North Carolina State Highway Commission v. Moore

164 S.E.2d 385 (1968) 3 N.C. App. 207

NORTH CAROLINA STATE HIGHWAY COMMISSION
v.
Elmer C. MOORE and wife, Joan C. Moore, First Union National Bank, Trustee, and Wessie Lee Dial Williams.

No. 6828SC296.

Court of Appeals of North Carolina.

December 11, 1968.

Atty. Gen. T. Wade Bruton, Deputy Atty. Gen. Harrison Lewis and Trial Atty. Guy A. Hamlin, for plaintiff appellee.

Elmore & Reynolds, by Dennis J. Winner, Asheville, for defendant appellants.

BRITT, Judge.

The sole assignment of error brought forward in defendants' brief relates to questions asked defendant Elmer C. Moore on cross-examination. He was asked by plaintiff's counsel if he did not pay $12,500 for the property when he purchased it in 1960. Over objection by defendants' counsel, Mr. Moore was required to answer the question, which he did in the affirmative. Defendants contend that the trial court committed prejudicial error in admitting the testimony relative to the purchase price of the property in 1960.

In their briefs, counsel for plaintiff and defendants cite the case of Palmer v. North Carolina State Highway Commission, 195 N.C. 1, 141 S.E. 338. In that case, one of the owners was questioned on cross-examination as to the purchase price of the subject property eighteen years prior to the taking. Over objection, the witness was required to answer, and the Supreme Court ruled that the trial court committed no error in requiring an answer. In the opinion we find the following:

"* * * It is accepted law that, when land is taken in the exercise of eminent domain, it is competent, as evidence of market value, to show the price at which it was bought, if the sale was voluntary, and not too remote in point of time. [Durham & Northern] R.R. v. [Trustees of Bullock] Church, 104 N.C. 525, 10 S.E. 761; Raleigh, C. & S. R. Co. v. [Mecklenburg] Mfg. Co., 169 N.C. 156, 85 S.E. 390, L.R.A. 1916A, 1090. Certainly the value of property 18 years before the taking, nothing else appearing, would be incompetent, but, upon the present record, it appears that the plaintiffs had testified that they had owned the property for 18 years, and that the building was then upon the property. The plaintiffs had further testified that, at the time of the taking, the property was worth $3,000. It was therefore permissible on cross-examination to test the accuracy of the opinion of the witness as to the value of the property as well as to demonstrate the basis of his opinion as to the value thereof."

The principle of law declared in Palmer v. North Carolina State Highway Commission, supra, has been quoted in many decisions of our Supreme Court, including North Carolina State Highway Commission v. Nuckles, 271 N.C. 1, 155 S.E.2d 772, (opinion by Sharp, J.). In North Carolina State Highway Commission v. Nuckles, supra, it is also said: "The reasonableness of the time is dependent upon the nature of the property, its location, and the surrounding circumstances, the criterion being whether the evidence fairly points to the value of the property at the time in question." (Citing North Carolina State Highway Commission v. Coggins, 262 N.C. 25, 136 S.E.2d 265.)

Defendant E. C. Moore testified that he purchased the subject property at a court sale. The evidence indicates that the property was sold in connection with the settlement of an estate. His counsel contends that such sale was not voluntary, therefore, evidence pertaining to it should not have been allowed. We disagree with this contention. Defendants offered no evidence to show that the sale was not voluntary, and mere evidence of a "court sale" does not indicate an involuntary sale. It can be argued that many judicial sales are had as the result of ex parte or uncontested proceedings to sell land for partition. Furthermore, G.S. § 1-339.28 provides that judicial sales must be confirmed by the clerk or judge of the superior court, or both, as set forth therein. It can be assumed that before confirming a judicial sale, the clerk or judge or both, as the case may be, would determine that the price offered for the property represented its fair market value.

Defendants also contend that the evidence should not have been admitted because of the remoteness of time between the date of the purchase and the date of the taking, a period of some seven years. Defendant E. C. Moore testified that from the time he bought the property and until the time of taking, there was no change in the location and the usage of the highways by the subject property. There was evidence to the effect that there was no change of the area in the immediate vicinity of the subject property; the evidence also showed that there was an old house on the land when the Moores purchased it and that it was still there on the date of the taking.

We hold that under the evidence presented in this case it was not error to show the purchase price of the property.

The assignment of error asserted by defendants is overruled, and the judgment of the superior court is

Affirmed.

BROCK and PARKER, JJ., concur.