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NO. COA10-1213 NORTH CAROLINA COURT OF APPEALS Filed: 17 May 2011 PHILIPPE WHITE, and Wife, ELIZABETH S. WHITE, Petitioners, v. ROBERT LEROY FARABEE, Unmarried; RICHARD EUGENE RASBERRY, and Spouse, if any; HOSEA R. RASBERRY, Unmarried; CHARLES ALBERT ISLEY, JR., and Spouse, if any; ERNEST LEMELL ISLEY, and Spouse, if any; WILLIAM CECIL DOUGLAS ISLEY, and Wife, CECELIA ISLEY; RALPH MALCOLM POLLARD, Unmarried; EDWINA M. DELONEY, Unmarried; FREDERICK A. SMITH, and Wife, BERTHA M. SMITH; PATRICIA S. DAY, and Husband, JOHN W. DAY; JOYCE L. BRASWELL LIVINGSTON, Unmarried; KENNETH E. WHITESIDE, and Wife, JOAN D. WHITESIDE; STEPHANIE MARIE SIMMONS, Unmarried; RICARDO BENNERMAN, Unmarried; BRENT F. KING, Trustee; UNITED GENERAL MORTGAGE CORPORATION, Noteholder; PROPERTY MANAGEMENT SERVICES, INC., Judgment Creditor; UNITED STATES OF AMERICA, Lienholder; and Any Persons and Their Spouses, Firms or Corporations Who May Have Acquired Any Interest By Assignment, Transfer, Sale, Will, Devise, Bequest or Laws of Descent And Distribution Or In Any Manner Whatsoever, by, Through, Or Under Ceola Elizabeth Smith (Specifically Including But Not Limited to Those Acquiring Such An Interest By, Through, Or Under Guilford County No. 06 SP 563

-2Ozella J. Smith Rasberry, Charlotte Beatrice Smith Pollard, Lewis E. Smith, Carl Shepard, Wade Shepard and/or Boy Smith, born August 4, 1917), Respondents.

1.

Appeal and Error -- interlocutory order-- adverse possession -- all interests not resolved An order addressing the property interests of some of the parties to an adverse possession claim was interlocutory, but the appeal was nevertheless heard, where there were overlapping factual issues between the claims being appealed and those left to be determined in a partition action.

2.

Adverse Possession -- color of title -- execution and delivery of deeds The trial court erred by finding that some of the respondents had acquired title by adverse possession under color of title where four groups of relatives who had been paying property taxes on family property assumed they were the proper owners and exchanged reciprocal deeds dividing the property. Although the date inscribed at the top of the deeds was more than seven years prior to the action, some of the deeds were not signed, and therefore not delivered, until less than 7 years before the action.

NO. COA10-1213 NORTH CAROLINA COURT OF APPEALS Filed: 17 May 2011 PHILIPPE WHITE, and Wife, ELIZABETH S. WHITE, Petitioners, v. ROBERT LEROY FARABEE, Unmarried; RICHARD EUGENE RASBERRY, and Spouse, if any; HOSEA R. RASBERRY, Unmarried; CHARLES ALBERT ISLEY, JR., and Spouse, if any; ERNEST LEMELL ISLEY, and Spouse, if any; WILLIAM CECIL DOUGLAS ISLEY, and Wife, CECELIA ISLEY; RALPH MALCOLM POLLARD, Unmarried; EDWINA M. DELONEY, Unmarried; FREDERICK A. SMITH, and Wife, BERTHA M. SMITH; PATRICIA S. DAY, and Husband, JOHN W. DAY; JOYCE L. BRASWELL LIVINGSTON, Unmarried; KENNETH E. WHITESIDE, and Wife, JOAN D. WHITESIDE; STEPHANIE MARIE SIMMONS, Unmarried; RICARDO BENNERMAN, Unmarried; BRENT F. KING, Trustee; UNITED GENERAL MORTGAGE CORPORATION, Noteholder; PROPERTY MANAGEMENT SERVICES, INC., Judgment Creditor; UNITED STATES OF AMERICA, Lienholder; and Any Persons and Their Spouses, Firms or Corporations Who May Have Acquired Any Interest By Assignment, Transfer, Sale, Will, Devise, Bequest or Laws of Descent And Distribution Or In Any Manner Whatsoever, by, Through, Or Under Ceola Elizabeth Smith (Specifically Including But Not Limited to Those Acquiring Such An Interest By, Through, Or Under Guilford County No. 06 SP 563

