{
  "id": 8550356,
  "name": "WILSON COUNTY BOARD OF EDUCATION v. BESSIE H. LAMM, Widow; VIRGINIA LAMM HAYES and Husband, J. F. HAYES; JACK F. HAYES, a Minor; TEMPIE ANN HAYES, a Minor; JACK THOMAS HAYES, a Minor; THE FREE WILL BAPTIST CHILDREN'S HOME, INC.; and All Persons not in Being who may by any Contingency own or Acquire any Interest in the Lands Constituting the Subject Matter of This Action by Reason of the Last Will and Testament of GROVER T. LAMM, Deceased",
  "name_abbreviation": "Wilson County Board of Education v. Lamm",
  "decision_date": "1969-12-17",
  "docket_number": "No. 697SC422",
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    "judges": [
      "BeoCK and VaughN, JJ., concur."
    ],
    "parties": [
      "WILSON COUNTY BOARD OF EDUCATION v. BESSIE H. LAMM, Widow; VIRGINIA LAMM HAYES and Husband, J. F. HAYES; JACK F. HAYES, a Minor; TEMPIE ANN HAYES, a Minor; JACK THOMAS HAYES, a Minor; THE FREE WILL BAPTIST CHILDREN\u2019S HOME, INC.; and All Persons not in Being who may by any Contingency own or Acquire any Interest in the Lands Constituting the Subject Matter of This Action by Reason of the Last Will and Testament of GROVER T. LAMM, Deceased"
    ],
    "opinions": [
      {
        "text": "BRITT, J.\nThe assignments of error brought forward and argued relate to rulings of the court admitting certain evidence and to certain aspects of the charge. This Court is governed by the \u201csettled rule of appellate courts that verdicts and judgments will not be set aside for harmless error or for mere error and no more. To accomplish this result it must be made to appear not only that the ruling complained of was erroneous but that it was material and prejudicial, amounting to a denial of some substantial right.\u201d Herring v. McClain, 6 N.C. App. 359. Plaintiff contends there is reversible error. We think not; rather, the record indicates that plaintiff simply failed to show adverse possession to the satisfaction of the jury.\nPlaintiff could acquire title by adverse possession only if the jury, under proper instructions, were satisfied that the acts of ownership described by the witnesses constituted open, notorious and adverse possession. The settled law, restated in the case of State v. Brooks, 275 N.C. 175, 166 S.E. 2d 70, is that \u201cthe party asserting title by adverse possession must carry the burden of proof on that issue.\u201d The record indicates that the instructions given presented the issue fully and fairly and are in accord with the classic definition of adverse possession stated in Locklear v. Savage, 159 N.C. 236, 74 S.E. 347, and cited with approval in State v. Brooks, supra, as follows:\n\u201cIt consists in actual possession, with an intent to hold solely for the possessor to the exclusion of others, and is denoted by the exercise of acts of dominion over the land, in making the ordinary use and taking the ordinary profits of which it is susceptible in its present state, such acts to be so repeated as to show that they are done in the character of owner, in opposition to right or claim of any other person, and not merely as an occasional trespasser. It must be decided and notorious as the nature of the land will permit, affording unequivocal indication to all persons that he is exercising thereon the dominion of owner.\u201d\nIn its complaint, plaintiff conceded and the defendants admitted that plaintiff\u2019s entry into possession was with the permission of the owner (\u201cGrover T. Lamm put plaintiff in possession of said land\u201d), and offered no proof of the additional allegation- \u2014 \u25a0 which defendants denied \u2014 that plaintiff was put into this possession \u201cas owner.\u201d Thus, the court properly charged that where the jury believed the entry into possession was permissive, such possession does not become adverse until the \u201cacts of dominion * * * done in the character of owner\u201d are such as to give notice to the owner that permissive use is disclaimed. The jury verdict indicates that the plaintiff failed to satisfy them that there was an adverse possession rather than a merely permissive one.\nThe testimony of defendants\u2019 witness Harrison relating to the declaration of County Superintendent E. J. Barnes that \u201cLamm was giving the site for as long as it was a school\u201d and \u201cthat\u2019s as long as we want it\u201d was properly admissible over objection. Certain dec\u00eda- rations accompanying and characterizing an act are allowed as a well-known exception to the hearsay rule. See Stansbury, N.C. Evidence 2d, \u00a7 159. The acquisition of some type of right in Lamm\u2019s realty was clearly non-verbal conduct of the sort which frequently \u201cmust be accompanied by some manifestation of purpose in order to give it any effect at all, or to determine which of two possible effects it is to have.\u201d Stansbury, N.C. Evidence 2d, \u00a7 159, p. 399.\nThe rule that declarations by persons in possession of land or chattels are admissible is a particular application of the above-stated principle to cases such as actions in adverse possession where \u201c[t]he bare fact of possession is usually equivocal.