Hawks v. Brindle, 8017DC569

Decision Date03 March 1981
Docket NumberNo. 8017DC569,8017DC569
Citation51 N.C.App. 19,275 S.E.2d 277
PartiesRobert Lee HAWKS and wife, Juanita L. Hawks, (Appellants) v. Daniel Arthur BRINDLE, and wife, Deborah Mae Brindle, (Appellees).
CourtNorth Carolina Court of Appeals

Richard M. Fawcett, Mount Airy, for plaintiffs-appellants.

Carl E. Bell, Mount Airy, for defendants-appellees.

CLARK, Judge.

Plaintiffs assign as error the trial court's granting of a directed verdict for defendants at the close of plaintiffs' evidence on the issue of fraud. A motion for directed verdict raises the question of whether the non-movant has produced enough evidence to go to the jury. The non-movant's evidence must be taken as true and considered in the light most favorable to him, and a directed verdict may be properly granted only if, as a matter of law, the evidence is insufficient to justify a verdict for the non-movant. See W. Shuford, N.C.Civ.Prac. & Proc. § 50-5 (1975) and cases cited therein.

To overcome defendants' motion for a directed verdict then, plaintiffs had to produce some evidence of each of the essential elements of their claim. To get to the jury on the issue of fraud, the plaintiffs needed to produce evidence (1) that defendants made a definite and specific representation to them that was materially false, (2) that defendants made the representation with knowledge of its falsity, and (3) that they reasonably relied on defendants' representation. Ragsdale v. Kennedy, 286 N.C. 130, 209 S.E.2d 494 (1974). We have searched the record and can find nothing in plaintiffs' evidence which tends to prove that at the time of defendant Arthur Brindle's alleged representations to plaintiff Robert Hawks, Brindle had any knowledge that the acreage of the tract was less than 6 3/4 acres; that the boundaries were not what he indicated them, according to his information and belief, to be; or that any portion of the tract was subject to the highway right-of-way. "Erroneous statements made by the vendor in the sale of land as to the location of a boundary are not sufficient, standing alone, to impeach the transaction for fraud." Tarault v. Seip, 158 N.C. 363, 368, 74 S.E. 3, 5 (1912). Just as in the earlier case of Gatlin v. Harrell, 108 N.C. 485, 13 S.E. 190 (1891),

"The whole of the evidence accepted as true did not in any reasonable view of it prove the alleged fraud and deceit. The proof was that the defendants pointed out to the plaintiff certain corners and line-trees and lines of the tract so sold, and that these or some of them were not the true ones; but there is nothing to prove that the defendants knew that they were not the true ones, nor that they fraudulently intended to mislead, deceive and get advantage of the ... plaintiff."

Id. at 487-88, 13 S.E. at 191. See also Peyton v. Griffin, 195 N.C. 685, 687, 143 S.E. 525, 527 (1928). Plaintiffs' evidence is thus insufficient to support a verdict in their favor on the issue of fraud absent some evidence that defendant Arthur Brindle's false representations were made knowingly, and defendants' motion for directed verdict was properly granted.

Plaintiffs assign error to the denial of their motion for summary judgment on the issue of breach of covenants and to the granting of directed verdict for defendants on the same issue. Defendants conveyed the property here in question by general warranty deed, the language of which follows:

"And the grantor covenants that he is seized of said premises in fee, and has the right to convey the same in fee simple; that said premises are free from encumbrances (with the exceptions above stated, if any); and that he will warrant and defend the said title to the same against the lawful claims of all persons whomsoever."

No exceptions are noted in the deed.

Plaintiffs argue that they were entitled to recover as a matter of law for defendants' breach of the covenants of seisin and against encumbrances and that defendants were not entitled to judgment as a matter of law so as to support the directed verdict in their favor.

Directed verdict for defendants on the breach of covenant of seisin issue appears properly entered in light of the statements in analogous cases to the effect that "it is generally held that a deed conveying property on which there existed a right of way in the public, conveys the ultimate property in the soil, and therefore there is no breach of the covenant of seizin ...." Tise v. Whitaker-Harvey Co., 144 N.C. 507, 508, 515, 57 S.E. 210, 212 (1907). See also Goodman v. Heilig, 157 N.C. 6, 8, 72 S.E. 866, 867 (1911) ("such a right does not constitute a breach of the covenant of seizin ...." Citing Kutz v. McCune, 22 Wis. 628; Rawls on Covenants, 83, 142.) In the case sub judice, defendants conveyed to plaintiffs around 6 acres of land in fee. The fact that about 3 acres were subject to the highway right-of-way bears on the covenant against encumbrances rather than the covenant of seisin. By holding that directed verdict for defendants was proper on this issue, we necessarily reject plaintiffs' arguments that they were entitled to summary judgment on this same issue.

We hold that directed verdict for defendants was improperly entered on the issue of whether the highway right-of-way through the tract of land in question constituted an encumbrance sufficient to constitute breach of defendants' covenant against encumbrances. It has been stated that "a public road and a right-of-way of a railroad are not considered encumbrances, it being presumed that a purchase of land through which a road or railway right-of-way runs was made with reference to the road or right-of-way and that the consideration was adjusted accordingly ...," J. Webster, Real Estate Law in North Carolina § 190 (1971); yet our Supreme Court long ago recognized that a right-of-way or easement for a public highway may constitute "an encumbrance or burden upon the fee ...." Goodman v. Heilig, 157 N.C. 6, 8, 72 S.E. 866, 866 (1911) (railroad right-of-way). The rule in North Carolina appears to be that a covenantee may not recover for breach of the covenant against encumbrances where the encumbrance he alleges is a public highway or railroad right-of-way and either (1) the covenantee purchased the property with actual knowledge that it was subject to the right-of-way or (2) the property was "obviously and notoriously subjected at the time to some right...

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    ...of [] other claims" "it should be dismissed". Implies a fact question at motion to dismiss stage.North Carolina: Hawks v. Brindle, 275 S.E.2d 277, 282 (N.C. Ct. App. 1981) on appeal to state appellate court of directed verdict for defendants regarding a contract for the sale of land; unjust......
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    ...Moore v. Midgette, 252 F.Supp. 776 (E.D.N.C.1966); Homelite v. Trywilk Realty Company, 272 F.2d 688 (4th Cir.1959); Hawks v. Brindle, 51 N.C.App. 19, 275 S.E.2d 277 (1981); Fox v. Southern Appliances, 264 N.C. 267, 141 S.E.2d 522 (1965); Crowder v. Langdon, 38 N.C. 476 The United States Sup......
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    ...of way or the property was "obviously and notoriously subjected at the time to some right of easement or servitude." Hawks v. Brindle.,51 N.C. App. 19, 24, 275 S.E.2d 277,281 (1981) (quotation omitted). "In short, the issue is whether the covenantee knew or should have known that the land h......
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    ...not use an injunction to prevent the county's use of eminent domain when plaintiff had a statutory remedy); Hawks v. Brindle, 51 N.C.App. 19, 25, 275 S.E.2d 277, 282 (1981) (plaintiff could not use an equitable restitution claim when plaintiff had a legal remedy for breach of the covenant a......
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