McKnight v. Cagle, 8416DC1107

• Decision Date: 16 July 1985
• Docket Number: No. 8416DC1107,8416DC1107
• Citation: 331 S.E.2d 707,76 N.C.App. 59
• Court: North Carolina Court of Appeals
• Parties: Phillip Nelson McKNIGHT v. William CAGLE.

Page 707

331 S.E.2d 707

76 N.C.App. 59

Phillip Nelson McKNIGHT v. William CAGLE.

No. 8416DC1107.

Court of Appeals of North Carolina.

July 16, 1985.

Lumbee River Legal Services, Inc. by William L. Davis, III, Pembroke, for plaintiff-appellant.

Johnston and McIlwain, P.A. by Edward H. Johnston, Jr., Laurinburg, for defendant-appellee.

MARTIN, Judge.

We must determine two questions which arise on the record before us. First, we must determine whether the trial court erred in denying plaintiff's motion for summary judgment. We hold that it did not. Second, we must determine whether the trial court erred by entering a judgment dismissing all of plaintiff's claims at the close of his evidence. Because we find that the trial court properly resolved one of plaintiff's claims against him, but failed to address the other, we affirm in part and reverse in part, remanding for determination of the unresolved issue.

Plaintiff contends that he was entitled to summary judgment in his favor because the uncontroverted evidence before the court, at the hearing on the motion, disclosed that the description in the warranty deed specified that the parcel conveyed contained "1.1 acres, more or less" when in fact the parcel conveyed contained only 0.62 acres, some of which was located in the public right of way. Plaintiff asserts that this evidence establishes, as a matter of law, a breach of the covenant of seisin. We disagree.

The covenant of seisin is a covenant of title and right to convey. Pridgen v. Long, 177 N.C. 189, 98 S.E. 451 (1919). Plaintiff did not allege that defendant had no right to convey the property described in the deed. His contention is simply that the property conveyed did not contain the quantity of land as stated at the conclusion of the metes and bounds description in the deed. Such a showing does not establish a breach of the covenant of seisin.

In the absence of allegation and evidence tending to correct the deed for mistake, etc., these ordinary covenants in assurance of the title attach to the land conveyed in the deed, and not otherwise.

And the authorities apposite are decisive to the effect that where real property is conveyed by metes and boundsthe quantity of land and the obligations of the deed concerning it are in no way affected by the addition of the words "containing so many acres, more or less." [Citations omitted.]

Evans v. Davis, 186 N.C. 41, 45, 118 S.E. 845, 847 (1923) (emphasis supplied). Plaintiff did not allege a mutual mistake, nor did he allege any misrepresentation by defendant or his real estate agent as to the quantity of land which he was shown. In the absence of allegations and proof of fraudulent misrepresentation as to the quantity of the land to be conveyed, the general rule is:

"Where the land is sold in bulk for a lump sum, then quantity is not generally of the essence of the contract and the parties take the risk of deficiency or excess, except in cases where there is actual fraud" or gross deficiency.

Queen v. Sisk, 238 N.C. 389, 391, 78 S.E.2d 152, 154 (1953), quoting 8 Thompson, Real Property, Perm. Ed, sec. 4580.

Neither does the fact that a portion of the property conveyed by defendant's deed was within the rights of way of the public roads adjoining the property establish a breach of the covenant of seisin so as to entitle plaintiff to summary judgment in his favor.

"[I]t 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 seisin...."

Hawks v. Brindle, 51 N.C.App. 19, 23, 275 S.E.2d 277, 280 (1981), quoting Tise v. Whitaker-Harvey Co., 144 N.C. 508, 515, 57 S.E. 210, 212 (1907).

Having determined that the trial court did not err in denying plaintiff's motion for summary judgment, we must next determine whether it was error for the court to enter judgment for defendant, pursuant to G.S. 1A-1, Rule 41(b), at the close of plaintiff's evidence. A motion for dismissal pursuant to Rule 41(b), made at the close of plaintiff's evidence in a non-jury trial, not only tests the sufficiency of plaintiff's proof to show a right to relief, but also provides a procedure whereby the judge may weigh the evidence, determine the facts, and render judgment on the merits against the plaintiff, even though the plaintiff may have made out a prima facie case. O'Grady v. Bank, 296 N.C. 212, 250 S.E.2d 587 (1978); Helms v. Rea, 282 N.C. 610, 194 S.E.2d 1 (1973). As a fact-finder, however, the trial judge must find the facts on all issues raised by the pleadings, and state his conclusions of law based thereon, in order that an appellate court may determine from the record the basis of his decision. Coble v. Coble, 300 N.C. 708, 268 S.E.2d 185 (1980); Helms v. Rea, supra. The findings of fact are conclusive on appeal if supported by competent evidence. Williams v. Liles, 31 N.C.App. 345, 229 S.E.2d 215 (1976).

In the case sub judice, the trial judge found, upon supporting evidence, that the lot was sold to plaintiff in gross for a lump sum, that no fraud on the part of defendant was alleged or proven, and that there was no gross deficiency in the actual size of the tract as opposed to that called for in the deed. Upon those findings, the...