Kidd v. Early, 69

Citation289 N.C. 343, 222 S.E.2d 392
Case DateMarch 02, 1976
CourtUnited States State Supreme Court of North Carolina

Page 392

222 S.E.2d 392
289 N.C. 343
Claude S. KIDD, Jr., et al.
C. F. EARLY and wife, Bessie D. Early.
No. 69.
Supreme Court of North Carolina.
March 2, 1976.

Clark, Tanner & Williams by David M. Clark and Eugene S. Tanner, Jr., Greensboro, for plaintiffs-appellants and plaintiffs-appellees.

Griffin, Post & Deaton by Hugh P. Griffin, Jr., and William F. Horsley, Reidsville, Sapp & Sapp by Armistead W. Sapp, Jr., and W. Samuel Shaffer, II, Greensboro, for defendants-appellants.

[289 N.C. 352] SHARP, Chief Justice:

Defendants have consistently contended that they are entitled to summary judgment for the following reasons: (1) The description of the property contained in the option is insufficient to meet the requirements of the Statute of Frauds; (2) the purported option was void because the parties failed to agree on an essential element of the contract, that is, the method of payment, and specific performance is unavailable to enforce a contract unless there has been an actual 'meeting of the minds' with regard to each element of the contract; and (3) the option could be exercised only by actual tender of cash which plaintiffs failed to do within the option period. If anyone of the foregoing contentions is valid, defendant will be entitled to summary judgment.

Upon motion a summary judgment must be entered 'if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.' G.S. 1A--1, Rule 56(c). The party moving for summary judgment has the burden of establishing the lack of any triable issue of fact. His papers are carefully scrutinized and all inferences are resolved against him. Caldwell v. Deese, 288 N.C. 375, 218 S.E.2d 379 (1975); Railway Co. v. Werner Industries, 286 N.C. 89, 209 S.E.2d 734 (1974); Page v. Sloan, 281 N.C. 697, 190 S.E.2d 189 (1972). The court should never resolve an issue of fact. 'However, summary judgments should be looked upon with favor where no genuine issue of material fact is presented.' Kessing v. Mortgage Corp., 278 N.C. 523, 534, 180 S.E.2d 823, 830 (1971). With these principles in mind we consider the questions presented by defendants' appeal.

(1) Does the description contained in the option-contract which plaintiffs seek to enforce meet the requirements of the Statute of Frauds?

An option is not a contract to sell, but it is transformed into one upon acceptance by the optionee in accordance with its terms. Lawing v. Jaynes and Lawing v. McLean, 285 N.C. 418, 206 S.E.2d 162 (1974). It then becomes specifically enforceable as a contract to convey if it is otherwise a proper subject for equitable relief. Byrd v. Freeman, 252 N.C. 724, 114 S.E.2d 715 (1960); 81 C.J.S. Specific Performance § 47 (1953); 91 C.J.S. Vendor and Purchaser § 13 (1955).

[289 N.C. 353] To be specifically enforceable an option-contract must meet the requirements of the Statute of Frauds (G.S. 22--2), which

Page 400

provides, in pertinent part, that all contracts to convey land 'shall be void unless said contract, or some memorandum or note thereof, be put in writing and signed by the party to be charged therewith, or by some other person by him thereto lawfully authorized.' A valid contract to convey land, therefore, must contain expressly or by necessary implication all the essential features of an agreement to sell, one of which is a description of the land, certain in itself or capable of being rendered certain by reference to an extrinsic source designated therein. See Lane v. Coe, 262 N.C. 8, 136 S.E.2d 269 (1964); Hollman v. Davis, 238 N.C. 386, 78 S.E.2d 143 (1953); Searcy v. Logan, 226 N.C. 562, 39 S.E.2d 593 (1946); Stewart v. Cary,220 N.C. 214, 17 S.E.2d 29 (1941); Hodges v. Stewart, 218 N.C. 290, 10 S.E.2d 723 (1940); Smith v. Joyce, 214 N.C. 602, 200 S.E. 431 (1939); 4 Strong's N.C. Index 2d Frauds, Statute of § 2 (1968); J. Webster, Real Estate Law in North Carolina §§ 119, 121, 122; T. Christopher, Options to Purchase Real Property in North Carolina, 44 N.C.L.Rev. 63, 67 (1966).

When a description leaves the land 'in a state of absolute uncertainty, and refer to nothing extrinsic by which it might possibly be identified with certainty,' it is patently ambiguous and parol evidence is not admissible to aid the description. The deed or contract is void. Lane v. Coe, supra, 262 N.C. at 13, 136 S.E.2d at 273. Whether a description is patently ambiguous is a question of law. Carlton v. Anderson, 276 N.C. 564, 173 S.E.2d 783 (1970). 'A description is . . . latently ambiguous if it is insufficient in itself to identify the property but refers to something extrinsic by which identification might possibly be made.' Lane v. Coe, supra, 262 N.C. at 13, 136 S.E.2d at 273.

