McKnight v. Cagle ( 1985 )

331 S.E.2d 707 (1985)

Phillip Nelson McKNIGHT
v.
William CAGLE.

No. 8416DC1107.

Court of Appeals of North Carolina.

July 16, 1985.

Lumbee River Legal Services, Inc. by William L. Davis, III, Pembroke, for plaintiff-appellant.

Johnston and McIlwain, P.A. by Edward H. Johnston, Jr., Laurinburg, for defendant-appellee.

MARTIN, Judge.

We must determine two questions which arise on the record before us. First, we must determine whether the trial court erred in denying plaintiff's motion for summary judgment. We hold that it did not. Second, we must determine whether the trial court erred by entering a judgment dismissing all of plaintiff's claims at the close of his evidence. Because we find that the trial court properly resolved one of plaintiff's claims against him, but failed to address the other, we affirm in part and reverse in part, remanding for determination of the unresolved issue.

Plaintiff contends that he was entitled to summary judgment in his favor because the uncontroverted evidence before the court, at the hearing on the motion, disclosed that the description in the warranty deed specified that the parcel conveyed contained "1.1 acres, more or less" when in fact the parcel conveyed contained only 0.62 acres, some of which was located in the public right of way. Plaintiff asserts that this evidence establishes, as a matter of law, a breach of the covenant of seisin. We disagree.

The covenant of seisin is a covenant of title and right to convey. Pridgen v. Long, 177 N.C. 189, 98 S.E. 451 (1919). Plaintiff did not allege that defendant had no right to convey the property described in the deed. His contention is simply that the property conveyed did not contain the quantity of land as stated at the conclusion of the metes and bounds description in the deed. Such a showing does not establish a breach of the covenant of seisin.

In the absence of allegation and evidence tending to correct the deed for mistake, etc., these ordinary covenants in assurance of the title attach to the land conveyed in the deed, and not otherwise. And the authorities apposite are decisive to the effect that where real property is conveyed by metes and bounds the quantity of land and the obligations of the deed concerning it are in no way affected by the addition of the words "containing so many acres, more or less." [Citations omitted.]

Evans v. Davis, 186 N.C. 41, 45, 118 S.E. 845, 847 (1923) (emphasis supplied). Plaintiff did not allege a mutual mistake, nor did he allege any misrepresentation by defendant or his real estate agent as to the quantity of land which he was shown. In the absence of allegations and proof of fraudulent misrepresentation as to the quantity of the land to be conveyed, the general rule is:

"Where the land is sold in bulk for a lump sum, then quantity is not generally of the essence of the contract and the parties take the risk of deficiency or excess, except in cases where there is actual fraud" or gross deficiency.

Queen v. Sisk, 238 N.C. 389, 391, 78 S.E.2d 152, 154 (1953), quoting 8 Thompson, Real Property, Perm. Ed, sec. 4580.

Neither does the fact that a portion of the property conveyed by defendant's deed was within the rights of way of the public roads adjoining the property establish a breach of the covenant of seisin so as to entitle plaintiff to summary judgment in his favor.

"[I]t is generally held that a deed conveying property on which there existed a right of way in the public, conveys the ultimate property in the soil, and therefore there is no breach of the covenant of seisin...."

Hawks v. Brindle, 51 N.C.App. 19, 23, 275 S.E.2d 277, 280 (1981), quoting Tise v. Whitaker-Harvey Co., 144 N.C. 508, 515, 57 S.E. 210, 212 (1907).

