*1 OF COURT Property BHI Co. Dettor v. wife, K. v. PROPERTY ELIZABETH DETTOR P. DETTOR

DOUGLAS Partnership; AND and BORUM a Limited NO. COMPANY ASSOCIATES, INC., L. and MARVIN BORUM

No. 8818SC113 1988) (Filed August property conveyance intended § than 7— of more of Instruments Reformation reconveyed to seller parties overage — embracing a tract by mutual mistake of the Since a deed prop- contemplated, court could originally five acres more than almost convey approximately erly deed to reflect reform the acreage in the amount of by ordering the return acres twelve erroneous excess of the Phillips dissenting. Judge Fetzer, Mills, Orders Judge. F.

Appeal by plaintiffs 1987 in GUILFORD 20 November entered 8 June Appeals in Heard the Court Court. County Superior 1988. broker, plaintiffs a real estate through

Following negotiations Company BHI Property a contract with into entered (BHI) proper- of real purchase sale and No. following perti- contained the County. The contract ty in Guilford provisions: nent as described particularly . . . Property: †/-12 more

REAL hereto, A Exhibit attached yellow in highlighted acres B attached Exhibit described on particularly more hereto. ($18,750 $225,000.00 is price PRICE: The

PURCHASE acre) .... surveyed by a North Carolina shall be a copy Sellers and of the Surveyor expense at Registered Sellers to survey be provided current is to have days closing. Property prior Buyer least at A” attached “Exhibit as shown on 12 acres hereto. OF APPEALS [91 *2 12 purchase price adjusted by The acre be tract to Thousand, ($18,750.00) Fifty Seven Hundred

Eighteen Dollars acre, down, or up using acreage the difference in actual acres, 12 and balance said purchase the is to be price Sellers . . . paid closing. to the at 12 conveyed by The acre be proposed tract to Sellers the to Contract, Buyer by is a . . the this of a . portion larger tract. survey A Associates, by was subsequently made defendant Borum and (Borum), by Inc. who was employed plaintiffs. The survey Borum parcel conveyed indicated that the to be contained acres, 12.365 purchase adjusted and the was price $225,000.00 $231,843.75. conveyed to BHI Plaintiffs the parcel to by a deed which contained based on description the conveyance, Several months after BHI discovered that actually 17.147 acres. contained Plaintiffs subsequently seeking, commenced this action inter alia, reformation of deed BHI to defendant to reflect the con- acres, acres, veyance of 17.147 12.365 instead of the and specific performance of BHI’s obligation pay contractual for the addi- received deed. BHI acreage tional answered admitting the for the and sale real purchase contract estate and that title to subject had passed, but asserting multiple counterclaims, and praying that the court either rescind the con- acres, conveyance, tract and reform the deed to include 12 or leave undisturbed. the transaction

The filed parties subsequently cross-motions and a 6 judgment, hearing held on 1986. October On 20 November the court entered an Order denominated Partial facts, alia, Summary wherein Judgment it found as inter that “the parties agreed to the and sale of a . . . tract that was to later, consist of acres” and said that tract was closing, after discovered to 4.782 contain acres more than an- The ticipated. court concluded that the parties’ contract had been fact,” entered into under a “mutual mistake plaintiffs’ that mo- tion to reform was inequitable, BHI’s motion to rescind was inequitable, “should be in as placed close a as position possible after consummation of the sale in order to COURT OF written contract.” of their provisions fulfill the terms therefore, ap- directed the equity capacity, in its sitting court 4.782 acres designate commissioners of three pointment reconveyed plaintiffs. reported the commissioners April By letter dated court, and on to the and recommendations findings

their confirming the commis- an Order entered the court Summary Judgment Partial antecedent report sioners’ a deed to plain- tender prepare and ordered com- 4.734 acres selected reconveying to them [sic] tiffs missioners. *3 Curtis, Follín, Patterson, by Nor-

Smith, Harkavy, James & Jr., Dusenbury, A. plaintiff-appellants. B. Smith and John man for Michaux, Michaux, P.A., Patrick, H. Roy by & Farmer Perry, Jr., defendant-appellee.

