Garrison v. Blakeney

• Decision Date: 11 July 1978
• Docket Number: No. 7726SC544,7726SC544
• Court: North Carolina Court of Appeals
• Parties: Eudora B. GARRISON and husband, Wilton M. Garrison, and Lina B. Ardrey (widow), Petitioners-Plaintiffs, v. Willie Blount BLAKENEY (widow), Frances Blakeney Coker and her husband, Byron Coker, Margaret Blakeney Bullock and her husband, Leonard S. Bullock, and James A. Blakeney (III) and his wife, Julie Miller Blakeney, Respondents-Defendants.

Page 144

246 S.E.2d 144

37 N.C.App. 73

Eudora B. GARRISON and husband, Wilton M. Garrison, and Lina B. Ardrey (widow), Petitioners-Plaintiffs, v. Willie Blount BLAKENEY (widow), Frances Blakeney Coker and her husband, Byron Coker, Margaret Blakeney Bullock and her husband, Leonard S. Bullock, and James A. Blakeney (III) and his wife, Julie Miller Blakeney, Respondents-Defendants.

No. 7726SC544.

Court of Appeals of North Carolina.

July 11, 1978.

Hicks & Harris, by Tate K. Sterrett and Eugene C. Hicks, III, Charlotte, for petitioners-appellants.

Grier, Parker, Poe, Thompson, Bernstein, Gage & Preston, by William E. Poe and Irvin W. Hankins, III, Charlotte, for respondents-appellees.

MORRIS, Judge.

Petitioners' first two assignments of error are directed to the failure of the court to find facts. Prior to the entry of the judgment, petitioners filed a written request that the court "find the facts specially and state separately its conclusions thereon" under the provisions of N.C.G.S. § 1A-1, Rule 52(a). This rule, insofar as it might be applicable here, provides first that "(i)n all actions Tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment" and that as to decisions of any motion or order ex mero motu findings of fact and conclusions of law are necessary only when requested by a party and as provided by Rule 41(b). Obviously the first section of the Rule has no applicability, since by its expressed terms, it is concerned with Actions tried upon the facts. A motion for summary judgment is not an action tried upon the facts since this motion can only lie where there is no necessity for trying the action upon the facts. But petitioners say the rule requires the court to find facts in deciding a motion if requested so to do by any party. Again, we point out, as we have already done on numerous occasions, if it is necessary for facts to be found, the matter is not properly one for summary judgment. As was said in General Teamsters, Chauffeurs and Helpers Union v. Blue Cab Co., 353 F.2d 687, 689 (7th Cir. 1965): "The making of additional specific findings and separate conclusions on a motion for summary judgment is ill advised since it would carry an unwarranted implication that a fact question was presented." See also Klein v. Insurance Co., 26 N.C.App. 452, 216 S.E.2d 479, Aff'd 289 N.C. 63, 220 S.E.2d 595 (1975); Wall v. Wall, 24 N.C.App. 725, 212 S.E.2d 238, Cert. denied 287 N.C. 264, 214 S.E.2d 437 (1975); Markham v. Swails, 29 N.C.App. 205, 223 S.E.2d 920, Cert. denied 290 N.C. 309, 225 S.E.2d 829; 290 N.C. 551, 226 S.E.2d 510; 429 U.S. 940, 97 S.Ct. 356, 50 L.Ed.2d 310 (1976); Furst v. Loftin, 29 N.C.App. 248, 224 S.E.2d 641 (1976). There may be cases in which it would be helpful for the court to set out in its judgment those undisputed facts upon which judgment is based, but this procedure would rarely be helpful or necessary and should be used sparingly. When used, the court should be careful to note that it is stating the undisputed facts. They should not be referred to as findings.

Here the court stated in its judgment that it had "determined that there are no contested material issues of fact pertaining to the motions, the only question being the validity and legal effect of the two 'deeds' previously referred to herein as Exhibits A and B, and whether either party is entitled to judgment as a matter of law". The court then stated "The Court makes the following findings and conclusions:" There follows the court's conclusion that the two deeds are valid and effective and its determination of the interests of the parties in the real estate. These are obviously not findings of fact, although erroneously stated to be. Petitioners' first two assignments or error are overruled.

In their own motion for partial summary judgment and their response to respondents' motion for summary judgment the petitioners alleged that the two deeds were invalid.

As to the deed from James Blakeney and wife to Alexander Martin, dated 13 February 1917, the petitioners alleged that it was recorded 57 years after its date and is invalid and ineffectual to convey any interest in real estate for the following reasons: (1) The description is insufficient, (2) There is no seal affixed after the grantors' names nor otherwise appearing on said paperwriting as being adopted by the grantors, (3) The paper writing was never meant to be a deed, was never meant to be recorded, the signatures were never notarized during the life of either grantor, and its recordation after the death of James, Jr. was done solely to alter the percent of ownership of petitioners, and (4) The purported deed is "off the chain of title" and ineffectual to serve as record notice of a conveyance.

