The opinion
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA14-1278
Filed: 6 October 2015
Currituck County, No. 06 SP 26
ATLANTIC COAST PROPERTIES, INC., Petitioner,
v.
ANGERONA M. SAUNDERS and husband, ALGUSTUS O. SAUNDERS, JR., LUCY
M. TILLETT, PATRICIA W. MOORE-PLEDGER, GENEVIVE M. GOODMAN,
LYNETTE C. WINSLOW, and CARLTON RAY WINSLOW, Respondents.
Appeal by Petitioner from order entered 29 May 2014 by Judge J. Carlton Cole
in Currituck County Superior Court. Heard in the Court of Appeals 20 April 2015.
Hornthal, Riley, Ellis & Maland, LLP, by M.H. Hood Ellis, for petitioner-
appellant.
Vandeventer Black LLP, by Norman W. Shearin, for respondent-appellees.
DIETZ, Judge.
In the early 1920s, three children inherited their father’s 14-acre tract of land
in Currituck County. One of the siblings remained on the property throughout his
life and his descendants continue to live on the property today. The other two siblings
moved out of state. Over time, interest in the property passed through inheritance
until two families each owned an undivided one-half interest in the property: the
family still living on the Currituck County property and another family living out of
state.
ATL. COAST PROPS., INC. V. SAUNDERS
Opinion of the Court
The two families did not keep in touch, and the out-of-state family never visited
the property. But for decades, the family living on the land recognized the interest
of their out-of-state relatives in various ways, even at one point suggesting that they
partition the property to give the out-of-state relatives sole title to their share.
All that changed in 2005, when the out-of-state family sold their interest in the
property to Petitioner Atlantic Coast Properties, a private developer with no
connection to either family. Respondents—the descendants of the original heir who
stayed on the land—then asserted for the first time that they acquired sole title to
the property nearly 80 years earlier by adverse possession under the theory of
constructive ouster.
The trial court granted summary judgment in favor of Respondents, concluding
that Atlantic Coast Properties failed to forecast sufficient evidence to rebut
Respondents’ showing of constructive ouster. We disagree.
If one cotenant has been in “sole and undisturbed possession and use of the
property for twenty years, without any demand for rents, profits or possession by the
cotenants, constructive ouster of the cotenants is presumed.” Herbert v. Babson, 74
N.C. App. 519, 522, 328 S.E.2d 796, 798 (1985). But if the occupying tenant “does
anything to recognize title of the cotenants during the twenty-year period, the
presumption of ouster does not arise.” Id.
2
ATL. COAST PROPS., INC. V. SAUNDERS
Opinion of the Court
Here, one of the out-of-state heirs testified that she spoke to the family still
living on the property as recently as 2004 and they recognized her interest. Moreover,
a family member living on the property testified that her father—one of the original
heirs of the property—recognized the interests of her out-of-state relatives while he
was alive and “raised her up” to understand that recognizing her out-of-state
relatives’ interest in the property was “the right thing to do.”
To be sure, all of the original heirs to this property are long dead, so no one can
testify directly to what was said in the 1920s or 1930s. But under Supreme Court
precedent, a reasonable jury could conclude from this evidence that the family living
on the property always recognized their out-of-state relatives’ interests. That is all
that is required to defeat summary judgment.
Private property rights are the bedrock of liberty in our nation. In a case like
this one, where a joint property owner’s rights are threatened through the legal
fiction of constructive ouster, without any actual ouster, we must be particularly
vigilant in applying the well-settled summary judgment standard and permitting a
jury to resolve fact disputes. To hold otherwise would expose well-intentioned
property owners across our State to losses from the legal gamesmanship of their
cotenants. Accordingly, for the reasons discussed below, we reverse the trial court’s
entry of summary judgment and remand for further proceedings.
3
ATL. COAST PROPS., INC. V. SAUNDERS
Opinion of the Court
Facts and Procedural History
M.C. “Mack” Moore acquired a 14-acre tract of land in Currituck County, North
Carolina, on 15 August 1887. Mack Moore and his wife, Angeronia Moore, lived on
the property and had three children during their marriage: John Sherman Moore,
William Guthrie “W.G.” Moore, and Parlie Mae Moore Baxter. Mack Moore died
intestate on 29 March 1921 and the 14-acre tract of land passed to his three children
equally with each child obtaining a one-third interest in the property as tenants in
common.
John Sherman Moore moved to Pennsylvania where he stayed until his death
in 1980. He died intestate with no wife and no children and his one-third interest in
the Moore property passed to his two siblings, W.G. Moore and Parlie Mae Moore
Baxter, leaving each surviving sibling with a one-half interest in the property.
Parlie Mae Moore Baxter left Currituck County and moved to New York. She
married Leroy Baxter, Sr. and had one child, Leroy Baxter, Jr. When Parlie Mae
Moore Baxter died intestate, her one-half interest in the Mack Moore property passed
to Leroy Baxter Jr.’s wife and daughter, Susan and Valentis Baxter, who survived
him.
