              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA14-979

                                Filed: 6 October 2015

Lenoir County, No. 13 CVS 291

LESLIE FREDERICK QUINN, Plaintiff,

             v.

DANNY S. QUINN and wife, PATRICIA QUINN, Defendants.


      Appeal by plaintiff from order entered 27 February 2014 by Judge Benjamin

G. Alford in Superior Court, Lenoir County. Heard in the Court of Appeals 20

January 2015.


      White & Allen, P.A., by E. Wyles Johnson, Jr. and Ashley Fillippeli Stucker, for
      plaintiff-appellant.

      Wooten & Coley, by William C. Coley III and Everette L. Wooten, Jr., for
      defendant-appellees.


      STROUD, Judge.


      Plaintiff appeals order granting summary judgment in favor of defendants.

For the following reasons, we reverse and remand.

                                    I.     Background

      This case would make a good bar exam question, or perhaps several questions,

since so many legal issues are raised.   The briefs in this case have been of limited

assistance to this Court, since both parties argue important facts diametrically

opposed to those they previously asserted in their pleadings or depositions or both.
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                                       Opinion of the Court



        On 10 May 2004, the deed which is the subject of this dispute was recorded in

the Lenoir County Register of Deeds in Book 1378, Page 691 of the Lenoir County

Register of Deeds (“recorded deed”).1 The date on the deed when it was executed is

12 March 1999, but it was not notarized until 10 May 2004, the same day as

recordation, by defendant Patricia Quinn. The recorded deed has no revenue stamp

but recites that it was given for consideration. Plaintiff alleges in his complaint it

was a gift deed.

       It is undisputed in deposition testimony that the recorded deed arose from an

agreed-upon exchange of two parcels of property between plaintiff and his brother,

Thomas Quinn and wife, Inez Quinn.              The deed from Thomas and Inez Quinn to

plaintiff, which is not a subject of this case, was also executed on 12 March 1999 and

not recorded until 10 May 2004 in Book 1378, Page 689 of the Lenoir County Register

of Deeds.

       In March of 2013, plaintiff filed a verified complaint against defendants. In

the complaint, plaintiff alleges that he “made and executed” a gift deed from himself

to defendants in 1999. Defendant Patricia Quinn notarized the deed in 2004, and it

was then recorded. Plaintiff alleges that defendant Patricia Quinn “was disqualified

to notarize” the deed “because she stood to receive directly from” it, and thus the deed



       1 Other individuals are involved, at times, as grantors and grantees on the deeds discussed,
but because their involvement is not at issue, we limit listing grantors and grantees to those
individuals necessary for an understanding of this case.

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should be treated as unrecorded. Plaintiff also alleged that because the deed was a

gift that went unrecorded for more than two years, it is now void. Plaintiff made

claims for a declaratory judgment, quiet title, and ejectment.

      In May of 2013, defendants filed a motion to dismiss and answered plaintiff’s

complaint denying that plaintiff had “made and executed” a deed to them and

asserting that the deed was not a gift and that defendant Patricia Quinn had indeed

notarized the deed in 2004.      Defendants denied the substantive allegations of

plaintiff’s claims. Defendants claimed that

             [b]efore the deed was recorded, the first page of the deed
             was replaced with one showing . . . Danny and Patricia as
             Grantees. This was done at the direction of Thomas and
             Inez as they intended throughout for this land to be Danny
             and Patricia’s since it adjoined land already owned and
             occupied by Danny and Patricia.

Defendants alleged numerous affirmative defenses and counterclaimed in the

alternative that if the recorded deed was void they should receive an award of

damages for unjust enrichment and betterments for improvements they made to the

property and if the recorded deed was valid they should have removal of any cloud on

their title. In July of 2013, plaintiff answered defendant’s counterclaims and raised

numerous affirmative defenses.

      On 29 August 2013, plaintiff was deposed. Plaintiff explained that he and his

brother, Thomas Quinn, agreed to exchange two parcels of land.         According to

plaintiff, he did not sign a deed with Danny and Patricia Quinn as the grantees, but


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he executed a deed to Thomas Quinn as grantee. This testimony contradicts the

allegations of his complaint but is consistent with the defendants’ answer and

forecast of evidence.

