This matter resulted from a boundary dispute between the parties and illustrates the rationale behind the legal maxim that defending a title case is usually preferable to prosecuting one. Each side claimed superior title to approximately seven acres of land. The plaintiff filed a complaint seeking a judgment declaring him owner of the property, "free from the claim of the Defendants." The defendants filed an answer, counterclaim, and cross-claim. The trial court granted the plaintiff's motion to join Donald and Ann Smart, who purchased the property from plaintiff. The trial court entered a consent order which provided that the court "shall hear only issues related to plaintiffs' assertion that it has superior record title to the property in dispute by reason of a connected chain of title to the State of North Carolina." By consent, the trial was bifurcated, allowing the defendants "the opportunity, if necessary, to prosecute their counterclaims…"

At the bench trial, the plaintiffs proceeded to prove their claim of superior title by virtue of a series of conveyances originating from three grants by the State of North Carolina. The plaintiffs proved a connected chain of title from themselves back to an individual named John Storie. They also proved a connected chain of title to William Storie from the State. The defendants challenged the plaintiffs' proof regarding the connection in the chain of title between William Storie and John Storie. The plaintiffs offered evidence of a partition proceeding among the heirs of Wm. A. Storie. The evidence included a report of the "Jurors who laid and partitioned real estate of Wm. Storie Dec. [deceased] among his heirs at law on 15^th day of June 1880 . . ..". The jurors allotted John Storie a parcel of land from the William A. Storie property, and provided a legal description of that parcel.

Plaintiffs' expert testified that all of the deeds in their chain of title were valid deeds, and that all of the documents established a connected chain of title. On cross-examination, he admitted that the partition proceeding documents do not indicate whether all heirs were included in the proceeding, and that the proceeding would not be effective if an individual heir was not included. He stated that he "would pass on titles where you may not have all the heirs but you feel reasonably assured that you did, particularly if it's this old." and that plaintiffs had established "good title."

The trial court determined that the plaintiffs had established "a legally sufficient chain of title back to the State of North Carolina, and Plaintiffs' title to the disputed property is superior to Defendants;" and entered judgment declaring plaintiffs to be the owners in fee simple of the property. On appeal, the defendants contended that the trial court erred in holding that plaintiffs proved an unbroken chain of title from the State of North Carolina in that they argued that plaintiffs had not established a valid connection in the chain of title between William Storie and John Storie. The Court of Appeals points out that a "party may establish good title to real property by several methods, one of which involves proof of a connected chain of title from the party to the State of North Carolina. Mobley v. Griffin, 104 N.C. 112, 10 S.E. 142 (1889)."

The record is reviewed by the Court of Appeals as follows: "The documentary evidence offered by plaintiffs included a "decree for partition," signed by "J.H. Hardin, CSC, Probate Judge"; a "partition" of the "landed estate of Wm. A. Storie," which specifically allotted to John Storie a parcel of land from the Wm. A. Storie property, and described that parcel; and a report of the partition by the "duly appointed" commissioners, which stated, ‘The foregoing Reports of the Jurors who laid and partitioned real estate of Wm. Storie Dec.[deceased] among his heirs at law on 15^th day of June 1880 is enrolled and together with the Judgment and decree confirming the same is hereby certified to the Register of Deeds of Watauga County and ordered to be registered in the Register's office of said county (emphasis added).’ The report was dated 29 June 1880 and signed by ‘J.H. Hardin, CSC, Probate Judge.’" Plaintiffs' expert also testified regarding the connection in the chain from William Storie to John Storie. He stated that the Commissioner's report "does include the property in question. And although it may not be a deed, it does, I think, convey, pass on the title." He stated that "the chances of a challenge to the partition were ‘remote,’ and that plaintiffs had established ‘good title’ on the basis of ‘this document and the full chain of title.’" He further explained, "if you go back into the 1880s and 1890s and you worry about every time something may not have been procedurally correct in accordance with the procedural rules at that time and there may have been a missing heir, we wouldn't have many good titles."

We think that the Court missed an opportunity to clarify the law on this point. It is extremely difficult to prove a negative. In this case, it would be virtually impossible to prove the non-existence of heirs not made parties to the proceeding. It should be noted that report purports to be a partition among William Storie’s "heirs", not merely some of his heirs. Implicit in this statement is that the pleading would have alleged that all heirs were made parties. As the report was not equivocal, it should be considered as prima facie evidence of the identity of William Storie’s heirs. There is no discussion of any evidence being submitted that any other heir existed and no discussion of any actual defects in procedure. The lack of rebuttal evidence as to the actual existence of other heirs or defective procedure should entitle the party to a directed verdict. Intestate property passes to the heirs as tenants in common. Title in the whole with co-existing rights of possession is a fundamental characteristic of a tenancy in common. It should also be noted that partition does not constitute a conveyance or pass title, but rather assigns exclusive possession to a portion of the property to each tenant. Since 1868, the registration of the report and confirmation order has made them binding on the parties, their heirs and assigns (NCGS Sec. 46-20).