W.G. Moore married Edna Norman Moore, and together they had four
children: Sherman Malachi Moore, William Friley Moore, Respondent Edna Mae
4
ATL. COAST PROPS., INC. V. SAUNDERS
Opinion of the Court
Moore Winslow,1 and Respondent Angerona Lovie Moore Saunders. W.G. Moore was
the only child of Mack Moore to continue to live on the Moore property. He lived on
the property with his family and made improvements on the land over the years.
W.G. Moore was still living on the Moore property when he died intestate in 1973 and
his one-half interest in the property ultimately passed to his two surviving children,
Respondents Edna Winslow and Angerona Saunders, giving them each a one-fourth
interest in the property.
In 2005, Petitioner Atlantic Coast Properties purchased the one-half undivided
interest of Susan Pratt Baxter and Valentis Baxter by quitclaim deed.
On 7 April 2006, Atlantic Coast Properties filed a petition to partition the
Moore property claiming a one-half undivided interest in the property.
Respondents Edna Winslow and Angerona Saunders filed their answer and
counterclaims on 17 May 2006, asserting sole possession and title by adverse
possession. On 28 September 2007, Respondents moved for summary judgment. The
trial court held a hearing on 10 February 2014. In an order entered 29 May 2014, the
trial court granted Respondents’ motion and entered judgment, finding Respondents
to be “the owners solely seized in fee simple of all right, title, and interest in the Moore
tract.” The trial court based this conclusion “on the exclusive possession by W.G.
1 Edna Winslow passed away during these legal proceedings and her heirs were substituted
as Respondents.
5
ATL. COAST PROPS., INC. V. SAUNDERS
Opinion of the Court
Moore, and his heirs, and the presumption of ouster arising therefrom.” Atlantic
Coast Properties timely appealed.
Analysis
Atlantic Coast Properties argues that the trial court erred in granting
Respondents’ motion for summary judgment because they forecasted evidence that,
if accepted by the jury, would rebut the presumption of constructive ouster. We agree.
Summary judgment is appropriate “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that any party is entitled to a
judgment as a matter of law.” N.C. Gen. Stat. § 1A-1, Rule 56(c) (2013). When ruling
on a motion for summary judgment, “the court must consider the evidence in the light
most favorable to the nonmovant, and the slightest doubt as to the facts entitles him
to a trial.” Snipes v. Jackson, 69 N.C. App. 64, 72, 316 S.E.2d 657, 661 (1984).
“[S]ummary judgment should be granted with caution and only where the movant
has established the nonexistence of any genuine issue of fact.” Moye v. Thrifty Gas
Co., 40 N.C. App. 310, 314, 252 S.E.2d 837, 841 (1979). This Court reviews a grant
of summary judgment de novo. In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572,
576 (2008).
Ordinarily, “the entry and possession of one tenant in common are presumed
not to be adverse to his cotenants.” Town of Winton v. Scott, 80 N.C. App. 409, 413,
6
ATL. COAST PROPS., INC. V. SAUNDERS
Opinion of the Court
342 S.E.2d 560, 563 (1986) (internal quotation marks omitted). With this
presumption, one tenant in common cannot adversely possess against a cotenant
without an ouster, either actual or constructive. Collier v. Welker, 19 N.C. App. 617,
620, 199 S.E.2d 691, 694 (1973).
Under the doctrine of constructive or presumptive ouster, “[i]f one tenant in
common has been in sole and undisturbed possession and use of the property for
twenty years, without any demand for rents, profits or possession by the cotenants,
constructive ouster of the cotenants is presumed, and the ouster relates back to the
initial taking of possession by the tenant in possession.” Herbert v. Babson, 74 N.C.
App. 519, 522, 328 S.E.2d 796, 798 (1985). “Not only does 20 years of exclusive
possession raise a presumption of ouster, but it also supplies all the elements
necessary to support a finding that the possession was adverse and included elements
of notice and hostility.” Collier, 19 N.C. at 621, 199 S.E.2d at 695. But if the party
claiming adverse possession “does anything to recognize title of the cotenants during
the twenty-year period, the presumption of ouster does not arise.” Herbert, 74 N.C.
App. at 522, 328 S.E.2d at 798.
Atlantic Coast Properties argues that it forecast at least some admissible
evidence that W.G. Moore and his heirs recognized the interests of the cotenants
continuously from 1921 until the present, and therefore the presumption of
constructive ouster does not arise. We agree.
7
ATL. COAST PROPS., INC. V. SAUNDERS
Opinion of the Court
First, Susan Baxter, one of the out-of-state heirs, testified that Respondent
Edna Winslow contacted her by phone around 2004 and “asked [Susan] what [she]
and her daughter, Valentis, wanted to do with their interest in the M.C. (Mack) Moore
property” because Respondents were planning to subdivide it. Ms. Baxter’s testimony
is confirmed by Respondent Edna Winslow’s deposition testimony, in which Ms.
Winslow indicated that she believed the proposed subdivision would have included
the Baxters. Respondents also admitted to hiring a surveyor around the same time
to “assist with the subdivision” of the property, further confirming Susan Baxter’s
testimony.
