Smith v. Digh

Court of Appeals of North Carolina

Smith v. Digh

177 S.E.2d 321, 9 N.C. App. 678, 1970 N.C. App. LEXIS 1436

CourtCourt of Appeals of North Carolina

DecidedNovember 18, 1970

DocketNo. 7025SC486

StatusPublished

Cited by1 cases

This text of 177 S.E.2d 321 (Smith v. Digh) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Smith v. Digh, 177 S.E.2d 321, 9 N.C. App. 678, 1970 N.C. App. LEXIS 1436 (N.C. Ct. App. 1970).

Pincite

Opinion

BROCK, Judge

It is noteworthy that plaintiff filed no denial to defendants’ plea in bar which consisted of their affirmative allegation of an agreement as to the location of the boundary line. Also plaintiff admitted the execution of the agreement on 22 June 1968. She does not allege or testify that she was tricked or defrauded in any way; she merely testifies that she did not sign before a notary.

As between plaintiff and defendants it is immaterial whether her signature to the agreement was acknowledged before a [680]*680notary public, or other officer. . . [A] deed becomes effective as a transfer of title as between the parties to it immediately upon its execution and delivery notwithstanding the lack of an acknowledgment, and binds not only the parties but also their heirs.” Ballard v. Ballard, 230 N.C. 629, 65 S.E. 2d 316.

Plaintiff testified that at the time she signed the agreement she did not know where the line would be located on the ground. However, in the absence of some fraud, trick, or mutual mistake, plaintiff’s lack of knowledge of where the line would be located on the ground does not invalidate her agreement; there is no allegation, or evidence, of fraud, trick or mutual mistake. And we note that plaintiff also testified: “They surveyed the line before the map was signed; they just put in some stakes on the ground where the line was;” and, “Before the map was signed, they did go down there and survey a line and set up some stakes and put in a concrete monument.”

It seems, therefore, that plaintiff’s testimony concerning no acknowledgment of her signature to the agreement before a notary public or other officer, and her testimony that at the time she signed the agreement she did not know where the line would be located on the ground, are, standing alone, irrelevant upon the plea in bar. So, the only question remaining was a question of law as to the effect of the agreement upon plaintiffs right to prosecute this action. Judge Martin ruled “ . . . [A]s a matter of law, the agreement set forth and recited on the above said recorded map or plat constitutes an estoppel and is a bar to the maintenance of this proceeding by the petitioner.” With this ruling we agree. Lowder v. Smith, 201 N.C. 642, 161 S.E. 223.

In the hearing before Judge Martin and in his order sustaining defendants’ plea in bar we find no prejudicial error.

Affirmed.

Judges Morris and Graham concur.

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BROCK, Judge

It is noteworthy that plaintiff filed no denial to defendants’ plea in bar which consisted of their affirmative allegation of an agreement as to the location of the boundary line. Also plaintiff admitted the execution of the agreement on 22 June 1968. She does not allege or testify that she was tricked or defrauded in any way; she merely testifies that she did not sign before a notary.

As between plaintiff and defendants it is immaterial whether her signature to the agreement was acknowledged before a [680]*680notary public, or other officer. . . [A] deed becomes effective as a transfer of title as between the parties to it immediately upon its execution and delivery notwithstanding the lack of an acknowledgment, and binds not only the parties but also their heirs.” Ballard v. Ballard, 230 N.C. 629, 65 S.E. 2d 316.

Plaintiff testified that at the time she signed the agreement she did not know where the line would be located on the ground. However, in the absence of some fraud, trick, or mutual mistake, plaintiff’s lack of knowledge of where the line would be located on the ground does not invalidate her agreement; there is no allegation, or evidence, of fraud, trick or mutual mistake. And we note that plaintiff also testified: “They surveyed the line before the map was signed; they just put in some stakes on the ground where the line was;” and, “Before the map was signed, they did go down there and survey a line and set up some stakes and put in a concrete monument.”

It seems, therefore, that plaintiff’s testimony concerning no acknowledgment of her signature to the agreement before a notary public or other officer, and her testimony that at the time she signed the agreement she did not know where the line would be located on the ground, are, standing alone, irrelevant upon the plea in bar. So, the only question remaining was a question of law as to the effect of the agreement upon plaintiffs right to prosecute this action. Judge Martin ruled “ . . . [A]s a matter of law, the agreement set forth and recited on the above said recorded map or plat constitutes an estoppel and is a bar to the maintenance of this proceeding by the petitioner.” With this ruling we agree. Lowder v. Smith, 201 N.C. 642, 161 S.E. 223.

In the hearing before Judge Martin and in his order sustaining defendants’ plea in bar we find no prejudicial error.

Affirmed.

Judges Morris and Graham concur.

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177 S.E.2d 321, 9 N.C. App. 678, 1970 N.C. App. LEXIS 1436, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-digh-ncctapp-1970.

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