       The following day, defendant Patricia Quinn was also deposed. Defendant

Patricia Quinn stated that she notarized a deed signed by plaintiff as grantor and

Thomas Quinn as grantee. Defendant Patricia Quinn vehemently denied numerous

times throughout her deposition that she had ever notarized a deed from plaintiff to

herself. According to defendant Patricia Quinn, page two of the recorded deed, the

page signed by plaintiff and notarized by her, was not attached to page one as it is

now recorded with defendants’ names on it; defendant Patricia Quinn stated that

when plaintiff signed the deed and she notarized it, page one reflected the grantee as

Thomas Quinn. Defendant Patricia Quinn further opined that she did not believe

plaintiff was aware the pages were switched.2

       Thus, in summary, plaintiff filed a complaint alleging solely “technical” issues

regarding the recorded deed from himself to defendants; plaintiff does not allege that

the recorded deed is fraudulent or in any way not the deed he originally executed in



       2    Although this fact is directly contrary to defendant Patricia Quinn’s own emphatic and
repeated deposition testimony, defendant-appellees’ brief states that “Appellant . . . executed the deed
. . . to Appellees.” The recorded deed was notarized by Appellee Patricia W. Quinn. Thus, the facts as
argued in defendants’ brief contradict both defendants’ answer and defendant Patricia Quinn’s
deposition which both assert that plaintiff signed and defendant Patricia Quinn notarized a deed to
Thomas Quinn. For purposes of our discussion, we are using the version of the facts presented by
defendants’ pleadings and defendant Patricia Quinn’s deposition, instead of the one argued by
defendants’ counsel in defendants’ brief, although in the end, the result is the same either way.

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1999. Defendants denied that plaintiff had executed a deed to them as grantees.

Plaintiff then clarified that the deed he executed was actually to his brother, Thomas

Quinn. Defendant Patricia Quinn agreed with plaintiff and testified under oath that

plaintiff signed a deed to Thomas Quinn and that is the deed she notarized. Thus,

without speculation as to the family discord which most likely lies behind this

scenario, because a determination of credibility can be made only by the jury or the

trial judge sitting as such, there seem to be two possibilities from the facts as provided

thus far:   (1) If plaintiff’s complaint is taken as true, plaintiff gave his land to

defendants, and defendant Patricia Quinn notarized the deed to herself as a grantee

or (2) if all of the other evidence is taken as true, plaintiff gave the land to his brother

Thomas Quinn, and in 2004 defendant Patricia Quinn notarized that deed. Patricia

Quinn believed that Thomas and Inez took the deed to their attorney after it was

signed by plaintiff in an attempt “to save money and time or whatever to just not

have it recorded in their names” because they would have to switch it later to put the

land into defendants’ names, but again, this scenario is based upon defendant

Patricia Quinn’s speculations, and not even she asserts this is what actually occurred.

However, even taking defendant Patricia Quinn’s assumptions as true, this would

mean that plaintiff never properly signed the deed as it was recorded. We are not

aware of any evidence brought forth by defendants that indicates plaintiff executed a




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deed to them; rather their pleadings and defendant Patricia Quinn’s deposition

indicate the opposite.

        On 7 October 2013, plaintiff filed a motion for summary judgment. On 20

February 2014, the trial court entered an order granting defendants’ motion to

dismiss plaintiff’s claim for a declaratory judgment and denying defendants’ motion

to dismiss plaintiff’s claims for quiet title and ejectment. 3 On 27 February 2014, the

trial court granted summary judgment on plaintiff’s claim for quiet title and

ejectment in favor of defendants; the trial court also granted summary judgment in

favor of defendants on their claim of quiet title and “ordered that any ‘cloud on title’

of the Defendants by any claim of the Plaintiff . . . is hereby removed.” Thus, because

the recorded deed was not determined to be void, all claims were resolved. Plaintiff

appeals only the summary judgment order in which the trial court dismissed

plaintiff’s claims for quiet title and ejectment and granted summary judgment for

defendants on their counterclaim to quiet title and remove any cloud on title.

                                        II.     Standard of Review

                       A trial court appropriately grants a motion for
                summary judgment when the information contained in any
                depositions, answers to interrogatories, admissions, and
                affidavits presented for the trial court’s consideration,


        3 The order dismissing plaintiff’s claim for declaratory judgment was not appealed, and we
have been unable to discern to what effect, if any, this order has upon the case. It is not clear why the
trial court dismissed the declaratory judgment claim, while thereafter ruling upon other claims based
upon all of the same factual and legal allegations. It seems that both the trial court and parties
disregarded the labels of the claims in the complaint and simply addressed the legal dispute as to the
validity of the deed.

