{ "id": 11868165, "name": "DORIS E. BECK, Petitioner v. H. CLAY BECK, Respondent", "name_abbreviation": "Beck v. Beck", "decision_date": "1997-02-18", "docket_number": "No. COA96-115", "first_page": "402", "last_page": "406", "citations": [ { "type": "official", "cite": "125 N.C. App. 402" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "137 S.E.2d 174", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "pin_cites": [ { "page": "186" } ], "opinion_index": 0 }, { "cite": "262 N.C. 330", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567516 ], "year": 1964, "pin_cites": [ { "page": "343" } ], "opinion_index": 0, "case_paths": [ "/nc/262/0330-01" ] }, { "cite": "10 N.C.L. Rev. 329", "category": "journals:journal", "reporter": "N.C. L. Rev.", "year": 1932, "pin_cites": [ { "page": "330" } ], "opinion_index": 0 }, { "cite": "179 S.E.2d 371", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "383", "parenthetical": "quoting Frederick B. McCall, The Torrens System - After Thirty-Five Years, 10 N.C.L. Rev. 329, 330 (1932)" } ], "opinion_index": 0 }, { "cite": "278 N.C. 126", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559862 ], "year": 1971, "pin_cites": [ { "page": "144", "parenthetical": "quoting Frederick B. McCall, The Torrens System - After Thirty-Five Years, 10 N.C.L. Rev. 329, 330 (1932)" } ], "opinion_index": 0, "case_paths": [ "/nc/278/0126-01" ] }, { "cite": "15 N.C. 223", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11276080 ], "weight": 2, "year": 1833, "pin_cites": [ { "page": "224" }, { "page": "225" } ], "opinion_index": 0, "case_paths": [ "/nc/15/0223-01" ] }, { "cite": "53 S.E. 870", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1906, "pin_cites": [ { "page": "871" } ], "opinion_index": 0 }, { "cite": "141 N.C. 210", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11252612 ], "year": 1906, "pin_cites": [ { "page": "214" } ], "opinion_index": 0, "case_paths": [ "/nc/141/0210-01" ] }, { "cite": "389 S.E.2d 820", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1990, "opinion_index": 0 }, { "cite": "326 N.C. 367", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5305435, 5304876 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/326/0367-02", "/nc/326/0367-01" ] }, { "cite": "386 S.E.2d 68", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 8, "year": 1989, "pin_cites": [ { "page": "71" }, { "page": "71" }, { "page": "71" }, { "page": "71" }, { "page": "71" } ], "opinion_index": 0 }, { "cite": "96 N.C. App. 450", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522887 ], "weight": 5, "year": 1989, "pin_cites": [ { "page": "454" }, { "page": "454" }, { "page": "454" }, { "page": "455" }, { "page": "455" } ], "opinion_index": 0, "case_paths": [ "/nc-app/96/0450-01" ] }, { "cite": "259 S.E.2d 348", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "352" } ], "opinion_index": 0 }, { "cite": "43 N.C. App. 419", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552390 ], "year": 1979, "pin_cites": [ { "page": "427" } ], "opinion_index": 0, "case_paths": [ "/nc-app/43/0419-01" ] }, { "cite": "305 S.E.2d 197", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "200", "parenthetical": "quoting Young v. Young, 43 N.C. App. 419, 427, 259 S.E.2d 348, 352 (1979)" }, { "page": "200" } ], "opinion_index": 0 }, { "cite": "63 N.C. App. 447", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525375 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "451", "parenthetical": "quoting Young v. Young, 43 N.C. App. 419, 427, 259 S.E.2d 348, 352 (1979)" }, { "page": "452" } ], "opinion_index": 0, "case_paths": [ "/nc-app/63/0447-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-40", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "year": 1996, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 46-3", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1984, "opinion_index": 0 } ], "analysis": { "cardinality": 553, "char_count": 12318, "ocr_confidence": 0.746, "pagerank": { "raw": 6.36863391241863e-08, "percentile": 0.3902781590741391 }, "sha256": "8d949f0d3077ed0e8f0f8f77471d4ee2e17dbd95e83c383dabafd93a25e9e36b", "simhash": "1:83593600f3140cc0", "word_count": 1982 }, "last_updated": "2023-07-14T22:18:02.941264+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges LEWIS and WALKER concur." ], "parties": [ "DORIS E. BECK, Petitioner v. H. CLAY BECK, Respondent" ], "opinions": [ { "text": "SMITH, Judge.