{
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  "name": "T. CURTIS ANDREWS and wife, KATHERINE ANDREWS v. T. B. ANDREWS",
  "name_abbreviation": "Andrews v. Andrews",
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    "parties": [
      "T. CURTIS ANDREWS and wife, KATHERINE ANDREWS v. T. B. ANDREWS."
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        "text": "PARKER, J.\nThere is no merit in respondent\u2019s contention that the Superior Court had no jurisdiction, for the reason that the Clerk of the Superior Court did not hear and render a decision in the proceeding. The statute directs a proceeding of this kind to be heard first by the clerk, but this direction is not jurisdictional. Lance v. Cogdill, 236 N.C. 134, 71 S.E. 2d 918. The parties stipulated that the proceedi-ing was removed from the clerk to the Superior Court. This being so, the Superior Court could retain jurisdiction and dispose of the proceeding. Woody v. Barnett, 235 N.C. 73, 68 S.E. 2d 810.\nThe controversy in this proceeding is the proper location of the true boundary line between the adjoining tracts of lands of petitioners and respondent, who acquired their lands from a common source. In such a proceeding, what constitutes the line is a matter of law for the court: where the line is actually located, on the premises in controversy is an issue of fact for the jury. Jenkins v. Trantham, 244 N.C. 422, 94 S.E. 2d 311.\nA clear understanding of the facts is not without difficulty, due to the condition of the fourteen court maps filed with the record. Twelve of these maps representing a survey made November 1956 show no points marked \u201cCC\u201d and \u201cDD\u201d and no line marked with points \u201cCC\u201d and \u201cDD.\u201d These maps state the contentions of petitioners are points \u201cA-B-C-D-E-F-G-H-I-J-K,\u201d and the contentions of respondent are points \u201c1-2-3-4-5-6-7-8-9-10-11,\u201d and lines showing such contentions of the parties and so marked are shown on these twelve maps. Another map is identical with these twelve maps, except between point \u201cC\u201d and point \u201c3\u201d there appear two small letters \u201cCC,\u201d and between point \u201cD\u201d and point \u201c4\u201d there appear two small letters \u201cDD,\u201d but no line is shown connecting these letters \u201cCC\u201d and \u201cDD.\u201d Another map is substantially similar to the twelve maps (and also the other map, omitting the small letters \u201cCC\u201d and \u201cDD\u201d) with these additions: One, it shows a line running from point \u201cB\u201d to point \u201cCC\u201d to point \u201cDD\u201d between the line running from point \u201cB\u201d to point \u201cC\u201d to point \u201cD\u201d and the line running from point \u201c2\u201d to point \u201c3\u201d to point \u201c4.\u201d Two, this map states \u201cPoints CC - DD surveyed Sept. 29, 1958.\u201d Three. This map states the contentions of petitioners as on the thirteen other maps, with this addition: \u201cA-B-CC-DD-E-F-G-H-I-J-K.\u201d There is an identical statement of the contentions of respondent on all fourteen maps. It seems clear that the jury, and the judgment entered in accord therewith, fixed the dividing line as the line running from point \u201cB\u201d to point \u201cCC\u201d to point \u201cDD,\u201d as shown on this last map set forth above.\nIt is alleged in the amended petition: \u201c6. That the following three calls in the description of the lands of the petitioners andi the lands of the respondent are identical and as follows: 'Thence with his line as follows: S. 66 deg. 20 min. E., 450.4 feet to a stake, S. 3 deg. E. 1817.4 feet along a plantation road to an iron stake in the center of said road; thence along said road S. 21 deg. 15 min. E. 1247.8 feet to an iron stake\u2019; that both the corners of the line, \u2018S. 66 deg. 20 min. E., 450.4 ft. to a stake,\u2019 are known and established and marked by iron stakes; that the boundary line between the property of the petitioners and respondent will be properly located when the above call, \u2018S. 3 deg. E., 1817.4 feet along the plantation road to an iron stake in the center of said road; thence along said road S. 21 deg. 15 min. E., 1217.8 feet to an iron stake,\u2019 is properly surveyed and the two missing comers established.\u201d The answer thereto is: \u201cThat Allegation 6 of the amended complaint is correct and this answering defendant avers that the line should properly run \u2018along the plantation road to an iron stake in the center of said road\u2019; that since saidi stake is properly in the center of said road, this defendant and the petitioner T. Curtis Andrews met on the premises on April 14, 1952, and, in the presence of other witnesses, including Surveyor T. Berry Liles, agreed that said stake was in the center of said road and by agreement both parties agreed to move said stake to the edge of saidi road rather than leave it in the center of said road 'and that, in accordance with said agreement, the corner was moved to the edge of said road and with the further agreement that a concrete monument should be placed at said agreed point; that said concrete monument was placed at the agreed point and is still in the same place that was agreed upon, and this defendant contends that the said concrete monument is now a correct corner between the lands of the petitioners and the respondent, or defendant, T. B. Andrews.