Norburn v. Mackie

• Decision Date: 20 May 1964
• Docket Number: No. 91,91
• Citation: 262 N.C. 16,136 S.E.2d 279
• Parties: Charles S. NORBURN and wife, Helen J. Norburn v. Paul E. MACKIE, Ruth M. Mackie, and Horace J. Lsenhower, Sr.
• Court: North Carolina Supreme Court

Page 279

136 S.E.2d 279

262 N.C. 16

Charles S. NORBURN and wife, Helen J. Norburn v. Paul E. MACKIE, Ruth M. Mackie, and Horace J. Lsenhower, Sr.

No. 91

Supreme Court of North Carolina.

May 20, 1964

Williams, Williams & Morris, by Robert R. Williams, Jr., Asheville, for plaintiff appellants.

Williams & Pannell, Newton, for Paul E. Mackie and Ruth M. Mackie, defendant appellees.

Sigmon & Sigmon, by Jesse Sigmon, Jr., Newton, for Horace J. Isenhower, Sr., defendant appellee.

PARKER, Justice.

Plaintiffs' evidence considered in the light most favorable to then, Scott v. Darden, 259 N.C. 167, 130 S.E.2d 42, shows the following facts:

For several years prior to 14 September 1961, defendants Paul E. Mackie and wife, Ruth M. Mackie, owned a large tract of land in Ashe County, which is described by metes and bounds in the complaint. Sometime prior to 14 September 1961 Paul E. Mackie verbally authorized and empowered his co-defendant, Horace J. Isenhower, Sr., to aid him in finding a buyer for this land he and his wife owned at the price of $65 an acre; this is admitted in the joint answer of the Mackie defendants and in the separate answer of defendant Isenhower, which admissions were introduced in evidence by plaintiffs.

In July or August 1961 Isenhower ran the following advertisement in the Charlotte Observer, a newspaper published in Charlotte, North Carolina, in respect to the Mackie defendants' land: '696 ACRES, near West Jefferson, Mountain grazing land, 500 acres excellent improved pasture, best of fence. Plenty water. Write Box X-12 Observer.'

At this time there lived in Buncombe County Dr. Charles S. Norburn, an elderly, retired doctor of medicine, who owned and operated two small dairy farms. His two farms were too small to be profitable, and he had decided to sell them and to buy a large tract of land, where land was cheaper, to raise beef cattle. Upon reading the above advertisement in the Charlotte Observer, he wrote to 'Box X-12 Observer,' Charlotte, asking for a description of the land and its price.

Dr. Norburn received a letter from defendant Isenhower, dated 9 August 1961, which is in part as follows:

'The 696 acre farm that I advertised in the Charlotte Observer is located on top of Pond Mountain and contains 500 acres of excellent, improved pasture and is fenced with the best of fencing as well as gates, loading platforms, truck scales and scale sheds for weighing cattle.

'* * * The remaining 196 acres are in timber on the border of the farm and are lower than the pasture which covers the top of the mountain. The grass is waist high now since there have been no cattle on it this season. The pasture has been kept up by the recommendation of the North Carolina Agriculture Department. Therefore, tons of fertilizer have been applied each year.

'Fescue, blue grass, and clover make up the pasture * * *.

'We will sell this land for $65.00 per acre. The county tax is $120.00 per year, terms can be arranged.

'Since I just completed 7 1/2 years as State Director of the Farmers Home Administration of North Carolina, I know farms in all sections of this State; and this farm has good possibilities for the investment.'

Upon objection of the Mackie defendants the court excluded the letter as to them, and plaintiffs excepted and assign this as error.

Isenhower's letter to Dr. Norburn described the location of the land and the way to go to it. Several days after receiving this letter, Dr. Norburn had J. M. Crawford, who worked for him on one of his farms, to drive him to the Mackie land. Upon reaching it, they drove into the pasture, and ahead of them was a steep bluff about 200 feet high. A steep, washed road ran up this bluff, which they could not drive up with their car. They walked up this bluff. They came to the top of a narrow ridge, where there was some very fine pasture land, just as it had been described. They walked along this ridge a short distance. Several years before, Dr. Norburn had been seriously injured, his neck was in a cast, and this was the first trip he had made after being in bed about three and one-half years. Dr. Norburn began to have pain in his neck and had to lie down on the grass. Crawford walked on beyond a little knoll that blocked the way. He saw grass ahead for some distance. He then turned and went to the left and on around until he came to the edge of the woods, and then went back to Dr. Norburn. He was gone 15 or 20 minutes. He told Dr. Norburn: 'Well, I don't know where the fence is but it is bound to be 500 acres of grass I could see up on the ridge * * *. It is awful good grass what I have seen of it.' They went back to the car and left.