\nThe question presented by this appeal is whether respondent, a tenant in common with petitioner, has ownership of the subject property by reason of the application of the doctrine of adverse possession. Petitioner petitioned the trial court for partition of the subject property pursuant to N.C. Gen. Stat. \u00a7 46-3 (1984). Respondent answered the petition and claimed ownership of the land by adverse possession. We hold that respondent actually ousted petitioner in 1973, has held the property adversely to petitioner for more than twenty years, and is therefore entitled to undivided ownership of the subject property.\nThe facts of this case, in the light most favorable to petitioner, are as follows. Petitioner and respondent were married in 1923, and subsequently acquired the subject property in 1944 as tenants by the entireties. In 1965, petitioner separated from respondent and left the subject property. The parties divorced in 1972, thereby creating a tenancy in common between them.\nOn 6 June 1973, petitioner instituted a special proceeding against respondent for partition of the subject property (the same property which is the subject of this appeal). In the 6 June 1973 petition, petitioner alleged she was half owner of the subject property as a tenant in common with respondent. Respondent, in his answer, denied that petitioner had any property rights whatsoever in the property. Subsequently, on 25 May 1978, petitioner\u2019s case was dismissed without prejudice by the trial court, pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 41(b) (1990), because of petitioner\u2019s failure to prosecute the partition action. Petitioner took no further action in this matter until the 20 March 1995 filing of the instant petition for partition.\nThe trial court found, and the record reflects, that petitioner knew in 1973 that respondent claimed the subject property as his own. Furthermore, respondent\u2019s responsive pleadings to petitioner\u2019s 1973 partition action unequivocally asserted his claim of total and exclusive ownership of the subject property. Petitioner also admitted, in her deposition testimony, that respondent had been in sole and undisturbed possession of the subject property since 1973, had collected rents and profits from the property without objection by petitioner, and had paid all taxes due upon the land.\nPetitioner\u2019s deposition also indicates that she knew of, and did not object to, respondent\u2019s sale of timber cut from the land, respondent\u2019s use of the land for the grazing of cattle and for farming, respondent\u2019s claim of ownership to the land during a boundary dispute with another party (not petitioner), and respondent\u2019s rental of mobile homes on the property. Finally, petitioner admitted in her deposition that respondent had \u201ctreated said real property as his own,\u201d \u201copen and notoriously to his own use,\u201d \u201cto the exclusion of the Petitioner,\u201d by \u201cclear, positive, and unequivocal acts of ownership.\u201d\nRespondent argues that he has possessed the subject property adversely to petitioner for more than twenty years, and is thus entitled to sole ownership of the property Respondent does not argue adverse possession under color of title, and so, the central question in this case becomes whether respondent is entitled to sole ownership of the land pursuant to N.C. Gen. Stat. \u00a7 1-40 (1996), which allows for possession of land via the doctrine of adverse possession. N.C. Gen. Stat. \u00a7 1-40 reads as follows:\nNo 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 disability\nThe focal point for adverse possession under \u00a7 1-40 is on the statutorily required period: twenty years. As between tenants in common, possession \u201cis not considered adverse . . . unless [the adverse claimant] ousts his cotenant \u2018by some clear, positive, and unequivocal act equivalent to an open denial of his [cotenant\u2019s] right.\u2019 \u201d McCann v. Travis, 63 N.C. App. 447, 451, 305 S.E.2d 197, 200 (1983) (quoting Young v. Young, 43 N.C. App. 419, 427, 259 S.E.2d 348, 352 (1979)). A cotenant\u2019s clear positive denial of another cotenant\u2019s rights in the common property is known as an \u201cactual ouster.