Citation Codes

Equivalent Citations

citation codes

Attorney(S)

Rountree Rountree and Wyatt E. Blake for plaintiff, appellant. Moore Corbett for defendants, appellees.

See more information ...

Smart Summary

Case Summary — Jeremiah Newkirk v. Hugh Porter et al., Supreme Court of North Carolina (Filed Jan. 30, 1953)

Factual and Procedural Background

This civil action between adjoining landowners concerns ownership of a strip of land approximately 224 feet wide, running east-west for over a mile (about 30 acres), lying between the location of the dividing line as contended by the plaintiff and the location as contended by the defendants.

The plaintiff holds a tract described as "101.7 acres, more or less" north of the disputed area; the defendants hold a tract of "121 acres, more or less" south of the disputed area. The plaintiff introduced a series of deeds in his chain of title, including earlier conveyances to his father (J.M. Newkirk) and later conveyances involving a trustee (W.T. Wallace) and purchasers (C.L. Carter and W.M. Brice), culminating in a deed to plaintiff dated October 1943. The defendants offered an unbroken paper title running back to 1850, claiming as heirs of Edmond Newton (died 1907), and their evidence tended to show a fixed northern boundary on Moore's Creek.

Prior to and at trial the plaintiff conceded that his claim to the disputed area was based on adverse possession and, in his brief on appeal, stated the claim was for more than 20 years. The plaintiff introduced testimony of clearing, cultivation, and structures (a tobacco barn and a dwelling) located partly or wholly on the disputed area and testified that his father and predecessors claimed up to the line he asserted for more than 40 years.

The action was instituted on November 9, 1949. At the close of plaintiff's evidence (and again at the conclusion of all the evidence), the defendants moved for judgment as of nonsuit. The trial court allowed the motion, entering judgment for defendants; the plaintiff appealed.

Legal Issues Presented

Whether the plaintiff made out a prima facie case of title to the disputed strip by adverse possession.
Whether the evidence established continuity of possession for the statutory periods required to ripen title: seven years under color of title (G.S. 1-38) or twenty years without color of title (G.S. 1-40).
Whether the plaintiff may tack the possession of predecessors (including his father and predecessors in title) to his own possession in order to establish the requisite continuous possession.
Whether the case, tried on the theory of adverse possession, could be retained for trial on the alternative theory of a processioning proceeding under G.S. 38-1 et seq.

Arguments of the Parties

Plaintiff's Arguments

The plaintiff claimed title to the disputed area based on adverse possession (he expressly conceded this theory at trial and in his appellate brief).
The plaintiff relied on evidence that his father and predecessors (including W.M. Gurganous) claimed and possessed land up to the line the plaintiff asserted for more than 40 years, that portions of the disputed area had been cleared and cultivated for some 40 years, and that there were improvements (a tobacco barn built during the period the father claimed ownership and a dwelling erected by the plaintiff 10–15 years prior to trial).
The plaintiff offered a chain of recorded deeds culminating in a 1943 deed to him, and he testified regarding the intervening ownership and possession by trustee and purchasers.

