                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.




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                                   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.




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                                  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




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                                     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.

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                                   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,



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                                   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.



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                        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?



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                                   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.”



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                        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



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                             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



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                                     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.

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                                 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



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                                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?



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                                 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’


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                                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


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                                 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



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                                 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


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                                  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



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                                 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.




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