\u201d Willis v. Mann, 96 N.C. App. 450, 454, 386 S.E.2d 68, 71 (1989), disc. review denied, 326 N.C. 367, 389 S.E.2d 820 (1990). Actual ouster involves \u201can entry or possession of one tenant in common that enables a cotenant to bring ejectment against him.\u2019 \u201d Id. (quoting McCann, 63 N.C. App. at 452, 305 S.E.2d at 200.)\nIn the instant case, respondent argues that he actually ousted petitioner from the subject property on 26 July 1973, the date he filed his answer in the first partition proceeding brought by petitioner. In that answer, respondent denied that petitioner had any interest whatsoever in the subject property, and claimed the property as his own. From 26 July 1973 until the date of the present action, respondent conducted his affairs with regard to the property as if it were his own. After denying petitioner\u2019s rights to the land in the initial partition proceeding (which, in and of itself, amounted to an actual ouster), respondent continued to engage in clear, positive conduct \u201cequivalent to an open denial of [the cotenant\u2019s] right and to putting him out of the seizin.\u201d Willis, 96 N.C. App. at 454, 386 S.E.2d at 71 (quoting Dobbins v. Dobbins, 141 N.C. 210, 214, 53 S.E. 870, 871 (1906)). For instance, respondent cut and sold timber on the land, rented out mobile homes and a home on the property, and performed other acts consistent with ownership of the property. Furthermore, in her deposition, petitioner admitted that respondent \u201cha[d] treated said real property as his own,\u201d and was in \u201ccomplete control of it.\u201d\nBased on these facts, we conclude that petitioner was \u201cactually] ousted\u201d from the property at issue on the date of respondent\u2019s filing of the answer in the first partition proceeding. See Willis, 96 N.C. App. at 454, 386 S.E.2d at 71. In Willis, on facts substantially similar to the ones at hand, this Court held \u201cthat the institution of this [Torrens] action unequivocally indicates that plaintiffs had actual notice that defendants were claiming the property to the exclusion of plaintiffs .... We hold that [such] evidence . . . demonstrates an actual ouster of plaintiffs.\u201d Id. In our view, respondent\u2019s 26 July 1973 answer to petitioner\u2019s prior partition claim amounted to an open, unequivocal denial of petitioner\u2019s rights to any part of the subject property. Thus, for \u00a7 1-40 purposes, the advent of respondent\u2019s adverse possession was 26 July 1973, the date of respondent\u2019s actual ouster of petitioner.\nAccordingly, the only question left unanswered is whether the continuity of respondent\u2019s adverse possession claim was interrupted by petitioner\u2019s prior partition action of 6 June 1973. We hold that it was not. Petitioner asserts, without citation to authority, that her \u201cfiling of the [partition] proceeding in 1973, until [the proceeding\u2019s] dismissal in 1978, constitute^] a reassertion of Petitioner\u2019s ownership and . . . stop[ped] the running of the twenty year period.\u201d Petitioner\u2019s theory is flawed, for it is the longstanding rule of North Carolina courts that \u201cif an actual ouster be made by one tenant in common with his co-tenant, there is no longer a common possession, and the remedy is not by petition for partition, but by ejectment to recover possession of the individual moiety\u201d Thomas v. Garvin, 15 N.C. 223, 224 (1833). Applied here, the rule in Garvin necessarily means that petitioner\u2019s 1973 partition action did not interrupt respondent\u2019s adverse possession of the property, and so the clock continued ticking for \u00a7 1-40 purposes.\nBoth of the instant parties have cited the Willis decision as shedding light on the continuity of possession issue. In Willis, this Court was faced with a continuity problem similar to the instant one, albeit in the context of a Torrens proceeding. Willis, 96 N.C. App. at 455, 386 S.E.2d at 71. The general purpose of the Torrens system is, much like a claim for title by adverse possession, \u201c \u2018to secure by a decree of court, or other similar proceeding [], a title impregnable against attack . . . and to protect the registered owner against all claims or demands not noted on the book for the registration of titles.