{ "id": 12168388, "name": "ALEX D. McLENNAN, JR., DOROTHY N. McLENNAN, and RUFUS T. CARR, JR., Plaintiffs v. C.K. JOSEY, JR., DEBORAH G. JOSEY, JOSEY PROPERTIES, LLC, THOMAS D. TEMPLE, IV, CRYSTAL TEMPLE, BETTY JO TEMPLE, and JOSEPH LANIER RIDDICK, III, Defendants", "name_abbreviation": "McLennan v. Josey", "decision_date": "2014-05-20", "docket_number": "No. COA13-1271", "first_page": "45", "last_page": "50", "citations": [ { "type": "official", "cite": "234 N.C. App. 45" } ], "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": "649 S.E.2d 382", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639168 ], "year": 2007, "pin_cites": [ { "page": "385" } ], "opinion_index": 0, "case_paths": [ "/se2d/649/0382-01" ] }, { "cite": "221 S.E.2d 347", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "349" } ], "opinion_index": 0 }, { "cite": "289 N.C. 291", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568076 ], "year": 1976, "pin_cites": [ { "page": "293-94" } ], "opinion_index": 0, "case_paths": [ "/nc/289/0291-01" ] }, { "cite": "74 S.E.2d 630", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1953, "pin_cites": [ { "page": "634", "parenthetical": "\"Where a junior deed calls for a comer or line in a prior deed ... it is not permissible to resort to a call in the junior deed for the purpose of establishing the call or line in the prior deed.\"" } ], "opinion_index": 0 }, { "cite": "237 N.C. 244", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8608277 ], "year": 1953, "pin_cites": [ { "page": "250", "parenthetical": "\"Where a junior deed calls for a comer or line in a prior deed ... it is not permissible to resort to a call in the junior deed for the purpose of establishing the call or line in the prior deed.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/237/0244-01" ] }, { "cite": "122 S.E.2d 786", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1961, "pin_cites": [ { "page": "788-89" } ], "opinion_index": 0 }, { "cite": "256 N.C. 20", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570658 ], "year": 1961, "pin_cites": [ { "page": "24" } ], "opinion_index": 0, "case_paths": [ "/nc/256/0020-01" ] }, { "cite": "128 S.E.2d 814", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "pin_cites": [ { "page": "817-18" } ], "opinion_index": 0 }, { "cite": "258 N.C. 465", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561178 ], "year": 1963, "pin_cites": [ { "page": "470-71" } ], "opinion_index": 0, "case_paths": [ "/nc/258/0465-01" ] }, { "cite": "183 S.E. 2d 790", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1971, "pin_cites": [ { "page": "792-93" }, { "page": "793" }, { "page": "793" } ], "opinion_index": 0 }, { "cite": "12 N.C. App. 462", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550420 ], "year": 1971, "pin_cites": [ { "page": "466" } ], "opinion_index": 0, "case_paths": [ "/nc-app/12/0462-01" ] }, { "cite": "61 S.E.2d 443", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1950, "pin_cites": [ { "page": "446", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "232 N.C. 441", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8605328 ], "year": 1950, "pin_cites": [ { "page": "445", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/232/0441-01" ] }, { "cite": "21 S.E. 108", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1895, "pin_cites": [ { "page": "109", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "116 N.C. 74", "category": "reporters:state", "reporter": "N.C.", "year": 1895, "pin_cites": [ { "page": "76", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "439 S.E.2d 802", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1994, "pin_cites": [ { "page": "805", "parenthetical": "citation omitted" }, { "parenthetical": "citations omitted" }, { "parenthetical": "citation omitted" }, { "parenthetical": "citation and quotation omitted" } ], "opinion_index": 0 }, { "cite": "113 N.C. App. 626", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523964 ], "year": 1994, "pin_cites": [ { "page": "629-30", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/113/0626-01" ] }, { "cite": "593 S.E.2d 411", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "414", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "163 N.C. App. 303", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8917081 ], "year": 2004, "pin_cites": [ { "page": "307", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/163/0303-01" ] }, { "cite": "490 S.E.2d 593", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "page": "597", "parenthetical": "citation and quotation omitted" }, { "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "127 N.C. App. 457", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11797438 ], "year": 1997, "pin_cites": [ { "page": "461", "parenthetical": "citation and quotation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/127/0457-01" ] }, { "cite": "484 S.E.2d 446", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "448" } ], "opinion_index": 0 }, { "cite": "126 N.C. App. 155", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11709102 ], "year": 1997, "pin_cites": [ { "page": "158" } ], "opinion_index": 0, "case_paths": [ "/nc-app/126/0155-01" ] }, { "cite": "361 N.C. 519", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3739573 ], "year": 2007, "pin_cites": [ { "page": "523-24" } ], "opinion_index": 0, "case_paths": [ "/nc/361/0519-01" ] }, { "cite": "669 S.E.2d 572", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2008, "pin_cites": [ { "page": "576", "parenthetical": "quoting Forbis v. Neal, 361 N.C. 519, 523-24, 649 S.E.2d 382, 385 (2007)" } ], "opinion_index": 0 }, { "cite": "362 N.C. 569", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4150896 ], "year": 2008, "pin_cites": [ { "page": "573", "parenthetical": "quoting Forbis v. Neal, 361 N.C. 519, 523-24, 649 S.E.2d 382, 385 (2007)" } ], "opinion_index": 0, "case_paths": [ "/nc/362/0569-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 41-10", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "opinion_index": 0 } ], "analysis": { "cardinality": 704, "char_count": 13218, "ocr_confidence": 0.725, "pagerank": { "raw": 6.041502013137158e-08, "percentile": 0.374164478315145 }, "sha256": "d4f01370f69f31fbf101c4ea1fb36c71469ac8fcbe84b53b02a05ff974fc7b85", "simhash": "1:c75a2458351e3e56", "word_count": 2186 }, "last_updated": "2023-07-14T22:30:06.319137+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McCULLOUGH and DAVIS concur." ], "parties": [ "ALEX D. McLENNAN, JR., DOROTHY N. McLENNAN, and RUFUS T. CARR, JR., Plaintiffs v. C.K. JOSEY, JR., DEBORAH G. JOSEY, JOSEY PROPERTIES, LLC, THOMAS D. TEMPLE, IV, CRYSTAL TEMPLE, BETTY JO TEMPLE, and JOSEPH LANIER RIDDICK, III, Defendants" ], "opinions": [ { "text": "ELMORE, Judge.\nDefendants appeal from order granting plaintiffs\u2019 motion for summary judgment. After careful consideration, we affirm.\nI. Facts\nAlex McLennan, Jr., Dorothy McLennan, and Rufus Carr, Jr., (collectively plaintiffs) and C.K. Josey, Jr., Deborah G. Josey, Josey Properties, LLC., Thomas D. Temple, IV, Crystal Temple, Betty Jo Temple, and Joseph Lanier Riddick, III, (collectively defendants) own adjoining tracts of land with a common boundary located in Halifax County. In July 2010, defendants recorded a map at Book 2009, Page 193, and a deed at Book 2321, Page 750, in the Halifax County Registry that asserted ownership of an area allegedly owned by plaintiffs. On 27 August 2010, plaintiffs filed a \u201cCOMPLAINT TO ESTABLISH BOUNDARY AND QUIET TITLE\u201d pursuant to N.C. Gen. Stat. \u00a7 41-10. Plaintiffs alleged that defendants \u201cclaimed ownership of lands owned by Plaintiffs and have created a cloud on title to Plaintiff\u2019s [sic] property.\u201d Thereafter, plaintiffs filed a motion for summary judgment that was heard before Judge J. Carlton Cole on 25 and 26 February 2013. At the hearing, the evidence showed that both parties obtained title to their tracts from a common source, David Clark, on 10 November 1882. Following Clark\u2019s death, his lands were partitioned and divided among his heirs in the \u201cReport of Commissioners in Partition\u201d (the partition). Plaintiffs\u2019 source of title is \u201cLot 4,\u201d allocated to Anna Clark, and defendants\u2019 source of title is \u201cLot 8,\u201d allotted to Dora Clark. Plaintiffs\u2019 southern boundary line and defendants\u2019 northern boundary line are shared in common. The partition describes the common boundary line as \u201cdown the run of [Gaynor\u2019s] Gut to the Canal[.]