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                                    Opinion of the Court



             viewed in the light most favorable to the non-movant,
             demonstrates that there is no genuine issue of material fact
             and that the movant is entitled to judgment as a matter of
             law. As a result, in order to properly resolve the issues that
             have been presented for our review in this case, we are
             required to determine, on the basis of the materials
             presented to the trial court, whether there is a genuine
             issue as to any material fact and whether the moving party
             is entitled to judgment as a matter of law. Both before the
             trial court and on appeal, the evidence must be viewed in
             the light most favorable to the nonmoving party and all
             inferences from that evidence must be drawn against the
             moving party and in favor of the non-moving party. When
             there are factual issues to be determined that relate to the
             defendant’s duty, or when there are issues relating to
             whether a party exercised reasonable care, summary
             judgment is inappropriate. We review orders granting or
             denying summary judgment using a de novo standard of
             review, under which this Court considers the matter anew
             and freely substitutes its own judgment for that of the trial
             court.

Trillium Ridge Condominium v. Trillium Dev., ___ N.C. App. ___, ___, 764 S.E.2d

203, 210–11 (citations, quotation marks, and brackets omitted), disc. review denied,

___ N.C. ___, 766 S.E.2d 619, disc. review denied, ___ N.C. ___, 766 S.E.2d 646, disc.

review denied, ___ N.C. ___, 766 S.E.2d 836 (2014); see N.C. Gen. Stat. § 1A-1, Rule

56 (2013).

                             III.    Summary Judgment

      It is elementary that summary judgment is proper only where there is no

genuine issue of a material fact when the evidence is viewed in the light most

favorable to the non-movant, and a party is clearly entitled to prevail based on the



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law. See id. Here, there are factual disputes, and we must consider whether the

factual issues are material to the various legal theories raised by both plaintiff’s

claims and defendant’s counterclaims. Here, plaintiff was the party who moved for

summary judgment, and plaintiff argues on appeal that the trial court should have

granted summary judgment for him, although the trial court granted summary

judgment for defendants. Defendants naturally argue that summary judgment in

their favor was proper. Since both plaintiff and defendants argue that summary

judgment was proper, if granted in their own favor, both argue that the material facts

are undisputed, but then they draw differing inferences of the facts. Thus we must

consider how the law fits in with this conflict.

       Turning to the law, summary judgment here was granted in favor of

defendant’s on the legal claim of quiet title while plaintiff’s claim for quiet title was

dismissed.4

               An action to quiet title to realty pursuant to section 41-10
               of the North Carolina General Statutes requires two


       4  The trial court granted summary judgment in favor of defendants on plaintiff’s claim titled
“EJECTMENT.” We assume that what plaintiff meant by ejectment is a request for the trial court to
order defendants to vacate the property upon determining that plaintiff owed it. However, ejectment
would actually seem to be a remedy and not a claim; furthermore, this remedy is only appropriate in
the context of a landlord-tenant relationship. See Adams v. Woods, 169 N.C. App. 242, 244, 609 S.E.2d
429, 431 (2005) (“The summary ejectment remedy provided for in N.C. Gen. Stat. § 42–26 is restricted
to situations where the relationship of landlord and tenant exists. The district court has jurisdiction
to hear a summary ejectment proceeding even if the plaintiff does not allege a landlord-tenant
relationship in the complaint, but this relationship must be proven in order for the plaintiff's remedy
to be granted. If the record lacks evidence to support a finding of a landlord-tenant relationship, the
court must dismiss the plaintiff’s cause of action.” (citations omitted)).




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             essential elements: (1) the plaintiff must own the land in
             controversy, or have some estate or interest in it; and (2)
             the defendant must assert some claim to such land adverse
             to the plaintiff's title, estate or interest.