Defendants' Arguments

The defendants relied on a senior, unbroken paper title running back to 1850 and offered evidence tending to fix the defendants' northern boundary at a location on Moore's Creek where they contend the line is located.
The defendants challenged the sufficiency of the plaintiff's proof of continuity of adverse possession for the statutory period, pointing to gaps (hiatuses) in the plaintiff's chain of title and lack of proof of transfer to the trustee.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Locklear v. Savage, 159 N.C. 236, 74 S.E. 347	Statement of the elements required for adverse possession (actual, open, visible, notorious, continuous and hostile).	Cited as authority for the elements that adverse possession must satisfy to ripen title.
Price v. Whisnant, 236 N.C. 381, 72 S.E.2d 851	Cases treating the elements of adverse possession.	Cited among authorities that specifically treat elements of adverse possession.
Williams v. Robertson, 235 N.C. 478, 70 S.E.2d 692	Cases treating the elements of adverse possession.	Cited among authorities addressing the elements of adverse possession.
Battle v. Battle, 235 N.C. 499, 70 S.E.2d 492	Cases treating the elements of adverse possession.	Cited among authorities on adverse possession elements.
Locklear v. Oxendine, 233 N.C. 710, 65 S.E.2d 673	Cases treating elements of adverse possession.	Cited among authorities for the elements required to ripen title by adverse possession.
Gibson v. Dudley, 233 N.C. 255, 63 S.E.2d 630	Cases treating elements of adverse possession.	Cited among authorities addressing the elements of adverse possession.
Wallin v. Rice, 232 N.C. 371, 61 S.E.2d 82	Cases treating elements of adverse possession and examples of acts of ownership.	Listed among cases concerning adverse possession; also referenced later regarding whether acts of ownership would meet minimum requirements (court did not decide that question).
Ramsey v. Nebel, 226 N.C. 590, 39 S.E.2d 616	Cases treating elements of adverse possession and examples of acts of ownership.	Cited for adverse possession principles and later referenced as an example of cases on acts of ownership the court did not reach.
Alexander v. Cedar Works, 177 N.C. 137, 98 S.E. 312	Cases treating the elements of adverse possession.	Cited among authorities on adverse possession elements.
May v. Mfg. Trading Co., 164 N.C. 262, 80 S.E. 380	Cases treating the elements of adverse possession.	Cited among authorities addressing adverse possession elements.
Perry v. Alford, 225 N.C. 146, 33 S.E.2d 66	Continuity of possession as an essential element; possession must be continuous and uninterrupted for the full statutory period.	Used to support the principle that a break in possession allows constructive possession by the true owner to intervene.
Ward v. Herrin, 49 N.C. 23	Continuity of possession requirement and effect of hiatus.	Cited to show that a failure to prove continuity defeats adverse possession and applied to conclude plaintiff failed to show 20 years' continuity.
Holdfast v. Shepard, 28 N.C. 361	Authority on continuity of possession.	Cited in support of the continuity requirement for adverse possession.
Hayes v. Lumber Co., 180 N.C. 252, 104 S.E. 527	Constructive possession of true owner intervenes if adverse possession is broken.	Cited to explain why interruption defeats ripening of title by adverse possession.
Williams v. Wallace, 78 N.C. 354	Constructive possession rule when adverse possession is broken.	Cited in support of the principle that a break destroys effectiveness of prior possession.
Malloy v. Bruden, 86 N.C. 251	Constructive possession/interruption principle.	Cited for the same continuity/interruption principle.
Vanderbilt v. Chapman, 172 N.C. 809, 90 S.E. 993	Privity and tacking: privity of possession sufficient to allow tacking of successive possessors; grantee may tack grantor's possession when deed embraces the land.	Cited to explain when tacking is permitted and what privity of possession means.
Johnston v. Case, 131 N.C. 491, 42 S.E. 957	Supports doctrine of tacking and privity of possession.	Cited as authority for tacking and continuity through privity.
Barrett v. Brewer, 153 N.C. 547, 69 S.E. 614	Adverse possession of an ancestor may be cast upon heirs and tacked to their possession.	Used to explain that an ancestor's adverse possession may be tacked to heirs' possession.
Jacobs v. Williams, 173 N.C. 276, 91 S.E. 951	Authority on tacking and adverse possession by descent.	Cited among authorities on tacking from ancestor to heirs.
Land Company v. Floyd, 167 N.C. 686, 83 S.E. 687	Authority on tacking and adverse possession.	Cited among cases on tacking of possession.
Boyce v. White, 227 N.C. 640, 44 S.E.2d 49	A deed does not create privity as to land not described in the deed; noninclusion raises inference that grantee claimed undescribed land adversely.	Cited to support the rule that a grantee cannot tack grantor's possession as to land not embraced in the deed.
Blackstock v. Cole, 51 N.C. 560	Same rule: noninclusion of disputed land in deed indicates grantee's possession is adverse to grantor.	Applied to conclude that the plaintiff could not automatically tack his father's possession to his own where the deed did not embrace the disputed area.
Simmons v. Lee, 230 N.C. 216, 53 S.E.2d 79	Support for rule that noninclusion of land in a deed creates inference of adverse claim by grantee.	Cited in support of the noninclusion/privity rule.
Ramsey v. Ramsey, 229 N.C. 270, 49 S.E.2d 476	Support for noninclusion/privity rule.	Cited among authorities on privity and tacking limits.
Nash v. Wilmington & W. R. Co., 67 N.C. 413	When calls in a deed are inconsistent, natural objects and monuments control courses and distances.	Cited for the principle that natural monuments control when deed calls are inconsistent.
Jennings v. White, 139 N.C. 23, 51 S.E. 799	Another's line, if known and established, is usually treated as a monument for boundary location.	Cited to support treating a called-for adjoining owner's line as a controlling monument.
Brite v. Lynch, 235 N.C. 182, 69 S.E.2d 169	Authority referenced regarding transfer of ripened adverse title by descent.	Cited in discussing plaintiff's alternative theory that his father may have acquired title by adverse possession prior to death (court declined to permit recovery on that theory here).
Meeker v. Wheeler, 236 N.C. 172	Used as authority on starting point of plaintiff's paper title when there is a hiatus in prior conveyances.	Applied to conclude plaintiff's paper title, for practical purposes, began with the trustee's deed of December 3, 1942, because no conveyance from the father to trustee appeared in the record.
Wheeler v. Wheeler (citation referred to as "Wheeler v. Wheeler, supra")	Referenced regarding hiatus in chain of title defeating recovery under certain theories.	Cited to support the proposition that the hiatus in plaintiff's paper title defeats recovery on the theory that father's ripened title passed under successive deeds.
Thrift Corp. v. Guthrie, 227 N.C. 431, 42 S.E.2d 601	The theory of the trial controls on appeal; case should not be retained on a different theory than that tried.	Applied to hold that the case, tried on adverse possession theory, could not be retained on a processioning theory.
Hinson v. Shugart, 224 N.C. 207, 29 S.E.2d 694	Same principle: appellate review follows the theory of the trial below.	Applied to support that the appeal must be decided according to the theory of the trial (adverse possession), not an alternative theory.

