Thompson v. Soles
263 S.E.2d 599
N.C.
1980
Check Treatment
BRITT, Justice.

Plaintiffs contend that the recital in the deed which is set out above operates to prevent defendant from claiming any interest in the three tracts of land which are the subject of this controversy. The Court of Appeals concluded that there was sufficient evidence to enable plaintiffs to go to the jury on the issue of the effect of the recital, and that the trial court erred in entering a directed verdict in defendant’s favor. For the reasons hereinafter stated, we agreed with this conclusion.

When a fact which is recited in a deed is of the essence of the contract and it is clear that it is the intention of the parties to put the fact beyond question or to make the fact the basis of the contract, the recital is effective to operate as an estoppel against the parties to the deed and their privies. Fort v. Allen, 110 N.C. 183, 14 S.E. 685 (1892); Brinegar v. Chaffin, 14 N.C. 108 (1824); see generally 6 Thompson on Real Property § 3110 (Grimes Rev. 1962). Recitals in a deed are binding “when they are of the essence of the contract, that is, where unless the facts recited exist, the contract, it is presumed, would not have been made.” Brinegar v. Chaffin, supra at 109; see also North Carolina Joint Stock Land Bank of Durham v. Moss, 215 N.C. 445, 2 S.E. 2d 378 (1939).

The doctrine of estoppel rests upon principles of equity and is designed to aid the law in the administration of justice when without its intervention injustice would result. See Hawkins v. M. & J. Finance Corporation, 238 N.C. 174, 77 S.E. 2d 669 (1953); *487 H. McClintock, Equity § 31 (2d ed. 1948). The rule is grounded in the premise that it offends every principle of equity and morality to permit a party to enjoy the benefits of a transaction and at the same time deny its terms or qualifications. See Shuford v. Asheville Oil Co., 243 N.C. 636, 91 S.E. 2d 903 (1956); Pure Oil Co. v. Baars, 224 N.C. 612, 31 S.E. 2d 854 (1944); Allen v. Allen, 213 N.C. 264, 195 S.E. 801 (1938). It will be observed that the rule is not predicated on the formalities of a deed. It is, instead, based upon the principle that one cannot accept the benefits of a transaction and deny the accompanying burdens. Cook v. Sink, 190 N.C. 620, 130 S.E. 714 (1925).

Equitable estoppel arises when an individual by his acts, representations, admissions, or by his silence when he has a duty to speak, intentionally or through culpable negligence induces another to believe that certain facts exist, and such other person rightfully relies and acts upon that belief to his detriment. Boddie v. Bond, 154 N.C. 359, 70 S.E. 824 (1911); see also Matthieu v. Piedmont Natural Gas Co., 269 N.C. 212, 152 S.E. 2d 336 (1967); Smith v. Smith, 265 N.C. 18, 143 S.E. 2d 300 (1965); D. Dobbs, Handbook on the Law of Remedies, § 2.3, p. 42 (1973).

The Court of Appeals held that plaintiffs were entitled to go to the jury on the theories of equitable estoppel and election. Under the evidence presented and tendered by plaintiffs at trial, we hold that they were not entitled to go to the jury on the theory of equitable estoppel because there is no evidence of detrimental reliance. Our examination of the record, however, convinces us that plaintiffs adduced sufficient evidence to entitle them to go to the jury on the theory of equitable election.

The doctrine of equitable estoppel is similar to the equitable doctrine of election which is usually applied to wills. The doctrine of election provides that a beneficiary under a will cannot take under that instrument at the same time he asserts a title or claim which is inconsistent with the same writing. Rouse v. Rouse, 238 N.C. 568, 78 S.E. 2d 451 (1953); see also 1 N. Wiggins, Wills and Administration of Estate in North Carolina § 147 (1964). In making an election, a person is compelled to choose between accepting a benefit under a written instrument or retaining property already his own which is disposed of in favor of a third party by the same document. Wells v. Dickens, 274 N.C. 203, 162 S.E. 2d *488 552 (1968); see generally 5 Page on Wills § 47.2 (Bowe-Parker Rev. 1962).

While the doctrine of election usually is applied in cases dealing with wills, it has, on occasion, been applied to cases dealing with deeds. Norwood v. Lassiter, 132 N.C. 52, 43 S.E. 509 (1903). In Norwood, plaintiff was the devisee of real estate which was subject to a deed of trust. While plaintiff was a minor, the deed of trust was foreclosed, defendants purchased the land and plaintiff’s guardian accepted the balance of the proceeds of the sale after the indebtedness was paid. Part of the balance was used for plaintiff’s maintenance and support. When plaintiff reached his majority the unspent balance was paid to and accepted by him. Plaintiff then brought suit to set aside the foreclosure of the deed of trust. In affirming a trial court judgment in favor of defendants, this court held that the doctrine of election precluded plaintiff from attacking the foreclosure sale. We quote from the opinion written by Justice Walker:

