Tripp v. North Carolina Phosphate Corp.

GRAHAM, J. Plaintiffs conceded before the trial court and on oral argument in this court that the description contained in the deed referred to in paragraph three of their complaint encompasses the 4.26 acres of land in controversy. However, this concession does not admit that defendants own the disputed tract. (Compare Napoli v. Philbrick, 8 N.C. App. 9, 173 S.E. 2d 574, where plaintiff stipulated that defendants owned the property described in their further answer and defense and that the description encompassed the disputed area). Paragraph three of the complaint alleges that defendant Phosphate Corporation owns a tract of land under a certain deed. The effect of plaintiffs’ admission is that the 4.26 acres in controversy is included in the description of lands owned by Phosphate Corporation and described in the deed referred to in paragraph three. The fact that it is'included in the description does not necessarily mean that Phosphate Corporation has title thereto superior to the title claimed by plaintiffs. Construing the pleadings, along with plaintiffs’ admission, we interpret plaintiffs’ position to be: The deed referred to in paragraph three describes certain property. Phosphate Corporation owns the property described therein except for a 4.26 acre tract which is owned by plaintiffs. It is impossible to conclude from the pleadings and plaintiffs’ admission that the disputed tract is not owned by plaintiffs. Plaintiffs should have been permitted to offer evidence to establish, if they could, title to the 4.26 acre tract. Judgment on the pleadings was therefore improvidently entered. Reversed. Mallard, C.J., and Morris, J., concur.