Second, Respondents conceded that their recognition of the Baxters’ interests
also was a view shared by their father, W.G. Moore, one of the three original heirs of
the Moore property. Respondent Edna Winslow testified as follows when asked about
the proposed subdivision of the property:
[Ms. Winslow]: [W]hat we was trying to do was get the
property - - everybody’s interest in the property could get
their own deeds. That was the main interest, so we didn’t
have to pay taxes all the time.
...
Q. Okay. And tell me - - the same thing I asked your sister
was who is everybody? In other words, who was included
in this subdivision?
[Ms. Winslow]: Well, along then when we first started it
was my brothers and my sister, and their wife.
Q. Were the Baxters included in this?
8
ATL. COAST PROPS., INC. V. SAUNDERS
Opinion of the Court
[Ms. Winslow]: Yeah. Everybody that had an interest in it.
Q. Okay. And why were you going to include the Baxters
if you had no relationship with them?
[Ms. Winslow]: Because that’s the way we were raised up
and that’s the law.
...
Q. Okay. And what I was asking was, is the reason the
Baxters were included because your mom and your dad had
raised you all to do the right thing?
[Ms. Winslow]: Yes.
Q. And they had acknowledged the Baxters’ ownership
interest, and that’s why you and your sister thought that
you should; is that fair?
[Ms. Winslow]: Yes.
Ms. Winslow also testified that she had known of the Baxters’ interests “since
growing up in [her] mom and dad’s house” because family members often talked about
these out-of-state heirs to the property. Ms. Winslow’s sister, Angerona Saunders,
also testified that she recognized the Baxters’ interests because “that’s something
[she] felt like [her] mother and father would have wanted [her] to do” and “something
that they would have done.”
Finally, Susan Baxter testified that it was not until after the Baxters sold the
property to Atlantic Coast Properties that Edna Winslow first contacted her and told
her that “[she] and her daughter had no interest in the M.C. (Mack) Moore property
because [she] and her daughter had not paid any of the property taxes.”
9
ATL. COAST PROPS., INC. V. SAUNDERS
Opinion of the Court
All of this evidence, taken together and viewed in the light most favorable to
Atlantic Coast Properties, creates a genuine issue of material fact as to whether W.G.
Moore and his heirs recognized the ownership interest of the Baxters, thus defeating
the presumption of constructive ouster.
The dissent contends that, although there is evidence that Respondents and
their father, W.G. Moore, recognized the ownership interest of the Baxters generally,
“there is only speculation that W.G. Moore did anything to recognize the Baxters’
interest in the property during the twenty year period from 1921 to 1941.” The
dissent contends that all evidence after 1941 is essentially irrelevant because, once
W.G. Moore obtained sole title by adverse possession, recognition of the Baxters’
interests by him or his daughters could not divest him of that sole interest.
Our Supreme Court considered and rejected this precise argument in a nearly
identical context, holding that evidence from outside a particular twenty-year period
can be used to infer a consistent position within that twenty-year period. See Clary
v. Hatton, 152 N.C. 107, 67 S.E. 258, 259 (1910). In Clary, three siblings inherited
property from their parents in 1872. Id. The brother lived on the property during
his lifetime; his two sisters did not. When the brother died in 1908, his heirs claimed
the entire property by adverse possession. Id. Although there was no evidence that
the brother recognized his sisters’ interests from 1872 to 1892, the sisters presented
evidence that their brother acknowledged their interest in 1900, telling another man
10
ATL. COAST PROPS., INC. V. SAUNDERS
Opinion of the Court
that “he only claimed or owned one third of the lot and his sister each owned a third.”
Id. The Supreme Court held that the brother’s “declaration in 1900 in
acknowledgement and recognition of his sisters’ title is evidence that prior to then he
had never claimed adversely to them.” Id. This was sufficient evidence “to go to a
jury that the possession of [the brother] was never adverse to the rights of his sisters
. . . and that consequently [the brother] acquired no title by reason of his possession.”
Id.
Here, too, W.G. Moore’s recognition and acknowledgement of the Baxters’
interests is sufficient to send the case to a jury. There is testimony that W.G. Moore
recognized the Baxters’ interest, that he taught his two daughters about the Baxters’
interests when they were children, that the family talked about the Baxters’ interests
at family gatherings, and that W.G. Moore instilled in his daughters the belief that
recognizing that interest—despite the fact that the Baxters never came to visit the
property—was “the right thing to do.”2 From this testimony, a jury readily could infer
that W.G. Moore recognized the interests of the Baxter family consistently
throughout his lifetime, including the period from 1921 to 1941. See Clary, 152 N.C.
at 107, 67 S.E. at 259. This is particularly true here, because there is no evidence in
this record indicating that W.G. Moore had a change of heart after 1941, or that he
2 The dissent has a different interpretation of some of this testimony, one that is considerably
more favorable to Respondents. That interpretation is a perfectly reasonable one as well. But this is
summary judgment, so we must interpret all testimony in the light most favorable to Atlantic Coast
Properties, the non-moving party. Singleton, 280 N.C. at 465, 186 S.E.2d at 403.