Having determined that the trial court did not err in denying plaintiff's motion for summary judgment, we must next determine whether it was error for the court to enter judgment for defendant, pursuant to G.S. 1A-1, Rule 41(b), at the close of plaintiff's evidence. A motion for dismissal pursuant to Rule 41(b), made at the close of plaintiff's evidence in a non-jury trial, not only tests the sufficiency of plaintiff's proof to show a right to relief, but also provides a procedure whereby the judge may weigh the evidence, determine the facts, and render judgment on the merits against the plaintiff, even though the plaintiff may have made out a prima facie case. O'Grady v. Bank, 296 N.C. 212, 250 S.E.2d 587 (1978); Helms v. Rea, 282 N.C. 610, 194 S.E.2d 1 (1973). As a fact-finder, however, the trial judge must find the facts on all issues raised by the pleadings, and state his conclusions of law based thereon, in order that an appellate court may determine from the record the basis of his decision. Coble v. Coble, 300 N.C. 708, 268 S.E.2d 185 (1980); Helms v. Rea, supra. The findings of fact are conclusive on appeal if supported by competent evidence. Williams v. Liles, 31 N.C.App. 345, 229 S.E.2d 215 (1976).

In the case sub judice, the trial judge found, upon supporting evidence, that the lot was sold to plaintiff in gross for a lump sum, that no fraud on the part of defendant was alleged or proven, and that there was no gross deficiency in the actual size of the tract as opposed to that called for in the deed. Upon those findings, the court properly ruled that plaintiff had shown no right to relief by virtue of defendant's alleged breach of the covenant of seisin. That portion of the trial court's judgment is affirmed.

However, plaintiff alleged not only a breach of the covenant of seisin, but a breach of the covenant against encumbrances as well. The evidence showed, and the court found, that a portion of the tract as described in the deed was subject to the rights of way of two state roads; indeed the first call in the description is located on the opposite side of State Road 1427 (Lee's Mill Road) from the usable portion of the tract. No reservation for either right of way was contained in the deed. Plaintiff testified that although he inspected the property before his purchase, the extent of the right of way was not apparent to him because one of the roads had not been paved at the time of his inspection.

In North Carolina, a right of way or easement for a public highway may constitute an encumbrance sufficient to amount to a breach of the covenant against encumbrances where the purchaser has no actual or constructive knowledge of the encumbrance at the time of the purchase.

The rule in North Carolina appears to be that a covenantee may not recover for breach of the covenant against encumbrances where the encumbrance he alleges is a public highway or railroad right of way and either (1) the covenantee purchased the property with actual knowledge that it was subject to the right-of-way or (2) the property was "obviously and notoriously subjected at the time to some right of easement or servitude...." [Citation omitted.] In short, the issue is whether the covenantee knew or should have known that the land he bought was subject to a public right-of-way. Once this issue of fact is determined in the affirmative, the covenantee is "conclusively presumed to have purchased with reference to" the right-of-way. [Citation omitted.]

Hawks v. Brindle, supra, 51 N.C.App. at 24, 275 S.E.2d at 281, quoting Goodman v. Heilig, 157 N.C. 6, 8-9, 72 S.E. 866, 867 (1911) (original emphasis).

The issue of whether one or both of the highway rights of way over portions of the property constituted an encumbrance sufficient to amount to a breach of defendant's covenant against encumbrances was raised by the pleadings and the evidence. Thus, it was the duty of the trial court to resolve the issue by appropriate findings of fact as to whether plaintiff knew or should have known, at the time of purchase, that the tract was subject to the rights of way of either or both of the state roads. The findings of fact do not address this issue. Accordingly, we must remand this case to the District Court for resolution of plaintiff's claim for breach of the covenant against encumbrances.

In the event that the court, upon proper findings, determines that defendant breached the covenant against encumbrances, plaintiff would be entitled to recover "the difference between the value of the land without the encumbrance and its value as it is conveyed subject to the encumbrance." Hawks v. Brindle, supra 51 N.C.App. at 25, 275 S.E.2d at 281, quoting J. Webster, Real Estate Law in North Carolina, § 191 (1971).

In summary, we affirm the trial court's denial of plaintiff's motion for summary judgment and that portion of the judgment dismissing plaintiff's claim for breach of the covenant of seisin. For the reasons stated, we reverse that portion of the judgment dismissing plaintiff's claim for breach of the covenant against encumbrances and remand the case to the trial court for further proceedings consistent with this opinion.

Affirmed in part; reversed in part and remanded.

ARNOLD and PARKER, JJ., concur.