WELLS, Judge. report confirming 19 Order the commissioners’

In its the Order court stated that summary the trial judgment prior and plaintiffs all issues between a final determination constituted delay a just was no reason to BHI and that there and defendant properly is appeal This therefore issues. as to those decision 54(b) 1A-1, Rules Rule Stat. us. See N.C. Gen. before § 162, Procedure; 265 App. N.C. Myers, v. Corp. Leasing Civil (1980). dismissed, 301 N.C. appeal S.E. 2d court ob- the trial judgment By entering partial exhibits, and pleadings, review of the viously its concluded from issue of material genuine no discovery there materials that We law. a matter of rendered as should judgment and that fact Further, fact. issues of material genuine are no there agree plain- 4.782 acres to the reconvey to by ordering the to deed and contract in effect reformed court tiffs 12 acres of convey approximately to an reflect reforma- whether this determining is limited to Our review land. was proper. tion remedy used to equitable is a well-established Reformation where, or mistake mutual through instruments written

reframe by fraud of the induced party of one mistake unilateral OF [91 actual, other, embody fails to the parties’ written instrument Equitable v. Assurance Light See Socie- original agreement. Life (1982). 26, 286 S.E. 2d Reformation on the ty, App. N.C. is available where the evidence is ground of mutual mistake clear, Id. cogent, convincing. for sale seem to

In the case the deed contract present evince, hand, convey a tract of specific one an intent boundaries, land, described in and bounds with definite metes hand, courses, sale On the other the contract distances. by manifestly understanding reflects mutual acres. For ex- approximately the tract shall contain 3 of the contract as follows: ample, provision provides no. surveyed by 3. The shall be a North Carolina and a Surveyor expense copy at the of the Sellers Registered survey provided is to be the Sellers to of the current Buyer days have prior closing. Property at least ten A” acres as shown on “Exhibit attached [Emphasis hereto. added.] term, above-quoted plaintiffs engaged

In accordance with the survey, closing, prior defendant Borum to execute survey delivered BHI a map, prepared Borum dated, properly on which the tract to be sold was stated to con- 12.365 acres. tain *4 in brief erred plaintiffs contend their that the trial court acres, reconveyance by

in 4.782 ordering of intent, or original agreement, contracting parties the actual of the land, was transfer a of specific payment tract with to be made basis, a a acre and that as matter law deed of the should acres, conveyance be a an 4.782 reformed to reflect of additional $89,662.50. which an We pay disagree. should extra After careful of Record and briefs we consideration the conclude that clear, evidence is cogent, convincing the that the heart of the convey was parties’ original agreement approximate- the intent to ly 12 acres. everyone

The materials before the trial court showed in- in negotiations subject volved the assumed the encom- passed approximately acres. For in his example, deposition of BHI, Preyer, L. Mr. Fred the realtor who represented plaintiffs’ OF APPEALS v. BHI Dettor if Preyer any

counsel asked Mr. he had done rough calculation Preyer the Mr. property acquired plaintiffs. answered: done, frankly, I I “No. had had assumed that it been be- had — months, has cause this been talked about about six to seven (Em- constantly everybody figure.” had used twelve-acre added.) phasis Since the deed mutual mistake of the parties embracing a tract almost five acres more originally than the trial court could reform the contemplated, properly deed convey reflect acres ordering return to of the ex- acreage amount in cess of Borum’s erroneous We therefore overrule all of plaintiffs’ assignments of error. light In of the fact that plaintiffs surveyor not hired the miscalculated,

who but also apparently had in their an possession unrecorded map showing acreage disputed tract acres, just under we are constrained to if observe that decree, court erred in its at all in equity it did so favor. plaintiffs’ brief, As plaintiffs themselves us in remind their our State’s conveyances courts are loathe to disturb executed land. See Services, Funds, Inc., Financial Inc. v. Capitol N.C. (1975). S.E. 2d Affirmed.

Judge BECTONconcurs. Phillips

Judge dissents. Phillips

Judge dissenting. The real estate that contracted to distinctly sell definitely identified on map description into the all incorporated contract as the land between a 10-acre my tract on north and a creek on the south. This in view establishes as of law matter that the parties contracted for the purchase and sale of a specifically described and identified tract of real authority estate and that modify court had no that agreement because of their as to the size of misconception *5 Furthermore, the tract. “the 12 acres” defendants were to receive were I specifically identified as the entire tract. would vacate the judgment remand to Superior Court entry judgment the plaintiffs.