11
ATL. COAST PROPS., INC. V. SAUNDERS
Opinion of the Court
felt differently about the Baxters (his own sister and her family) in the 1920s and
1930s than he did for the rest of his life. Thus, under Clary, Atlantic Coast Properties
has forecast sufficient evidence to survive summary judgment.
Finally, there are important policy reasons for following Clary and reversing
the entry of summary judgment in this case. As this Court previously has observed,
a rule requiring specific, concrete evidence from each twenty-year time period could
encourage a cotenant “to deal with his fellow tenants in a less than open and honest
manner.” Sheets v. Sheets, 57 N.C. App. 336, 338, 291 S.E.2d 300, 301 (1982). An
occupying tenant could repeatedly reassure his cotenants that their interests are
secure and then, after the passage of time has removed the records or witnesses,
abruptly change position and claim title by constructive ouster occurring decades, or
even centuries, ago.
Private property rights are the bedrock of liberty. It is one thing to lose
property rights to the open and notorious adverse possession of another. But in a
case like this one, where a joint property owner’s rights are threatened through the
legal fiction of constructive ouster without any actual ouster, courts must be
particularly vigilant in applying the well-settled summary judgment standard and
permitting a jury to resolve fact disputes about who told what to whom.
Accordingly, we hold that Respondent Edna Winslow’s direct testimony that
her father W.G. Moore recognized the Baxters’ interest during his lifetime (although
12
ATL. COAST PROPS., INC. V. SAUNDERS
Opinion of the Court
without specifying any particular time frame) and that he raised her up to do the
same, together with the complete absence of any evidence suggesting W.G. Moore
ever felt differently at any point in his life, constitutes “more than a scintilla” of
evidence from which the jury could conclude that Moore recognized his sister’s
interest throughout his entire life, including from 1921 to 1941.3 Accordingly, we
reverse the trial court’s entry of summary judgment and remand this case for further
proceedings.
Conclusion
Atlantic Coast Properties forecasted sufficient evidence to create a genuine
issue of material fact on the issue of whether W.G. Moore and his heirs recognized
the title of their cotenants and defeated any claim of constructive ouster. Accordingly,
3 The dissent also contends that Ms. Winslow’s deposition testimony in which she testified
that her father, W.G. Moore, recognized the Baxters’ interest during his lifetime was the product of an
objectionable deposition question and was inadmissible hearsay:
Q. And they [Ms. Winslow’s mother and father] had acknowledged the Baxters’
ownership interest, and that’s why you and your sister thought that you
should; is that fair?
[Ms. Winslow]: Yes.
There is nothing improper about the form of this question—it is not a compound question and
it is not vague or confusing. See, e.g., State v. Hughes, 159 N.C. App. 229, 582 S.E.2d 726 (2003). And
the response is a statement by a party-opponent, Respondent Edna Winslow, manifesting her adoption
or belief in the truth of her father’s statement, thus qualifying it under one of the most fundamental
and commonly invoked hearsay exceptions. See N.C. Gen. Stat. § 8C-1, Rule 801(d). Lastly, these are
evidentiary arguments not raised by Respondents in their summary judgment papers or at the
hearing. Appellate courts ordinarily do not address evidentiary arguments not raised and preserved
in the trial court. See Plemmer v. Matthewson, 281 N.C. 722, 725, 190 S.E.2d 204, 206 (1972).
13
ATL. COAST PROPS., INC. V. SAUNDERS
Opinion of the Court
we reverse the trial court’s order granting summary judgment in favor of
Respondents.
REVERSED AND REMANDED.
Judge HUNTER, JR. concurs.
Chief Judge McGEE dissents in a separate opinion.
14
No. COA14-1278 – Atl. Coast Props., Inc. V. Saunders
McGEE, Chief Judge, dissenting.
Because I believe the trial court properly granted summary judgment in favor
of Respondents, I dissent.
“On appeal, an order allowing summary judgment is reviewed de novo.” Park
East Sales, L.L.C. v. Clark-Langley, Inc., 186 N.C. App. 198, 202, 651 S.E.2d 235, 238
(2007) (citation omitted). “If the granting of summary judgment can be sustained on
any grounds, it should be affirmed on appeal.
“Summary judgment is appropriate when ‘there is no
genuine issue as to any material fact’ and ‘any party is
entitled to a judgment as a matter of law.’” Our Supreme
Court has held that “an issue is genuine if it is supported
by substantial evidence, and [a]n issue is material if the
facts alleged . . . would affect the result of the action[.]”
Furthermore, “[s]ubstantial evidence is such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion and means more than a scintilla or a
permissible inference[.]”
Andresen v. Progress Energy, Inc., 204 N.C. App. 182, 184, 696 S.E.2d 159, 160-61
(2010) (citations omitted); see also Amanini v. N.C. Dept. of Human Resources, 114
N.C. App. 668, 682, 443 S.E.2d 114, 122 (1994) .
In Herbert v. Babson this Court stated:
A tenant in common may . . . acquire the title of cotenants
by constructive ouster. If a cotenant occupies the entire
property for twenty years to the exclusion of a cotenant it
is presumed there was an ouster at the time of the entry
and it is presumed the action of the occupying cotenant
during this period includes everything necessary to
establish adverse possession.