\u201d Stansbury, N.C. Evidence 2d, \u00a7 160, p. 401. The case of Newberry v. R. R., 133 N.C. 45, 45 S.E. 356, is cited for Stansbury\u2019s proposition that \u201c[possession by the declarant is of course essential to admissibility.\u201d The court held in that case that where one person claims goods by purchase of another, the declarations of the seller as to ownership of goods are not admissible under this where he was an assignor who had never at any time been in possession. The \u201cpossession by the declarant\u201d element should not be applied with such strictness as to render the admission of Barnes\u2019 declaration unassisted by this rule, because although the school board was not in possession at that precise instant, the declaration did \u201caccompany,\u201d \u201ccharacterize\u201d and \u201cexplain\u201d the forthcoming entry into possession, which did, in fact, take place soon thereafter. Also, the court has indicated that the basic principle of admitting declarations accompanying and characterizing an act \u201ccannot reasonably be restricted to the very moment of the act.\u201d Moore v. Gwyn, 26 N.C. 275.\nThe defendants\u2019 witnesses Peele, Simpson, Jones and Moore testified as to declarations of the titleholder Grover T. Lamm at approximately the time he put the school board into possession (Peele and Simpson) and at two separate instances while it has been in possession (Jones and Moore). A strong argument can be made that Lamm\u2019s declarations to Peele and Simpson accompany and characterize the act of putting plaintiff into possession. An equally strong argument can be made that the declarations to which Jones and Moore testified are admissible for the limited purpose of refuting the notoriety of the adverse claim which plaintiff asserts because each shows that the titleholder considered the use still permissive at the time each was made. Such an argument is founded on a logical view of the rule making declarations of the possessor admissible to show a notorious and hostile claim. The case of Batts v. Staton, 123 N.C. 45, 31 S.E. 372, however, is authority for the ex-elusion of a declaration, made by one who put the claimant\u2019s predecessor into possession, to the effect that the entry was permissive, with the land to be used as a matter of favor and the title to remain in the declarant. The admission of such a declaration was held to be error. The case itself offers neither argument nor authority for such a position. It has not been cited as authority in subsequent North Carolina opinions.\nThe enunciation of a clear rule in favor of the admissibility of declarations by the titleholder, both at the time the claimant entered possession and at a subsequent time for the purpose of refuting notoriety, might be valid and desirable. However, it is only necessary at this point for this Court to observe that whatever error there may be in the admission of these declarations at bar is not material and prejudicial where the declaration of the possessor through his agent Barnes \u2014 which was properly admitted \u2014 was to like effect.\nThere is no prejudicial error in the failure of the court to charge the jury as to Chapter 136, section 64, Session Laws of 1923 (later codified as C.S. \u00a7 5472, 1939). Plaintiff contends that the erecting and repairing of the school building were done in the character of full owner and, therefore, \u201chostile\u201d because of the statutory provision that \u201c[t]he county board of education shall make no contract for the erection or repair of any school building unless the site on which it is located is owned by the county board of education, and the deed for the same is properly registered and deposited with the clerk of court.\u201d The act itself, however, provided that it was effective 15 April 1923. The plaintiff\u2019s evidence shows that the Lamm School contract was let and construction begun in 1922 and that subsequent repairs have been made not by way of letting contracts but by plaintiff\u2019s own agents. The statute indicates the intent to establish two requirements which must now be met by a county board of education before acting in the manner in which the plaintiff has acted. Although plaintiff contends it acted as owner of the site, it has never contended there was a deed properly registered and deposited or even that it was under the impression that there was one. The two elements of the statute are not separable. Violation of this statute is not evidence of adverse possession.\nThe trial of this action in the superior court was free from prejudicial error.\nNo error.\nBeoCK and VaughN, JJ., concur.",
        "type": "majority",
        "author": "BRITT, J."
      }
    ],
    "attorneys": [
      "Connor, Lee, Connor \u25a0& Reece by Cyrus F. Lee and David M. Connor for plaintiff appellant.",
      "Lucas, Rand, Rose, Meyer & Jones by Louis B. Meyer for defendant appellees."
