Shutt v. Butner , 62 N.C. App. 701 ( 1983 )

303 S.E.2d 399 (1983)

Marie L. SHUTT, Individually and as Executrix of the Estate of Jean Shutt Butner
v.
Jerry L. BUTNER.

No. 8221DC599.

Court of Appeals of North Carolina.

June 21, 1983.

Pettyjohn & Molitoris by Theodore M. Molitoris, Winston-Salem, for plaintiff-appellant and appellee.

Green & Leonard, Robert K. Leonard and David L. Spence, Winston-Salem, for defendant-appellee and appellant.

PHILLIPS, Judge.

Though the custody and support order appealed from by the defendant can have no future effect, since the minor child's eighteenth birthday has now passed, the rights and duties of the parties until then still require adjudication. Before the substitute plaintiff entered the picture, defendant was required to pay $35 a week for the child's support to the child's mother. Since the child lived with the plaintiff after his mother died, the order continuing the support payments and permitting the plaintiff to receive them was clearly justified. Defendant's contention that the judge's findings of need and ability to pay were insufficient is without merit. The needs of the child and the defendant's ability to pay had been established by the Court and agreed to by the defendant just a few months earlier and the judgment with respect thereto was still in effect. Under the circumstances new findings of need and ability to pay were not required. If the child no longer needed the payments or if the defendant was no longer able to make them, it was up to the defendant to establish that this change of condition had occurred; but this apparently was not even attempted. Nevertheless, ample findings as to both the child's need and defendant's ability to pay were made, and the order appealed from is hereby affirmed.

The trial court erred, however, in denying the plaintiff's motion for the sale of the marital homeplace. Though the defendant did become the record fee simple owner of the entirety held realty by operation of law upon the death of his wife, as the court concluded, he became so subject to his promise and agreement as follows:

(8) It is agreed that the wife shall have complete possession of the homeplace of the parties until the minor child TIMOTHY EUGENE BUTNER attains the age of 18 years or until the child respectively dies, marries, or is otherwise emancipated, at which time the homeplace of the parties will be sold and the proceeds will be divided equally among the parties. It is further agreed that the wife shall make monthly payments on the homeplace... and that the husband shall reimburse to the wife the amount by which her monthly mortgage payments have reduced the principal on the mortgage.

This agreement to sell their property and divide the proceeds between them, solemnly and deliberately made twice, was therefore doubly binding—first as an ordinary separation and settlement agreement, Lane v. Scarborough, 284 N.C. 407, 200 S.E.2d 622 (1973), and second as a consent judgment in compromise and settlement of matters that were then being disputed in this litigation. Price v. Horn, 30 N.C.App. 10, 226 S.E.2d 165 (1976).

Unlike the agreements involved in those cases, however, the agreement here requires little or no construction, only enforcement. The parties obligation to sell the property and divide the proceeds was explicit and without ambiguity; nor was it contingent upon either party being alive when the time to sell came or anything else. The agreement to sell and divide was absolute and unequivocal; only the time was uncertain and that was clearly ascertainable from the terms used—no later than the boy's eighteenth birthday, then less than two years away, and sooner than that if the boy married, was otherwise emancipated, died, or stopped living there. Though the latter eventuality was not expressly provided for in the agreement as the others were, it is impliable from the obvious fact that the parties delayed the sale as they did only so that the boy could dwell there rent-free until his legally dependent status ended. Therefore, upon him ceasing to live there after his mother died, the reason for delaying the sale vanished, and the parties were obligated to go ahead with the sale if either so requested. That this is so, however, need not be demonstrated or even relied upon, since the son's eighteenth birthday has passed, and the property must be sold now in any event.

Nor were the defendant's obligations under the contract terminated by the death of the other contracting party. Few contracts are terminated by death in the absence of explicit provisions therein to the contrary. This is because all know that unexpected and untimely death is a constant possibility and are deemed to make their contracts in light thereof, and also because most contracts can be satisfactorily performed by personal representatives. 17A C.J.S., Contracts § 465. The general rule is that "contracts bind the executor or administrator, though not named therein, and that death does not absolve a man from his engagements." Burch v. Bush, 181 N.C. 125, 127, 106 S.E. 489, 490 (1921). But in this instance it is unnecessary to resort to the general rule, because the parties themselves, leaving nothing to chance or the law's operation, had their agreement to provide that:

... this Judgment shall be enforceable against the parties, their personal representatives, heirs and assigns.

Having so contracted, the defendant is bound thereby.

It is true, of course, for obvious reasons, that contracts of a personal nature or that require special talent—to marry, to draw a picture, write a book, perform on the stage, be one's companion, etc.—do come to an end upon the death of a party, unless the parties agree otherwise. Burch v. Bush, supra. But selling a house and lot and dividing the proceeds does not depend upon talent or personality and the defendant's obligation with respect thereto still abides.

In enforcing the agreement upon remand, a partition proceeding before the Clerk will neither be necessary, nor appropriate. All that is needed is for the property to be sold and the proceeds divided equally, under the court's direction, with the plaintiff executrix being reimbursed by the defendant for any reduction that her decedent made in the mortgage debt. How the sale is conducted or by whom is for the court to determine, subject to the best interests of the parties and the laws governing such matters. We point out, however, that, since neither the terms nor validity of the will that plaintiff claims under are involved in this appeal, the right of the plaintiff or anybody else to receive the sale proceeds that the decedent was entitled to has not been determined by us, and that before the proceeds are divided an adjudication with respect thereto will have to be made.

In the plaintiff's appeal, the order is

Reversed and remanded.

In the defendant's appeal, the order is

Affirmed.

HILL and JOHNSON, JJ., concur.