ATL. COAST PROPS., INC. V. SAUNDERS
McGEE C.J., dissenting
Herbert v. Babson, 74 N.C. App. 519, 521, 328 S.E.2d 796, 798 (1985) (citations
omitted). This Court further stated that:
If one tenant in common has been in sole and undisturbed
possession and use of the property for twenty years,
without any demand for rents, profits or possession by the
cotenants, constructive ouster of the cotenants is
presumed, and the ouster relates back to the initial taking
of possession by the tenant in possession. However, if the
tenant in possession does anything to recognize title of the
cotenants during the twenty-year period, the presumption
of ouster does not arise.
Id. at 522, 328 S.E.2d at 798 (citations omitted).
The presumption includes everything necessary to be
proved when the title can be ripened only by actual adverse
possession as defined by this Court, and is a most
reasonable inference of the law and justified under the
circumstances, first, because men do not ordinarily sleep
on their rights for so long a period, and, second, because a
strong presumption arises that actual proof of the original
ouster has become lost by lapse of time.
Dobbins v. Dobbins, 141 N.C. 210, 216, 53 S.E. 870, 872 (1906); see also Collier v.
Welker, 19 N.C. App. 617, 621-22, 199 S.E.2d 691, 695 (1973).
W.G. Moore lived on the disputed real property (“the property”) from 1921 until
his death in 1973. During that time, W.G. Moore farmed the property. His children,
including Angerona Moore Saunders (“Angerona Saunders”) and Edna Moore
Winslow (“Edna Winslow”) (together, “Respondents”), were born on the property.
W.G. Moore built a new home on the property in 1952 and then demolished the
original house. Both W.G. Moore and his wife, Edna, are buried on the property,
-2-
ATL. COAST PROPS., INC. V. SAUNDERS
McGEE C.J., dissenting
along with other family members. Neither Parlie Moore Baxter, nor any of her heirs
(“the Baxters”), occupied the property after 1921. The Baxters never paid taxes on
the property nor demanded rents, profits or possession at any time. Herbert, 74 N.C.
App. at 522, 328 S.E.2d at 798. In fact, there is no evidence of any communication
whatsoever between the Baxters and the W.G. Moore family until the early 1980s
when Respondents attempted to contact the Baxters, but received no response.
Approximately eighty-five years passed between the time W.G. Moore and his
family became the sole occupants of the property in 1921 and the filing of this action
in 2006. In order for Respondents to prevail, there need only have been one
uninterrupted twenty-year period within those eighty-five years to satisfy the
requirements set forth in Herbert. See Ellis v. Poe, 73 N.C. App. 448, 451, 326 S.E.2d
80, 83 (1985) (events occurring after the twenty-year period was complete could not
“constitute an acknowledgment of cotenancy” by the occupier). Once the
requirements of adverse possession by constructive ouster have occurred, title has
passed. Id. Petitioner acknowledges that all the requirements for constructive
ouster were present except, Petitioner contends, “[W.G.] Moore and his family
recognized the title of his brother and sister in the . . . property thus . . . rebutting
any presumption of ouster.” Our Supreme Court has acknowledged the strong
presumption that the requirements of adverse possession have been satisfied in
-3-
ATL. COAST PROPS., INC. V. SAUNDERS
McGEE C.J., dissenting
situations where the sole possession of the property in question by a cotenant was far
shorter than is the case here:
Justice Aston [reasoned] in that case: “Now, in this case,
there has been a sole and quiet possession for 40 years, by
one tenant in common only, without any demand or claim
for an account by the other, and without any payment to
him during that time. What is adverse possession or
ouster, if the uninterrupted receipt of the rents and profits
without account for near 40 years is not?” And by Justice
Willes: “This case must be determined upon its own
circumstances. The possession is a possession of 16 years
above the 20 prescribed by the statute of limitations,
without any claim, demand, or interruption whatsoever;
and therefore, after a peaceable possession for such a
length of time, I think it would be dangerous now to admit
a claim to defeat such possession.”
The proof in this case showed an exclusive, quiet, and
peaceable possession by the defendants and those under
whom they claim for more than 20 years – indeed for more
than 40 years – and the law presumes that there was an
actual ouster, not at the end of that period, but at the
beginning, and that the subsequent possession was adverse
to the cotenants who were out of possession. This
converted the estate in common, as between the former
cotenants, into one in severalty, in the defendants, and
defeated plaintiffs’ right to partition or to an ejectment.
Dobbins, 141 N.C. at 218, 53 S.E. at 873 (citations omitted).
Assuming, arguendo, that Respondents “recognized the title” of the alleged
cotenants, this “recognition” is immaterial if full title had already passed to W.G.
Moore at some earlier date. W.G. Moore would have obtained full title to the property
so long as he did not do anything to recognize title in the Baxters for any continuous
-4-
ATL. COAST PROPS., INC. V. SAUNDERS
McGEE C.J., dissenting
twenty-year period between 1921 and his death in 1973. Once the requirements for
constructive ouster for a twenty-year period were met, W.G. Moore obtained sole title
to the property pursuant to adverse possession. Dobbins, 141 N.C. at 217, 53 S.E. at
873. Once W.G. Moore, along with his wife, became sole owners of the property, they
could do with it as they pleased – including deciding to give a portion of it to the
Baxters. Beck v. Beck, 125 N.C. App. 402, 406, 481 S.E.2d 317, 320 (1997). I believe
Petitioner fails to forecast sufficient evidence to rebut the presumption of ouster.
