Green v. Harshaw

121 S.E. 456, 187 N.C. 213, 1924 N.C. LEXIS 261

Opinion

Clarkson, J.

Tbe suit in controversy involves 2 acres and 18 poles of land. Moses N. Harsbaw and wife, Mary M. Harshaw, on 11 March, 1901, made a deed to their son, Jacob N. Harshaw, for the land in controversy. Jacob N. Harshaw, on 11 June, 1906, deeded the land to Eliza P. Harshaw, his wife, who is the defendant, appellant, in this case. Moses N. Harshaw and wife, Mary M. Harshaw, on 22 December, 1906, conveyed the 135 1-3-acre tract to Jacob N. Harshaw and his children. That the 2 acres and 18 poles was excepted from this conveyance. The gist of this suit: It is claimed that the 2 acres and 18 poles and the 135 1-3 acres were considered one tract, known as the “Harshaw Land,” and were sold together. Jacob N. Harshaw is dead and left surviving him his widow, Eliza P. Harshaw, and one child, Johnsie Martin, who married Hal 0. Martin. The deed from Eliza P. Harshaw, Hal C. Martin and Johnsie Martin to one of the plaintiffs, I. G. Green, is dated 20 June, 1921, and it is claimed was made in pursuance of the “J. W. Self property contract” set forth in the complaint. The deed states, “Being the land deeded by Moses N. Harshaw and wife, Mary M. Harshaw, to Jacob N. Harshaw, the period of his natural life, and after his death to his children.” And describes it as “containing 135 1-3 acres, more or less.” There is re-, served and excepted from the deed certain lots which were conveyed before by Moses N. Harshaw and wife, Mary M. Harshaw, to other parties; said lots contained in the above boundary and deeds for same being registered in the office of the register of deeds for Caldwell County, N. C., to which deeds and the records thereof reference was made for greater certainty.

The defendant contends: That there were no allegations in the complaint setting out facts sufficient to constitute an action for specific performance. That the action should have been dismissed and a judgment as of nonsuit allowed by the court below. Under our liberal practice, we think the complaint sufficient. The prayer of the plaintiffs asks for specific performance “and for all other and general relief as may be just and right in the opinion of the court.”

The issues submitted, the facts adduced on the trial, the contentions set forth by the court on the trial below, all show that the basis of the action was specific performance. The complaint in substance is sufficient.

If the two causes of action in the complaint were not stated definite and certain enough, the defendant could have asked leave of the court to have tbis done. Tbe defendant answered. The objector must move in apt time. When a good cause of action is set out, but defective in form, the court may requiré the pleadings to be made definite and certain by amendment. Barbee v. Davis, ante, 78, and cases cited.

Article IY, section 1, Constitution of N. 0.: “The distinctions between actions and suits shall be abolished; and there shall be in this State but one form of action for the enforcement or protection of private rights or the redress of private wrongs, which shall be denominated a civil action; and every action prosecuted by the people of the State as a party against a person charged with a public offense, for the punishment of the same, shall be termed a criminal action. Feigned issues shall also be abolished, and the fact at issue tried by order of court before a jury.”

“Under the former system of practice a party might be turned out of equity, and told to bring his action at law, or be dismissed by one door of the court room, because he had sued in debt or covenant, when he might come back through another door with an action of trespass on the ease or replevin or detinue. But now these refinements have been abolished, because not conducive to the administration of justice; and if a party goes into court legally, he will not be turned out to come into court some other way. Sloan v. R. R., 126 N. C., 490. It would be a violation of this section of the Constitution to permit a party to defeat a recovery solely upon the ground of the form of the action.” Constitution of N. C., annotated by Connor and Cheshire, p. 147.

Connor, J., in Pearson v. Millard, 150 N. C., 311, says: “While, as consistently held by this and all other courts administering equitable rights and remedies, specific performance is not a matter of absolute right, yet it will be granted when it is apparent, from a view of all the circumstances of the particular case, that it will subserve the' ends of justice and work no hardship upon the party who has entered into the contract.”

