120 S.E.2d 425 | N.C. | 1961
Sylvia Harris MOREHEAD, John Wesley Harris, Wayman Harris, and Wiley Harris, Jr., Plaintiffs,
v.
Daisy HARRIS, Mary Louise Price, now Mary Louise Price Boquist, and her husband, Richard E. Boquist, and Helen Moore Price, now Helen Moore Price Hooper, and her husband, Phillip M. Hooper, Defendants, and
Cora Jane Lea (Cora E. Lea) and Lettie Ora Walker (Ora Lea Walker), Additional Defendants.
Supreme Court of North Carolina.
*428 Hoyle, Boone, Dees & Johnson, Greensboro, for defendants Boquist and Hooper, appellants.
L. Herbin, Jr., Greensboro, for additional defendants Lea and Walker, appellants.
H. L. Koontz and Shuping & Shuping, Greensboro, for plaintiffs-appellees.
PARKER, Justice.
Plaintiffs state in their brief: "Attention is called to the fact that as to that portion of the land of Wiley Harris in which is located the tract claimed by the defendants Boquist and Hooper, the deed of trust to Thos. C. Hoyle, Trustee, (Plaintiffs' Exhibit 2, Defendants' Exhibit 1) and the instrument executed by said Thos. C. Hoyle, Trustee, (Plaintiffs' Exhibit 3, Defendants' Exhibit 2) purport to convey only a five-sixths undivided interest in said land and do not purport to convey the entire interest in said portion of the land in controversy. Such being the case, if the defendants' contentions as to the record title should be accepted, which plaintiffs specifically deny, defendants Boquist and Hooper could not have acquired any more than a five-sixths undivided interest in the land in controversy under the instruments under which they claim title."
An examination of the deed of trust from Wiley Harris and wife, Daisy Harris, to Hoyle, Trustee, which is an exhibit of plaintiffs and defendants, shows that the deed of trust in the granting clause conveys to Hoyle, Trustee, only "a five-sixths undivided interest" in Tract No. 1. An examination of the deed from Hoyle, Trustee, to Daisy Harris, which is an exhibit of plaintiffs and defendants, shows that this deed in the granting clause conveys to Daisy Harris only "a five-sixths undivided interest" in Tract No. 1.
The judge's findings of fact refer to the aforesaid deed of trust and deed by book and page as duly recorded in the public registry of Guilford County. The judge finds as a fact that Wiley Harris was the owner in fee simple of the two tracts of land. If, in fact Wiley Harris did own a fee simple title to the two tracts of land, it seems that he and his wife would have conveyed to Hoyle, Trustee, a fee simple title to all of Tract No. 1 instead of only "a five-sixths undivided interest" in Tract No. 1. These facts seem to be in conflict, and the findings of fact do not clear up such apparent conflict. If someone else not a party to this action owns a one-sixth undivided interest in Tract No. 1, such a person is a necessary party to a final and complete determination of this action.
The defendants and the additional defendants assign as error the judge's conclusion of law that plaintiffs are the owners in fee simple and entitled to the immediate possession of the two tracts of land, including the part of Tract No. 1 conveyed by Daisy Harris to Grace Construction Company, and by it to Mary Louise Price and Helen Moore Price. This seeming conflict above stated, apart from all other questions presented by the appeal, prevents us from safely and accurately passing on this conclusion of law
Defendants Boquist and Hooper assign as error this so-called finding of fact: "19. That the evidence of the defendants is insufficient as a matter of fact and as a matter of law to establish adverse possession under the provisions of GS 1-38 and GS 1-40."
Defendants Boquist and Hooper plead as a further answer and defense twenty years adverse possession, G.S. § 1-40, and seven years adverse possession under color of title, G.S. § 1-38.
Defendants Boquist and Hooper have offered evidence to this effect: The father of Mary Louise Price and Helen Moore Price bought for them in 1947 a part of Tract No. 1 from Grace Construction Company. In 1947 Mary Louise Price and Helen Moore Price were under the age *429 of 21 years. Their father lives in Greensboro, North Carolina, Mary Louise Price Boquist lives in Minnesota, Helen Moore Price Hooper lives in Rockingham County, North Carolina. Their father has a power of attorney from them, and has managed the land since 1947. Their father for them has listed and paid the taxes on the land every year since 1947, has leased it, and collected the rents. It has been under lease twelve years to the same lessee. They have built no buildings on the land.
