Redevelopment Com'n of Greenville v. Hannaford , 29 N.C. App. 1 ( 1976 )

222 S.E.2d 752 (1976)

REDEVELOPMENT COMMISSION OF the CITY OF GREENVILLE
v.
Lucy K. HANNAFORD et al.

No. 753SC844.

Court of Appeals of North Carolina.

March 17, 1976.

Gaylord, Singleton & McNally, Greenville by Phillip R. Dixon and L. W. Gaylord, Jr., Greenville, for respondent-appellant Martha K. Burroughs.

Frank M. Wooten, Jr., Greenville, for respondent-appellee, Lucy K. Hannaford.

CLARK, Judge.

The deed for the entirety property was executed by the husband subsequent to and pursuant to the consent decree entered in the Superior Court of Pitt County. A consent judgment is the contract between the parties entered upon the records with the approval and sanction of the court. Bland v. Bland, 21 N.C.App. 192, 203 S.E.2d 639 (1974); 5 Strong, N.C.Index 2d, Judgments, § 8, p. 19. It is construed as any other contract. Mullen v. Sawyer, 277 N.C. 623, 178 S.E.2d 425 (1971).

Under the terms of the consent decree Mrs. King received the right to the usufruct of the entirety property, a right which inures to the husband only in tenancy by the entirety. Strange v. Sink, 27 N.C.App. 113, 218 S.E.2d 196 (1975). She relinquished her right of survivorship, agreeing that upon the termination of her life estate the remainder would vest in the three children born of her marriage with J. F. King.

Mrs. King lived for thirty-five years after the consent decree was entered and the deed for the entirety property was executed. She claimed no right of survivorship in the entirety property when her husband died in 1943, and made no disposition of the property by will upon her death in 1965. After her death her two children, the respondents Lucy K. Hannaford and Martha K. Burroughs who had acquired the remainder interest of the third child, for a period of ten years shared equally the rents and profits, which each reported as income to taxing authorities, and each paid one-half of the ad valorem taxes assessed against the property.

Lucy K. Hannaford contends that her sister Martha K. Burroughs is estopped to claim sole ownership of the property. The doctrine of estoppel by conduct, or "estoppel in pais—rests upon principles of equity [and] . . . is designed to aid the law in administration of justice when without its aid injustice would result, [and is based on] the theory . . . that it would be against principles of equity and good conscience to permit a party against whom estoppel is asserted to avail himself of what . . . otherwise [might] be his undisputed legal rights." Hawkins v. M & J Finance Corp., 238 N.C. 174, 177, 77 S.E.2d 669, 672 (1953). The essential elements of "equitable estoppel" as related to a party claiming estoppel are lack of knowledge and truth as to facts in question, reliance upon conduct of party sought to be estopped, and action based thereon of such character as to change his position prejudicially. Peek v. Wachovia Bank & Trust Company, 242 N.C. 1, 86 S.E.2d 745 (1955).

The respondent relies on Boddie v. Bond, 154 N.C. 359, 70 S.E. 824 (1911) which states that "estoppel arises when any one, by his acts, representations, or admissions . . induces another to believe certain facts to exist, and such other rightfully relies and acts on such belief, so that he will be prejudiced if the former is permitted to deny the existence of such facts." The case involved misrepresentation or fraud relied on by another party to his detriment.

The case before us involves a different type of estoppel, usually referred to as "quasi estoppel", which has its basis in acceptance of benefits. 31 C.J.S. Estoppel § 107. Where one having the right to accept or reject a transaction or instrument takes and retains benefits thereunder, he ratifies it, and cannot avoid its obligation or effect by taking a position inconsistent with it. 31 C.J.S. supra § 108. Corbett v. Corbett, 249 N.C. 585, 107 S.E.2d 165 (1959); Advertising, Inc. v. Harber, 7 N.C.App. 501, 172 S.E.2d 793 (1970). There is no evidence of misrepresentation, express or implied, by respondent Burroughs, which respondent Hannaford relied on to her prejudice so as to invoke the equitable estoppel doctrine stated in Boddie, supra. But the admitted facts clearly establish that Mrs. King, mother of respondents Burroughs and Hannaford, accepted the benefits of the consent decree (contract) over a period of thirty-five years. Therefore, she was estopped to deny its burdens. Since respondent Burroughs claims the sole ownership of the property through Mrs. King, she is likewise estopped.

We hold that respondents Hannaford and Burroughs were owners of the property in dispute when this proceeding was brought, and the judgment appealed from is

Affirmed.

MORRIS and VAUGHN, JJ., concur.