Court's Reasoning and Analysis

The court framed the single question on appeal as whether the plaintiff made a prima facie case of title by adverse possession to the disputed strip. It began by reciting the two statutory routes to title by possession in North Carolina: seven years under color of title (G.S. 1-38) and twenty years under a claim of right without color of title (G.S. 1-40).

The court reiterated the elements necessary to ripen title by adverse possession (actual, open, visible, notorious, continuous and hostile) and emphasized that continuity of possession for the full statutory period is essential because any break permits the constructive possession of the true owner to intervene and defeat the prior possession.

The court then analyzed the plaintiff's proof of continuity and the possibility of tacking. It observed that the plaintiff had conceded that his claim was based on adverse possession, which, in context, supported the inference that the disputed area was not included in the plaintiff's deed and that plaintiff sought to rely on adverse occupation of undescribed land connected with the described tract.

Critical to the court's ruling was the existence of gaps (hiatuses) in the plaintiff's chain of title and the absence of evidence of conveyance from the plaintiff's father (J.M. Newkirk) to the trustee (W.T. Wallace). Because the record did not show such a conveyance, the court treated the trustee's deed of December 3, 1942 as the practical inception of plaintiff's paper title. The court also noted the absence of proof that the intermediate owners (Carter and Brice) exercised acts of possession during their short period of ownership.

