Biggers v. Evangelist

• Decision Date: 06 November 1984
• Docket Number: No. 8326SC1025,8326SC1025
• Citation: 71 N.C.App. 35,321 S.E.2d 524
• Court: North Carolina Court of Appeals
• Parties: Howard R. BIGGERS, Jr., Rennie Biggers, and Carol Biggers Dabbs v. Felix C. EVANGELIST and wife, Paula A. Evangelist.

Page 524

321 S.E.2d 524

71 N.C.App. 35

Howard R. BIGGERS, Jr., Rennie Biggers, and Carol Biggers Dabbs v. Felix C. EVANGELIST and wife, Paula A. Evangelist.

No. 8326SC1025.

Court of Appeals of North Carolina.

Nov. 6, 1984.

Blakeney, Alexander & Machen by Whiteford S. Blakeney, and Boyle, Alexander, Hord & Smith by B. Irvin Boyle, Charlotte, for plaintiffs-appellees.

Jones, Hewson & Woolard by Harry C. Hewson and Hunter M. Jones, Charlotte, for defendants-appellants.

BECTON, Judge.

On 1 December 1980, plaintiffs, Irene R Biggers ^* and her children, Howard R. Biggers, Jr., Rennie Biggers, and Carol Biggers Dabbs (the Biggers) sought to reform, on the ground of mutual mistake, a deed, dated 1 July 1975, from Irene and her husband, Howard R. Biggers, Sr. (since deceased) to the defendants, Felix A. Evangelist and his wife, Paula A. Evangelist, conveying a 9.432 acre tract including the homeplace. The Biggers alleged that the deed mistakenly failed to reserve to the Biggers a right-of-way along the two private access roads, Bent Branch Road and Wild Holly Lane, to reach their remaining property and, in fact, arguably conveyed all their easements and fee title interest in the two roads. Moreover, the deed mistakenly included within its 9.432 acre metes and bounds property description the entire width of Bent Branch Road (60 feet) for a 187.59 foot long section, thereby expressly giving the Evangelists fee title interest in that section of the road.

The Biggers first asked the trial court to grant them a 60-foot wide private right-of-way along the two private roads to reach their remaining undeveloped property. Later the Biggers amended their Complaint by asking the trial court to reconvey fee title interest in one-half the width of Bent Branch Road (30 feet) for the 187.59 foot long section. The Evangelists pleaded N.C.Gen.Stat. Sec. 1-52(9) (1983), the three-year statute of limitations applicable to actions for relief on the grounds of fraud or mistake, in bar. The Biggers then added a second theory of recovery to their Complaint--specific performance of the written contract for purchase and sale of real estate, dated 22 May 1975. They asked the trial court to conform the deed to the contract and for "such other and further relief as the court may deem just and proper."

On 21 June 1983 the trial court, after a bench trial, concluded that the written contract (1) mandated a conveyance subject to rights-of-way of Bent Branch Road and Wild Holly Lane; (2) voided the provisions of the third paragraph of the deed, dealing with the Biggers' easements; and (3) voided the conveyance of fee title to the 30-foot wide strip of Bent Branch Road beyond the centerline. In addition, the trial court concluded that the Biggers were entitled to easements by implication to reach their remaining property and that the three-year statute of limitations, G.S. Sec. 1-52(9) (1983), was inapplicable to an action to enforce a written contract under seal.

The Evangelists appeal. We affirm in part and reverse in part.

I

Generally, a contract for the sale of land is not enforceable when the deed fulfills all the provisions of the contract, since the executed contract then merges into the deed. Gerdes v. Shew, 4 N.C.App. 144, 166 S.E.2d 519 (1969); 26 C.J.S. Deeds Sec. 91(c) (1956). However, it is well-recognized that the intent of the parties controls whether the doctrine of merger should apply. Stewart v. Phillips, 154 Ga.App. 379, 268 S.E.2d 427 (1980) (survival clause--no merger); Bryant v. Turner, 150 Ga.App. 65, 256 S.E.2d 667 (1979) (closing statement revealed intent not to merge); Vaughey v. Thompson, 95 Ariz. 139, 387 P.2d 1019 (1963), 8A G.W. Thompson, Real Property Sec. 4458 (1963 & Supp.1981); Annot., 38 A.L.R.2d 1310 (1953). Although we find no North Carolina case directly on point, the intent of the parties is the guideline in contract interpretation, Lane v. Scarborough, 284 N.C. 407, 200 S.E.2d 622 (1973), and the statutorily mandated guideline in deed construction. N.C.Gen.Stat. Sec. 39-1.1 (1976); Whetsell v. Jernigan, 291 N.C. 128, 229 S.E.2d 183 (1976). Moreover, the intent of the parties dictates whether an earlier contract is discharged by a later contract. Turner v. Turner, 242 N.C. 533, 89 S.E.2d 245 (1955). Applying the rationale of our statutory and case law to the facts at hand, we, therefore, look to the instruments to discern the parties' intent.