Choosing a twenty-year period during W.G. Moore’s occupancy of the property, there
is only speculation that W.G. Moore did anything to recognize the Baxters’ interest
in the property during the twenty year period from 1921 to 1941.
Angerona Saunders was asked at her deposition:
[Petitioner’s Attorney]: And the reason you and your sister
were, I take it, honoring that interest [the Baxters’
purported interest] was that that’s something you felt like
your mother and father would have wanted you to do?
[Saunders]: Yes.
[Petitioner’s Attorney]: And something that they would
have done?
[Saunders]: Yes, I believe they would have done that.
Petitioner’s attorney asked Angerona Saunders if it was true that she “would not even
have contacted [the Baxters] had you not thought that was consistent with your
mother’s and father’s desires?” Angerona Saunders responded that she believed in
-5-
ATL. COAST PROPS., INC. V. SAUNDERS
McGEE C.J., dissenting
“doing things the right way” and in “doing it fair.” Angerona Saunders acknowledged
that that was how her parents “raised [her].”
Initially, Angerona Saunders nowhere stated that her parents at any time did
anything to acknowledge the Baxters’ interest in the property. Angerona Saunders
merely stated that she believed her parents would have wanted the Baxters to share
in ownership of the property because it was the “right thing” to do. This is merely
Angerona Saunders “belief,” it does not forecast the presence or absence of any fact.
Further, there is no indication of when Angerona Saunders’ parents might have
decided that they would share ownership of the property – assuming arguendo they
ever made such a decision. There is certainly nothing indicating that Angerona
Saunders’ parents held this belief or in any way did anything acknowledging the
Baxters’ interest in the property between 1921 and 1941. Angerona Saunders’ “belief”
in what her parents would have wanted her to do does not constitute evidence
sufficient to rebut the presumption of ouster.
In addition, Angerona Saunders was born in 1948, seven years after the
relevant period ended. Angerona Saunders could not have had any personal
knowledge of what occurred between 1921 and 1941. When Angerona Saunders was
asked “[d]o you ever remember your dad discussing anything about his interest in the
property[,]” she answered, “No.” Angerona Saunders testified that she knew that
Parlie Moore Baxter “lived in New York. I knew nothing about her, not one thing
-6-
ATL. COAST PROPS., INC. V. SAUNDERS
McGEE C.J., dissenting
about” the Baxters other than that W.G. Moore’s sister had married a Baxter and had
a son named Leroy.4 Angerona Saunders testified that W.G. Moore never talked to
her about why he never tried to contact his sister or her family. When asked if there
was “[a]nything else that you can recall your dad or your mom saying about the
Baxters[,]” Angerona Saunders answered, “[n]ope.” When Angerona Saunders was
asked if W.G. Moore had “ever indicate[d] to you all that he was aware that [the
Baxters] had an ownership interest in the property[,]” Angerona Saunders answered:
“He just told us that it was his father and just told us who they was. But that’s about
it, what he said.” When asked who she thought owned the property when she was
growing up, Angerona Saunders answered that “we was under the impression that
[W.G. Moore] was the one that owned it then, that nobody else was there or showed
up, no more than he and [his brother] Uncle Sherman.” Angerona Saunders testified
that she never heard W.G. Moore and her Uncle Sherman discuss the property, and
she never heard her mother or “anyone else” “mention anything about anyone else
owning any interest in the property[.]” Angerona Saunders never “conceded that
[her] recognition of the Baxters’ interests also was a view shared by [her] father[.]”
Concerning the survey that was conducted in 2007 showing a division of the property
into plots, Angerona Saunders stated they had the survey done because “[w]e were
4 Though the “family tree” included in the record indicates that Parlie Moore Baxter died in
1980, both Angerona Saunders and Edna Winslow testified that Parlie Moore Baxter died before either
of them was born.
-7-
ATL. COAST PROPS., INC. V. SAUNDERS
McGEE C.J., dissenting
going to convey them [some of the plots] to [the Baxters].”
Edna Winslow also gave deposition testimony in which she acknowledged that
her parents had “raised [her] to do the right thing.” The following exchange occurred
at her deposition:
[Petitioner’s Attorney]: And [your parents] had
acknowledged the Baxters’ ownership interest, and that’s
why you and your sister thought that you should [partition
the property]; is that fair?
[Winslow]: Yes.
[Respondents’ attorney]: Objection. Object to the form of
the question.
[Petitioner’s Attorney]: Well, tell me in your own words
why you felt like you needed to recognize the Baxters’
interest by including them in the division?
[Winslow]: Well, at the time we were going by what, you
know . . . we were doing it because it was Mack Moore’s
heirs.