\u2019 \u201d State v. Johnson, 278 N.C. 126, 144, 179 S.E.2d 371, 383 (1971) (quoting Frederick B. McCall, The Torrens System \u2014 After Thirty-Five Years, 10 N.C.L. Rev. 329, 330 (1932)).\nIn Willis, the plaintiffs\u2019 predecessor in title had filed a Torrens action against the defendant (an adverse possession claimant) in 1969, and had dismissed that same action in 1981. Willis, 96 N.C. App. at 455, 386 S.E.2d at 71. In a subsequent action to quiet title to the same property, the Willis plaintiffs asserted that \u201cthe period between the filing of the action (1969) and of the dismissal (1981) broke defendants\u2019 continuity of possession . . . .\u201d Id. The Willis Court dismissed this argument, without citation to authority, by holding that \u201cthe mere institution of the Torrens proceedings did not break the continuity of defendants\u2019 [adverse possession claim].\u201d Id.\nThe result in Willis is consistent with the rule from Garvin, and as such, we are bound by both holdings. Therefore, the pendency of petitioner\u2019s 1973 petition for partition (through its dismissal by the trial court in 1978), had no effect on the accrual of respondents\u2019 adverse possession claim. Garvin, 15 N.C. at 225. Having ousted petitioner in 1973, and having held the property adversely to petitioner for more than twenty years, respondent is entitled to sole ownership of the property as its adverse possessor. N.C. Gen. Stat. \u00a7 1-40, Morehead v. Harris, 262 N.C. 330, 343, 137 S.E.2d 174, 186 (1964).\nFor the reasons stated herein, the judgment of the trial court is affirmed.\nAffirmed.\nJudges LEWIS and WALKER concur.", "type": "majority", "author": "SMITH, Judge." } ], "attorneys": [ "Douglas, Ravenel, Hardy & Crihfield, L.L.P., by Robert D. Douglas, III, for petitioner appellant.", "Cecil & Cecil, P.A., by Robert L. Cecil, for respondent appellee." ], "corrections": "", "head_matter": "DORIS E. BECK, Petitioner v. H. CLAY BECK, Respondent\nNo. COA96-115\n(Filed 18 February 1997)\nAdverse Possession \u00a7 27 (NCI4th)\u2014 tenancy in common \u2014 allegations of property rights denied in 1973 partition petition \u2014 advent of adverse possession \u2014 not tolled by pendency of petition\nRespondent is entitled to undivided ownership of the subject property by adverse possession where petitioner and respondent acquired the property as tenants by the entireties in 1944; petitioner separated from respondent in 1965 and left the property; the parties divorced in 1972, creating a tenancy in common; petitioner instituted a special proceeding for partition of the property in 1973; respondent denied that petitioner had any property rights in the property whatsoever; the case was eventually dismissed without prejudice because of petitioner\u2019s failure to prosecute the action; and respondent conducted his affairs with regard to the property from the date he filed his answer in 1973 until the date of this action as if it were his own, cutting and selling timber on the land, renting out mobile homes and a home on the property, and performing other acts consistent with ownership of the property. Respondent\u2019s 26 July 1973 answer to petitioner\u2019s partition claim amounted to an open, unequivocal denial of petitioner\u2019s rights to any part of the subject property and that was the advent of respondent\u2019s adverse possession. Although petitioner asserts that the running of the twenty year period was stopped from the filing of the partition in 1973 until its dismissal in 1978, it is the longstanding rule of North Carolina that, if an actual ouster be made, the remedy is by ejectment rather than partition. N.C.G.S. ' \u00a7 1-40.\nAm Jur 2d, Adverse Possession \u00a7\u00a7 15, 35, 53, 127, 130.\nAppeal by petitioner from summary judgment entered 13 November 1995 by Judge L. Todd Burke in Randolph County Superior Court. Heard in the Court of Appeals 29 October 1996.\nDouglas, Ravenel, Hardy & Crihfield, L.L.P., by Robert D. Douglas, III, for petitioner appellant.\nCecil & Cecil, P.A., by Robert L. Cecil, for respondent appellee." }, "file_name": "0402-01", "first_page_order": 440, "last_page_order": 444 }