{ "id": 8553561, "name": "BEULAH HAWKINS SMITH v. RALPH FONZO DIGH and Wife, LONNIE MULL DIGH", "name_abbreviation": "Smith v. Digh", "decision_date": "1970-11-18", "docket_number": "No. 7025SC486", "first_page": "678", "last_page": "680", "citations": [ { "type": "official", "cite": "9 N.C. App. 678" } ], "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": "161 S.E. 223", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "201 N.C. 642", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627326 ], "opinion_index": 0, "case_paths": [ "/nc/201/0642-01" ] }, { "cite": "65 S.E. 2d 316", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "230 N.C. 629", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8631573 ], "opinion_index": 0, "case_paths": [ "/nc/230/0629-01" ] } ], "analysis": { "cardinality": 302, "char_count": 5808, "ocr_confidence": 0.514, "pagerank": { "raw": 5.527646540942415e-08, "percentile": 0.3471771906392998 }, "sha256": "3f187e4e3a93ff768ab38f0931012ce7183e470535c7912059830741dfb910b1", "simhash": "1:64b7acb198b522be", "word_count": 981 }, "last_updated": "2023-07-14T14:50:15.842675+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Morris and Graham concur." ], "parties": [ "BEULAH HAWKINS SMITH v. RALPH FONZO DIGH and Wife, LONNIE MULL DIGH" ], "opinions": [ { "text": "BROCK, Judge\nIt is noteworthy that plaintiff filed no denial to defendants\u2019 plea in bar which consisted of their affirmative allegation of an agreement as to the location of the boundary line. Also plaintiff admitted the execution of the agreement on 22 June 1968. She does not allege or testify that she was tricked or defrauded in any way; she merely testifies that she did not sign before a notary.\nAs between plaintiff and defendants it is immaterial whether her signature to the agreement was acknowledged before a notary public, or other officer. . . [A] deed becomes effective as a transfer of title as between the parties to it immediately upon its execution and delivery notwithstanding the lack of an acknowledgment, and binds not only the parties but also their heirs.\u201d Ballard v. Ballard, 230 N.C. 629, 65 S.E. 2d 316.\nPlaintiff testified that at the time she signed the agreement she did not know where the line would be located on the ground. However, in the absence of some fraud, trick, or mutual mistake, plaintiff\u2019s lack of knowledge of where the line would be located on the ground does not invalidate her agreement; there is no allegation, or evidence, of fraud, trick or mutual mistake. And we note that plaintiff also testified: \u201cThey surveyed the line before the map was signed; they just put in some stakes on the ground where the line was;\u201d and, \u201cBefore the map was signed, they did go down there and survey a line and set up some stakes and put in a concrete monument.\u201d\nIt seems, therefore, that plaintiff\u2019s testimony concerning no acknowledgment of her signature to the agreement before a notary public or other officer, and her testimony that at the time she signed the agreement she did not know where the line would be located on the ground, are, standing alone, irrelevant upon the plea in bar. So, the only question remaining was a question of law as to the effect of the agreement upon plaintiffs right to prosecute this action. Judge Martin ruled \u201c . . . [A]s a matter of law, the agreement set forth and recited on the above said recorded map or plat constitutes an estoppel and is a bar to the maintenance of this proceeding by the petitioner.\u201d With this ruling we agree. Lowder v. Smith, 201 N.C. 642, 161 S.E. 223.\nIn the hearing before Judge Martin and in his order sustaining defendants\u2019 plea in bar we find no prejudicial error.\nAffirmed.\nJudges Morris and Graham concur.", "type": "majority", "author": "BROCK, Judge" } ], "attorneys": [ "Simpson & Martin, by Dan R. Simpson for plaintiff.", "Patton, Starnes & Thompson, by Thomas M. Starnes for defendants." ], "corrections": "", "head_matter": "BEULAH HAWKINS SMITH v. RALPH FONZO DIGH and Wife, LONNIE MULL DIGH\nNo. 7025SC486\n(Filed 18 November 1970)\nBoundaries \u00a7 8\u2014 action to establish true boundary line \u2014 plea in bar \u2014 boundary line agreement\nA boundary line agreement executed by the plaintiff and the defendants is an effective plea in bar to the plaintiff\u2019s proceeding to establish the true boundary line between her property and the property of defendants, notwithstanding (1) the plaintiff failed to acknowledge her signature to the agreement before a notary public and (2) the plaintiff did not know where the line would be located on the ground at the time she signed the agreement.\nAppeal by plaintiff from Martin, Harry C., Judge of Superior Court, 1 June 1970 Session, Burke Superior Court.\nThis is a special proceeding instituted by plaintiff on 1 May 1969 under G.S., Chap. 38 alleging a necessity to establish the true location of the boundary line between property of plaintiff and property of defendants.\nDefendants filed answer wherein they deny there is any dispute as to the true location of the boundary line between the properties; and affirmatively plead a boundary line agreement executed by the parties as a bar to plaintiff\u2019s right to prosecute this proceeding.\nThe plea in bar was overrruled and denied by the Clerk of Superior Court of Burke County, and defendants appealed. The plea in bar was thereafter heard de novo before Judge Martin who ruled that the Clerk\u2019s order was erroneous, and adjudged that the agreement of the parties constituted an estoppel and a bar to the maintenance of this proceeding.\nThe plaintiff\u2019s relevant evidence before Judge Martin consisted of testimony by plaintiff. Her testimony tended to show the following: A controversy arose in June 1968, or earlier, between the parties as to the true location of the boundary line between their properties. A survey and a map were made, and on 22 June 1968 plaintiff signed an agreement on the map which read:\n\u201cNorth Carolina\nBurke County\nWe, Ralph F. Digh and Mrs. Beulah Smith, do affirm that the \u2018agreed line\u2019 as noted on this map is in accordance with our agreement and that the property line between us shall hereafter be this \u2018agreed line.\u2019 I, Ralph F. Digh, will not claim any property south of this line; and, I, Mrs. Beulah Smith, will not claim any property north of this line.\u201d\nThis agreement was also signed by defendant Ralph F. Digh on 22 June 1968, and an acknowledgment before a notary appears on the map. However, according to Mrs. Smith\u2019s testimony, plaintiff did not sign before a notary public nor acknowledge her signature before one.\nDefendants\u2019 relevant evidence before Judge Martin consisted of two exhibits: \u201cExhibit A\u201d was a map recorded in Map Book 5, page 64, entitled \u201cAgreed Line Survey between R. F. Digh and Mrs. Beulah Smith.\u201d Upon this map appeared the \u201cagreement\u201d signed and testified to by plaintiff. \u201cExhibit B\u201d was an instrument entitled \u201cAcknowledgment of Boundary Line Agreement.\u201d This instrument was dated 18 July 1969, and signed by both defendants; in it defendants agree to and acknowledge the boundary line as shown on the map recorded in Map Book 5, page 64.\nFrom Judge Martin\u2019s order sustaining defendants\u2019 plea in bar and dismissing plaintiff\u2019s action, plaintiff appealed.\nSimpson & Martin, by Dan R. Simpson for plaintiff.\nPatton, Starnes & Thompson, by Thomas M. Starnes for defendants." }, "file_name": "0678-01", "first_page_order": 702, "last_page_order": 704 }