House v. Stokes, 839SC180

• Docket Nº: No. 839SC180
• Citation: 311 S.E.2d 671, 66 N.C.App. 636
• Case Date: February 21, 1984
• Court: Court of Appeal of North Carolina (US)

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311 S.E.2d 671 66 N.C.App. 636 Bobby W. HOUSE
v.
Mable Lee STOKES and wife, Lillie Mae Stokes. No. 839SC180. Court of Appeals of North Carolina. Feb. 21, 1984.

Davis, Sturges & Tomlinson by Charles M. Davis, Louisburg, for plaintiff-appellee.

Frank W. Ballance, Jr., Warrenton, for defendants-appellants.

VAUGHN, Chief Judge.

Defendants contend that the trial court erred in denying their motions for summary judgment and dismissal and in granting[66 N.C.App. 638] judgment for plaintiff since the contract between the parties was void under the statute of frauds, G.S. 22-2. We find no error.

Pursuant to G.S. 22-2, a contract to convey land is void unless the contract, or some memorandum or note thereof, is put in writing and signed by the party to be charged therewith. The writing must contain a description of the land to be conveyed, certain in itself, or capable of being rendered certain by reference to an external source referred to therein. Kidd v. Early, 289 N.C. 343, 222 S.E.2d 392 (1976); Lane v. Coe, 262 N.C. 8, 136 S.E.2d 269 (1964).

There is no question that the contract in this case was in writing and signed by all the parties. The question is whether the contract was patently ambiguous, and, therefore, void under the statute of frauds. A description is patently ambiguous when it leaves the subject of the contract, the land, in a state of absolute uncertainty and refers to nothing extrinsic by which the land might be identified with certainty. Parol evidence is inadmissible and the contract in such case is void. Bradshaw v. McElroy, 62 N.C.App. 515, 302 S.E.2d 908 (1983). The question of patent ambiguity is one of law for the court. Kidd v. Early, supra. Had the contract in this case contained no reference to an extrinsic document, we would agree with defendants that the contract was patently ambiguous. The contract provided that defendants, sellers, received payment from plaintiff, purchaser, as an option "on 11 acres of land, more or less, in Franklin County." Under this provision, the location

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of the land was undeterminable and nowhere within the contract itself was the land described more accurately. The contract, however, also provided that plaintiff "agree[s] to pay for deed land surveys and maps to the eleven acres, more or less." The contract, through this provision, incorporated by reference an external document by which identification of the land could be made certain. This internal reference rendered the contract latently, rather than patently ambiguous.

A description is latently ambiguous if it is insufficient, by itself, to identify the land, but refers to something external by which identification might be made. Bradshaw v. McElroy, supra. The reference must be to another document; that two documents refer to the same subject matter does not make them part of the same contract. Fuller v. Southland Corp., 57 N.C.App. 1, 290 S.E.2d[66 N.C.App. 639] 754, review denied, 306 N.C. 556, 294 S.E.2d 223 (1982). The connection between documents must be clear and cannot be shown by extrinsic evidence. Smith v. Joyce, 214 N.C. 602, 200 S.E. 431 (1939).

It is not ground for objection that the survey was prepared subsequent to the execution of the contract. Kidd v. Early, supra. The facts in this case are not unlike those in the Kidd case, wherein, an option contract contained the following description of the land: "a certain tract or parcel of land located in Monroe Township, Guilford County, North Carolina, and...