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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

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Land Actions

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  1. Boundary Dispute Processioning action (NCGS 38-1 etseq) Pattern instruction 825.00 Action to quiet title (NCGS 41-10 etseq) Adverse Possession Pattern Instructions 820.00, 820.20, 820.16 Proof of Title Pattern Instructions 820.40, 820.50, 820.60, 820.61 Land Actions I must thank two lawyers in Waynesville for their invaluable help in preparing this presentation, and they are David Wijewickrama and Frank G. Queen.

  2. Boundaries • 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

  3. Action to quiet title • 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. . .

  4. 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

  5. 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.

  6. 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.

  7. 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).

  8. A MATTER OF PERSPECTIVE • 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)

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