Wall v. Wall, 7410SC905
| Decision Date | 05 March 1975 |
| Docket Number | No. 7410SC905,7410SC905 |
| Citation | 212 S.E.2d 238,24 N.C.App. 725 |
| Court | North Carolina Court of Appeals |
| Parties | James Carl WALL v. Sarah King WALL. |
Kimzey, Mackie & Smith by Stephen T. Smith, Raleigh, for plaintiff-appellee.
Thomas, S. Erwin, Raleigh, for defendant-appellant.
The pleadings raise only the question of how the proceeds of the partition sale of the property shall be divided between the tenants in common. In his petition the plaintiff alleged that the property was subject to a judgment dated 26 November 1973, recorded in Docket Book 27, page 76. The defendant denied this allegation. Nothing further appears in the record regarding the judgment described in the petition. However, the trial judge incorporated by reference in his findings of fact a judgment entered by Judge Hobgood dated 26 November 1973 in Case No. 72 CVS 9198 between the same parties and concluded that:
'The plaintiff is entitled to have defendant make a payment of Seven Hundred Twenty-Eight and 63/100 Dollars ($728.63) toward a reduction of the balance due on the note and deed of trust prior to the sale at partition, or a credit in that sum from the proceeds of the sale pursuant to the judgment herein referred to by Hobgood, J. in 72 CVS 9198.'
The effect of this conclusion was to declare that the judgment described in the findings of fact was a lien on defendant's interest in the property. It may be that the judgment referred to in the findings of fact is a lien against the property in question, but there is simply nothing in the record to support such a conclusion. Moreover, it may be that the property in question is subject to a judgment described in the petition (Docket Book 27, page 76), but this allegation was denied by defendant and the question thereby raised has not been determined and could not be determined from the record presented to Judge Bailey. Therefore, summary judgment for plaintiff charging defendant's share of the proceeds from the partition sale of the property, $728.63, pursuant to the judgment of Hobgood described in the findings of fact, was not appropriate; and that portion of the order must be vacated and the proceeding remanded to the superior court for a determination of to what extent, if any, the property in question is subject to a judgment as described in the petition.
We note the error discussed above might have been avoided if the trial judge, rather than undertaking to find facts to support his conclusions of law, had determined the plaintiff's motion for summary judgment on the record presented to him. We point out again that it is not necessary for the trial judge in passing on motions for summary judgment to make findings of fact. The following, from General Teamsters, Chauffeurs & Helpers U. v. Blue Cab Co., 353 F.2d 687, 689 (7th Cir. 1965), may be instructive:
'The making of additional specific findings and separate conclusions on a motion for summary judgment is ill advised since it would carry an unwarranted implication that a fact question was presented.'
With respect to defendant's counterclaim for reimbursement of sums paid on notes secured by deeds of trust encumbering the property in question, the defendant assigns as error the court's conclusion that:
'As a matter of law, neither the plaintiff nor the defendant owning property as a tenancy by the entirety prior to their divorce are entitled to any reimbursement for payments on the mortgage or for other benefits to the property during their marriage.'
Citing Roberts v. Barlowe, 260 N.C. 239, 132 S.E.2d 483 (1963) and Henson v. Henson, 236 N.C. 429, 72 S.E.2d 873 (1952) defendant contends she is entitled to a hearing on her equitable counterclaim for reimbursement of sums paid by her out of her personal funds during her marriage to the plaintiff on the indebtedness secured by deeds of trust on the property owned by them as tenants by the entirety.
The cases cited by the...
To continue reading
Request your trial
-
Foreclosure of Deed of Trust Recorded in Book 911, at Page 512, Catawba County Registry, In re
...the parties jointly executed a deed of trust. The husband and wife were both responsible for making the payments. See Wall v. Wall, 24 N.C.App. 725, 212 S.E.2d 238, cert. denied, 287 N.C. 264, 214 S.E.2d 437 (1975). When they conveyed title to the trustee, the Clines were aware of the conse......
-
Asker v. Asker
...by the entirety are not reimbursable and that the resultant tenancy in common is in equal shares as matter of law. See Wall v. Wall, 24 N.C.App. 725, 730, 212 S.E.2d 238, cert. denied, 287 N.C. 264, 214 S.E.2d 437 (1975); Branstetter v. Branstetter, 36 N.C.App. 532, 535-536, 245 S.E.2d 87 (......
-
Garrison v. Blakeney
...presented." See also Klein v. Insurance Co., 26 N.C.App. 452, 216 S.E.2d 479, Aff'd 289 N.C. 63, 220 S.E.2d 595 (1975); Wall v. Wall, 24 N.C.App. 725, 212 S.E.2d 238, Cert. denied 287 N.C. 264, 214 S.E.2d 437 (1975); Markham v. Swails, 29 N.C.App. 205, 223 S.E.2d 920, Cert. denied 290 N.C. ......
-
Carroll v. Rountree
...summary judgment is unnecessary and ill advised simply because to do so indicates that a fact question is presented. Wall v. Wall, 24 N.C.App. 725, 212 S.E.2d 238 (1975); cert. den. 287 N.C. 264, 214 S.E.2d 437; Stonestreet v. Motors, Inc., 18 N.C.App. 527, 197 S.E.2d 579 (1973). Where no g......