\u201d The dispute arises from the parties\u2019 disagreement as to the location on the ground of the run of the gut to the canal. Both parties agree that the shared boundary runs southwest to a point where the flow of the gut diverges. However, plaintiffs argue that the gut forks left at that divergent point and runs through a dam, a pond, and then empties into the canal. Defendants contend that the gut forks right at the split and then empties into the canal.\nII. Analysis\na.J Prima Facie Case\nDefendants argue that the trial court erred in granting plaintiffs\u2019 motion for summary judgment. Specifically, defendants aver that plaintiffs failed to meet their burden of establishing the on-the-ground location of the claimed boundary line: the run of the gut to the canal. We disagree.\n\u201cOur standard of review of an appeal from summary judgment is de novo; such judgment is appropriate only when the record shows that \u2018there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.\u2019 \u201d In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008) (quoting Forbis v. Neal, 361 N.C. 519, 523-24, 649 S.E.2d 382, 385 (2007)). We must consider \u201cthe pleadings, affidavits and discovery materials available in the light most favorable to the non-moving paxty[.]\u201d Pine Knoll Ass\u2019n, Inc. v. Cardon, 126 N.C. App. 155, 158, 484 S.E.2d 446, 448 (1997).\nPursuant to N.C. Gen. Stat. \u00a7 41-10, an individual can institute an action to remove a cloud on title \u201cagainst another who claims an estate or interest in real property adverse to him for the purpose of determining such adverse claims[.]\u201d N.C. Gen. Stat. \u00a7 41-10 (2013). The statute provides this express authority in an attempt to \u201cfree 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 ofsuspicion[.]\u201d Chicago Title Ins. Co. v. Wetherington, 127 N.C. App. 457, 461, 490 S.E.2d 593, 597 (1997) (citation and quotation omitted). Should the plaintiff establish \u201ca prima facie case for removing a cloud on title, the burden rests upon the defendant to establish that his title to the property defeats the plaintiff\u2019s claim.\u201d Id. (citation omitted). The plaintiff establishes a prima facie case for removing a cloud on title upon satisfying two prongs: \u201c(1) the plaintiff must own the land in controversy, or have some estate or interest in it; and (2) the defendant must assert some claim in the land adverse to plaintiff\u2019s title, estate or interest.\u201d Hensley v. Samel, 163 N.C. App. 303, 307, 593 S.E.2d 411, 414 (2004) (citation omitted). In order to establish ownership of the disputed land under prong one, the plaintiff can utilize the \u201ccommon source of title\u201d doctrine, which requires him \u201cto connect both [himself] and defendants with a common source of title and then show in [himself] a better title from that source.\u201d Chappell v. Donnelly, 113 N.C. App. 626, 629-30, 439 S.E.2d 802, 805 (1994) (citation omitted). Additionally, the plaintiff must show that \u201cthe disputed tract lies within the boundaries of their property.\u201d Id. (citations omitted). Accordingly, the burden is on the plaintiff to establish \u201cthe on-the-ground location of the boundary lines which they claim.\u201d Id. (citation omitted). He must \u201clocate the land by fitting the description in the deeds to the earth\u2019s surface.\u201d Id. (citation and quotation omitted). In locating such land:\ncourts endeavor to place themselves in the position of the parties at the time of the conveyance, in order to ascertain what is intended to be conveyed; for, in describing the property, parties are presumed to refer to its condition at that time, and the meaning of their terms of expression can only be properly understood by a knowledge of their position, and that of the property conveyed.