Transcript Land actions - University of North Carolina at Chapel Hill

Land Actions
•
Boundary Dispute
Processioning action
(NCGS 38-1 et seq)
Pattern instruction
825.00
•
Action to quiet title
(NCGS 41-10 et seq)
Adverse Possession
Pattern Instructions
820.00, 820.20, 820.16
Proof of Title
Pattern Instructions
820.40, 820.50, 820.60, 820.61
I must thank two lawyers in Waynesville for their invaluable help in preparing this presentation, and they are
David Wijewickrama and Frank G. Queen.
Boundaries
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Boundary disputes begin before the clerk. By
consent may be originally tried before a Superior
Court judge.
•
In the event title to the land is put in issue, the Clerk
may not hear the case, but must transfer it to the
Superior Court where it becomes an action to quiet
title (GS 41-10).
•
The sole purpose of a processioning proceeding
under Chapter 38 is to establish the correct location
of the disputed dividing line.
•
The question for the jury is the location of the true
boundary between the plaintiff’s land and the
defendant’s land.
•
A directed verdict is never proper when the question
is for the jury.
•
The jury is not compelled to agree with the plaintiff
or the defendant, but may fix the line in accordance
with the evidence.
DeHart v. Winchester
Action to quiet title
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NCGS 41-10. An action may be
brought by any person against
another who claims an estate or
interest in real property adverse to
him for the purpose of determining
such adverse claims. . .
Elements
•
•
1st, the plaintiff must own the land in controversy, or have some estate or
interest in it
2nd, the defendant must assert some claim to the land adverse to the
plaintiff’s title, estate or interest
Causes of action
• Adverse possession, marketable title act, connected chain of title from
the state, proving superior title are all means of establishing a person’s
interest or estate in real property.
• Deeds, wills, transfer by inheritance (intestate succession), title by
judgment or decree, by operation of law (bankruptcy, forfeiture,
judicial sale, etc.) are the means of conveying an interest in property.
• In a connected chain of title, the claimant (plaintiff/defendant) must
show that the description in each of the means of conveyance (deed,
will, etc.) on which he bases his claim of title covers and includes the
land he claims. These are the links that the pattern instructions refer
to.
Proof
• Rule 44. Proof of official record.
• NCGS 8-18. Certified copies of
registered instruments evidence.
• NCGS 47-31. Certified copies may
be registered; used as evidence.
Surveys/Surveyors
• NCGS 38-4. Surveys in disputed boundaries.
• Although this section does not require the court (superior court judge)
to order a survey of the lands in dispute when the boundaries are in
question, it is the better practice to do so.
• The surveyor under NCGS 38-4 is the court’s witness.
• Surveyor may not give his opinion as to where the boundary is.
Combs v. Woodie, 53 N. C. App. 789, 281 S. E. 2nd 705 (1981).
• The courses and distances established by a prior or senior conveyance
control. If the surveyor used the description in a junior conveyance
evidence of the location of neither the senior nor the junior conveyance
would be admissible. Day v. Godwin, 258 N. C. 465, 128 S. E. 2nd 814
(1963).
A MATTER OF PERSPECTIVE
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•
Richard V. Biberstein, Jr.
This subject is presented from the perspective of one who practices real
property law in eastern North Carolina, the land of pocosins, bays, swamps,
marshlands and timberlands. It may be that we of the flatlands suffer from
afflictions similar to those attributed by Judge Clark to mountain men when
he said:
My colleagues of the majority [Justice Harry C. Martin and
Judge Cecil J. Hill] are mountain men. The land in question is
located in the mountains. It is possible that their opinion is
based on “mountain law,” a body of law peculiar to western north
Carolina which permeates the innermost recesses of the minds of
those who live in that rarified atmosphere and which may not be
fully dispelled from the minds of some mountaineers despite
exposure to law of general application throughout.
Dissenting opinion of Clark, J., in Taylor v. Bailey, 49 NC app. 216, at
225 (1980)