Duke Univ., 325 N.C. 152, 158, 381 S.E.2d 706, 710
(1989).
“On appeal the standard of review for a JNOV is the same as
that for a directed verdict, that is whether the evidence was
sufficient to go to the jury.” Tomika Invs., Inc. v. Macedonia
True Vine Pentecostal Holiness Church of God, Inc., 136 N.C.
App. 493, 498-99, 524 S.E.2d 591, 595 (2000).
B. Analysis
We hold that the instant case is controlled by the case of
Pardue v. Brinegar, 199 N.C. App. 210, 681 S.E.2d 435 (2009),
rev’d for reasons in dissent, 363 N.C. 799, 688 S.E.2d 19
(2010). In Pardue, there was a boundary line dispute between
two property owners. The dissent in the Court of Appeals held
that the following was the appropriate standard of review for
the trial court upon a motion for a directed verdict:
A deed is to be construed by the court and
not by the jury. Wal–Mart Stores, Inc. v.
Ingles Mkts., Inc., 158 N.C. App. 414, 417,
581 S.E.2d 111, 114 (2003) (quoting Elliott
v. Cox, 100 N.C. App. 536, 538, 397 S.E.2d
319, 320 (1990)). “‘The language of the deed
being clear and unequivocal, it must be
given effect according to its terms, and we
may not speculate that the grantor intended
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otherwise.’” County of Moore v. Humane Soc'y
of Moore Cty., Inc., 157 N.C. App. 293, 298,
578 S.E.2d 682, 685 (2003) (quoting Southern
Furniture Co. v. Dep't of Transp., 133 N.C.
App. 400, 403, 516 S.E.2d 383, 386 (1999)).
Ordinary terms contained in a deed must be
given their plain meaning. Id.
Pardue at 217, 681 S.E.2d at 440.
In Pardue, the deeds for both the plaintiff and the
defendants called for a branch to be the boundary line between
the properties. The dissent in the Court of Appeals held that
the branch controlled as a natural boundary between the two
properties. Id. at 218, 681 S.E.2d at 440. The jury verdict
and judgment of the trial court called for two straight lines
located on plaintiff’s side of the branch as the boundary,
rather than the branch itself. The dissent in the Court of
Appeals held that the trial court erred in not granting the
plaintiff’s motion for a directed verdict, and this position was
adopted by the North Carolina Supreme Court.
Applying the holding of Pardue to the instant case, we are
compelled to reach the same result. The controlling deed (Deed
Book A, page 507, Dare County Registry) calls for a boundary
between plaintiffs’ Tillett Tract and defendants’ property to
run from the head of the Fanny Payne ditch, thence along the
south side of the ditch to the Hammock Creek, thence along the
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south side of the creek to a juniper post, thence with Hammock
Creek to the Croatan Sound.
Plaintiffs contend that there exists an ambiguity in the
description of the boundary line because it says “along said
creek” and not “with the creek.” They further contend that this
constitutes an ambiguity as to the intent of the grantor of the
1878 deed that required resolution by a jury. This is a
distinction without legal significance. In Pardue, we cited to
the case of Tallahassee Power Co. v. Savage, 170 N.C. 625, 87
S.E. 629 (1916) for the proposition that “[t]he Court considers
it settled upon authority that up the river is the same as along
the river, unless there be something else besides course and
distance to control it.” Pardue at 218, 681 S.E.2d at 440
(quoting Tallahassee Power at 630, 87 S.E. at 631).
We hold that the language of the 1878 deed is clear and
unambiguous. The southern line of plaintiffs’ Tillett Tract is
the south side of the Fanny Payne ditch and Hammock Creek. It
was error for the trial court to deny defendants’ motion for a
directed verdict as to any lands claimed by plaintiffs lying to
the south of the ditch and the creek.
We further note that there was testimony from plaintiffs’
surveyor, Wesley M. Meekins, Jr., as to why this discrepancy
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between his survey and the deed description occurred. Meekins
testified that the line followed “the south side of the ditch to
the creek and thence along the creek south side to the sound.”
He then acknowledged that the line he drew on the survey was a
straight line, and did not follow the deed description. Meekins
went on to testify that:
I was standing in the middle of the marsh
looking at the land and making an assumption
that the land was of very little value and
at that time you couldn't do a thing in the
world with it. And another, I was looking at
the gentleman who was paying the bill and I
knew that he was very low in his economic
state and that if I went and did and took a
shot on every bend and meander of that
creek, we're talking about several more days
in that mud, and I just made that the-- that
decision that it at least adhered to the
south side of the creek and started out on
the south side of the ditch.
. . .
Looking back I told you that, looking back
18 years in retrospect, I would do things
differently today than I did then. But I
can't effect [sic] what I did then except
that I would have done different and that
knowing that they didn't own anything north
of that ditch and the creek and the land
that we were talking about was needle brush
marsh. I just made a human decision, I guess
you might say.
This testimony confirms that the line between plaintiffs’
Tillett Tract and defendants’ property ran along the south bank
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of the ditch and creek. The line contained in the trial court’s
judgment was drawn not based upon the 1878 deed, but upon
economic expediency.
IV. Conclusion
We hold that there was no error in the trial court’s
judgment as to the boundary between plaintiffs’ Land Tract and
the property of defendants. We hold that the trial court erred
in not granting defendants’ motion for a directed verdict as to
the portion of plaintiffs’ Tillett Tract lying south of the
south bank of the Fanny Payne ditch and the Hammock Creek. The
judgment of the trial court as to Issue Three of the jury
verdict, plaintiffs’ Tillett Tract, is reversed, and this matter
is remanded to the trial court for entry of judgment removing
the cloud on the title to plaintiffs’ Tillett Tract only upon
the portion of their property lying to the north of the south
bank of the Fanny Payne ditch and Hammock Creek.
NO ERROR IN PART; REVERSED AND REMANDED IN PART.
Chief Judge MARTIN and Judge DILLON concur.
Report per Rule 30(e).