Applying the established rules on tacking and privity, the court concluded that a grantee may tack a grantor's possession only when the deed describes and embraces the land in dispute (so that privity of possession exists). Where the disputed land is not embraced in the deed, privity is not created and the grantee's possession is ordinarily adverse to the grantor's. Given the noninclusion and the hiatus, the plaintiff could not tack his father's or prior possessors' occupation to reach the required statutory periods.

Consequently, the court held that the plaintiff failed to prove continuity of possession for the requisite twenty-year period. The court further reasoned that because the hiatuses occurred within seven years before commencement of the action, the plaintiff also failed to demonstrate seven years' continuous possession under color of title (even assuming, arguendo, that his paper title constituted color of title at a prima facie level).

The court addressed and rejected alternative theories the plaintiff might assert: (1) that the father had acquired title by adverse possession prior to his death and that such ripened title passed to plaintiff under successive deeds — the court noted the hiatus defeats such a theory and that neither the pleadings nor trial theory encompassed it; also the record did not disclose the father's date of death to fix the duration of his possession; and (2) the case could not be retained for trial as a processioning proceeding because it was tried and pleaded on the theory of adverse possession, and the appellate court must decide according to the theory of trial.

Finally, the court expressly declined to decide whether the character of the acts of ownership (clearing, cultivation, improvements) shown by plaintiff would meet minimum requirements to ripen title, because the record failed on continuity grounds.

Holding and Implications

Holding: The judgment of the trial court granting defendants' motion for judgment as of nonsuit was AFFIRMED.

Implications:

The direct effect is that the plaintiff's claim to the disputed strip by adverse possession failed; defendants' title (as shown by the senior record title) was not overcome under the evidence presented.
The court's decision rested on failures of proof: (1) hiatuses in plaintiff's chain of title (absence of record or proof of conveyance from the plaintiff's father to the trustee), and (2) consequent inability to establish the continuity of possession necessary for either 20-year or 7-year statutory periods. The plaintiff therefore was not entitled to have the issue submitted to a jury.
The court did not decide whether the nature or quality of the acts of possession (clearing, cultivation, erection of structures) otherwise proved would suffice to ripen title; thus no broader new rule on sufficiency of such acts was established in this opinion.

Additional note: The opinion emphasizes that appellate review follows the theory on which the case was tried; it refused to consider a different theory (processioning) not litigated below.

Show full summary ...

JEREMIAH NEWKIRK v. HUGH PORTER, HENRY NEWTON, HANNAH NEWTON CARR, ELIZABETH HIGHSMITH, HATTIE STRINGFIELD, CALLIE NEWKIRK, ROSA NEWKIRK, HATTIE BEATTY, WALTER HIGHSMITH, HAYES NEWTON, CARRIE HERRING, HATTIE NEWTON HIGHSMITH, GENEVA HENDERSON, WILLIE HERRING, AND ANNIE TODD.

1. Adverse Possession 1 — Adverse possession for seven years under color of title, G.S. 1-38, or for twenty years without color of title, G.S. 1-40, ripens title in the possessor.

2. Adverse Possession 3 — Adverse possession sufficient to ripen title in the possessor must be actual, open, visible, notorious, continuous and hostile to the true owner's title and to all persons for the full statutory period.

3. Adverse Possession 6 — Claimant's possession must be continuous and uninterrupted for the full statutory period in order to ripen title in him, since if there is a break in his possession, the constructive possession of the true owner interferes and destroys the effectiveness of the prior possession.

4. Adverse Possession 7 — The requirement of continuity of possession does not mean that one person must be in possession for the full statutory period, since the possessor may tack his possession with the possession of any person or persons with whom he is in privity, including the possession of his grantor when the deed embraces the property in dispute, or the possession of his ancestor from whom his title is cast.

5. Same — Where the description in the grantee's deed does not embrace the land in dispute, the grantee ordinarily is not entitled to tack the possession of his grantor, since in such instance the grantee's possession is generally independent of the deed and is adverse to his grantor as well as all other persons.

6. Boundaries 3b — Where the calls in a deed are inconsistent, the general rule is that natural objects and monuments control courses and distances, and ordinarily another's line, when called for and if known and established, is a monument within the meaning of the rule.