New Covenant Worship Ctr. v. Wright, 166 N.C. App. 96, 103, 601 S.E.2d 245, 250-51

(2004); see N.C. Gen. Stat. § 41-10 (2013). The trial court also granted defendant’s

request to remove cloud on title, and the elements of this claim are the same as those

for quieting title. See Chicago Title Ins. Co. v. Wetherington, 127 N.C. App. 457, 461,

490 S.E.2d 593, 596-97 (1997) (“An action to remove a cloud on title: May be brought

by any person against another who claims an estate or interest in real property

adverse to him for the purpose of determining such adverse claims, and a decree for

the plaintiff shall debar all claims of the defendant in the property of the plaintiff

then owned or afterwards acquired. N.C. Gen. Stat. § 41–10 (1996). In order to

establish a prima facie case for removing a cloud on title, a plaintiff must meet two

requirements: (1) plaintiff must own the land in controversy, or have some estate or

interest in it; and (2) defendant must assert some claim in the land which is adverse

to plaintiff's title, estate or interest.” (ellipses and brackets omitted)), disc. review

denied, 347 N.C. 574, 498 S.E.2d 380 (1998).

A.    Notarization

      Plaintiff argues this Court should have granted summary judgment in his

favor due to the fact that defendant Patricia Quinn improperly notarized the deed as

recorded, or if in fact she properly notarized the deed to Thomas Quinn, the pages of


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                                     Opinion of the Court



the recorded deed were switched, and thus plaintiff as grantor did not even sign the

recorded deed; either way, the deed would be void. See N.C. Gen. Stat. § 22-2 (2013).

If plaintiff did sign the deed to defendants as recorded, the deed was not properly

acknowledged by defendant Patricia Quinn because she was a grantee.                See N.C.

Gen. Stat. § 10B-20(c)(5-6) (2013) (“A notary shall not perform a notarial act if . . . .

[t]he notary is a signer of, party to, or beneficiary of the record, that is to be notarized”

or “[t]he notary will receive directly from a transaction connected with the notarial

act any commission, fee, advantage, right, title, interest, cash, property, or other

consideration[.]”) Thus, if defendant Patricia Quinn did acknowledge the recorded

deed to herself, the whole deed fails. See also Lance v. Tainter, 137 N.C. 249, 250, 49

S.E. 211, 212 (1904) (“The acknowledgment being a nullity, so was the probate by the

clerk based thereon, and the registration. . . . . It follows, therefore, that this

instrument, not having been legally acknowledged, probated, nor registered, is

invalid . . . and should be canceled as a cloud upon the title which might injuriously

affect the administration of the estate in the plaintiff’s hands.”)

       Defendants contend that North Carolina General Statute § 47-62 “cures the

[notary] problem.” In other words, defendants argue that even if defendant Patricia

Quinn notarized the deed to herself and her husband – something she claims did not

happen – North Carolina General Statute § 47-62 validates the deed. North Carolina

General Statute § 47-62 provides that



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                    [t]he proof and acknowledgment of instruments
             required by law to be registered in the office of the register
             of deeds of a county, and all privy examinations of a feme
             covert to such instruments made before any notary public
             on or since March 11, 1907, are hereby declared valid and
             sufficient, notwithstanding the notary may have been
             interested as attorney, counsel or otherwise in such
             instruments.

N.C. Gen. Stat. § 47-62 (2013) (emphasis added). Defendants contend that the “or

otherwise” includes defendant Patricia Quinn in her capacity as both notary and

grantee. We disagree.

      We first note that

                    [a] court must be guided by the fundamental rule of
             statutory construction that statutes in pari materia, and
             all parts thereof, should be construed together and
             compared with each other. Thus, courts must harmonize
             such statutes, if possible, and give effect to each, that is, all
             applicable laws on the same subject matter should be
             construed together so as to produce a harmonious body of
             legislation, if possible.

Transportation Servs. of N.C., Inc. v. Wake Cnty. Bd. of Educ., 198 N.C. App. 590,

595, 680 S.E.2d 223, 226 (2009) (citations and quotation marks omitted). Secondly,

we consider the listing of those interested as “attorney, counsel or otherwise” under

ejusdem generis, which is the rule

             that where general words follow a designation of particular
             subjects or things, the meaning of the general words will
             ordinarily be presumed to be, and construed as, restricted
             by the particular designations and as including only things
             of the same kind, character and nature as those specifically
             enumerated.


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                                  Opinion of the Court




State v. Lee, 277 N.C. 242, 244, 176 S.E.2d 772, 774 (1970) (citations and quotation

marks omitted).


