McRae v. Moore , 33 N.C. App. 116 ( 1977 )

234 S.E.2d 419 (1977) 33 N.C. App. 116

Cameron M. McRAE and wife, Aleta M. McRae
v.
Jerry MOORE and wife, Jennette Moore.

No. 7613DC751.

Court of Appeals of North Carolina.

May 4, 1977. Certiorari Denied July 14, 1977.

Powell & Smith by William A. Powell, Shallotte, for plaintiffs-appellants.

Mason H. Anderson by Douglas W. Baxley, Shallotte, for defendants-appellees.

Certiorari Denied by Supreme Court July 14, 1977.

PARKER, Judge.

A contract to convey land "must contain a description of the land, the subject matter of the contract, either certain in itself or capable of being reduced to certainty by reference to something extrinsic to which the contract refers." Lane v. Coe, 262 N.C. 8, 12, 136 S.E.2d 269, 273 (1964). When it is apparent upon the face of the written contract that there is uncertainty as to the land intended to be conveyed and the contract, itself, refers to nothing extrinsic by which the uncertainty can be resolved, the description is said to be patently ambiguous. "Parol evidence may not be introduced to remove a patent ambiguity since to do so would not be a use of such evidence to fit the description to the land but a use of such evidence to create a description by adding to the words of the instrument." Overton v. Boyce, 289 N.C. 291, 294, 221 S.E.2d 347, 349 (1976). In such a case the contract is void. If, however, the contract, although insufficient in itself to identify the property, refers to matters extrinsic by which identification might possibly be made, the description is said to be latently ambiguous. When that is the case, evidence may be offered, parol and other, with reference to the extrinsic matter tending to identify the property. Lane v. Coe, supra.

The description in the written option in the present case is insufficient in itself to identify the property which is the subject matter of the contract. It does, however, refer to matters extrinsic, i. e., the reference to a lot "presently occupied by Cameron M. and wife Aleta M. McRae as residence and real estate office," from which it might have been possible to identify the property with certainty. It was, therefore, not patently but only latently ambiguous, and parol evidence was admissible to fit the description to the land. When this was attempted, however, the difficulty which plaintiffs encountered was that the evidence, both that introduced by plaintiffs and by defendants, disclosed that there was no clearly identifiable lot with boundaries capable of being established with certainty "occupied by Cameron M. & wife Aleta M. McRae as residence and real estate office." Instead, all of the evidence showed that the house occupied by the McRaes was located on a larger tract, of which a portion only was being sold, and the correct location of the dividing line separating the portion to be sold from the portion to be retained was never established. Plaintiffs thought the line was to be fixed so as to give them a lot fronting 105 feet on the highway and having a rear lot line also 105 feet in length, but the written option contract did not say this and the parol evidence failed to establish that this was the lot "presently occupied" by the plaintiffs. Defendants thought the line was to be fixed so as to run approximately 10 feet north of the house occupied by the McRaes and so as to leave the existing well on the portion of the lot to be retained, but the written option contract did not say this either nor did the parol evidence show this to be the lot "presently occupied" by plaintiffs. Thus, the evidence failed to dispel the latent ambiguity in the description contained in the written option agreement. The detailed findings of fact made by the trial judge were supported by the evidence, and his findings of fact in turn support his conclusion that there was never a meeting of the minds of the parties as to the location of the new dividing line. Accordingly, the contract was void and unenforceable.

Plaintiffs assign error to the court's overruling their objections to the evidence presented by defendants which tended to show defendants' version of the dividing line as being approximately 10 feet north of the house occupied by plaintiffs and as being so located as to leave the existing well on the portion of defendants' property which was not being conveyed. In their brief, plaintiffs present three arguments in support of their contention that the court erred in admitting this evidence. First, plaintiffs point out that defendants filed answer in which they admitted execution of the option agreement. Citing Burkhead v. Farrow, 266 N.C. 595, 146 S.E.2d 802 (1966), plaintiffs contend no issue as to adequacy of the description of the land to be conveyed was raised by the pleadings. We do not agree. In Burkhead v. Farrow, supra, defendants admitted in their further answer that they executed an option to plaintiff to purchase the lands described in the complaint, and the complaint in that case contained a metes and bounds description of the property. Here, plaintiffs' complaint contains no description of the property other than that contained in the written option agreement which was attached to and made a part of the complaint. Defendants' admission of executing the option agreement did not eliminate an issue as to adequacy of the property description contained therein.

As their second contention, plaintiffs contend that defendants' parol evidence was inadmissible because it altered an unambiguous written contract. The simple answer is that the writing was far from unambiguous. The description, "approximately 105 × 208.7 lot size," mentions only two lines, which cannot by themselves enclose any lot. It fails to state which line, if either, fronts on Causeway Road. The unit of measure referred to, whether feet, yards, or some other, is not stated.

Finally, plaintiffs point out that defendants failed to allege mutual mistake as a defense and that for this reason it was error to admit defendants' parol evidence and to grant relief on a defense that was not alleged. However, the record discloses that plaintiffs never objected to defendants' evidence on the specific grounds that the evidence offered was not within the issues raised by the pleadings. Therefore, under G.S. 1A-1, Rule 15(b), the rule of "litigation by consent" applied, and it was not error for the court to receive evidence and to decide the case on an issue not formally raised by the pleadings. Mangum v. Surles, 281 N.C. 91, 187 S.E.2d 697 (1972); Roberts v. Memorial Park, 281 N.C. 48, 187 S.E.2d 721 (1972).

Plaintiffs' final assignment of error brought forward in their brief is directed to the court's second conclusion of law, in which the court found that the option agreement expired because plaintiffs failed to tender payment within the time required by the agreement. We need not consider this assignment of error, because the judgment appealed from was fully supported by the court's first conclusion that the option was void for the reason that there was never any meeting of the minds of the parties as to the description of the property to be conveyed.

The judgment appealed from is

Affirmed.

BROCK, C. J., and ARNOLD, J., concur.