7. Adverse Possession 6, 7 — Where trustee's deed is chain in claimant's title, failure of evidence of conveyance to trustee creates hiatus. Plaintiff offered in evidence a deed to his father registered more than twenty years prior to the institution of the action, and trustee's deed to the purchaser at foreclosure, executed less than seven years prior to the institution of the action, and deed from such purchaser to plaintiff. Held: The failure of evidence of a transfer of the legal title by plaintiff's father to the trustee creates a hiatus, so that the evidence establishes continuity of possession only from the date of the execution of the trustee's deed which, being less than seven years, is insufficient to be submitted to the jury either upon a claim of adverse possession for twenty years or for seven years under color.

8. Adverse Possession 7 — Plaintiff may not assert that title by adverse possession acquired by his father prior to his death passed to plaintiff under deeds from a trustee in a deed of trust when plaintiff introduces no evidence of conveyance of the legal title by his father to the trustee. Further, in this case, the record failed to disclose on what date plaintiff's father died, and therefore failed to fix the duration of the father s possession.

9. Appeal and Error 8 — An appeal will be determined in accordance with the theory of trial and therefore where the case is tried upon the theory of adverse possession, the cause may not be retained on the theory of a processioning proceeding.

PARKER, J., took no part in the consideration or decision of this case.

Civil action between adjoining landowners involving claim of title by adverse possession. In dispute is a strip of land about 224 feet wide lying between the location of the dividing line as contended by the plaintiff and its location as contended by the defendants. The strip in dispute extends in a straight east-west course for more than a mile and contains about 30 acres.

The main body of the plaintiff's land, a tract of "101.7 acres, more or less," lies north of the disputed area; the defendants' tract of "121 acres, more or less" lies to the south.

The plaintiff claims under or in connection with these deeds which describe by metes and bounds the 101.7-acre tract: (1) deed of H. B. S. Garriss and another to W. M. Gurganous dated 7 January, 1884, filed for registration 28 December, 1985; (2) deed made by W. M. Gurganous and wife to J. M. Newkirk (father of the plaintiff) dated 16 August, 1910, filed for registration 18 August, 1910; (3) deed made by W. T. Wallace, Trustee, to C. L. Carter and William Brice, dated 3 December, 1942, filed for registration 10 December, 1942; and (4) deed made by C. L. Carter and wife and W. M. Brice and wife to Jeremiah Newkirk and wife, Mazie Newkirk, dated . . . October, 1943, filed for registration 4 October, 1943. In connection with the foregoing record title the plaintiff testified that W. T. Wallace and Carter and Brice "both owned the land since my father died. They had a note on it and . . . a mortgage on it. . . . My daddy did not sell it to me, but Mr. Carter did."

The defendants claim title to the 121-acre tract as heirs at law of Edmond Newton, who died in 1907. They offered in evidence the following unbroken paper title running back to 1850: (1) deed made by Mary Shaw to Elizabeth Innis, dated 26 September, 1850, filed 28 January, 1891, with the north-boundary call being as follows: "Beginning at a water oak in the Creek; running thence E 330 poles to a stake in the back line; . . ."; (2) deed of Elizabeth Innis and another to Edmond Newton dated 19 June, 1871, filed 17 September, 1889, with the north-boundary call being as follows: "Beginning at a red oak near the run of Moore's Creek, running N. 88 W. 375 poles to a stake in the back line; . . ." The evidence in connection with the court survey and map thereof tends to show that the northern boundary, according to defendants' contention, has a fixed terminus on Moore's Creek "at a red oak now down," and runs thence S. 86 E. 6,187 feet to its eastern terminus.

Here it is to be noted (1) that the defendants hold under the senior record title and (2) that the plaintiff's deed calls for the defendants' line as the boundary between the two tracts of land.