“In a suit for specific performance brought by the vendor, the measure of the kind of relief a court of equity will grant is not necessarily determined or controlled by the relief demanded in the complaint, but by the facts set out in the pleadings. A prayer for general relief in a bill includes specific performance, where the allegations of the bill are such as to entitle the complainant to that relief. Where plaintiff ’prays for a money judgment and for such further relief as he may be entitled to, and sets out facts entitling him to specific performance, that relief may be granted, for a prayer for general relief includes a prayer! for specific performance.” Councill v. Bailey, 154 N. C., 54; 11 Enc. Dig. of Reports of N. C., 403.

Tbe defendants, and especially tbe defendant Eliza P. Harsbaw, requested tbe following instruction: “Tbe first issue submitted to you, gentlemen of tbe jury, is: Did tbe defendants, by tbeir contract with J. W. Self, dated 11 June, 1921, authorize tbe sale of and agree to convey tbe lands in controversy? Tbe lands in controversy are conceded to be or to consist of tbe two-acre tract of land described in tbe deed from Moses N. Harsbaw and wife to Jacob N. Harsbaw, of date 11 November, 1901 (in record 11 March), and in tbe deed from Jacob N. Harsbaw to tbe defendant Eliza P. Harsbaw, dated 11 June, 1906, and this particular two-acre tract of land is tbe land in controversy referred to in this issue. Upon tbe entire evidence in this case tbe court instructs you that it is your duty to answer this issue ‘No.’ ” Tbe court declined to give this instruction, and tbe defendants, and especially tbe defendant Eliza P. Harsbaw, excepted.

This calls for tbe construction of tbe “property contract,” made by tbe defendants, Eliza P. Harsbaw, Hal C. Martin and Jobnsie Martin, to J. W. Self, dated 11 June, 1921, as set out in tbe complaint.

A patent ambiguity cannot be explained by parol, a latent ambiguity can. We think tbe ambiguity latent and can be explained by parol, and tbe statute of frauds does not apply.

In Norton v. Smith, 119 N. C., 553, tbe contract was to convey tbe “entire tract or boundary of land consisting of 146 acres.” Walicer, J., in that case, goes fully into this matter, and says: “In tbe subsequent case of Mead v. Parker, 115 Mass., 413, where tbe writing was in these words: ‘This is to certify that I, Jonas Parker, have sold to-Franklin Parker a bouse on Church Street for tbe sum of $5,500,’ tbe Court held that evidence was competent to show what bouse defendant owned on Church Street; if be bad only one, and decreed specific performance of tbe contract, remarking as follows: ‘The most specific and precise description of tbe property intended requires some proof to complete its identification. A more general description requires more. When all tbe circumstances of possession, ownership, and situation of tbe parties, and of tbeir relation to each other and tbe property, as they were when tbe negotiation took place and tbe writing was made, are disclosed, if tbe meaning' and application of tbe writing, read in tbe light of those circumstances, are certain and plain, tbe parties will be bound by it as a sufficient written contract or memorandum of tbeir agreement.’ So it has been held that a description of land, as that on which a certain person resides, is sufficient to identify it by parol evidence. Morrisey v. Love, 26 N. C., 38; Simmons v. Spruill, 56 N. C., 9; or by its name, as tbe ‘Home Place,’ tbe ‘Lynn Place,’ or tbe ‘Leonard G-reeson Place.’ Smith v. Low, 24 N. C., 457. These positions are fully sustained by Lewis v. Murray, 177 N. C., 17 at pp. 19-21, citing Bateman v. Hopkins, 157 N. C., 470; Thornburg v. Masten, 88 N. C., 293; Farmer v. Batts, 83 N. C., 387, and other-cases. Every valid contract must contain a description of the subject-matter; but it is not necessary it should be so described as to admit of no doubt what it is, for the identity of the actual thing and the thing described may be shown by extrinsic evidence. Fry on Specific Performance, sec. 209; Pomeroy on Contracts, sec. 90, and note; Buckhorn L. and T. Co. v. Yarbrough, ante, 335. "We have not the slightest doubt that this description is not a patent ambiguity, but, at most, is a latent one, susceptible of being made certain by extrinsic proof. It is far more accurate than some of the descriptions held by the authorities to be sufficiently definite, as against a plea of the statute of frauds, to admit parol evidence for the purpose of fitting the description to the land intended to be conveyed.”

