Nolan v. Nolan

45 N.C. App. 163 | N.C. Ct. App. | 1980

CLARK, Judge.

Five fundamental questions lie at the heart of this convoluted case:

1. Does subparagraph 6(d) of the separation agreement between Dr. and Mrs. Nolan control over the subparagraph 6(c) of the same instrument?

2. Did Mrs. Nolan actively “elect” to surrender her rights to the property?

3. Did the children cease to become “dependent” during Mrs. Nolan’s lifetime?

4. Did Dr. Nolan effectively exercise his option to purchase the property upon cessation of the children’s dependency during Mrs. Nolan’s lifetime?

5. Was Dr. Nolan’s option binding on Mrs. Nolan’s heirs?

We will deal with each of these questions in the same order.

1. Subparagraph 6(c) vs. subparagraph 6(d). Both sub-paragraphs (b) and (c), as set forth above, provide, respectively, for the sale of the property upon the conditions of the cessation of the dependency of the children, or when Mrs. Nolan elected to sell the property. Subparagraph (c) does begin with “[notwithstanding any provisions to the contrary,” and, without more, would lead one to conclude that subparagraph (c) would control over any conflicting provision. Subparagraph (d), however, begins with, “[notwithstanding any of the provisions above relating to the sale of the aforesaid property.” We find no ambiguity in the introductory language of subparagraph (d) and we hold that the more particular language of subparagraph (d) specifically limits the rights given to Mrs. Nolan under subparagraphs (b) and (c) by providing that upon the occurrence of either of two contingencies, election of Mrs. Nolan to surrender possession or termination of the children’s dependency, Dr. Nolan had the right to purchase Mrs. Nolan’s “interest” in the property at a specified price. We must now look to see if either of the two contingencies under sub-paragraph 6(d) occurred.

2. Mrs. Nolan’s election to surrender. Some question might be raised as to whether Mrs. Nolan effectively elected to surrender her rights in the property by filing the declaratory judgment action on 8 December 1975. We do not, however, have to answer that question for in his answer in the present action, Dr. Nolan admitted that Mrs. Nolan “did not elect to surrender her right to the use and occupation of the property.”

3. Dependency of the children. There is no doubt that the issue as to whether the children were dependent was contested until Mrs. Nolan’s death. This is a material issue in this case, for if the children ceased to be dependent, then it would have been proper for Dr. Nolan to have exercised his option prior to Mrs. Nolan’s death. Consequently, the award of summary judgment by the trial court was improper. Koontz v. City of Winston-Salem, 280 N.C. 513, 186 S.E. 2d 897 (1972).

4. Dr. Nolan’s exercise of his option. If the jury should find that the children ceased to be dependent during Mrs. Nolan’s lifetime, then, as a matter of law, the trial court must hold that Dr. Nolan effectively exercised his right to purchase. Since Mrs. Nolan, in an answer to an interrogatory directed to her in the second action, openly refused to sell the Arbor Road property to Dr. Nolan, it was not necessary for Dr. Nolan to actually tender the purchase price to her in order for him to have exercised the option. Dr. Nolan did all that he could have done. It was Mrs. Nolan, not Dr. Nolan, who brought the earlier declaratory judgment action and who litigated up to the time of her death the question of dependency. Dr. Nolan was unable to take further action during the litigation. The law will not require one to do that which is futile or is in derogation of the judicial process. Millikan v. Simmons, 244 N.C. 195, 199, 93 S.E. 2d 59 (1956).

5. The effect of Dr. Nolan’s option on the heirs. Under the doctrine of equitable conversion, under which equity will treat as done that which ought to be done, if the children ceased to be dependent in Mrs. Nolan’s lifetime and if Dr. Nolan effectively exercised his option during her lifetime, then the children would be entitled only to the proceeds of the sale pursuant to the terms of subparagraph 6(d). 3 Strong’s N. C. Index 3d Conversion in Equity § 1 (1976). See generally, Annot., 172 A.L.R. 438 (1948); 27 Am. Jur. 2d Equitable Conversion §§ 12, 16 (1966).

If, however, the jury should find that the children did not cease to be dependent during Mrs. Nolan’s lifetime, then the trial court, as a matter of law, must rule that Dr. Nolan could not exercise the option against the children. Ordinarily, an option to purchase land is a covenant running with the land which is binding upon the heirs of the optionor. See, Trust Company v. Frazelle, 226 N.C. 724, 40 S.E. 2d 367 (1946). It is otherwise, however, where from the terms of the option itself, or by necessary implication therefrom, the option is personal and is limited to the parties thereto. 77 Am. Jur. 2d Vendor and Purchaser § 37 (1975). By the terms of the agreement in question, and the implication arising therefrom, this option is only enforceable against Mrs. Nolan, not against the children after her death.

Since Dr. Nolan had no right to exercise his option against the interest held by Mrs. Nolan’s heirs, we do not need to reach the question as to whether Dr. Nolan effectively exercised his option against the children within a reasonable time.

The judgment of the trial court is

Reversed and remanded.

Judges HEDRICK and MARTIN (Harry C.) concur.