      To read North Carolina General Statute § 47-62, as defendants argue, would

render North Carolina General Statute § 10B-20(c)(5-6) meaningless as any

interested person acting in any capacity could act as the notary and thereafter have

it cured by North Carolina General Statute § 47-62. See N.C. Gen. Stat. §§ 10B-

20(c)(5-6), 47-62. Our legislature amended North Carolina General Statute § 10B-

20(c) as recently as 2013 and intentionally clarified which interested persons would

be allowed to notarize documents; as North Carolina General Statute § 10B-20(c)(5)

now provides:

            a disqualification under this subdivision shall not apply to
            a notary who is named in a record solely as (i) the trustee
            in a deed of trust, (ii) the drafter of the record, (iii) the
            person to whom a registered document should be mailed or
            sent after recording, or (iv) the attorney for a party to the
            record, so long as the notary is not also a party to the record
            individually or in some other representative or fiduciary
            capacity.

N.C. Gen. Stat. § 10B-20(c)(5); see N.C. Gen. Stat. § 10B-20 Effects of Amendments.

Reading North Carolina General Statute § 10B-20(c)(5) in conjunction with North

Carolina General Statute § 47-62 indicates that “attorney, counsel or otherwise” was

meant to include persons that may have drafted or otherwise participated in the

preparation of the document. N.C. Gen. Stat. § 47-62; see N.C. Gen. Stat. § 10B-


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20(c)(5); see also Transportation Servs. of N.C., Inc., 198 N.C. App. at 595, 680 S.E.2d

at 226. Furthermore, using the rule of ejusdem generis leads to the same conclusion

as the “general word[]” “otherwise” is “presumed to be, and construed as, restricted

by the particular designations and as including only things of the same kind,

character and nature as those specifically enumerated.” N.C. Gen. Stat. § 47-62; Lee,

277 N.C. at 244, 176 S.E.2d at 774. Thus, North Carolina General Statute § 47-62

cannot cure any defect in notarization as to defendant Patricia Quinn if she was in

fact a grantee under the deed she notarized.

B.    Validity between the Parties

      Defendants next contend that even if “the recording of the deed is not valid”

the deed is still “[v]alid [b]etween the [p]arties” and cites to Patterson v. Bryant, 216

N.C. 550, 5 S.E.2d 849 (1939), which stated that an unrecorded deed is valid as

between the parties to the deed. See Patterson at 553, 5 S.E.2d at 851. Of course, one

problem here is determining who the “parties” to the deed actually were. We know

that plaintiff was a party, but defendants may not have been. If plaintiff did sign the

deed to defendants as recorded, the deed was void because defendant Patricia Quinn

could not take under the deed as notary. If plaintiff did not sign the deed as it was

recorded but instead signed a deed to Thomas Quinn, the deed is void here too as

plaintiff did not sign this deed. See generally N.C. Gen. Stat. § 22-2 (2013). Patterson

is inapplicable as it does not address when the deed itself is void, but rather when



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multiple valid deeds are filed regarding the same property; Patterson does not

address a deed that was not properly executed or acknowledged as the recorded deed

is here. See id., 216 N.C. 550, 5 S.E.2d 849.            In other words, in Patterson the issue

was a faulty recording of a deed, here the issue is a faulty deed itself. See id. The

recordation or non-recordation of this deed does not change the defect in its creation

and cannot make it valid “between the parties,” whomever they may be.

C.     Adverse Possession

       Until now, no matter which factual scenario we proceeded under, the legal

conclusion has been the same -- defendants cannot prevail. However, defendants now

raise an argument where this is no longer the case as they contend they have “[g]ood

[t]itle through [a]dverse [p]ossession” under color of title as they have possessed the

land at issue since 2004 when the deed was recorded.5

       N.C. General Statute § 1–38 governs adverse possession under color of title.

See N.C. Gen. Stat. § 1–38 (2013).

                      When a person or those under whom he
                      claims is and has been in possession of any
                      real property, under known and visible lines
                      and boundaries and under color of title, for
                      seven years, no entry shall be made or action
                      sustained against such possessor by a person
                      having any right or title to the same.
               N.C. Gen. Stat. § 1–38(a) (2011). Furthermore, this Court
               has defined color of title as a writing that purports to pass
               title to the occupant but which does not actually do so

       5  Adverse possession without color of title requires 20 years of possession. See N.C. Gen. Stat.
§ 1-40 (2013).

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             either because the person executing the writing fails to
             have title or capacity to transfer the title or because of the
             defective mode of the conveyance used. However, in order
             to constitute color of title, defendants must have accepted
             the deed and entered the . . . Property in good faith.
             Farabow v. Perry, 223 N.C. 21, 25, 25 S.E.2d 173, 176
             (1943).