The absence of any evidence as to the passing of property by inheritance is fatal to a proceeding that rests upon a connected chain of title. The Court distinguished the plaintiffs' chain of title from the title found defective in "McDonald v. McCrummen, 235 N.C. 550, 70 S.E.2d 703 (1952), cited by defendants in support of their contention that plaintiffs' chain was incomplete. In McDonald, land was granted by the State of North Carolina to Aaron Murchison, and years later an"O.B. Murchison" purported to convey this same land through a deed to the plaintiff. There was no evidence, however, that O.B. Murchison was an heir to Aaron Murchison or that he otherwise acquired title from Aaron Murchison: It may be that O. B. Murchison is the heir, or an heir of the first, and as such could maintain an action against a third party to recover the land, [citation omitted] but the testimony of plaintiff is that "I do not know what kin O. B. Murchison was to A. A. Murchison, --they were some of my own people." Titles to land may not rest in so thin veil of uncertainty. Id. at 553, 70 S.E.2d at 706. In McDonald, because the plaintiff provided no documentation of a conveyance from Aaron Murchison to O.B. Murchison, there was an actual break in the chain from the State to the plaintiff. As the Supreme Court explained, "the trouble with this effort is that it does not connect." Id. at 553, 70 S.E.2d at 705." Note that there was no evidence of inheritance or documentation of conveyance. They are not the same and while documentation concerning heirs is probative, it is not the only way to establish title by inheritance.

The Court properly relies on documentary evidence in this case and contrasts McDonald by noting that "the partition proceeding is one of a series of documents conveying the land originally owned by the State and currently owned by plaintiffs. The partition proceeding states that the landed estate of William Storie, deceased, was to be divided among his heirs at law, which included John Storie. The trial court found facts establishing the chain of title and concluded as a matter of law: "Plaintiffs' [sic] have a legally sufficient chain of title back to the State of North Carolina, and Plaintiffs' title to the disputed property is superior to Defendants." Unlike the plaintiff's chain in McDonald, the partition proceeding conveyance in the present plaintiffs' chain connected the title from William Storie to his heir at law, John Storie. Defendants concede plaintiffs in the present case provided a connected chain from the State to William Storie, and from John Storie to plaintiffs." The Court affirms the "trial court's conclusion that plaintiffs have established a connected chain of title to an original grant from the State of North Carolina, superior to defendants' title, Mobley v. Griffin, supra, and defendants assignments of error to the contrary are overruled."

In their second argument, the defendants asserted that the trial court erred in holding that plaintiffs proved that the property described in their current deed is included within the descriptions in each of the documents comprising their chain of title. The Court states that "where title to land is in dispute, the 'claimant must show that the area claimed lies within the area described in each conveyance in his chain of title and he must fit the description contained in his deed to the land claimed.’ Cutts v. Casey, 271 N.C. 165, 167, 155 S.E.2d 519, 521 (1967) (citations omitted). Nevertheless, [t]he fact that the descriptions in deeds forming the chain of title are not identical is not material if the differing language may in fact fit the same body of land, and if it is apparent from an examination of the descriptions in the several deeds that the respective grantors intended to convey the identical land, effect will be given to the intent. E. I. Du Pont De Nemours & Co. v. Moore, 57 N.C. App. 84, 88, 291 S.E.2d 174, 176, cert. denied, 306 N.C. 383, 294 S.E.2d 207 (1982) (citation omitted)."

The trial court made the following findings of fact:

"29. Plaintiffs' expert witness, surveyor Frank Hayes, has located the subject property and all of the properties within Plaintiffs' chain of title on the earth's surface by reliance, inter alia, on the following:

a. All documents in Plaintiffs [sic] chain of title as reflected in the public records;

b. Various documents in the chains of title of surrounding property owners;

c. Various unrecorded maps relating to the subject property;

d. Location of physical monuments on the ground, being those reflected on the various surveys, maps and charts entered into evidence;

e. Location of a ridge (as described in Grant 1050);

f. Location of Grants 119 on the ground (adjacent to Plaintiffs' property on the western boundary), and reliance on consistent calls between Grant 119 and Plaintiffs' Grants;

g. Use of aerial photographs depicting use of Plaintiffs' property in the 1940's and 1950's;

h. Location of marked trees along the northern boundaries of Grant 33;"

The trial court, relying on the surveyors testimony and opinion, also found that "all of the disputed property ‘is included in Plaintiffs' Property,’ but that the legal description of defendants' property does not include ‘all of the disputed land.’" The surveyor testified that the description in plaintiffs' deed "fits into the composite of the deeds of the back title." These surveyors made actual surveys done on the ground. The defendants' evidence included the testimony of surveyors who did not undertake a survey of the parties' respective properties. Instead, they merely reviewed existing surveys prepared by the parties or conducted surveys of adjoining properties. One surveyor purportedly stated that "he had no opinion as to who owned the overlapping area which was the subject of the cause of action."

The Court of Appeals ruled that the trial court's findings were supported by competent evidence and that the findings supported its conclusions and affirmed the decision. The plaintiffs were successful in this action, because they were able to present probative evidence of a connected chain of title. Nonetheless, it should be considered a cautionary tale for title examiners. We are often requested to insure titles that contain gaps in the chain of title. These most commonly occur as a result of estates that have not been administered. We often find an adequate factual basis to support an underwriting decision to insure them. As a result of the lessons illustrated by this case, attorneys should carefully consider the wisdom of pursuing such a course based upon the bare record when undeveloped, unoccupied land is involved.