Edna Winslow’s testimony demonstrates her belief that including the Baxters was
“the right thing” to do, and that that was “how her parents had raised her.” The
portion of Edna Winslow’s testimony where she answered affirmatively to Petitioner’s
attorney’s leading question concerning her parent’s acknowledgment of “the Baxters’
interest” was objected to, and Petitioner’s attorney rephrased the question as a non-
leading question. Edna Winslow’s subsequent testimony was that she and Angerona
Saunders were planning on including the Baxters in the partition of the property
-8-
ATL. COAST PROPS., INC. V. SAUNDERS
McGEE C.J., dissenting
because the Baxters were “Mack Moore’s heirs.”
Edna Winslow was born in 1943, two years after W.G. Moore had continuously
occupied the property for twenty years. Edna Winslow did not have any personal
knowledge of how either W.G. or Edna Moore treated the property during that time
period. When Edna Winslow was asked: “So about the only conversation you ever
heard your dad say about [Parlie Moore Baxter] was that she had married a Baxter[,]”
Edna Winslow answered: “Right.” Edna Winslow testified that she didn’t even know
if W.G. Moore knew that the Baxters lived in New York and that she learned most of
what she knew about the Baxters “from Uncle Sherman.” Edna Winslow stated that
her Uncle Sherman told her about the Baxters, but that her mother “never talked
about” any interest the Baxters might have had in the property. Edna Winslow knew
that Parlie Moore Baxter was the daughter of Mack Moore “by Uncle Sherman telling
us; and daddy told us he had a sister, but she was dead.” I do not understand Edna
Winslow’s testimony to have been “that she had known of the Baxters’ interest ‘since
growing up in [her] mom and dad’s house’ because family members often talked about
these out-of-state heirs to the property.” Edna Winslow testified in the following
manner:
[Winslow]: [The Baxters] were Mack Moore’s heirs, I guess.
[Petitioner’s Attorney]: Okay. And that’s something that
you had known since growing up in your mom and dad’s
house?
-9-
ATL. COAST PROPS., INC. V. SAUNDERS
McGEE C.J., dissenting
[Winslow]: Yeah. Uncle Sherman told us a lot about them.
[Petitioner’s Attorney]: What did he tell you a lot about?
[Winslow]: He just told us that [Parlie Moore Baxter] had
died and she had one son, and he was in a wheelchair.
Edna Winslow then agreed with Petitioner’s attorney’s question: “[T]hat’s where your
deceased aunt’s interest had ended up, was either with her husband or her son?”
Unfortunately, as the trial court was informed, Edna Winslow died before the
summary judgment hearing and would not be available to testify were this matter to
proceed to trial.
There is nothing in Edna Winslow’s testimony constituting evidence that W.G.
Moore ever did anything acknowledging any interest of the Baxters’ in the property,
much less that he did so in the period between 1921 and 1941. Further, even if we
were to consider this portion of the deposition as proof that W.G. Moore acknowledged
the Baxters’ interest in the property, there is no evidence allowing us to determine
when he did so. Because over eighty years have passed and Petitioner presented no
evidence to the trial court that W.G. Moore did anything to acknowledge the Baxters’
interest in the property from 1921 to 1941, “a strong presumption arises that actual
proof of the original ouster has become lost by lapse of time.” Dobbins, 141 N.C. at
216, 53 S.E. at 872.
I can find no testimony that “W.G. Moore . . . taught his two daughters about
the Baxters’ interests when they were children, [or] . . . talked about the Baxters’
- 10 -
ATL. COAST PROPS., INC. V. SAUNDERS
McGEE C.J., dissenting
interests at family gatherings[.]” The only testimony supporting the statement in the
majority opinion that “W.G. Moore recognized the Baxters’ interest” is the objected to
statement of Petitioner’s attorney at Edna Winslow’s deposition to which Edna
Winslow initially agreed. None of Edna Winslow’s personal deposition statements
indicate she ever discussed any interest the Baxters might have had in the property
with her father. Angerona Saunders testified that W.G. Moore never discussed such
matters with her, and growing up she understood her father to have owned the
property. Petitioner has produced no witness testimony from anyone who was alive
before 1941, nor any testimony from anyone who witnessed W.G. Moore do or say
anything recognizing the Baxters’ interest in the property during that time period.
It is correct that our Supreme Court in Clary considered testimony of a witness
to defeat a presumption of ouster. In Clary, a witness testified, concerning the
cotenant brother John Hatton (“Hatton”), who had resided on the property in question
for over twenty years before his death, and who had told the witness that
eight years before he died, and while [Hatton] was then
living on the lot, that he only claimed or owned one-third
of the lot, and his sisters each owned a third, and for that
reason he had not improved it and did not wish to spend
any money on it.
These declarations of John Hatton are inconsistent with a
claim of sole ownership or exclusive possession, and are
competent, not to impeach any title that he had already
acquired by twenty years’ possession, but to show that in
reality he had never acquired any title by such possession,
because his possession during the entire period it
- 11 -
ATL. COAST PROPS., INC. V. SAUNDERS
McGEE C.J., dissenting
continued, from 1872 to the day the declaration was made,
was of a permissive and not of an adverse character; and
that is was with his sisters’ consent. This would tend to
rebut any presumption of an ouster at any time prior to
such declaration.