Adams Creek Associates v. Davis, ___ N.C. App. ___, ___, 746 S.E.2d 1, 7 (2013)

(citation, quotation marks, and ellipses omitted).

      Adverse possession under color of title is a complicated issue, in part, because

it requires substantive consideration of subjective intent on the part of the grantee;

in this case it is a particularly bewildering consideration since even the facts as solely

presented by defendant Patricia Quinn leave us baffled as to what exactly happened

here. See id. (“[I]n order to constitute color of title, defendants must have accepted

the deed and entered the . . . Property in good faith.”); see also Walls v. Grohman, 315

N.C. 239, 246, 337 S.E.2d 556, 560 (1985) (noting that “doubt” indicates a lack of

hostility which is required for adverse possession); New Covenant Worship Center,

166 N.C. App. at 105, 601 S.E.2d at 252 (“It is well settled that, if the grantee knows

a deed is fraudulent, the deed cannot qualify as color of title.”)    However, we need

not address every possible alternative and its result since defendants’ subjective

intent is certainly a “genuine issue of material fact[,]” and the issue of adverse

possession cannot be answered without consideration of their intent. Trillium Ridge

Condominium, ___ N.C. App. at ___, 764 S.E.2d 203, 210–11.



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D.    Change in Grantees

      Lastly, defendants contend that even if the grantee on the deed was changed

after plaintiff executed it, the change will not “put title back” to plaintiff. Defendants

note quite correctly that plaintiff alleged in his complaint that he signed the deed to

defendants. Of course, we also have defendant’s sworn testimony that the deed

plaintiff signed was to Thomas Quinn, not defendants. Yet this issue of fact is not

material because the deed fails either way.

      Defendants’ argument is as follows:

             [Plaintiff] signed a deed for the property to someone. If the
             front page was changed to a new grantee, that would not
             put title back into [plaintiff]. See Dugger v. McKesson, 100
             N.C. 1, 11, 6 S. E. 746, 750 (1888).
                    In the case of Bowden v. Bowden[,] 264 N.C. 296,
             300, 141 S. E. 2d 296, 300, (1965) the court found that the
             alteration of a deed by adding another grantee does not
             ordinarily divest the title and estate conveyed to the
             original grantee in the deed in its original form. In
             Bowden, supra, the court found that the burden of proof as
             to such alteration is on the party attacking the altered
             deed.

      Bowden states that “[w]here it has been established that alterations were

made after execution and delivery of a deed, the burden is upon those claiming under

the altered deed to prove that the alterations were made with the knowledge and

consent of the grantor.” Bowden, 264 N.C. at 301, 141 S.E.2d at 626. Defendants are

the parties “claiming under the altered deed” so the burden is on them to show “that

the alterations were made with the knowledge and consent of the grantor.” Id.


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Defendants have not forecast any evidence plaintiff knew that the first page of the

deed was switched after he executed it or that he consented to this change. In fact,

defendant Patricia Quinn stated that she did not believe that plaintiff was aware of

the change. The evidence only supports two scenarios here: either the first page of

the deed was switched after it was executed by the grantor and notarized, and

plaintiff was not aware of the change or the deed was actually recorded as it was

executed, but that means the deed was notarized by defendant Patricia Quinn and

fails for that reason.

                                      IV.     Conclusion

       So where does that leave this convoluted case?          Despite the conflicting

evidence, there is no genuine issue of material fact as to the validity of the deed. The

deed is void, whether due to notarization by Patricia Quinn if the deed was to her and

her husband or due to the fact that the deed was materially altered after execution

without plaintiff’s knowledge or consent. Either way it is not valid as between

plaintiff and defendants and case law regarding later changes to the grantees with

the grantor’s knowledge is inapplicable. However, we must reverse the trial court’s

order granting summary judgment in favor of defendants because there is a genuine

issue of material fact as to whether defendants acquired title to the land by adverse

possession under color of title.    In addition, if a jury were to determine that

defendants did not acquire title by adverse possession, defendants’ counterclaims for



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unjust enrichment and betterments must then be determined. For the foregoing

reasons, we reverse and remand.

      REVERSED and REMANDED.

      Judge HUNTER, JR. concurs.

      Judge BRYANT concurs in the result only.




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