    ],
    "corrections": "",
    "head_matter": "WILSON COUNTY BOARD OF EDUCATION v. BESSIE H. LAMM, Widow; VIRGINIA LAMM HAYES and Husband, J. F. HAYES; JACK F. HAYES, a Minor; TEMPIE ANN HAYES, a Minor; JACK THOMAS HAYES, a Minor; THE FREE WILL BAPTIST CHILDREN\u2019S HOME, INC.; and All Persons not in Being who may by any Contingency own or Acquire any Interest in the Lands Constituting the Subject Matter of This Action by Reason of the Last Will and Testament of GROVER T. LAMM, Deceased\nNo. 697SC422\n(Filed 17 December 1969)\n1. Appeal and Error \u00a7 47\u2014 harmless error rule\nIt is the settled rule o\u00a3 appellate courts that verdicts and judgments will not be set aside for harmless error.\n2. Adverse Possession \u00a7 2\u2014 open and notorious possession\nIn this action to quiet title to realty, plaintiff could acquire title to the disputed property by adverse possession only if the jury, under proper instructions, were satisfied that the acts of ownership described by the witnesses constituted open, notorious and adverse possession.\n3. Adverse Possession \u00a7 23\u2014 burden of proof\nThe party asserting title by adverse possession must carry the burden of proof on that issue.\n4. Adverse Possession \u00a7\u00a7 2, 25.1\u2014 instructions \u2014 permissive use \u2014 hostile possession\nWhere plaintiff conceded that its entry into possession was with permission of the owner and offered no proof of its allegation that it was put into possession \u201cas owner,\u201d the trial court properly charged that if the jury believed the entry into possession was permissive, such possession did not become adverse until the acts of dominion done in the character of owner were such as to give notice to the owner that permissive use was disclaimed.\n5. Adverse Possession \u00a7 24; Evidence \u00a7 35\u2014 declaration accompanying and characterizing transfer of possession \u2014 exception to hearsay rule\nIn this action by plaintiff county board of education to quiet title to realty used as a school site since 1923, wherein plaintiff claimed title to the property by adverse possession, testimony by defendants\u2019 witness of statements made by the county superintendent in 1922, shortly before possession of the property was transferred to plaintiff, that the owner was giving the site for as long as it was a school and \u201cthat\u2019s as long as we want it,\u201d is held admissible as an exception to the hearsay rule as a declaration accompanying and characterizing the act of transfer of possession.\n6. Adverse Possession \u00a7 24\u2014 harmless error in admission of evidence \u2014 similar evidence properly admitted\nIn this action to quiet title wherein plaintiff school board claims title' to the disputed property by adverse possession, error, if any, in the admission of testimony by defendants\u2019 witnesses of declarations by the titleholder, at approximately the time he put the school board into possession and on two' occasions while it has been in possession, that the county was using the property as long as it was used for school property and that the property would go back to him when the school was discontinued, is held not prejudicial to plaintiff where a declaration to the same effect made by an agent of plaintiff was properly admitted.\n7. Adverse Possession \u00a7 25.1\u2014 instructions \u2014 contract for erection or repair of school \u2014 ownership of site and registration of deed \u2014 statute\nIn this action to quiet title wherein plaintiff county board of education claims title to the disputed property by adverse possession, the trial court did not err in failing to charge the jury upon the statute prohibiting a county board of education from contracting for the erection or repair of any school building unless the site on which it is located is owned by the county board of education and the deed for the site is properly registered, Oh. 36, \u00a7 64, Session Laws of 1923, later codified as C.S, \u00a7 5472, a violation of this statute not being evidence of adverse possession, and plaintiff\u2019s evidence showing that no contract for construction or repair of the school building on the disputed property has been entered since the effective date of the statute.\nAppeal by plaintiff from Bone, E.J., at the March 1969 Civil Session of Wilson Superior Court.\nThis is a civil action brought by plaintiff Board, of Education to quiet title to realty which the Board has used as a school site since 1923. The Board claims ownership by adverse possession. The complaint alleges that \u201c[p]rior to the year 1922 Grover T. Lamm [Lamm] was the owner in fee\u201d and joins as defendants appropriate devisees of Lamm who died in 1952.\nThe evidence tended to show that plaintiff entered into possession of the premises in 1922 and let a contract for the construction of the buildings now standing. The buildings included a six-classroom brick schoolhouse called Lamm\u2019s School, a frame teacherage, and a pumphouse. Since 1923, plaintiff has operated a grammar school there and has made necessary repairs through its maintenance department, treating it \u201cjust like all the other schools in the county.