"We think the court below made ho error in admitting parol testimony to fit the description to the land intended to be conveyed.

Another position is taken by the defendant in the brief: “It is clear on the evidence that neither Self nor the defendant believed, or had any reason to believe, that the contract of 11 June included the two-acre lot. This is shown by the fact that Self prepared the deed on 20 June which was tendered to the defendant for execution in compliance with, and in full performance of her prior contract to convey, and she later, some time after the delivery of the deed, informed Self that she had signed a contract to convey the farm, and not a farm and a residence lot. No parol evidence was offered tending to show that the two-acre lot was considered, treated or used with the farm, and as a part thereof, and if such had been permitted, its effect would have been to nullify the statute of frauds.”

Although the deed of 20 June, containing 135. 1-3 acres, reserved and excepted the lots before conveyed by Moses N. Harshaw and wife, and the two acres and 18 poles had been theretofore conveyed by them, yét it was shown in the evidence that the main dwelling house was on the two acres and 18 poles, and it was included in, considered and treated as a part of the Harshaw land, that is the entire tract 135 1-3 acres.

Both contract and deed were signed by Eliza P. Harshaw, Hal C. Martin and his wife, Johnsie Martin. Eliza P. Harshaw is the mother of Johnsie Martin, and Hal 0. Martin is her son-in-law. The contract refers to a piece of land in Collettsville, N. C., about 10 miles from Lenoir. In the contract the land is referred to as a farm, size of lot 135 (acres) ; 10 acres in cultivation, 10 acres in bottom; on it 2 dwell ing-houses, apple trees, peacb trees, spring; tract of land known as Harsbaw Land. On tbis farm of 135 1-3 acres tbat plaintiffs claim was bought were two dwelling-bouses, and tbe 2 acres and 18 poles (defendant claims were reserved) were included in tbe 10-acre bottom, about tbe center of 'tbe bottom-land. Tbe land was run out, tbe outside boundaries of tbe 135 1-3 acres included tbe 2 acrés and 18 poles on wbicb tbe two dwelling-houses are located. No line of tbe lot of 2 acres and 18 poles in dispute touches any one of tbe outer lines of tbe 135 1-3-acre tract. A tenant cultivated it, and tbe rents were collected by Eliza P. Harsbaw. Tbat tbe 2 acres and 18 poles and tbe houses and farm were all treated as one piece of property. It bad all been operated together, and tbe public generally treated it and considered it as a farm, and tbat part of tbe 2 acres and 18 poles was treated in conjunction with tbe farm. Tbe price was such as to include tbe entire boundary, including tbe 2 acres and 18 poles. Plaintiffs claim $8,000 was paid for tbe entire land; tbat tbe 2 acres and 18 poles was worth about one-fourth of tbat amount. Tbe farm could not be utilized without a . dwelling-house. Tbe price received by Eliza P. Harsbaw was sufficient to show tbat she bad an interest in tbe farm and tbis lot, and tbat it was divided equally, because she got $4,000 for her part.

Practically all these facts appear in tbe contentions of tbe plaintiffs given by tbe court below, wbicb were not objected to. Tbe record shows the contentions were given fairly for both plaintiffs and defendant. Under all tbe evidence and all tbe facts and circumstances of tbis case, tbe language in tbe “J. W. Self property contract” of 11 June did not preclude parol evidence. Norton v. Smith, supra; Buie v. Kennedy, 164 N. C., 299; McGee v. Graven, 106 N. C., 351.

Tbe second issue, “Did tbe defendants, by their deed to plaintiff I. G. Green, dated 20 June, 1921, convey tbe lands in controversy?” Under tbe charge of tbe court tbe jury answered “No.” Tbe defendants contend, “Tbis deed was executed in performance of her contract,” and there is neither allegation in tbe complaint nor evidence tbat by reason of either accident, fraud or mutual mistake, anything was included in or omitted from tbis deed.

