Boyce v. White

Devin, J.

Both parties claim title from tbe same source. J. M. Forehand OAvned two adjoining tracts of land, tbe dividing line between them extending generally northwest and southeast. In 1920 be conveyed tbe tract lying northeast of tbe dividing line to bis son J. Lester Forehand, and on same date conveyed tbe land lying southwest of tbe line to bis daughter Corinne Forehand Bell. In 1943 J. Lester Forehand conveyed bis land so acquired to tbe defendants, and in same year Corinne Forehand Bell conveyed her tract of land to tbe plaintiff. A controversy arose betAveen tbe plaintiff and defendants as to tbe location of tbe dividing line betAveen these tracts of land. Tbe trial was by referee.

*641 It was found by the referee that the dividing line described in the deeds from J. M. Forehand, as well as in the deeds from his predecessors in title, was that designated on the court map by the numerals 2 to 15, which is the line claimed by the plaintiff. However, the referee found that the title to two parcels of land, aggregating 7.62 acres, lying on the southwest side of this dividing line, had been acquired by the defendants and their predecessors in title by adverse possession for more than twenty years, and concluded that in consequence the true dividing line should be located in accordance with the defendants’ contentions so as to include the area referred to, and to require the establishment of the line designated on the map by the letters ABD. Plaintiff’s exception to this finding and conclusion was overruled by the trial judge, and in this we think there was error.

All the deeds appearing in the record, as found by the referee, show the southwest boundary of the defendants’ land (the J. Lester Forehand tract) to be that indicated on the map by the numerals 2 to 15. Neither defendants’ deed, dated 1943, nor those of their predecessors in title cover the disputed parcels of land, or any land southwest of the line 2 to 15. Defendants’ actual possession could not have been of longer duration than three years, nor could they extend the time of their adverse possession for the statutory period by adding to it that of J. Lester Forehand, for there was no privity between them as to land not embraced in J. Lester Forehand’s deed to the defendants. The first deed offered, being deed from Brinkley to Baker, dated 1873, under which defendants claim, describes the line as now contended by the plaintiff in this action, and the referee so found. The same description in legal effect was brought forward in deeds from Baker to Deans (1880), Deans to J. M. Forehand (1891), J. M. Forehand to J. Lester Forehand, 1920, and from J. Lester Forehand to the defendants in 1943.

The general rule is stated in 1 Am. Jur., 880 -882, as follows : “Several successive possessions cannot be tacked for the purpose of showing a continuous adverse possession where there is no privity of estate or connection of title between the several occupants . . . Privity, therefore, is essential. ... A deed does not of itself create privity between the grantor and the grantee as to land not described in the deed but occupied by the grantor in connection therewith, although the grantee enters into possession of the land not described and uses it in connection with that conveyed.”

In the language of Justice Connor in Jennings v. White, 139 N. C., 23 , 51 S. E., 799 : “It cannot be that several disseizins having no privity can be tacked so as to vest title.” The principle seems to have been well settled that in order to sustain titles claimed by the adverse possession of several occupants there must be shown connected possession and a privity *642 of grant or descent.

Barrett v. Brewer, 153 N. C., 547 , 69 S. E., 614 ;

May v. Mfg. Co., 164 N. C., 262 , 80 S. E., 380 ;

Johnston v. Case, 131 N. C., 491 , 42 S. E., 957 .

It is apparent that the finding and conclusion of the referee as to the location of the dividing line, based upon adverse possession of the area in dispute by the defendants and those under whom they claim for twenty years, is not supported by the evidence, and that the court below was in error in overruling plaintiff’s exceptions on this point, and in confirming the report of the referee. The cause is remanded to the Superior Court for further proceedings not inconsistent herewith.

Error and remanded.