Talman v. Dixon

116 S.E.2d 338 (1960) 253 N.C. 193

George W. TALMAN
v.
James D. DIXON and Alice F. Dixon.

No. 161.

Supreme Court of North Carolina.

October 12, 1960.

Aaron Goldberg, Wilmington, for plaintiff appellant.

Isaac C. Wright, Wilmington, for defendant appellees.

RODMAN, Justice.

The contract forming the basis of plaintiff's cause of action, being incorporated as a part of the complaint, fixed the rights and duties of the parties. Plaintiff's allegation that defendants had, pursuant to that contract, agreed to convey title to the land was a mere conclusion of law resulting from his interpretation of the contract. It is not an allegation of fact admitted by the demurrer. Sossamon v. Oaklawn Cemetery, Inc., 212 N.C. 535, 193 S.E. 720; Horney v. Mills, 189 N.C. 724, 128 S.E. 324.

Looking at the contract, it is apparent that defendants did not agree to convey the land or a good title thereto. To the contrary they merely agreed to convey "their right, title and interest." This might in fact constitute a good title or no title whatever. The language chosen implied a doubt as to defendants' title. Turpin v. Jackson County, 225 N.C. 389, 35 S.E.2d 180; Abernathy v. South & W. R. R. Co., 150 N.C. 97, 63 S.E. 180; Bryan v. Eason, 147 N.C. 284, 61 S.E. 71; Beaufort County Lumber Co. v. Price, 144 N.C. 50, 56 S.E. 684.

"A provision that the purchaser shall accept such title as the vendor has is valid, and if the contract is to convey by quitclaim deed, it obligates the vendor to convey only his interest in the premises, and does not impose a duty of giving a clear title." 55 Am.Jur. 629; Twitty v. Lovelace, 97 N.C. 54, 2 S.E. 661; 91 C.J.S. Vendor and Purchaser § 49, p. 900.

The agreement to convey grantors' interest free from claims against them did not enlarge the right or interest which they agreed to convey. Coble v. Barringer, 171 N.C. 445, 88 S.E. 518, L.R.A.1916E, 901.

The court was correct in sustaining the demurrer for failure to state a cause of action.

When the court sustained the demurrer, plaintiff, as he had a right to do, moved to amend. The court was not compelled to allow the motion. Whether it would or would not permit the amendment was a matter resting in its discretion. Burrell v. Dickson Transfer Co., 244 N.C. 662, 94 S.E.2d 829. It is not suggested that the court abused its discretion.

Affirmed.