\u201d\nThe parties, at the beginning of the trial, stipulated that \u201cthe point \u25a0designated as \u2018B\u2019 and \u20182\u2019 is a fixed iron stake, and admitted correct corner, andi the same as to point \u201811.\u2019 \u201d The parties also stipulated and agreed \u201cthat the call, \u2018South 20, 45 East, which runs from point C to D,\u2019 and the call, \u2018South 2 deg. 30\u2019 East,\u2019 which runs from \u2018B\u2019 and \u20182\u2019 to \u2018C,\u2019 both of which appear in the deeds of petitioners and respondent are incorrect.\u201d\nThe Court charged the jury as to what constitutes the true boundary line between the contiguous lands of the parties as follows: \u201cNow, the petition alleges the call contributing (sic) the true dividing line, and that is admitted in the answer to be the true dividing line. Andi so I will state to you as a matter of law what the true dividing line is, reminding you, however, that it is for you to determine where that line is located. The line is \u2018thence with his line,\u2019 and this is reading from the deed to the plaintiffs, as I recall, \u2018thence with his line,\u2019 referring to the defendant\u2019s line, \u2018South 66 deg. 20\u2019 East, 450.4 feet to a stake, being South 3 deg. 1817.4 along a plantation road to an iron stake in the center of- said road, and thence along said road South 21 deg. 15\u2019 East 1247.8 feet to an iron stake.\u2019 \u201d Respondent does not challenge this part of the charge by any exception.\nPetitioners\u2019 evidence tends to show that running the line called for in their deed forward from point \u201cB,\u201d an admitted correct corner, would not ascertain and fix with certainty the location on the premises of the two iron stakes destroyed by the U. S. Army maneuvers, but that beginning with point \u201c11,\u201d an admitted correct corner, and reversing the calls in their deed, and running reversely the location on the premises of these two destroyed iron stakes could be ascertained and fixed with certainty at points \u201cDD\u201d and \u201cCC,\u201d as shown on the court map. This Court said in Powell v. Mills, 237 N.C. 582, 589, 75 S.E. 2d 759, 765: \u201cThe general rule as to this is that in order to locate a boundary of land, the lines should be run with the calls in the regular order from a known beginning, and the test of reversing in the progress of the survey should be resorted to only when the terminus of a call cannot be ascertained by running forward, but can be fixed with certainty by running reversely the next succeeding line.\u201d\nRespondent assigns as error this part of the charge: \u201cNow, there has been evidence relating to an alleged agreement between T. C. Andrews and T. B. Andrews in April, 1952, and evidence relating to the concrete markers, one placed at \u20183\u2019 and \u20184\u2019 and one, I think, I have made reference to point \u20182\u2019 as the concrete marker, but, actually, at or near a pine tree some 200 feet south of the point \u20182.\u2019 I instruct yoP as to that, that if the plaintiff T. C. Andrews and the defendant Thomas B. Andrews did agree on the location of either or all of those concrete markers, and if they did agree to consider those as designating the true boundary dines, then that would constitute only evidence for you to consider as to where the true boundary actually is, and i'f you find from the evidence and by .its greater weight that the boundary line, the true boundary line, is at some point other than the point, or points, if any, that you find they did agree to, then it would .be your duty to locate the true dividing line at the point where it actually is, where you find from the evidence and by its greater weight the true dividing line to actually be, notwithstanding any agreement as to where the line would be considered to be or treated as being. On the other hand, if you find that there was such an agreement, then, of course, that is a circumstance and constitutes evidence for you to consider as bearing upon the question of 'where the true dividing line actually is located.\u201d\nRespondent\u2019s evidence tends to show that the parties fixed the disputed boundary line between their adjoining tracts of land by parol agreement; that pursuant to such agreement, concrete markers were placed on the agreed line, and respondent contends that the judge should have instructed the jury that if they so found the facts, they shouldi answer the issue submitted to them from point \u201cB\u201d to point \u201c3\u201d to point \u201c4,\u201d as shown on the court map.\nIn the present proceeding what constitutes as a matter of law the true boundary line between the contiguous lands of the parties, as stated by the court in its charge, stands unchallenged by any exception by respondent. That is certain which can be made certain, and petitioners\u2019 evidence shows that the location on the premises of this true boundary line as set forth in petitioners\u2019 and respondent\u2019s deeds can be made certain by the deeds and a survey. Respondent offered no evidence to the contrary. A multitude of jurisdictions hold that an uncertain and disputed boundary line may, under certain circumstances, be fixed permanently by parol agreement, if accompanied by sufficient acquiescence and possession, but where there is no uncertainty as to the boundary line, a parol agreement fixing a boundary line in disregard of those fixed by the deeds is void under the Statute of Frauds, as it amounts to a conveyance of land by parol. 