*1 APPEALS OF IN THE COURT TITLE INS. CO. v. STEPHENSON COMMONWEALTH (1991)] App. 379 [101 COMPANY, and DENNIS ALAN LAND TITLE INSURANCE COMMONWEALTH wife, STEPHENSON, STEPHENSON JR. and RACHEL v. N. V. O’NEAL No. 9011DC543 (NCI3d|— encumbrances —no against covenant § 24 1. Deeds by title insurer standing against an action bring

A insurer has no title against of the covenant of real for breach the sellers a covenant in deed since encumbrances and is not is a covenant against law, immediate covenantee or only the assignable at may personal representative

covenant. Conditions, 2d, Covenants, § 82. and Restrictions

Am Jur — (NCI3d) against 2. Deeds covenant encumbrances — adjoining property system adjoining prop- The mislocation of a meaning within the erty constitute an encumbrance did not in a deed. against Conditions, 2d, Covenants, and Restrictions Am Jur §§ in the result. concurring WELLS April plaintiffs

APPEAL from Willis, County in HARNETT District Court. Henry Jr. by Judge 0. 4 December Appeals in the Court of as substituted Company, Land Title Insurance of war- defendants for breach this action plaintiff, appeal in a deed. Plaintiffs ranty encumbrances contained of defendants. favor entry Jr., P.A., Armstrong, L. Lamar Armstrong Armstrong, & plaintiffs-appellants. for Bain, Marshall, Alton D. R. Bain and by Edgar

Bain & defendants-appellees. LAND TITLE INS. CO. v.

JOHNSON, Judge. to Dennis O’Neal conveyed parcel plaintiff a of land Defendants wherein defendants trans- warranty deed by way of a standard and plaintiff to O’Neal appurtenances privileges ferred all free and clear of all title was marketable and covenanted that at the time of transfer parties Unknown to all encumbrances. the house thereon system servicing tank septic property, property in the sold and was buried was located off of the landowner. adjoining VA loan applied O’Neal for a plaintiff

In the summer of having In the course of property. on the mortgage to refinance his plain- it was determined that performed, tank location test septic actually on his neighbor’s tank was located septic tiff O’Neal’s to consent from attempted Plaintiff then obtain property. O’Neal tank, septic the maintenance of the but his to allow for neighbor instead, the immediate demanded neighbor, was unsuccessful. septic removal of the tank from his $1,400 Thereafter, Jerry Pleasant to remove plaintiff paid O’Neal install another from the septic neighbor’s the mislocation of the his As a result of tank, the refinance did not processed the loan was not place. Land Title Plaintiff filed a claim Commonwealth O’Neal (“Commonwealth”). paid plain- to Company Insurance $3,000 purchased the claim pursuant tiff to resolve O’Neal title insurance. pay- the defendants for subsequently

Demand was made warranty against of the breach of ment as a result warranty deed to O’Neal. plaintiff contained in their summary was im- judgment contend that appeal, plaintiffs On plaintiffs argue the defendants. granted Specifically, providently are liable based on a breach that the defendants We disagree. encumbrances. granted that should be

Initially, judgment note moving of material fact and the genuine when there is no 1A-1, a matter of law. G.S. entitled to a as party is Rule 56. TITLE INS. CO.

to and ^[1] ed. 1979). An encumbrance is binding A covenant or real property.” “[a] claim, lien, Black’s charge, Law Dictionary 473 or liability attached is per (5th Parker, is at law. Lockhart assignable sonal covenant and not Only the immediate covenantee representative can take is im fact O’Neal plaintiff covenant. Id. is not O’Neal’s plaintiff mediate covenantee and Commonwealth in entering trial did err court personal representative, summary judgment against Commonwealth. alia, liens, inter mort recognized, has

[2] gages, *3 land, attachments, run with the taxes and covenants Avery v. Thompson See assessments as actionable encumbrances. 405, (1939);City County, 216 S.E.2d 146 Winston-Salem N.C. 5 of (1934); Shew, Co., Supp. v. Powell 7 F. 424 and Gerdes Paving not spoken 519 Our Courts have App. system creates the of whether a mislocated first impres case is of instant therefore case an encumbrance. such, guidance to other jurisdictions sions and as look law. present accordance with Bombaci, 269, 492 A.2d Supp. We 40 Conn. Magun find (1985), sub In judice. Magun, with to be the case analogous improvements house real estate with a plaintiff purchased the no reference wherein the deed contained by general deed driveway the lines. It was later deter of sewer location mined, however, driveway the portions of of part that a the next to the deeded were located on sewer lines The the and sold the bought existed when defendants condition Plaintiffs problems no the property and had encum action based a breach an driveway sewer was held that the location brances. It encumbrance did not constitute an lines on the of another since conveyed by deed land general the fee as an to land. pass appurtenant does facts, review our of forecasted present regarding North Carolina law posture of current evidence and encumbrances, properly we find that trial court nature of An of adoption for the defendants. summary judgment entered liabilities and in increased contention could result plaintiffs’ IN THE COURT OF APPEALS IN RE PROPOSED ASSESSMENT OF ADDITIONAL TAX App. would amount to the circumventing present system of our certify- ing title for real estate. This assignment is overruled.

Accordingly, the judgment below is Affirmed.

Judge COZORT concurs.

Judge WELLS concurs in the result.

Judge WELLS concurring in the result. case, In our previous opinion in this reported at App. (1990), 387 S.E.2d 77 we recognized Commonwealth’s standing party as a plaintiff and that is the law of this case on that issue. I agree that the existence of a buried tank on the land stranger to the title in question is not an encumbrance on the title to the conveyed, land and on that narrow factual aspect case, I agree that summary judgment for defendants was correctly rendered.

IN THE MATTER OF: THE PROPOSED ASSESSMENT OF ADDITIONAL FRANCHISE TAX AGAINST R. J. REYNOLDS TOBACCO COMPANY FOR *4 THE TAXABLE YEARS 1981 AND 1982

No. 9021SC191 (NCI3d)— § Taxation inventory tax credit —election of inventory method taxpayer any the absence authority directing which inventory

method is to be used in the computation of the inventory credit, tax elect the method rests with the taxpayer. 2d,

Am Jur State and Local Taxation APPEAL by the Secretary of Revenue of the State of North Carolina from judgment November 1989 Court, Howard R. Greeson in Superior FORSYTH County. in the Court of Appeals 20 September