-2Ozella J. Smith Rasberry, Charlotte Beatrice Smith Pollard, Lewis E. Smith, Carl Shepard, Wade Shepard and/or Boy Smith, born August 4, 1917), Respondents. Appeal by petitioners from order entered 21 April 2010 by Judge Ronald E. Spivey in Guilford County Superior Court. in the Court of Appeals 7 March 2011. Robertson, Medlin & Bloss, PLLC, by petitioner-appellants. John F. Bloss, for Heard

Land Loss Prevention Project, by Mary E. Henderson and Jeffrey M. Jandura, for Patricia Day and Kenneth and Joan Whiteside respondent-appellees. Tuggle Duggins & Meschan, PA, by John R. Barlow, II, and Michael S. Fox, for Natasha Braswell respondent-appellee. McCULLOUGH, Judge. Petitioners appeal from an order entered by the trial court in favor of respondents, finding that each of the four

respondents had acquired title to portions of a certain piece of real property by adverse possession under color of title. careful review, we reverse. I. On 22 June 1961, Ceola Background Elizabeth Smith ("Ceola") died After

intestate seized of a 70-acre parcel of real property located in Guilford County, North Carolina ("the Ceola Smith Property").

-3The Ceola Smith Property is undeveloped, having only a single driveway and no habitable buildings. In the years following

Ceolas death, certain of her grandchildren continued to pay the taxes on the four Ceola groups Smith of Property. relatives, These were: grandchildren, (1) respondents

comprising

Patricia Day ("Day") and her husband, John

Day (collectively

"the Days"1); (2) respondents Frederick Smith, Jr. ("Smith") and his wife, Bertha Smith (collectively, "the Smiths"); (3) Joyce Livingston ("Livingston"); and (4) respondents Edwina Deloney ("Deloney") and Ralph Malcolm Pollard ("Pollard"). Eventually, these four groups of family members decided to voluntarily divide the Ceola Smith Property into four tracts, each owned by one of the four groups of relatives that had been paying one-fourth since of the property taxes on the Ceola Smith of

Property

Ceolas

death.

Despite

their

awareness

multiple other heirs of Ceola, these four groups of relatives assumed they were the only proper owners of the Ceola Smith Property by virtue of having paid all of the property taxes in the years following Ceolas death. Accordingly, in June 1998,

these four groups of relatives collectively hired a surveyor to divide the Ceola Smith Property into four approximately equal parcels, and employed a lawyer to prepare four reciprocal deeds for those parcels.
1

At the time of trial John Day was deceased.

-4One such reciprocal deed granted the Days an 18.69-acre parcel of the Ceola Smith Property (the "Day tract"). October 2004, the Days On 4

conveyed a 2.00-acre portion of this

parcel (the "Whiteside tract") to Days daughter and son-in-law, respondents Another such Joan and Kenneth deed Whiteside granted ("the Whitesides"). a 20.00-acre

reciprocal

Livingston

parcel of the Ceola Smith Property (the "Livingston tract"). Livingston died intestate on 12 January 2002, and one of her four children, respondent of the Natasha Braswell tract ("Braswell"), on behalf of now her

claims

ownership

Livingston

mothers estate. The four reciprocal deeds all state on their face that they were "made" on 15 December 1998. Day testified during trial

that she and her brother, Smith, picked up the unsigned deeds from the preparing lawyers office some time in December 1998. At one point, Day testified she signed the deeds on that day, after picking them up from the lawyers office. Day then mailed

the deeds for signature to Livingston, Deloney, and Pollard, each of whom lived at different locations in New Jersey. The signed deeds, bearing the signatures of Livingston, Upon

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North Carolina Law