50 N.C. App. 252 | N.C. Ct. App. | 1981
Plaintiffs assign as error the trial judge’s granting of defendant’s motion for a directed verdict at the close of plaintiffs’ evidence. First, plaintiffs argue the trial court erred in granting a directed verdict for defendant because defendant’s motion for directed verdict did not state the specific grounds therefor. We note, however, that plaintiffs failed to object at trial to the failure of defendant to state specific grounds for its motion. Plaintiffs, therefore, cannot raise such objection on this appeal. Pergerson v. Williams, 9 N.C. App. 512, 176 S.E. 2d 885 (1970). Because defendant failed to state the grounds for its motion adequately, however, we must examine every possible basis for the motion in order to review the question of whether the evidence presented at trial, when considered in the light most favorable to plaintiffs, was sufficient to be submitted to the jury.
In its answer to the plaintiffs’ complaint seeking specific performance of the contract of sale, N.C. Phosphate raised several grounds for avoiding the contract. First, N.C. Phosphate alleged that the language following the description in the Alleman-Waters deed was sufficient to create a valid condition subsequent with a right of reentry upon breach, thereby creating a cloud upon the title to the subject property and rendering plaintiffs’ title unmarketable. Second, N. C. Phosphate alleged that the CP&L right-of-way and easement across the subject property constituted an encumbrance not satisfactory to it and rendered plaintiffs’ title unmarketable. Third, N. C. Phosphate alleged that an 18 July 1960 judgment creating a canal corporation created a lien on the subject property which constituted an encumbrance unsatisfactory to it and rendered plaintiffs’ title unmarketable. If true, any one of the above-mentioned grounds would justify the trial court in directing a verdict in N. C. Phosphate’s favor.
Defendant argues the trial court was correct in granting its motion for directed verdict because plaintiff’s title was unmarketable on the date of closing due to the presence of the reverter clause in the Alleman-Waters deed. It has now been judicially determined that the language in the Alleman-Waters deed was insufficient to create a condition subsequent with a right of reentry because it appeared in the description rather than in the granting or habendum clauses. Waters v. Phosphate Corp., 32 N.C. App. 305, 232 S.E. 2d 275, disc. rev. denied, 292 N.C. 470, 233 S.E. 2d 925 (1977). In making that determination this Court relied on the Supreme Court’s decision of Whetsell v. Jernigan, 291 N.C. 128, 229 S.E. 2d 183 (1976), which held that N.C. Gen. Stat. § 39-1.1 does not apply to conveyance executed prior to 1 January 1968 and that the Artis/Oxendine rule of construction should be applied to such deeds. See Oxendine v. Lewis, 252 N.C. 669, 114 S.E. 2d 706 (1960); Artis v. Artis, 228 N.C. 754, 47 S.E. 2d 228 (1948). Although not finally made until over two years after the date set for closing, our decision in the previous appeal of this case precludes us from now holding that the plaintiffs’ title was unmarketable as a matter of law on the date of closing due to the “reverter clause.” Therefore this was not a proper ground for a directed verdict in defendant’s favor in the case subjudice.
With regard to the CP&L easement, we believe plaintiffs presented sufficient evidence to submit the issue of whether the CP&L easement constituted a visible easement to the jury. If the CP&L easement is found by the jury to be a visible easement, defendant would be deemed to have entered the contract to convey intending to take subject to the easement and defendant could not assert the CP&L easement as a reason to refuse to perform the contract.
General contracts to convey land, giving a title in fee, or free and clear of all encumbrances, or similar covenants, are generally held not to refer to visible physical burdens upon the land, permanent in character, known to the vendee. In the ordinary case the vend'ee is presumed to have contracted to accept the land subject to visible easements of an open and notorious nature....
77 Am. Jur. 2d Vendor and Purchaser, § 222 at 399 (1975).
The character of the easement frequently determines whether the easement constitutes a defect in the vendor’s*257 title. Land, even in rural sections, is usually sold subject to some burdens, many of which not only are open and visible, but are beneficial rather than detrimental to the premises as a whole. The rule that a vendee is presumed to have contracted to accept land subject to visible easements of an open and notorious nature is applied by some courts to poles and wires used for telegraph, telephone, or power lines and a purchaser who enters into a contract for the purchase of the land burdened thereby, without objection on this ground, will be regarded as intending to take subject to this easement, and he cannot later object on this score.
Id., § 224 at p. 400.
North Carolina has recognized the doctrine of visible easements in cases involving breaches of the covenants of title in deeds. Goodman v. Heilig, 157 N.C. 6, 72 S.E. 866 (1911) (a railroad right-of-way); Tise v. Whitaker-Harvey Co., 144 N.C. 508, 57 S.E. 210 (1907) (a public alley); Ex Parte Alexander, 122 N.C. 727, 30 S.E. 336 (1898) (a railroad right-of-way). “[A] public road and a right-of-way of a railroad in operation are not considered encumbrances, it being presumed that a purchase of land through which a road or railway right-of-way runs was made with refereiice to the road or right-of-way and that the consideration was adjusted accordingly.” J. Webster, Real Estate Law in North Carolina § 190 at 224 (1971).
We feel that the rationale of the rule that visible easements do not constitute encumbrances in breach of the covenants of title in a deed is equally applicable to contracts to convey subject to no encumbrances or subject to no encumbrances not satisfactory to the purchaser. Other jurisdictions agree with us. See 77 Am. Jur. 2d, supra, § 222. The question of whether the CP&L easement in the case sub judice was of a visible, open and notorious nature was a question of fact for the jury to decide based on the evidence presented at trial. It was error, therefore, for the trial court to grant defendant’s motion for a directed verdict on this ground.
For the reasons stated above, w‘e feel that the trial court erred in granting defendant’s motion for a directed verdict in its favor. It is unnecessary to discuss plaintiff’s other assignments of error regarding certain evidentiary rulings by the trial court as they may not recur at a subsequent trial in this case. The judgment appealed from is
Reversed and remanded.
