Ryals v. Barefoot

BRITT, Judge.

Defendants’ Appeal

Defendants’ counsel on appeal, who did not represent defendants in any of the trial proceedings, states in his brief that he has diligently reviewed the record but is unable to submit any authority or reason as to why the judgment entered was not proper. We agree that defendants’ appeal has no. merit.

Plaintiffs’ Appeal

While agreeing with the court’s conclusion (1) stated above, plaintiffs contend that the court erred in its conclusion (2) and that the court should have adjudged that plaintiffs are entitled to the complete cancellation of the 24 May 1964 deed of trust. We agree with the contention.

Summary judgment is proper when 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 the moving party is entitled to judgment as a matter of law. Lee v. Shor, 10 N.C. App. 231, 178 S.E. 2d 101 (1970); G.S. 1A-1, Rule 56(c).

■ In the instant case admissions in the pleadings and answers to interrogatories established the following: Paragraph 6 of the 7 March 1966 agreement between plaintiffs, defendants Barefoot and Glover provided that defendants Barefoot would cancel the original deed of trust when the new $36,000 note from Glover to defendants Barefoot was paid in full. Plaintiffs’ interrogatory 11 asked: “What claim, if any, do the defendants have against William D. Glover and wife, Nancy C. Glover, by virtue of .the transaction referred to in the pleading?” Defendants’ answer to the interrogatory is “None.” The only transaction with Glover referred to in the pleadings relates to the salé and purchase of the Harnett County property and financial arrangements and problems pertaining thereto. In September Í968 the male defendant Barefoot entered into a written, agreement with Glover in which he agreed that all matters between him and Glover had been concluded and settled.

' We hold that plaintiffs were successful in showing at the hearing on their motion for summary judgment that there is no genuine issue with respect to their contention that they are entitled to the complete cancellation of the 24 May 1964 deed of trust. The court erred in its conclusion to the contrary and in not providing for this cancellation in its judgment. The cause is remanded for entry of judgment providing that relief.

On defendants’ appeal — affirmed.

On plaintiffs’ appeal — error and remanded.

Judges Parker and Vaughn concur.