From tbe position taken by tbe court in tbis case parol evidence is permitted, on account of tbe latent ambiguity, to show tbat tbe “J. W. Self property contract” included the 2 acres and 18 poles. Tbe deed of 20 June, 1921, did not convey tbis land — 2 acres and 18 poles. Tbis suit is not brought to set aside tbat deed for accident, fraud, or mutual mistake. Tbat deed is good as far as it goes, but tbis action is for specific performance of tbe original “J. W. Self property contract.” Tbis suit is against tbe defendant to perform tbe entire contract, wbicb included tbe 2 acres and 18 poles.

Tbe defendant also assigned as error: “Tbe ruling of tbe court declining to instruct tbe-jury, as prayed by defendants, substantially to tbe effect that there was no evidence that Hal C. Martin was tbe agent of Mrs. Eliza P. Harshaw or that be entered into any contract as her agent with J. W. Self for tbe sale of tbe lands in controversy, or that she subsequently ratified any contract therefor entered into in her behalf by tbe said Martin with tbe said Self, and that tbe conversation between Self and tbe said Mártir^ in regard to tbe matter was not competent evidence against Mrs. Eliza' P. Harshaw.”

It appeared in evidence that Eliza P. Harshaw stated she wanted to sell all tbe land — tbe Harshaw Land. It appeared in evidence that she only bad a dower interest in tbe land other than tbe 2 acres and 18 poles. That tbe land brought $8,000. Tbe 2 acres and 18 poles was worth about $2,000. She received one-half of tbe money, $4,000, from J. W. Self. That her dower interest in tbe one-third cash value (if tbe contract did not include tbe 2 acres and 18 poles) would not perhaps be half of that amount — showing that she was selling tbe entire tract of land; that Hal O. Martin made tbe -contract; Eliza P. Har-shaw, he and bis wife all three signed tbe “J. ~W. Self property contract” — all acting together. All this evidence was to show that Martin was her agent, and she ratified tbe contract Martin made with Self, and it was made on her behalf as well as for bis wife, Jobnsie Martin. It was evidence sufficient for tbe jury to pass on whether be was her agent, or she ratified bis act. Anderson v. Corporation, 155 N. C., 135.

Tbe court charged: “Tbe court further instructs you that tbe conversation between Self and Martin in regard to tbe matter is not competent evidence against Mrs. Eliza P. Harshaw, unless you find that she ratified it.” This charge was favorable to defendant.

On tbe third issue, “Did tbe defendants wrongfully and in -violation of tbe said contract dated 11 June, 1921, fail to convey the lands in controversy?” Tbe court charged tbe jury in regard to this issue: “Now tbe burden of proof is on tbe plaintiffs to satisfy you of tbe fact by tbe greater weight of tbe testimony as to tbe first issue. Tbe plaintiffs contend, gentlemen of tbe jury, that although tbe second issue may be decided against them, that is, that tbe deed did not convey tbe two acres, yet from tbe evidence offered it was tbe intention of tbe parties to convey it, and that it ought to be conveyed, and that this was wrongful,-in violation of tbe contract; that is, it was wrongful in that it did not convey it and refused to convey it.”

After stating tbe contentions of tbe parties, tbe court charged: “Tbe court instructs you that it is not tbe understanding of any party to a contract as to its terms or its meaning which settles a dispute. A contract must speak for itself, and while parol evidence may be competent to explain a contract, parol evidence is not competent in this case either to contradict, vary or add to the terms of a written contract, except where it is vague, uncertain or ambiguous, then parol evidence is offered for the purpose of explaining the uncertain or vague or indefinite part of it. You, however, have a right, and it is your duty, to refer to all the deeds and contracts in order to ascertain whether this 2-acre tract on 11 June, 1921, was or was not a part of the Harshaw farm or included in the contract.”

We think this charge of the court below correct under the facts and circumstances of this case. It appears from the record that the court gave the contentions of plaintiffs and defendants on the issues minutely and carefully, and the law bearing on the facts. The whole matter was left to the jury, and they have answered the issues against the defendant.

We have examined the entire record and briefs, the exceptions to the issues submitted, the prayers for instruction and, also, cases cited, with care, and can find no prejudicial or reversible error.

No error.