Jenkins v. Coombs , 21 N.C. App. 683 ( 1974 )

205 S.E.2d 728 (1974) 21 N.C. App. 683

Andrew T. JENKINS and Robert D. Jenkins
v.
Wilbur Orville COOMBS et al.

No. 746SC395.

Court of Appeals of North Carolina.

June 5, 1974.

Vaughan S. Winborne, Raleigh, for plaintiff appellants.

Allsbrook, Benton, Knott, Allsbrook & Cranford, by J. E. Knott, Jr., Roanoke Rapids, for defendant appellee Margaret L. Jenkins.

Revelle, Burleson & Lee, by L. Frank Burleson, Jr., Murfreesboro, for defendant appellee E. W. Martin, Trustee.

Carter W. Jones, by C. Roland Krueger, Ahoskie, for defendant appellees Coombs.

BRITT, Judge.

We hold that the court did not err in entering summary judgment in favor of all defendants.

Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law. G.S. § 1A-1, Rule 56(c). Admissions in the pleadings and affidavits presented at the hearing in the instant case established the following:

(1) The deed from Andrew T. Jenkins and wife to J. H. Jenkins conveying the subject property is dated 14 October 1952 and was filed for registration on 5 November 1952.

(2) The paperwriting alleged by plaintiffs to be an option to purchase is dated 29 October 1952, and was filed for registration in Northampton County Registry on 6 March 1961.

(3) On 25 January 1954, a deed from J. H. Jenkins to the feme defendant, conveying the subject property, was executed and recorded.

(4) The deed from the feme defendant to defendants Coombs, and the deed of trust from defendants Coombs to defendant Martin, trustee, conveying the subject property, are dated 17 December 1971 and were filed for registration on 20 December 1971.

Defendants contend first that the alleged "option" is void. We agree with this contention. While our research fails to disclose a precedent in this jurisdiction directly in point, we have found cases in which a similar provision was set forth in the deed. Certainly, plaintiffs' position is no stronger by reason of the fact that the paperwriting they rely on is separate from the deed.

In Hardy v. Galloway, 111 N.C. 519, 15 S.E. 890, 32 Am.St.Rep. 828 (1892), a provision in a deed whereby the grantors retained, for themselves and their heirs and assigns, the right to repurchase the land, "when sold," was held not only to be void for uncertainty and fixing no price for the repurchase, and no time for the performance of the provision, but also as an unlawful restraint upon alienation, the court stating at 524, 15 S.E. at 890: "The restriction is certainly inconsistent with the ownership of the fee as well, it would seem, as against public policy. The right to repurchase is of indefinite extent as to time, (it being reserved to the grantors, their heirs or assigns), and may be exercised whenever the property is sold, although no amount is fixed upon as purchase money. In other words, we have an estate in fee without the power to dispose of or encumber it, unless first offering it for no definite price to the grantors, their heirs or assigns. The condition is repugnant to the grant, and therefore void."

See also Brooks v. Griffin, 177 N.C. 7, 97 S.E. 730 (1919), in which case Chief Justice Clark reviewed the decisions relating to provisions of instruments held void as illegal restraint upon alienation and cited Hardy with approval. See also note in 162 A.L.R. 581, at 594, quoting from Hardy; also Story v. Walcott, 240 N.C. 622, 83 S.E.2d 498 (1954).

We are aware of the opinion of our Supreme Court in Oil Co. v. Baars, 224 N.C. 612, 31 S.E.2d 854 (1944), but find it easy to distinguish that case from the case at bar. We think the principles declared in Hardy control here.

In view of our holding that the paperwriting relied on by plaintiffs is void, we do not reach the question relating to priority of recordation, statutes of limitations, adverse possession, and the other defenses asserted by defendants.

For the reasons stated, the judgment appealed from is

Affirmed.

HEDRICK and CARSON, JJ., concur.