Plaintiffs offered no evidence as to possession. However, this stipulation appears in the record: "It is stipulated and agreed between the parties hereto and their counsel that Daisy Harris was in the peaceful possession of the property in controversy from the death of her husband, Wiley Harris, in 1933, until her death on June 6, 1960 (sic)." The judge found as a fact this stipulation, with the exception that he found the date of Daisy Harris' death was 6 February 1960. If the stipulation as to the peaceful possession of "the property in controversy," includes, as it seems to, that part of Tract No. 1 conveyed by Daisy Harris to Grace Construction Company, and by it to the feme defendants Boquist and Hooper, then the defendants Boquist and Hooper have stipulated themselves out of court as to their alleged defenses of obtaining title by adverse possession. We do not consider the findings of fact clear on this question, and we are fortified in our opinion by the fact that appellees in their brief do not contend that the defendants Boquist and Hooper have stipulated themselves out of court as to their alleged defenses of obtaining title by adverse possession.
The judge's so-called finding of fact 19 is a conclusion of law, not a finding of fact.
"Where a jury trial is waived by the parties to a civil action, the judge who tries the case is required by G.S. § 1-185 to do three things in writing: (1) To find the facts on all issues of fact joined on the pleadings; (2) to declare the conclusions of law arising upon the facts found; and (3) to enter judgment accordingly." Woodard v. Mordecai, 234 N.C. 463, 67 S.E.2d 639, 644.
The pleadings and the evidence require a specific finding of fact as to the possession of the part of Tract No. 1 conveyed by Daisy Harris to Grace Construction Company, and by it to the feme defendants Boquist and Hooper, and a conclusion of law, separately stated, based on the findings of fact as to whether or not the feme defendants Boquist and Hooper have acquired title by adverse possession pursuant to the provisions of G.S. § 1-38 or G.S. § 1-40. On this point the findings of fact are totally inadequate.
L. Herbin, Jr., acted as counsel for the additional defendants during the trial before Judge Olive. The record shows that he made appeal entries for them, and contains their assignments of error. L. Herbin, Jr., filed no brief for them in this Court. However, on 21 May 1961, he filed in this Court a written motion for the additional defendants to be allowed to adopt the brief filed in this Court by the defendants Boquist and Hooper. In this motion L. Herbin, Jr., states in substance: The additional defendants by reason of their age, places of residence, health, education and lack of familiarity with court procedure did not realize the importance of the necessary procedures in the proper prosecution of a civil action and the appeal thereof, and did not realize the necessity of any action on their part "inasmuch as defendants Lea and Walker were made parties to the action by the adoption of a previously filed answer and their presence was not essential at the trial of the said action in the Superior Court." (This is a quote from the motion.) That the additional defendants did not respond to his communication in respect to an appeal, until it was too late to prepare and file a brief. That he had been closely associated with counsel for the defendants Boquist and Hooper in the preparation of the case for trial, the actual trial of the *430 action, in the preparation of the case on appeal, and is well acquainted with the brief filed by counsel for the defendants Boquist and Hooper. Their brief embodies the identical arguments which the additional defendants would make, with the exception of their argument as to adverse possession. This motion is allowed, permitting him to adopt the brief filed in this Court by the defendants Boquist and Hooper.
Judge Olive's finding of fact 15 is: "That Daisy Harris died testate on the 6th day of February, 1960, devising house and lot located on Retreat Street, in Greensboro, North Carolina, to her sisters, Cora Jane Lea and Lettie Ora Walker." However, there is no finding of fact to the effect that this house and lot ever belonged to Wiley Harris, or was part of the two tracts of land conveyed by Hoyle, Trustee, to Daisy Harris. If it was part of the two tracts of land conveyed by Hoyle, Trustee, to Daisy Harris, then the additional defendants are necessary parties to a complete and final determination of this action.
There is nothing in the record before us to show definitely that the additional defendants were ever made parties defendant by any order of court, although a stipulation states they "were duly made parties defendant to this action and adopted answer heretofore filed by L. Herbin, Jr., guardian ad litem for Daisy Harris." However, a further stipulation states the "answer was adopted by stipulation with plaintiffs' counsel by additional defendants." In the light of the entire record before us a serious question is presented as to whether the so-called additional defendants are as a matter of law parties to this action. As the action must go back for a new trial, and if the so-called additional defendants are necessary parties, as stated above, then they can properly be made parties defendants, provided they have not been made so by instruments which do not appear in this record.
In the absence of sufficient and definite findings of fact, as required by the statute when a jury trial is waived, we are of opinion that the judgment should be vacated and the case remanded to the superior court to the end that the facts may be sufficiently and definitely found, that we may more accurately and safely pass upon the conclusions of law and the judgment. Jamison v. City of Charlotte, 239 N.C. 423, 79 S.E.2d 797; Shore v. Norfolk Nat. Bank, 207 N.C. 798, 178 S.E. 572; Raleigh Banking & Trust Co. v. Safety Transit Lines, 198 N.C. 675, 153 S.E. 158; Knott v. Taylor, 96 N.C. 553, 2 S.E. 680. It is so ordered.
Remanded.