Bennett v. Fuller , 1984 N.C. App. LEXIS 3078 ( 1984 )

WELLS, Judge.

The sole question presented for review is whether the trial court erred in granting defendants’ motion for summary judgment on the grounds that the legal description of the property contained in the contract was so patently ambiguous as to render the contract unenforceable under the Statute of Frauds.

N.C. Gen. Stat. § 1A-1, Rule 56(c) of the Rules of Civil Procedure in pertinent part provides: that summary judgment “. . . shall be rendered forthwith 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.”

The purpose of the rule is to eliminate formal trials where only questions of law are involved . . . The procedure under the rule is designed to allow a preview or forecast of the proof of the parties in order to determine whether a jury trial is necessary . . . Put another way, the rule allows the trial court ‘to pierce the pleadings’ to determine whether any genuine factual controversy exists . . . An issue is ‘genuine’ if it can be proven by substantial evidence and a fact is ‘material’ if it would constitute or irrevocably establish any material element of a claim or a defense.

Lowe v. Bradford, 305 N.C. 366, 289 S.E. 2d 363 (1982). (Citations omitted.)

If plaintiffs are to recover under the contract, the instrument must comply with the requirement of the Statute of Frauds. N.C. Gen. Stat. § 22-2 (1965 & 1983 Cum. Supp.) provides: “All contracts to sell or convey any lands, tenements or hereditaments, or any interest in or concerning them, . . . shall be void unless said contract, or some memorandum or note thereof, be put in writing and signed by the party to be charged therewith, or by some other person by him thereto lawfully authorized.”

An essential feature of a contract to convey land is a description of the land, certain in itself or capable of being rendered certain by reference to an extrinsic source designated therein. Bradshaw v. McElroy, 62 N.C. App. 515, 302 S.E. 2d 908 (1983). The contract cannot contain a patent ambiguity. A patent ambiguity exists when the description leaves the land to be conveyed “. . . in a state of absolute uncertainty and which refers to nothing extrinsic by which it might possibly be identified with certainty. . . .” Id. When this occurs parol evidence is not admissible to explain the description and the contract is void. Lane v. Coe, 262 N.C. 8, 136 S.E. 2d 269 (1964). Whether a description is patently ambiguous is a question of law. Carlton v. Anderson, 276 N.C. 564, 173 S.E. 2d 783 (1970).

Plaintiffs concede that they do not own all of the property described in that deed recorded in Book 235, at Page 126, of the Burke County Registry, but argue, however, that because of a mutual mistake, they should be allowed to reform the contract by substituting the Book and Page numbers of the property they do own on Industrial Boulevard for the incorrect numbers included in the contract. We cannot agree. If appellants were allowed to reform the contract by inserting the corrected Book and Page numbers they would be creating a new description in violation of the parol evidence rule. The rule in such cases is:

If the description is so vague and indefinite that effect cannot be given the instrument without writing new, material language into it, then it is void and ineffectual . . .

. . . The purpose of parol evidence ... is to fit the description to the property — not to create a description. There must be language in the . . . [instrument] sufficient to serve as a pointer or a guide to the ascertainment of the location of the land. The expression of the intention of the parties to the . . . [instrument] must appear thereon. Parol evidence is resorted to merely to bring to light this intention — but never to create it.

Thompson v. Umberger, 221 N.C. 178, 19 S.E. 2d 484 (1942). (Citations omitted.)

Although it may appear inconsistent for the trial judge to have allowed plaintiffs to amend their complaint to assert a theory of recovery he promptly ruled to be invalid, nevertheless, we hold that, because the contract to purchase property contains a patently ambiguous description which cannot be corrected without doing violence to the requirements of the Statute of Frauds the trial court properly awarded summary judgment in favor of the defendants.

Affirmed.

Judges Arnold and Braswell concur.