11 C.J.S., Boundaries, Sec. 67; 8 Am. Jur., Boundaries, Sec. 73; Tiffany Real Property, 3rd Ed., Sec. 653; Annotation 69 A.L.R. 1433. This general rule of law invoked by respondent is not applicable to the facts here, and it is not necessary for us to decide as to whether or not it is in conflict with some of our decisions, for the reason that here there is no uncertainty as to what the true boundary line is, and its true location on the premises can be fixed by the deeds and a survey.\nThis Court said in Haddock v. Leary, 148 N.C. 378, 62 S.E. 426: \u201cFor nothing is better settled in this State than that if the calls of a deed are sufficiently definite to be located by extrinsic evidence, the location cannot be changed by parol agreement, unless the agreement was contemporaneous with the making of the deed.\u201d\nThis Court said in Kirkpatrick v. McCracken, 161 N.C. 198, 76 S. S. 821: \u201cWhere a division line between tracts of land is well ascertained, and can be located by the plain and unambiguous calls of the deed, the acts and admissions of the parties claiming the respective tracts are not competent evidence, either to change the line or to estop the party from setting up the true line. Shaffer v. Gaynor, 117 N.C. 15. But where the dividing line is in dispute, and is unfixed and uncertain, the acts and admissions of the adjoining proprietors recognizing a certain line as the proper division line is evidence competent to be submitted to the jury.\u201d\n\u201cIf the calls in a deed are sufficiently definite to ibe located by extrinsic evidence, the location cannot be changed by parol agreement unless the agreement was contemporaneous with the making of the deed.\u201d Daniel v. Power Co., 204 N.C. 274, 168 S.E. 217.\nThe true principle is laid down by Smith, C. J., in laconic language in Davidson v. Arledge, 97 N.C. 172, 2 S.E. 378: \u201cThe rejected evidence would have been competent to fix an uncertain and controverted boundary, but not to change that made in the deed that distinctly defines it.\u201d\nWiggins v. Rogers, 175 N.C. 67, 94 S.E. 685, was an action brought to recover a parcel of land the ownership of which depended on the true location of the dividing line between adjoining landowners. The Court said: \u201cPlaintiff proposed to show that the line had been run some years before the time of the trial .by Posey Hyde, and that the respective owners had recognized it as the line of division between them for many years. This evidence was excluded by the Court, but we think it was competent, not to change the boundaries of the land (Davidson v. Arledge, 97 N.C. 172), or, in other words, to show that the parties had orally agreed uipon a line different from the true line, but as some evidence to prove where was the true line.\u201d\nDudley v. Jeffress, 178 N.C. 111, 100 S.E. 253, relied on by respondent is not in point. In that case two tenants in common had a divisional line run by a surveyor, went upon the land with him, and ran \u00e1nd established this line with the intent of making deedis to the land in severalty, and so made the deeds. In its opinion the Court said: quoting from Millikin v. Sessoms, 173 N.C. 723, 92 S.E. 359: \u201cIt is settled beyond a controversy in this State that a line surveyed and marked out and agreed upon by the parties at the time of the execution of the deed will control the course and distance set out in the instrument.\u201d\nNesbitt v. Fairview Farms, Inc., 239 N.C. 481, 80. S.E. 2d 472, and Lowder v. Smith, 201 N.C. 642, 161 S.E. 223, relied on by respondent are distinguishable, in that, inter alia, in both cases there are written agreements to settle a disputed boundary line.\nAccording to the allegations of paragraph 6 of respondent\u2019s answer, above set forth, respondent and petitioner T. Curtis Andrews, met on the premises on 14 April 1952, and agreed that the stake was in the center of the road, and by agreement agreed to move the stake to the edge of the road, and it was so moved, and a concrete monument was placed at the agreed point, and respondent contends the concrete monument is now a correct corner between their lands. The authorities are practically unanimous that coterminous landowners cannot conclusively establish as a boundary between their lands a line which they know not to be the true one, except by an agreement in writing based on a proper consideration and containing words of conveyance. Haddock v. Leary, supra; Lewis v. Ogram, 149 Cal. 505, 87 P. 60, 10 L.R.A. (N.S.) 610, 117 Am. St. Rep. 151; Jones v. Scott, 314 III. 118, 145 N.E. 378; Volkart v. Groom, (Mo., Supreme\u20141928), 9 S.W. 2d 947; Lacy v. Bartlett, (Texas Civil Appeals), 78 S.W. 2d 219; Annotations 69 A.L.R. 1451 and 113 A.L.R. 427, where many cases are cited; 8 Ann. Cas. 85, where many cases are cited; 8 Am. Jur., Boundaries, Sec. 72; 11 C.J.S., Boundaries, p. 640.\nThe assignment of error to the charge above set forth is not prejudicial to respondent, and is overruled.\nThe other assignments of error brought forward and discussed in respondent\u2019s brief have been examined and are overruled.\nIn the trial below we find no error sufficiently prejudicial to warrant a new trial.\nNo error.",
        "type": "majority",
        "author": "PARKER, J."