Clary v. Hatton, 152 N.C. 107, 109, 67 S.E. 258, 259 (1910) (emphasis added). I
emphasize the portion of the quote above because I want to make clear that once title
is acquired through adverse possession, no subsequent acknowledgment to the
contrary will defeat it. I do not maintain that “all evidence after 1941 is essentially
irrelevant.” The holding in Clary stands for the proposition that an occupying
cotenant’s statements may be used to prove he never acquired sole title in the first
instance.
I disagree that the situation in Clary is nearly identical to the one before us.
In Clary, the witness testified that he had had a conversation with Hatton in 1900,
and that Hatton expressly stated that his occupation was permissive. The witness in
Clary was alive and testified to this conversation directly, and Hatton’s statement
was made only eight years after the relevant period. Further, Hatton died in 1908,
and the action was brought against his heirs in early 1909. In the present case, Edna
Winslow was not yet alive in the relevant period; because she passed away following
her deposition, she can make no clarification concerning her understanding of the
Baxters’ “interest” beyond the clarification discussed above; and the Baxters never
brought suit against Defendants. Further, the statement made by Hatton in Clary
- 12 -
ATL. COAST PROPS., INC. V. SAUNDERS
McGEE C.J., dissenting
was unequivocal. In the present case we can only speculate concerning whether W.G.
Moore even made a statement, much less what his meaning and intent might have
been. Finally, the Baxters did not act immediately to protect their interest. They did
nothing for approximately eighty-five years until Petitioner purchased whatever
interest they might have had. Now Petitioner is attempting to determine what W.G.
Moore’s state of mind was approximately sixty-five years ago.
In my opinion it is the “strong presumption . . . that actual proof of the original
ouster has become lost by lapse of time” that defeats Petitioner’s challenge to the
granting of summary judgment. W.G. and Edna Moore are deceased. Without any
tangible evidence of an acknowledgment of the Baxters’ interest during the relevant
period, and with no testimony raising more than a permissible inference that there
was no twenty-year period in which Moore failed to acknowledge the Baxters’
interest, I would hold that summary judgment was correct. The evidence presented
to the trial court could only allow the jury to infer that W.G. Moore might have
recognized an interest in the Baxters at some unknown time. The presumption in
Dobbins is tailored for the situation before us. The presumption is that evidence of
W.G. Moore’s intent to solely possess the property has been lost due to the passing of
approximately eighty-five years in which the Baxters failed to assert their rights.
The sole enjoyment of property for a great number of years,
without claim from another, having right and under no
disability to assert it, becomes evidence of a title to such a
sole enjoyment; and this not because it clearly proves the
- 13 -
ATL. COAST PROPS., INC. V. SAUNDERS
McGEE C.J., dissenting
acquisition of such right, but because from the antiquity of
the transaction, clear proof cannot well be obtained to
ascertain the truth, and public policy forbids a possessor to
be disturbed by stale claims when the testimony to meet
them cannot easily be had. Where the law prescribes no
specific bar from length of time, 20 years has been regarded
in this country as constituting the period for a legal
presumption of such facts as will sanction the possession
and protect the possessor.
Dobbins, 141 N.C. at 216-217, 53 S.E. at 872 (citation and quotation marks omitted)
(emphasis added); see also id. at 216, 53 S.E. at 872 (“‘The possession of one tenant
in common is in law the possession of all his cotenants, because they claim by one
common right. When, however, that possession has been continued for a great
number of years, without any claim from another who has a right, and is under no
disability to assert it, it will be considered evidence of title to such sole possession;
and where it has so continued for twenty years, the law raises a presumption that it
is rightful, and will protect it. This it will do, as well from public policy, to prevent
stale demands, as to protect possessors from the loss of evidence from lapse of time.’”)
(citation omitted) (emphasis added). Our Supreme Court has already addressed the
policy considerations inherent in this type of property dispute involving “stale claims
when the testimony to meet them cannot easily be had.” Id.
The Baxters did nothing to claim any right in the property for approximately
eighty-five years, and the testimonies of Angerona Saunders and Edna Winslow do
not constitute “more than a scintilla [of evidence] or a permissible inference” that
- 14 -
ATL. COAST PROPS., INC. V. SAUNDERS
McGEE C.J., dissenting
W.G. Moore ever did anything to recognize the Baxters’ interest in the property. Id.
(citation omitted). This constituted a constructive ouster.
[Constructive ouster] is a disseizin by one tenant of his
cotenant, the taking by one of the possession and holding
it against him by an act or series of acts which indicate a
decisive intent and purpose to occupy the premises to the
exclusion and in denial of the right of the other. This is
what the law presumes, whether it be in exact accordance
with the real facts or not. It is a presumption the law raises
to protect titles, and answers in the place of proof of an
actual ouster and a supervening adverse possession. The
presumption includes everything necessary to be proved
when the title can be ripened only by actual adverse
possession as defined by this [c]ourt[.]
Dobbins, 141 N.C. at 215-16, 53 S.E. at 872. I would hold that there is no genuine
issue of material fact and that summary judgment was proper.
- 15 -