As to the deed from Alexander Martin and wife to James, Jr., dated 13 November 1929, and recorded some 36 years thereafter, the petitioners' allegations of invalidity are as follows: (1) At the time of the conveyance neither grantor owned record title to the property and, therefore, could not convey the property, (2) The description is insufficient, (3) The purported conveyance was a gift and not recorded within two years of its making, and (4) The purported conveyance is "off the chain of title" and cannot give record notice of a conveyance.

All parties agree that the primary issue for decision by this Court is whether the two deeds are valid conveyances.

We first discuss the 1917 document, which we shall refer to as the "Blakeney deed". Petitioners first urge that the court erred in granting respondents' motion for summary judgment because, at the very least, the question of whether the grantor intended to adopt a marking as his seal must be submitted to a jury. But, the petitioners urge, that should not be necessary because, as a matter of law, the deed is not under seal and summary judgment should have been entered for petitioners.

In North Carolina there can be no doubt but that a seal is essential to the validity of a deed. Williams v. Board of Education, 284 N.C. 588, 201 S.E.2d 889 (1974); Williams v. Turner, 208 N.C. 202, 179 S.E. 806 (1935); Strain v. Fitzgerald, 128 N.C. 396, 38 S.E. 920 (1901), Petition for rehearing allowed, 130 N.C. 600, 41 S.E. 872 (1902); Patterson v. Galliher, 122 N.C. 511, 29 S.E. 773 (1898); Harrell v. Butler, 92 N.C. 20 (1885); Pickens v. Rymer, 90 N.C. 282 (1884); Yarborough v. Monday, 14 N.C 420 (1832); Ingram v. Hall, 2 N.C. 193 (1795); Webster, Real Estate Law in North Carolina § 170 (1971). Originally, the purpose of the seal was to identify the grantor and authenticate the instrument as the grantor's. The seal, when first used "exhibited the emblem which its owner had affixed to his person, when covered in the field with his coat of mail, and which being portrayed upon some conspicuous part of his dress, served to designate his person", Ingram v. Hall, 2 N.C. at 198, and was used by the nobility and gentry only. Very few people could write even among the nobility and gentry, and the common people had no use for seals, because, for the most part, they were not allowed to have contracts, and the need for identity as a grantor simply did not exist. As trade began to flourish, and the need for contracts became more prevalent, even among those less than nobility, the necessity for authenticating contracts became urgent. Those entering into contracts adopted the only mode of authentication then known, the seal. They used any symbol they chose. Frequently the Pares of the area did not know the seals and, therefore, could not determine authenticity solely by inspection of the seal. It often became necessary for these jurors to call upon people who knew the seal used by the party to say whether it was his seal. The law, rather than invalidate the transaction, left it to the jury to make the determination.

"In this country the people have departed still further from the true use of seals, by not making any impression at all, scratching something like a seal upon the margin of the paper, and making that pass for a seal. To the first of these abuses the law has conformed, and will now deem the sealing to be sufficient if found by the jury to be the seal of the party. . . ." Ingram v. Hall, 2 N.C. at 200.

Though the reason for the use of a seal the authentication of the grantor has long since been completely eliminated in this State, we still require a seal in order that a deed shall have validity as a conveyance of property. An instrument, in form a deed, without a seal may operate as a simple contract to convey, Willis v. Anderson, 188 N.C. 479, 124 S.E. 834 (1924), but it is not a deed without a seal. While many states have abolished the requirement of a seal for validity, North Carolina still requires it. 23 Am.Jur.2d, Deeds, § 27 at 95 (1965). Despite the fact that a seal, or scrawl adopted as a seal, can add nothing to the authentication of a seal as being the act of the grantor, we are bound by the common law requirement, absent an act of the legislature dispensing with the requirement. We find very interesting the comment of Professor Webster in Real Estate Law in North Carolina, where he said:

"In other words, any mark May be a seal If proved to be a seal. But if additional proof is necessary to show that a mark is a seal, i. e., that it is authentic, of what use is a seal?" Webster, Real Estate Law in North Carolina § 170 at 198 and 199 n. 184.

The original instrument was before the court in this case, and it contains no seal affixed after the signature of J. A. Blakeney. Immediately above his signature, the conclusion of the deed is as follows: "In token whereof I do hereto this thirteenth day of February 1917 fix my sign and seal." Under that appears the word "Sign" and opposite that word and on the same line, if there were a line, is "J. A. Blakeney". Under...