\nCox v. McGowan, 116 N.C. 74, 76, 21 S.E. 108, 109 (1895) (citation omitted). It necessarily follows that \u201c[rjesort may not be had to a junior conveyance for the purpose of locating a call in a senior deed.\u201d Bostic v. Blanton, 232 N.C. 441, 445, 61 S.E.2d 443, 446 (1950) (citations omitted).\nIn Poe v. Bryan, the plaintiff testified that she had personal knowledge of the contended boundary line because she lived on the tract of land during her youth and learned about the boundary lines from her grandfather. 12 N.C. App. 462, 466, 183 S.E. 2d 790, 792-93 (1971). A surveyor also testified that \u201cthe courses on the court map were normal variations from the courses on the deed and that the land described in the deed is the same tract of land shown as plaintiffs\u2019 contended tract.\u201d Id. at 466-67, 183 S.E.2d at 793. We held that \u201cthe testimony of the feme plaintiff and the [trial] court appointed surveyor constitutes sufficient evidence that the description of the ... deed fits the land and embraces the land in controversy.\u201d Id. at 467, 183 S.E.2d at 793. Conversely, our Supreme Court in Day v. Godwin held that the plaintiff failed to meet his burden to locate the on-the-ground location of the disputed land because no survey of the disputed land was conducted nor did plaintiff have personal knowledge about the location of the disputed tract. 258 N.C. 465, 470-71, 128 S.E.2d 814, 817-18 (1963).\nIn the case at bar, plaintiff McClennan testified that he worked on his grandfather\u2019s farm and Lot 4 since 1958. During that time, he \u201ccame to know the location of Gaynor\u2019s Gut from the Dam at Blue Pond to the Dam at Coon Pond, and from the Dam at Coon Pond through Coon Pond to where Gaynor\u2019s Gut enters Clark\u2019s Canal.\u201d In 1967, he managed the farm on a full-time basis, and it required that he \u201cknow the location of Gaynor\u2019s Gut and the other boundaries of the property being managed.\u201d Plaintiff McClennan testified that the disputed boundary line encompassing plaintiffs\u2019 land \u201chas been a well known, well marked and agreed upon line between our lands since the division of the David Clark lands in the 1800\u2019s.\u201d Additionally, a professional surveyor, Donald S. Hilhorst, surveyed Gaynor\u2019s Gut in 2010 using various recorded documents in the Halifax County Register of Deeds Office. He found the boundary line to comport with plaintiff McClennan\u2019s testimony. Hilhorst\u2019s survey was also consistent with \u201cthe legal description of Gaynor\u2019s Gut\u201d found in a 1909 deed and \u201cthe recorded survey of the Mrs. Anna C. Arnold [map].\u201d\nThe 1909 deed divided defendants\u2019 predecessors\u2019 Lot 8 into two parcels and gave one 805-acre parcel to the Wilts Veneer Company with the remaining tract to be held by defendants\u2019 predecessors. The deed explicitly indicated a shared boundary line between Wilts Veneer Company and Anna Arnold\u2019s (plaintiffs\u2019 predecessor in title) Lot 4, which necessarily included the disputed land as part of Lot 4. It also contained a course and distance description of the run of Gaynor\u2019s Gut that places the disputed tract within Lot 4.\nThe Anna Arnold map was created in 1918 to reflect a portion of Lot 4 that was given by Anna Arnold to Wilts Veneer Company in a timber rights conveyance. It included a metes and bounds description of Gaynor\u2019s Gut from Lot 4\u2019s northeast comer down to its ran to the Canal. The metes and bounds description reflected on the map shows the disputed land to have been owned by Anna Arnold.\nAlthough Hilhorst used junior conveyances by referencing the 1909 and 1918 documents in his survey, they did not enlarge the plaintiffs\u2019 boundary lines, but rather provided an unambiguous specific description of Gaynor\u2019s Gut, which comports with the general description found in the partition. See Carney v. Edwards, 256 N.C. 20, 24, 122 S.E.2d 786, 788-89 (1961) (\u201cIt is . . . well settled that a general description will not enlarge a specific description when the latter is in fact sufficient to identify the land which it purports to convey. Only when the attempted specific description is ambiguous and uncertain will the general prevail.