The Biggers-Evangelist contract contains a survival provision, which reads as follows:

All covenants, representations, warranties, and agreements set forth in this contract shall survive the Closing date, and shall survive the execution of all deeds and other documents at any time executed and delivered under, pursuant to, or by reason of this Contract, and shall survive the payment of all monies made under, pursuant to, or by reason of this Contract.

None of the other contractual provisions counter the clear intent of the parties, as shown in the survival provision, to avoid the doctrine of merger. Nor does the language of the deed suggest that the parties had waived the survivability of the contract by the closing date.

We conclude that the Biggers-Evangelist contract did not merge in the deed; the parties' clearly-defined intent rebuts the presumption of merger. The Biggers were entitled to bring an action on the contract.

II

The Evangelists pleaded the three-year statute of limitations, G.S. Sec. 1-52(9) (1983), in bar to the Biggers' original cause of action, concerning reformation of the deed on the ground of mutual mistake. Since the trial court based its judgment on the Biggers' second cause of action--the specific performance on the contract--we need not discuss the statute of limitations applicable to deed reformation further.

Which statute of limitations is applicable to the Biggers' contract action? Biggers offered the contract in evidence; the word "seal" appears in brackets next to the parties' signatures. Evidence of the word "seal" in brackets is sufficient to overcome the three-year statute of limitations; thereby qualifying the contract as a sealed instrument. Lee v. Chamblee, 223 N.C. 146, 25 S.E.2d 433 (1943). The ten-year statute of limitations, N.C.Gen.Stat. Sec. 1-47 (1983), applicable to actions on sealed instruments against a principal thereto, governs the Biggers' contract action.

The trial court did not err in allowing the Biggers to proceed with their contract action.

III

Having concluded that the Biggers were entitled to pursue their action on the contract in the abstract, we now are faced with the specific enforceability of its particular terms. The trial court relied on selected language from the contract and testimony by the parties in concluding that the contract entitled the Biggers to a right-of-way over Bent Branch Road and Wild Holly Lane, and that the contract did not convey the Biggers' easements or fee title to the entire 60-foot width of Bent Branch Road for 187.59 feet. The Evangelists contend that "[t]he evidence does not support the [trial] court's findings and conclusions on the merits, but compels contrary findings and conclusions." After reviewing the language of the contract in context, discussed infra, we agree with the Evangelists. We conclude that the contractual terms relied on by the Biggers do not entitle them to relief; the cited terms are not enforceable against the Evangelists. We therefore reverse.

When a contract term is clear and unambiguous, the express language of the contract controls its meaning, Crockett v. First Federal Sav. & Loan Ass'n of Charlotte, 289 N.C. 620, 224 S.E.2d 580 (1976), and the trial court cannot resort to extrinsic evidence to determine the parties' intent. Renfro v. Meacham, 50 N.C.App. 491, 274 S.E.2d 377 (1981). Apparently, as is clear from its findings of fact, the trial court implicitly determined that the two contested terms relied on by the Biggers discussed in detail infra, were ambiguous since it admitted evidence of the parties' intent on each of them. We find that the first contested term, which allegedly reserved a right-of-way to the Biggers and voided the conveyance of the Biggers' easements, was unambiguous. Therefore, the express language controls, and the intent of the parties is a question of law for this Court to decide. Lane v. Scarborough. The second contested term, involving the property description, although arguably ambiguous, does not control. Therefore, the trial court's conclusions of law are ill-founded. The trial court's conclusions of law are reviewable de novo on appeal. Humphries v. City of Jacksonville, 300 N.C. 186, 265 S.E.2d 189 (1980). For the reasons discussed below, we conclude that neither term grants the Biggers their desired relief.

A. The First Contested Term--Rights-of-Way of Bent Branch Road and Wild Holly Lane

The deed from the Biggers to the Evangelists did not expressly reserve to the Biggers a right-of-way over Bent Branch Road and Wild Holly Lane to reach their remaining vacant property. Further, the third paragraph of the deed allegedly conveyed all the Biggers' easements as well as their "rights and interests" in Bent Branch Road and Wild Holly Lane. The third paragraph of the deed reads as follows:

The parties of the first part do also assign and convey to the parties of the second part, their heirs, successors and assigns, all their right, title, and interest in and to the easements (i) reserved in Deed to Robert S. Speizman and wife, Carol Kantor Speizman recorded in Book 3267, Page 399 of the Mecklenburg County Public Registry, and (ii) reserved by parties of the first part in all other deeds, agreements, or instruments which are appurtenant to or relate to the property hereinabove conveyed to the parties of the second part (including all rights and interests of the parties of the first part in and to Bent Branch Road and Wild Holly Lane).

The trial court, relying on language excerpted from the fifth...