It also appears from the court survey and map thereof that when the courses and distances set out in the plaintiff's deed are run out on the ground, the plaintiff's north-south lines extend across the entire breadth of the defendants' tract and even beyond its outermost southern boundary, so as to envelop all the defendants' tract except a small corner consisting of a few acres on the eastern end thereof.

However, the plaintiff made no contention that his land swallowed up the defendants' as indicated by the course and distance calls in his deed. The evidence discloses that prior to and at the time of the survey the plaintiff contended that the true dividing line was located about 224 feet south of and parallel to the location as contended by the defendants. As to the location on the ground of the line which the plaintiff contends is the true dividing line, his surveyor, Henry G. Vann, testified that in running the line he started at the western terminus on Moore's Creek near a big water oak that was marked, ". . . it had been marked several times, blazed for same purpose." From this beginning point on the Creek, the line was run south 86 E 138 feet to the white oak (which was treated as a line tree and used for the purpose of fixing the western terminus on Moore's Creek) and continuing the same course an over-all distance of 6,187 feet to a point where the distance in the deed "gave out." The entire distance of this line is through uncleared woodland, and after passing the white oak which is located 138 feet east of the western terminus of the line on Moore's Creek, no other marks were found along the line for a distance of approximately 5,000 feet (except perhaps a stump), and then two or three marked gums were picked up. As to this, surveyor Vann said: "5,000 feet East of Moore's Creek there was a branch holly and big gums, and there was a very plainly marked line through those gums when I got over away from the branch east."

Early in the trial the plaintiff conceded in response to an inquiry of the court that his claim of ownership in the disputed area is based on adverse possession, and in the brief filed here on appeal the plaintiff states that his claim of ownership of the disputed area "is based on adverse possession for more than 20 years."

This action was instituted 9 November, 1949.

The plaintiff offered evidence tending to show that his father and his father's grantor, W. M. Gurganous, for more than 40 years claimed the land up to the line as contended by the plaintiff; that the defendants' ancestor, Edmond Newton, treated it as the dividing line; that the main cleared portion of plaintiff's land near the western end of plaintiff's tract extends down into and reaches about two-thirds the distance across the disputed area, embracing a small acreage thereof; that this land was cleared by W. M. Gurganous and has been cultivated some 40 years by the plaintiff, his father (J. M. Newkirk), and W. M. Gurganous; that a tobacco barn is located on the disputed area and a dwelling house partially thereon; that the barn was built during the period his father claimed ownership, more than 20 years prior to the commencement of this action, and the dwelling by the plaintiff some 10 or 15 years ago.

Other evidence of possession of the disputed area — principally the small cleared portion thereof — on the part of the plaintiff and some of his predecessors in title is omitted as not being pertinent to decision in view of the theory of the trial below.

The defendants motion for judgment as of nonsuit, made at the close of the plaintiff's evidence and renewed at the conclusion of all the evidence, was allowed, and from judgment based on such ruling the plaintiff appealed.

JOHNSON, J.

The single question presented by this appeal is whether the plaintiff made out a prima facie case of title by adverse possession to the disputed strip of land.

In this jurisdiction title to land may be acquired by the requisite acts of adverse possession (1) under color of title for a period of 7 years, G.S. 1-38, or (2) under claim of right, without color of title, for a period of 20 years, G.S. 1-40. See 1 Am. Jur., Adverse Possession, Section 185.

In either case, in order to bar the true owner of land from recovering it from an occupant in adverse possession, the possession relied on must have been actual, open, visible, notorious, continuous, and hostile to the true owner's title and to all persons for the full statutory period. Locklear v. Savage, 159 N.C. 236, 74 S.E. 347. See also these cases in which the elements of title by adverse possession are specifically treated: Price v. Whisnant, 236 N.C. 381, 72 S.E.2d 851; Williams v. Robertson, 235 N.C. 478, 70 S.E.2d 692; Battle v. Battle, 235 N.C. 499, 70 S.E.2d 492; Locklear v. Oxendine, 233 N.C. 710, 65 S.E.2d 673; Gibson v. Dudley, 233 N.C. 255, 63 S.E.2d 630; Wallin v. Rice, 232 N.C. 371, 61 S.E.2d 82; Ramsey v. Nebel, 226 N.C. 590, 39 S.E.2d 616; Alexander v. Cedar Works, 177 N.C. 137, 98 S.E. 312; May v. Mfg. Trading Co., 164 N.C. 262, 80 S.E. 380.

