Hackett v. Hackett

228 S.E.2d 758 (1976)

Jessie B. HACKETT v. John Falvius HACKETT, Jr.

No. 7618DC385.

Court of Appeals of North Carolina.

October 20, 1976.

*760 Cahoon & Swisher by Robert S. Cahoon, Greensboro, for plaintiff-appellant.

Henderson & Jennings by Neill A. Jennings, Jr., Greensboro, for defendant-appellant.

HEDRICK, Judge.

Plaintiff's Appeal:

Plaintiff assigns as error the court's order directing her to convey two acres of the land in question to the defendant. Plaintiff insists that there are no findings or conclusions to support this order. We agree. All of the findings of fact made by the trial court support the conclusion that plaintiff is the sole owner of the property in question. The record supports these findings and conclusions and there is nothing in the record to support the court's order directing the plaintiff to convey any of the property to the defendant. Therefore that portion of the order challenged by plaintiff's appeal is vacated. The remainder of the judgment appealed from is affirmed. However, since the order that defendant be removed from and plaintiff be put in possession of the premises does not require that the defendant be removed from all of the property, the cause must be remanded to the district court for the entry of an order that the plaintiff be put in possession of and the defendant be removed from all of the property, including the two acres challenged by plaintiff's appeal.

Defendant's Appeal:

Defendant's sole contention is that the court erred in not making findings and conclusions dispositive of his counterclaim for betterments. To be entitled to compensation for betterments under G.S. 1-340, defendant must show that he made permanent improvements on the property under a bona fide, reasonable belief of good title. Pamlico County v. Davis, 249 N.C. 648, 107 S.E.2d 306 (1959).

All of the evidence and the findings of fact in this case show that any improvements made on the property by the defendant were made, not under any color of title, but while he was a tenant of either his father or mother or both. The Court's findings and conclusions with respect to the property and defendant's interest therein preclude any compensation to defendant for any alleged betterments. Furthermore, the findings and conclusions made by the trial court are sufficient to support an order dismissing defendant's counterclaim for betterments pursuant to G.S. 1A-1, Rule 41(b). However, the trial court failed to enter an order specifically disposing of defendant's counterclaim for betterments. The cause, therefore, must be remanded to the district court for the entry of an order, based on the findings and conclusions already made, dismissing defendant's counterclaim for alleged betterments.

*761 The result is: As to plaintiff's appeal, vacated in part, affirmed in part, and remanded with directions. As to defendant's appeal, remanded with directions.

MORRIS and ARNOLD, JJ., concur.