\u201d The frame dwelling initially used as a teacherage has in recent years been rented by plaintiff to persons not associated with the school system. The school site was located near \u201cLamm\u2019s Crossroads\u201d and approximately in what was at that time the middle of Lamm\u2019s farm. A corner lot, the boundaries were defined by roads'on the north and east sides and by Lamm\u2019s cultivated fields on the south and west. In 1950 or 1951, Lamm laid off and plaintiff caused to be constructed a driveway around the south and west boundaries on land Lamm previously cultivated after the principal had casually mentioned to him the inconvenience of parking buses on the playground. The complaint was amended to delete the claim of title to this portion by adverse possession.\nThe complaint and the admissions to these allegations in the answer establish that \u201c[p]rior to the year 1922 Grover T. Lamm was the owner in fee of that certain tract or parcel of land * * *\u201d and that \u201c[i]n the year 1922 the said Grover T. Lamm put plaintiff in possession of said land * * The plaintiff\u2019s evidence regarding the entry into possession consists only of one witness\u2019 testimony that \u201cI do not know how the Wilson County Board of Education obtained the land for the site of Lamm\u2019s School\u201d and another\u2019s that \u201cI never saw a deed. I never heard a deed mentioned.\u201d\nConsistent with his charge that \u201ca crucial question here is circumstances under which the Board of Education went into possession,\u201d the court admitted over objection testimony by defendants\u2019 witness Harrison relating to a declaration of E. J. Barnes, County Superintendent, made at the time. Harrison described a public meeting held at Lamm\u2019s store in about 1922 to discuss the relocating of several schools in the district. In answer to the question, \u201cWhat statement did he [the county superintendent conducting the meeting] make [with regard to how the land for Lamm\u2019s School site was obtained],\u201d the witness testified:\n\u201cThat question was raised several times. When they were asking about where the site was going to be, he showed it to them. It was right there in sight of the store, right in sight of where the school is now. And he told them that Mr. Lamm was giving the site for as long as it was a school. He said, \u2018After all, that\u2019s as long as we want it. What do we want with it if we don\u2019t have any school here?\u2019 \u201d\nSeveral declarations made by Lamm were also admitted over objection. (1) Defendants\u2019 witness Peele testified as to a conversation with Lamm in 1922 prior to the time construction began on the site: \u201cI was taking him home, and it was just when we got in sight of \u2014 a quarter of a mile of where he lived at. I told him I understood he had let the county have a school site there. He said, yes, he had. I said, \u2018How much did you get for it?\u2019 he said \u2014 He raised his voice \u2014 Says, T didn\u2019t sell it. I let them have it long as it was used as school property, and then it went back to me when they discontinued school there.\u2019 \u201d (2) Defendants\u2019 witness Simpson testified to a conversation with Lamm in 1922 prior to the time construction began on the site: \u201cWe were talking about putting a school there, and I asked him, I says, \u2018What are you getting out of it now, what\u2019s the county paying you for this land?\u2019 He says, \u2018The county ain\u2019t paying me anything. I\u2019m giving the land for a school as long as it is a school, and when it ceases to be a school it goes back to me or my estate.\u2019 \u201d (3) Defendants\u2019 witness Jones testified as to a conversation with Lamm in 1940: \u201cI bought a lot from him [Lamm], and I didn\u2019t have anymore money to use to get more of the land, and I wanted to use some more land. He told me I could use some more land to put cars on as long as I didn\u2019t abuse the land, just like Lamm\u2019s School. That they was using the land as long as they had school there, and when the school was discontinued the land would go back to him.\u201d (4) Defendants\u2019 witness Moore testified as to a conversation between her father and Lamm (date uncertain): \u201c* * * ^n(j maje statement that he only gave the property for Lamm\u2019s School to be used only as long as it was a school, and then it was to go back to him.\u201d\nThe trial court\u2019s charge to the jury included instructions as to the law of this State regarding the elements of adverse possession. Issues were submitted to and answered by the jury as follows:\n\u201c1. Is the plaintiff the fee simple owner of the lands described in the Complaint as amended?\nANSWER: No.\n2. If so, does the claim of the defendants constitute a cloud on plaintiff\u2019s title?\nANSWER: .\u201d\nFrom judgment entered on the verdict in favor of defendants, plaintiff appealed.\nConnor, Lee, Connor \u25a0& Reece by Cyrus F. Lee and David M. Connor for plaintiff appellant.\nLucas, Rand, Rose, Meyer & Jones by Louis B. Meyer for defendant appellees."
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