Dettor v. BHI PROPERTY CO. NO. 101

370 S.E.2d 435 (1988)

Douglas P. DETTOR and wife, Elizabeth K. Dettor v. BHI PROPERTY COMPANY NO. 101, a Limited Partnership; and Borum and Associates, Inc., and Marvin L. Borum.

No. 8818SC113.

Court of Appeals of North Carolina.

August 2, 1988.

*436 Smith, Patterson, Follin, Curtis, James & Harkavy by Norman B. Smith and John A. Dusenbury, Jr., Greensboro, for plaintiff-appellants.

Perry, Patrick, Farmer & Michaux, P.A. by Roy H. Michaux, Jr., Charlotte, for defendant-appellee.

WELLS, Judge.

In its 19 October Order confirming the commissioners' report and prior summary judgment the trial court stated that the Order constituted a final determination of all issues between plaintiffs and defendant BHI and that there was no just reason to delay a decision as to those issues. This appeal is therefore properly before us. See N.C.Gen.Stat. § 1A-1, Rule 54(b) of the Rules of Civil Procedure; Leasing Corp. v. Myers, 46 N.C.App. 162, 265 S.E.2d 240, appeal dismissed, 301 N.C. 92 (1980).

By entering partial summary judgment the trial court obviously concluded from its review of the exhibits, pleadings, and discovery materials that there was no genuine issue of material fact and that judgment should be rendered as a matter of law. We agree that there are no genuine issues of material fact. Further, by ordering the defendant to reconvey 4.782 acres to the *437 plaintiffs the trial court in effect reformed the deed and contract to reflect an original intent to convey approximately 12 acres of land. Our review is limited to determining whether this reformation was proper.

Reformation is a well-established equitable remedy used to reframe written instruments where, through mutual mistake or the unilateral mistake of one party induced by the fraud of the other, the written instrument fails to embody the parties' actual, original agreement. See Light v. Equitable Life Assurance Society, 56 N.C.App. 26, 286 S.E.2d 868 (1982). Reformation on the ground of mutual mistake is available only where the evidence is clear, cogent, and convincing. Id.

In the present case the deed and contract for sale seem to evince, on the one hand, an intent to convey a specific tract of land, described in metes and bounds with definite boundaries courses, and distances. On the other hand, the contract for sale manifestly reflects a mutual understanding by the parties that the tract conveyed shall contain approximately 12 acres. For example, provision no. 3 of the contract provides as follows:

3. The property shall be surveyed by a North Carolina Registered Surveyor at the expense of the Sellers and a copy of the current survey is to be provided by the Sellers to Buyer at least ten days prior to closing. Property is to have approximately 12 acres as shown on "Exhibit A" attached hereto. [Emphasis added.]

In accordance with the above-quoted term, the plaintiffs engaged defendant Borum to execute the survey, and prior to the closing, plaintiffs delivered to BHI a survey map, prepared by Borum and properly dated, on which the tract to be sold was stated to contain 12.365 acres.

The plaintiffs contend in their brief that the trial court erred in ordering reconveyance by defendant BHI of 4.782 acres, that the original intent, or actual agreement, of the contracting parties was to transfer a specific tract of land, with payment to be made on a per acre basis, and that as a matter of law the deed should be reformed to reflect a conveyance of an additional 4.782 acres, for which BHI should pay an extra $89,662.50. We disagree. After careful consideration of the Record and briefs we conclude that the evidence is clear, cogent, and convincing that the heart of the parties' original agreement was the intent to convey approximately 12 acres.

The materials before the trial court showed that everyone involved in the negotiations assumed the subject parcel encompassed approximately 12 acres. For example, in his deposition of Mr. Fred L. Preyer, the realtor who represented BHI, plaintiffs' counsel asked Mr. Preyer if he had done any rough calculation of the property acquired from the plaintiffs. Mr. Preyer answered: "No. I hadfrankly, I had assumed that it had been done, because this has been talked about for about six to seven months, and everybody had constantly used the twelve-acre figure." (Emphasis added.) Since the deed by mutual mistake of the parties conveyed a tract embracing almost five acres more than originally contemplated, the trial court could properly reform the deed to reflect the original intent to convey approximately 12 acres by ordering the return to plaintiffs of the amount of acreage in excess of Borum's erroneous survey. We therefore overrule all of plaintiffs' assignments of error.

In light of the fact that plaintiffs not only hired the surveyor who miscalculated but also, apparently, had in their possession an unrecorded map showing the acreage of the disputed tract to be just under 18 acres, we are constrained to observe that if the trial court erred at all in its equity decree, it did so in plaintiffs' favor. As plaintiffs themselves remind us in their brief, our State's courts are loathe to disturb executed conveyances of land. See Financial Services, Inc. v. Capitol Funds, Inc., 288 N.C. 122, 217 S.E.2d 551 (1975).

Affirmed.

BECTON, J., concurs.

PHILLIPS, J., dissents.

*438 PHILLIPS, Judge, dissenting.

The real estate that the parties contracted to purchase and sell was distinctly and definitely identified on the map and description incorporated into the contract as all the land between a 10-acre tract on the north and a creek on the south. This in my view establishes as a matter of law that the parties contracted for the purchase and sale of a specifically described and identified tract of real estate and that the court had no authority to modify that agreement because of their misconception as to the size of the tract. Furthermore, "the approximately 12 acres" defendants were to receive were specifically identified as the entire tract. I would vacate the judgment and remand to the Superior Court for the entry of summary judgment for the plaintiffs.