The description which we now construe reads: 'a certain tract or parcel of land located in Monroe Township, Guilford County, North Carolina, and described as follows: 200 acres more or less of the C. F. Early farm. To be determined by a new survey furnished by sellers.' The C. F. Early farm, according to Early, contains 250--260 acres. (The acreage specified in the deeds by which Early acquired the property is 252.94 acres.) Had the option merely described the land to be conveyed as '200 acres more or less of the C. F. Early Farm' there is no doubt that the description would have been patently ambiguous. A contract to convey a part of a tract of land, to be valid, [289 N.C. 354] must definitely identify the portion to be conveyed or designate the means or source by which it can be positively identified. See State v. Brooks, 279 N.C. 45, 52, 181 S.E.2d 553, 557 (1971); Hodges v. Stewart, supra; Beard v. Taylor, 157 N.C. 440, 73 S.E. 213 (1911); Cathey v. Lumber Co., 151 N.C. 592, 66 S.E. 580 (1909); Smith v. Proctor, 139 N.C. 314, 51 S.E. 889 (1905).

A contract to convey, excepting a part of the land described, is valid provided the land excepted can be identified. See 26 C.J.S. Deeds §§ 30e, 139c (1956). Such a contract was made and enforced in Byrd v. Freeman, 252 N.C. 724, 114 S.E.2d 715 (1960). In that case Freeman gave Byrd an option to purchase described lands (68 acres, more or less) except the Freeman dwelling and "ten acres, more or less, on which same is located,' to be 'run off by a surveyor and properly identified by courses and distances.'' On the same day the option was signed Byrd and Freeman went upon the land and identified the physical boundaries of the tract to be retained by Freeman. Thereafter each party employed a surveyor and directed him to 'run off' the lines which he pointed out to him. Freeman's surveyor produced a map showing a tract containing 11.5 acres; Byrd's surveyor, a map showing 9.2 acres. Byrd, however, agreed to accept Freeman's survey and thereafter exercised his option in time and in accordance with its terms. Notwithstanding, Freeman refused to convey the property and Byrd sued for specific performance. Defendants defended on the sole ground that Byrd had not complied with the terms of the option. The jury answered that issue in favor of Byrd. Defendants

Page 401

made no contention that the description in the option was patently ambiguous and the court enforced the contract without question. See also Redd v. Taylor, 270 N.C. 14, 153 S.E.2d 761 (1967).

Defendants' first contention presents the narrow question whether a contract to convey 200 acres of a larger described tract (the C. F. Early farm) is saved from patent ambiguity by the provision that the acreage is 'to be determined by a new survey furnished by the sellers.'

As stated in 72 Am.Jur.2d Statute of Frauds § 329 (1974), 'There is a definite conflict in the results of cases determining the sufficiency under the Statute of Frauds of a description in a land contract which gives one of the parties the right to select the particular tract to be conveyed.' The cases pro and [289 N.C. 355] con are collected in the footnotes to Section 329 and in Annot., 46 A.L.R.2d 894 (1956) and in the volumes of A.L.R.2d, Later Case Service. See also 49 Am.Jur. Statute of Frauds § 350 (1943).

In Calder v. Third Judicial Court, 2 Utah 2d 309, 273 P.2d 168 (1954), the Supreme Court of Utah considered a contract to convey 200 acres of land situated in Davis County, Utah. A part of this land was definitely described, but the larger portion was to be selected in one tract by the buyer (Merrill) within sixty days from a larger tract described in the contract and belonging to the sellers (Calder). In holding the contract valid and specifically enforceable the court noted that the tract from which the selection was to be made by Merrill was sufficiently described in the contract; that the contract specifically provided that Merrill was to select the land within a given time; and this provision, being for the benefit of the sellers, could be waived by them; and that nothing more had to be agreed upon between the parties. The court then adopted the rationale stated by the Supreme Court of Kansas in Peckham v. Lane, 81 Kan. 489, 106 P. 464, 466, 25 L.R.A.,N.S., 967 (1910):

'* * * No reason is apparent why a person may not make a valid contract that he will sell to another one of several pieces of real estate of which he is the owner, to be selected by himself. When an agreement to that effect is written out and signed, it is a complete contract, all of the terms of which are expressed in writing. The owner agrees that he will first make the selection and then make the conveyance. If he refuses to do either, a court may compel him to do both. * * * But he cannot avoid the obligation to which he has committed himself in writing, merely by refusing to act at all. This seems so obvious that the citation of authorities is hardly necessary. The principle, however, is illustrated with more or less fullness in the following cases: Ellis v. Burden, 1 Ala. 458, 466;...

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