Continuity of possession being one of the essential elements of adverse possession, in order that title may be ripened thereby, such possession must be shown to have been continuous and uninterrupted for the full statutory period. Perry v. Alford, 225 N.C. 146, 33 S.E.2d 66B; Ward v. Herrin, 49 N.C. 23; Holdfast v. Shepard, 28 N.C. 361; 1 Am. Jur., adverse Possession, Sec. 148. This for the reason that if the possession of the adverse claimant be broken, the constructive possession of the true owner intervenes and destroys the effectiveness of the prior possession. Hayes v. Lumber Co., 180 N.C. 252, 104 S.E. 527; Williams v. Wallace, 78 N.C. 354; Malloy v. Bruden, 86 N.C. 251.

However, in order to fulfill the requirements as to continuity of possession, it is not necessary that an adverse possession be maintained for the entire statutory period by one person. Continuity may be shown by the tacking of successive possessions of two or more persons between whom the requisite privity exists. 1 Am. Jur., Adverse Possession, Sec. 151. And, as stated by Hoke, J., in Vanderbilt v. Chapman, 172 N.C. 809 (812), 90 S.E. 993, "The privity referred to is only that of possession and may be said to exist whenever one holds the property under or for another or in subordination to his claim and under an agreement or arrangement recognized as valid between themselves." See also Johnston v. Case, 131 N.C. 491, 42 S.E. 957; Mordecai's Law Lectures, Second Ed., p. 688; Anno.: 17 A.L.R. 1128.

Accordingly, a grantee claiming land within the boundaries called for in the deed or other instrument constituting color of title, may tack his grantor's possession of such land to that of his own for the purpose of establishing adverse possession for the requisite statutory period. Vanderbilt v. Chapman, supra.

Similarly, the adverse possession of an ancestor may be cast by descent upon his heirs and tacked to their possession for the purpose of showing title by adverse possession. Vanderbilt v. Chapman, supra; Barrett v. Brewer, 153 N.C. 547, 69 S.E. 614; Mordecai's Law Lectures, Second Ed., p. 688. See also Jacobs v. Williams, 173 N.C. 276, 91 S.E. 951; Land Company v. Floyd, 167 N.C. 686, 83 S.E. 687; 1 Am. Jur., Adverse Possession, Sec. 153.

But the rule with us is that 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, and this is so even though the grantee enters into possession of the land not described and uses it in connection with that conveyed. Boyce v. White, 227 N.C. 640, 44 S.E.2d 49; Blackstock v. Cole, 51 N.C. 560. See also Simmons v. Lee, 230 N.C. 216, 53 S.E.2d 79; Ramsey v. Ramsey, 229 N.C. 270, 49 S.E.2d 476; 1 Am. Jur., Adverse Possession, Sec. 156; Anno.: 17 A.L.R.2d 1128. Nothing else appearing, the mere noninclusion of the disputed area in the description raises the inference that the grantee claimed it independently and began a holding which was adverse to the grantor as well as to other persons. Blackstock v. Cole, supra.

Also, where the calls for location of boundaries to land are inconsistent, the general rule is that natural objects and artificial monuments control courses and distances. Nash v. Wilmington and W. R. Co., 67 N.C. 413, 418. And in this connection, another's line called for, if known and established, is usually treated as a monument. Jennings v. White, 139 N.C. 23, 51 S.E. 799; Mordecai's Law Lectures, Second Ed., p. 814; 8 Am. Jur., Boundaries, Sections 4, 51, and 56.