Ten days or two weeks after this trip Dr. Norburn drove to the town of Conover and saw Isenhower about the purchase of this land. Their conversation was in substance: Isenhower said he had been on this land a number of times; he knew it well. He repeated what he had said in his letter about 500 acres in grassland; he said he had been a State representative and knew. Dr. Norburn told him he had been very ill and would have to rely entirely on what he said, and that he could not go to the land again soon. Isenhower told him he could rely on everything he said, that it was the truth. Being of the opinion that 500 acres of pasture land was worth $65 an acre and the 196 acres of woodland worth $10 an acre, he offered $35,000 cash for the land. Isenhower telephoned the Mackies, and they said the offer was not acceptable. The day he returned home, Isenhower telephoned him his offer of $35,000 had been accepted. Upon objection of the Mackies, the conversation was excluded as to them, and plaintiffs excepted and assign this as error.

On 15 September 1961 Dr. Norburn and all the defendants met in the office of Mr. Austin, a lawyer, in the town of Jefferson to consummate the purchase and sale of this land. There Isenhower and Paul E. Mackie told him the land had in its boundaries 500 acres of improved pasture land. Paul E. Mackie took a pencil and drew on a map or plat of the land 'two curved lines, one the northeastern section of the plat and one down at the southeastern section and he said that the woods lay between the boundary and these two lines and that that was all the woods there was on the boundary, and that all the rest was in improved pasture.' Mr. Austin went to the courthouse, returned, and said the title was all right. Whereupon, Dr. Norburn delivered to Paul E. Mackie his cheque payable to him in the sum of $35,000 in payment of this land, which cheque has been paid. Then the Mackie defendants executed and delivered to him a warranty deed conveying this land in fee to Dr. Norburn and his wife. This deed recites the land contains 696 acres.

The Mackie defendants in their joint answer admit that they paid Isenhower the sum of $1,500 for his services and expenses; and Isenhower admits in his answer that Paul E. Mackie paid him the sum of $1,500 for his services and expenses. These admissions were introduced in evidence by plaintiffs.

A few days later Dr. Norburn obtained a TVA contour map of the section and the land he bought, showing open land in white and woodland in green. Looking at this map he saw at a glance that this land had far less cleared land than had been represented to him. Dr. Norburn then employed civil engineers and surveyors to ascertain the amount of improved pasture land and woodland on this land. Lawrence B. Tyson, who is a civil engineer and surveyor and was employed by Dr. Norburn, went on the land and computed the total acres to be 666 acres, of which 108 acres is improved pasture land, 68 acres unimproved pasture land, and 490 acres of woodland. Melvin Carter, who is a civil engineer and land surveyor in Asheville and was employed by Dr. Norburn, went on this land. He surveyed the grassland and found it consisted of 147 acres. He made the pasture land as big as he could, stretching the cleared area as far into the woods as he could.

Bryan Kirby, who is 66 years old, lives in Ashe County. His business is farming and cattle raising, and he has had considerable experience as a real estate appraiser in Ashe County. At Dr. Norburn's request he went on this land purchased by him from the Mackies to make an appraisal of its fair market value. He is familiar with the land. In his opinion, from an examination of the land, the fair market value of this land in September 1961 was $14,000. He based his opinion on these factors: He found 100 acres which seemed to have had some lime or fertilizer on it, which he valued at $75 an acre for pasture purposes. He found 40 to 50 acres of pasture land that had grown up with wild strawberries and bushes, which he valued at about $30 an acre. He considered the rest of the land worth $10 an acre.

The Mackie defendants in their joint answer admit 'that sometime prior to September 14, 1961 the defendant, Paul E. Mackie, through a verbal conversation, authorized and emplowered his codefendant, Horace J. Isenhower, Sr., to assist him in finding a buyer for and in selling the lands described in paragraph 3 of the plaintiffs' complaint.' Plaintiffs alleged in paragraph 6 of their complaint: 'That in the month of July or August 1961, the defendant, Horace J. Isenhower, Sr., ran, or caused to be run, an advertisement in the Charlotte Observer, a newspaper published in Charlotte, North Carolina, advertising the sale of the aforesaid property, said advertisement being as follows: '696 ACRES, near West Jefferson, Mountain grazing land. 500 acres excellent improved pasture, best of fence. Plenty of water. Write Box X-12 Observer.' ' The Mackie defendants, in their joint answer, in paragraph 6 state: 'That the allegations contained in paragraph 6 of the plaintiffs' complaint are admitted upon information and belief.' Plaintiffs alleged in paragraph 7 of their complaint: 'That said advertisement was run in said paper in furtherance of the aforesaid agency or brokerage and for the...