“. . . When the plaintiff received the money he did something that was utterly inconsistent with his right to repudiate or disaffirm the sale. When a party has the right to ratify or reject, he is put thereby to his election, and he must decide, once for all, what he will do; and when his election is once made, it immediately becomes irrevocable. This is an elementary principle. Austin v. Stewart, 126 N.C. 525. He could not accept the money derived from the sale and at the same time reserve the right to repudiate the sale. Keer v. Sanders, 122 N.C. 635; Mendenhall v. Mendenhall, 53 N.C. 287. It is familiar learning that when two inconsistent benefits or alternative rights are presented for the choice of a party, the law imposes the duty upon him to decide as between them, which he will take or enjoy, and after he has made the election he must abide by it, especially when the nature of the case requires that he should not enjoy both, or when innocent third parties may suffer if he is permitted afterwards to change his mind and retract.
“The doctrine of election frequently, though not exclusively, arises in case of wills; but the principle in its very nature seems to apply equally to other instruments and *489 transactions. 2 Story Eq. Jur., sec. 1075, and notes . . . .” 132 N.C. at 55-56.

While a deed serves as a written memorial of an inter vivos conveyance of real property and a will is an ambulatory document which takes effect at the death of the testator, both share a common characteristic and purpose: Each serves as a vehicle whereby the ownership of property is transferred from one person to another. Accordingly, we cannot perceive any reason why the doctrine of election ought not to apply to deeds with the force it applies to wills. Cf. In re Moore’s Estate, 62 Cal. App. 265, 216 P. 981 (1923) (“ . . . he who accepts a benefit under a deed or will must adopt the contents of the whole instrument, conforming to all of its provisions and renouncing every right inconsistent with it.”) In the present case, plaintiffs seek a decree of equitable relief. It is a fundamental premise of equitable relief that equity regards as done that which in fairness and good conscience ought to be done. McNinch v. American Trust Co., 183 N.C. 33, 110 S.E. 663 (1922), cert. denied, 67 L.Ed. 823 (1923).

The deed from Nettie Soles to defendant contained a recital that the parties understood and agreed that it was given and accepted “as an advancement to [defendant] of his entire interest in the real property of the estate of the grantor and of his father, S. C. Soles, deceased.” While the recital fails as an advancement, see G.S. § 29-23, plaintiffs seek equitable relief. That being true, it is appropriate to regard the substance, not the form, of the transaction as controlling and not be bound by the labels which have been appended to the episode by the parties. In Re Pendergrass’ Will, 251 N.C. 737, 112 S.E. 2d 562 (1960); see also Mills v. Mutual Building & Loan Ass’n., 216 N.C. 664, 6 S.E. 2d 549 (1940); Continental Trust Co. v. Spencer, 193 N.C. 745, 138 S.E. 124 (1927).

We take notice of the fact that lay persons often refer to tracts of land as constituting a deceased person’s “estate”. See Peirson v. Insurance Co., 248 N.C. 215, 102 S.E. 2d 800 (1958); Jernigan v. Insurance Co., 235 N.C. 334, 69 S.E. 2d 847 (1952); see generally 1 Jones on Evidence § 2:41 (Gard Rev. 1972); 1 Stansbury’s North Carolina Evidence § 14 (Brandis Rev. 1973). Though the transaction here was cast in terms of an advancement, there is evidence which tends to show that the essence of the arrangement was to convey to defendant a vested remainder *490 in the 48 acre fourth tract, while consolidating in plaintiffs as tenants in common a vested remainder in the other three tracts. The latter three tracts had once been owned by S. C. Soles, and there had been a division of interests effected by his will. It would not be unusual, therefore, for lay persons to refer to these three tracts as being his estate.

We conclude that it was error for the trial court to direct a verdict in favor of defendant. Although defendant did not sign the deed from Mrs. Soles to him, the recordation of the deed and defendant’s acceptance of the benefits granted by the deed are indications that he accepted it. That being true, defendant was bound by the recital. This was sufficient evidence to take the case to the jury on the issue of equitable election.

In its opinion, the Court of Appeals observed that most of the evidence which was offered by plaintiffs was excluded by the trial court, apparently on the ground that the evidence was not admissible to show the creation of a trust or raise the issue of an estoppel. We agree with the Court of Appeals that while there must be a retrial, it is not necessary to discuss each evidentiary question raised by plaintiffs’ assignments of error. We also agree with the Court of Appeals that parol evidence ordinarily is admissible to establish an estoppel unless it otherwise contravenes the evidentiary rules of competency and relevancy. Our previous discussion has pointed out the similarity between the doctrines of estoppel and election. We know of no reason why the same evidentiary rule would not also apply to cases proceeding upon a theory of election. However, not being able at this time to forecast all of the evidence which plaintiffs might attempt to introduce, we decline to say which evidence that might be offered would be competent and relevant. It must be left to the trial judge to pass upon the admissibility of the evidence offered in light of the pertinent rules.

The decision of the Court of Appeals reversing the judgment of the trial court is

Modified and affirmed.

Justice CARLTON did not participate in the consideration and decision of this case.