In the case at hand it is observed that the defendants have the senior record title, and that the plaintiff's deed calls for the defendants' northern boundary as the dividing line between the two tracts. Also, the defendants' evidence tends to give their northern boundary a fixed location on the ground at about where they contend it is located.

The situation presented by these factors no doubt prompted the plaintiff to concede in the court below, and stipulate in brief on appeal, that his claim of ownership of the disputed area is based on adverse possession. This concession in the light of the circumstances under which it was made would seem to support the conclusion that the plaintiff intended thereby to concede that the disputed area is not covered by the description appearing in his deed, and that he intended to claim title thereto by adverse possession based on the theory that he and his predecessors in title, including his father, have occupied the undescribed disputed area in connection with the land actually described in the paper title for more than 20 years.

As to this, however, nothing else having been made to appear, the transfers sub silento made by W. T. Wallace, Trustee, to Carter Brice, and by the latter to the plaintiff, appear to be insufficient on the record as presented to permit the tacking of the possession of the plaintiff's father to that of his own with respect to the undescribed disputed area (Blackstock v. Cole, supra; Annotation: 17 A.L.R.2d 1128, p. 1160), and particularly is this so in view of the fact that the plaintiff's record title to the 101.7-acre tract as offered in evidence shows no conveyance from the plaintiff's father, J. M. Newkirk, to W. T. Wallace, Trustee. Thus, in view of this hiatus, the plaintiff's paper title, for present practical purposes, has its inception in the deed of W. T. Wallace to Carter and Brice dated 3 December, 1942. See Meeker v. Wheeler, 236 N.C. 172.

Also, it is further noted that the record discloses no evidence tending to show that Carter and Brice exercised any acts of possession during the period of their claimed ownership, which lasted about a year.

It follows, then, that by reason of these hiatuses the plaintiff failed to show continuity of possession for the requisite period of 20 years. Ward v. Herrin, supra.

Moreover, since these hiatuses appear within 7 years next preceding the date of the commencement of the action, it also follows that if it should be conceded arguendo that the plaintiff's paper title, when considered on the prima facie level, is sufficient to support the inference that it embraces the disputed area and constitutes color of title, even so, the plaintiff failed to show the requisite continuity of possession necessary to ripen title under colorable claim.

Nor was the plaintiff entitled to go to the jury on the theory that his father acquired title to the disputed area by adverse possession prior to his death (Brite v. Lynch, 235 N.C. 182, 69 S.E.2d 169) and that the ripened title thereto passed to the plaintiff under the successive deeds appearing in his paper title. It is enough to say that the hiatus in the plaintiff's paper title defeats recovery on this theory. Wheeler v. Wheeler, supra. Besides, neither the pleadings nor the theory of the trial below encompass this theory. Nor does the record disclose when the plaintiff's father died. Thus the record leaves indefinite and without fixed period of duration the time during which it may be inferred from plaintiff's evidence that his father exercised acts of possession within the disputed area.

Nor does the record justify retaining the cause for trial on the theory of a processioning proceeding under G.S. 38-1 et seq. The case was both cast by the pleadings and tried below on the other theory. The theory of the trial prevails on appeal. Thrift Corp. v. Guthrie, 227 N.C. 431, 42 S.E.2d 601; Hinson v. Shugart, 224 N.C. 207, 29 S.E.2d 694.

In this state of the record, we do not reach for decision the question whether the character of the acts of ownership and possession relied on by the plaintiff meet minimum requirements necessary to ripen title by adverse possession, either as to the whole of the disputed area or the portions which appear to be cleared and under cultivation and on which permanent structures have been erected. See Ramsey v. Nebel, supra; Wallin v. Rice, supra.

We observe in passing that counsel who appeared for the plaintiff in this Court were not his original counsel and hence are not responsible for the theory of the case as originally cast below.

On the record as presented the evidence was insufficient to show title by adverse possession to the disputed area. The judgment below is

Affirmed.