Riddle v. Nelson , 1987 N.C. App. LEXIS 2547 ( 1987 )

PHILLIPS, Judge.

The order appealed from has no foundation and in entering it the court apparently misperceived both the nature of plaintiffs’ action and the office of summary judgment. A covenant of seisin in a general warranty deed is a covenant that the grantor has ti-tie to the land conveyed at the time the deed is delivered and the covenant is breached upon delivery if the grantor does not then have title. Newbern v. Hinton, 190 N.C. 108, 129 S.E. 181 (1925); Price v. Deal, 90 N.C. 290 (1884). Plaintiffs’ allegation that one of the 120 foot road frontage segments defendant Nelson deeded to them cannot be located on the ground and that her covenant of seisin was thereby breached is in effect an allegation that defendant convenanted that she owned the parcel of land referred to, but in fact did not do so. 5 Strong’s N.C. Index 3d, Deeds Sec. 22 (1977). Having asked the court by her motion to dismiss plaintiffs’ action as a matter of law pursuant to Rule 56, N.C. Rules of Civil Procedure, defendant had the burden of showing by affidavits, discovery, or other evidence that she is entitled to the order sought. First Federal Savings & Loan Association v. Branch Banking & Trust Company, 282 N.C. 44, 191 S.E. 2d 683 (1982). In sustaining that burden defendant was obliged to show by uncon-tradicted evidence either that plaintiffs cannot prove some essential element of their case, or that defendant has an insurmountable defense to it, or that plaintiffs’ action is legally deficient in some other respect. In the absence of such proof plaintiff was not required to show anything at the hearing; for in a hearing on a motion for summary judgment the non-movant, unlike a plaintiff at trial, does not have to automatically make out a prima facie case, but only has to refute any showing made that his case is fatally deficient. Hall v. Funderburk, 23 N.C. App. 214, 208 S.E. 2d 402 (1974). Yet the recorded evidence in this case contains no indication either that plaintiffs cannot prove their case or that defendant has an insurmountable defense to it, or that plaintiffs’ claim is otherwise fatally deficient. The making of the covenant of seisin being established by defendant’s admission that she executed and delivered the deed involved, and it being obvious from the record that none of the defenses asserted in the answer has any legal or evidentiary support, the only real issue before the trial court was whether the evidence presented showed that defendant did not breach the covenant in that, contrary to plaintiffs’ allegation, she owned the segment of land when the deed was delivered. Yet the record herein contains no indication whatever that defendant had clear title to the segment when the deed was delivered, and there is no argument in defendant’s brief that she did. What defendant did argue as dispositive of the case, and apparently the trial court agreed based upon irrelevant decisions involving eviction, ouster and the wrongful claims of strangers, is that the record does not show that the Murphys have superior title to the segment they refused to let the Riddles occupy. But though the Murphy’s title is an incidental issue in the case it was not the determinative issue before the court; and contrary to defendant’s argument the record does not establish that the Mur-phys do not have superior title to the disputed segment. For, as is usually the case in disputes about the boundaries of land, the many deeds, maps, surveys and other evidence presented at the hearing do not necessarily lead to just one conclusion; they contain differently phrased descriptions, and in comparing and attempting to reconcile them, different deductions can be made. Which is why the location of boundaries in disupted land title cases is usually a question of fact for the jury. Cutts v. Casey, 271 N.C. 165, 155 S.E. 2d 519 (1967).

The other grounds that possibly could sustain the judgment require little discussion. The action is not barred by the statute of limitations since it was filed within twenty months after the deed was delivered and the claim for breach of seisin accrued, and according to Shankle v. Ingram, 133 N.C. 255, 45 S.E. 578 (1903), the ten-year statute applies to actions based upon covenants in a deed. Defendant’s claim that the Riddles have no right to redress since they received as much land, 10 acres more or less, as the deed called for has no legal foundation, because a purchaser of real estate by warranty deed in this state, nothing else appearing, is entitled to receive title to the specific land described in the deed. Wilson v. Forbes, 13 N.C. 30 (1828-30). And defendant’s claim that plaintiffs Riddle cannot recover because all their damages, if they suffered any, had been fully paid by the insurance company is unsupported by evidence, as is the allegation that the title insurance company has no standing in the case to enforce its subrogation rights because the policy involved does not cover matters of survey. And, finally, though the record contains some indication, though not with the clarity and certainty that summary judgment requires, that the call for the disputed 120 foot segment may have been included in the deed description because of an earlier surveyor’s or scrivener’s error, that is no defense to plaintiffs’ suit unless the mistake was mutual, Walls v. Merchants Fire Assurance Corp., 206 N.C. 903, 173 S.E. 23 (1934); and mutual mistake is neither alleged nor indicated by the evidence.

The order of summary judgment is vacated and the matter remanded to the Superior Court for a trial on the issues raised by the pleadings.

Vacated and remanded.

Judge Orr concurs. Judge Arnold concurs only in the result.