      }
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    "attorneys": [
      "Page & Page and M. C. McLeod for petitioners, appellees.",
      "Bynum \u25a0& Bynum for respondent, appellant."
    ],
    "corrections": "",
    "head_matter": "T. CURTIS ANDREWS and wife, KATHERINE ANDREWS v. T. B. ANDREWS.\n(Filed 2 March, 1960.)\n1. Boundaries \u00a7( 7: Courts \u00a7 6\u2014\nWhere a proceeding to establish the true dividing line between contiguous tracts of land is removed from the Clerk to the Superior Court, the 'Superior Court acquires jurisdiction and may dispose of the proceeding notwithstanding that the Clerk did not hear the proceeding and render a decision therein, the statutory direction that the proceeding be heard first by the Clerk not being jurisdictional.\n2. Boundaries \u00a7 8\u2014\nIn a proceeding to establish the true boundary line between adjoining tracts of land, what constitutes the line is a matter of law for the court, where the line is actually located on the ground is a question of fact for the jury.\n3. Boundaries \u00a7 3\u2014\nWhere a comer is known and fixed, but the markers of the preceding corners have been destroyed, such preceding corners may be established toy reversing the calls.\n4. Boundaries \u00a7 4\u2014\nWhile corners marked and agreed upon by parties contemporaneously with the execution of the deeds may prevail over the descriptions contained in the instruments, where the corners can be definitely located from the descriptions in the deeds by extrinsic evidence, the location of such corners may not be changed by later parol agreement of the respective owners of the contiguous tracts.\nAppeal by respondent from Fountain, S. J., February 1959 Tema, of RICHMOND \u2014 argued as No. 4.62 .at Fall Term, 1959.\nProcessioning proceeding under N.C.G.S., Chapter 38, to locate and establish a disputed boundary line between adjoining landowners, who acquired their lands from a common source.\nPetitioners allege and contend that the actual location on the premises in controversy of the true dividing line is the line from point \u201cB\u201d to point \u201cCC\u201d to point \u201cDD\u201d as shown on the court map.\nRespondent alleges that the actual location on the premises in controversy of the true dividing line is the line from point \u201c2\u201d to point \u201c3\u201d to point \u201c4\u201d as shown on the court map, which line was orally agreed upon by the parties, subsequent to the execution of their deeds to the lands, that concrete markers were placed on the agreed line on 14 April 1952, and that respondent occupied and cultivated and exercised ownership up to where the concrete markers were placed in 1952 since 1937.\nAccording to the testimony of T. Berry Liles, one of the court appointed surveyors, who with T. M. Bray, another court appointed surveyor, made the court maps, the area of land; in dispute is less than a tenth of an acre, the point \u201cCC,\u201d as shown on the court map, is 1.05 feet west of a concrete marker at point \u201c3,\u201d and there is a distance of 1.8 feet from the wooden stake at point \u201cDD\u201d to the concrete marker at point \u201c4.\u201d The judge in his charge stated that he understood that points \u201cDD\u201d and \u201c4\u201d are about 18 inches, perhaps 20 inches a,part, and at this place in the charge is a note in parenthesis, \u201cAttorneys nod affirmatively.\u201d\nOne issue was submitted to the jury. On page 31 of the record immediately preceding the charge the issue is stated thus: \u201cWhat is the true dividing line between the lands of the plaintiffs and defendant?\u201d In the charge of the court and in the judgment the issue is stated as follows: \u201cWhere is the true dividing line between the lands of the plaintiffs and the -lands of defendant?\u201d The jury answered the issue: \u201cFrom point \u2018B\u2019 to point \u2018CC\u2019 to point \u2018DD,\u2019 as shown on the court map.\u201d\nFrom judgment entered in accord with the verdict, respondent appeals.\nPage & Page and M. C. McLeod for petitioners, appellees.\nBynum \u25a0& Bynum for respondent, appellant."
  },
  "file_name": "0097-01",
  "first_page_order": 137,
  "last_page_order": 144
}