\u201d (citation omitted)). In totality, plaintiffs\u2019' evidence was sufficient to meet their burden to show that the disputed area lies within the boundaries of their land.\nb. j Defendants\u2019 Burden\nSince plaintiffs established aprima facie case of title to the disputed land, defendants were required to establish that their title was superior.\nOn appeal, however, defendants present no evidence by way of deeds in their chain of title to establish their superior claim to the disputed land. Moreover, defendants\u2019 recorded map in 2010 and subsequent deeds using the map\u2019s boundary description to convey the disputed land are junior to the 1909 and 1918 documents that describe the ran of Gaynor\u2019s Gut. Thus, the descriptions found in the 1909 and 1918 documents control. See Goodwin v. Greene, 237 N.C. 244, 250, 74 S.E.2d 630, 634 (1953) (\u201cWhere a junior deed calls for a comer or line in a prior deed ... it is not permissible to resort to a call in the junior deed for the purpose of establishing the call or line in the prior deed.\u201d). The 1909 deed is included by reference in each deed within defendants\u2019 chain of title. Their chain of title specifically excludes defendants and their predecessors from the tract that was given to the Wilts Veneer Company in the 1909 deed. As previously mentioned, the 1909 deed establishes that the disputed land was never a part of defendants\u2019 Lot 8.\nAlthough defendants offer parol evidence in the form of a 2010 elevation study, affidavits of individuals with personal knowledge of the boundary line, and other extrinsic testimony to show that the disputed land belongs to them, rebanee on such evidence is improper. See Overton v. Boyce, 289 N.C. 291, 293-94, 221 S.E.2d 347, 349 (1976) (\u201cWhen the deed itself, including its references . . . describes with certainty the property intended to be conveyed, parol evidence is admissible to fit the description in the deed to the land\u201d but is inadmissible to \u201cenlarge the scope of the description in the deed.\u201d (citations omitted)). Thus, defendants failed to estabbsh that their title to the disputed property was superior to plaintiffs\u2019 title. Accordingly, the trial court properly granted summary judgment to plaintiffs.\nIII. Conclusion\nIn sum, we affirm the trial court\u2019s order granting plaintiffs\u2019 motion for summary judgment because no genuine issue of material fact exists as to the true location of the boundary line as contemplated by the partition.\nAffirmed.\nJudges McCULLOUGH and DAVIS concur.", "type": "majority", "author": "ELMORE, Judge." } ], "attorneys": [ "Rountree & Boyette L.L.P., by Charles S. Rountree, for plaintiff s-appellees.", "Etheridge, Hamlett & Murray, L.L.P., by Ernie K. Murray, for defendants-appellants." ], "corrections": "", "head_matter": "ALEX D. McLENNAN, JR., DOROTHY N. McLENNAN, and RUFUS T. CARR, JR., Plaintiffs v. C.K. JOSEY, JR., DEBORAH G. JOSEY, JOSEY PROPERTIES, LLC, THOMAS D. TEMPLE, IV, CRYSTAL TEMPLE, BETTY JO TEMPLE, and JOSEPH LANIER RIDDICK, III, Defendants\nNo. COA13-1271\nFiled 20 May 2014\nReal Property\u2014dispute\u2014boundary line\u2014summary judgment\nThe trial court did not err in a real property dispute case by granting plaintiffs\u2019 motion for summary judgment. Plaintiffs established a prima facie case of title to the disputed land, and defendants presented no evidence by way of deeds in their chain of title to establish their superior claim to the disputed land. No genuine issue of material fact existed as to the true location of the boundary line as contemplated by the partition.\nAppeal by defendants from order entered 10 June 2013 by Judge J. Carlton Cole in Halifax County Superior Court. Heard in the Court of Appeals 19 March 2014.\nRountree & Boyette L.L.P., by Charles S. Rountree, for plaintiff s-appellees.\nEtheridge, Hamlett & Murray, L.L.P., by Ernie K. Murray, for defendants-appellants." }, "file_name": "0045-01", "first_page_order": 55, "last_page_order": 60 }