Reeves v. Musgrove , 23 N.C. App. 535 ( 1974 )

BALEY, Judge.

The record in this case is in a confusing state and difficult to understand. The answer of defendant originally admitted the plaintiff’s allegation of ownership of land as set out in the complaint. The title of plaintiff was apparently not in dispute when the parties consented to the order of reference. When the matter was heard before the referee the action was in effect a processioning proceeding to determine a boundary line. Pruden v. Keemer, 262 N.C. 212, 136 S.E. 2d 604; Prince v. Prince, 7 N.C. App. 638, 173 S.E. 2d 567; 2 Strong, N. C. Index 2d, Boundaries, § 8, p. 12. The report of the referee, however, concluded that the title of plaintiff was superior to that of defendant and awarded plaintiff the disputed property.

Before the trial court reviewed the report of the referee on appeal, it permitted the defendant over objection by the plaintiff to amend his answer and deny the plaintiff’s title. This converted the action from a processioning proceeding into an action to try title. Since the issue of title did not arise until this, stage, the report of the referee — although purporting to adjudge a superior title in plaintiff — cannot stand. The hearing before the referee did not concern an action to try title. The transcript of the evidence before him does not disclose any deed to plaintiff or other documentary indicia of title in plaintiff and will not support a finding that plaintiff had title.

This cause must be returned for disposition after a consideration of all the issues raised by the pleadings as amended, which include the issue of title, and title must be shown in accordance with an accepted method of proof. Mobley v. Griffin, 104 N.C. 112, 10 S.E. 142.

New trial.

Judges Morris and Hedrick concur.