PIEDMONT NATURAL GAS COMPANY v. Day

106 S.E.2d 678 (1959)

249 N.C. 482

PIEDMONT NATURAL GAS COMPANY, Inc. v. Carlton K. DAY and wife, Etta C. Day.

No. 739.

Supreme Court of North Carolina.

January 28, 1959.

W. R. Dalton, Jr., Burlington, for defendants, appellants.

Sanders & Holt, Burlington, for plaintiff, appellee.

HIGGINS, Justice.

The assignments of error involve the validity of the plaintiff's easement. The defendants contend it is invalid (1) for failure to locate the line upon which it was to be built; (2) for failure of the grantors to acknowledge its execution before a proper officer; and (3) for failure of the plaintiff to comply with the "supplementary agreement" to construct its lines along the power company's right of way.

The easement here involved is not open to the objection the line along which the pipes were to be laid is not defined in the grant. The instrument itself gives the *680 grantee the right to select the line. The plaintiff made the selection, constructed the line, paid the damages to the crops, timber and fences, and took from the grantors a full receipt for the payment. This occurred long before the defendants acquired title from the original grantors. Both the defendants' contract to purchase and their deed specifically state the land is free and clear of all encumbrances, "except those certain easements heretofore granted to Duke Power Company, Southern Bell Telephone and Telegraph Company, and Piedmont Natural Gas Company."

"It is a settled rule that where there is no express agreement with respect to the location of a way granted but not located, the practical location and user of a reasonable way by the grantee, acquiesced in by the grantor or owner of the servient estate, sufficiently locates the way, which will be deemed to be that which was intended by the grant." Borders v. Yarbrough, 237 N.C. 540, 75 S.E.2d 541, 543. The defendants' contention the grant is void for uncertainty of description cannot be sustained.

The defendants' contention the easement was not properly acknowledged also must fail. The notary public certified to the appearance of Mr. and Mrs. Amick before him and the due acknowledgment by both. Mr. Richardson witnessed the signatures of the grantors. The principal objection was that neither of the men was introduced as a notary public. Mr. Amick was not certain. The notary was positive that his official position was known. The Amicks admitted their signatures, the receipt of the consideration, and the receipt of the payment for damages to crops, timber, and fences. The deed from the Amicks to the defendants refers to the easement grant. The certificate of the officer is not attacked for fraud, but upon the ground that Mrs. Amick did not know the officer was acting as a notary public. The evidence is insufficient to impeach a solemn record. The certificate of acknowledgement must be attacked by direct action and not collaterally. Lee v. Rhodes, 230 N.C. 190, 52 S.E.2d 674; Freeman v. Morrison, 214 N.C. 240, 199 S.E. 12; Best v. Utley, 189 N.C. 356, 127 S.E. 337; Ware v. Nesbit, 94 N.C. 664; Wright v. Player, 72 N.C. 94; Woodbourne v. Gorrell, 66 N.C. 82.

The defendants' claim would be defeated even if we treat the plaintiff's easement as unrecorded since it is referred to in the defendants' deed from the Amicks. "The language of courts and of judges has been very uniform and very decided upon this subject, and all agree that whoever purchases lands upon which the owner has imposed an easement of any kind, or created a charge which could be enforced in equity against him, takes the title subject to all easements, equities, and charges, however created, of which he has notice." Packard v. Smart, 224 N.C. 480, 31 S.E.2d 517, 519, 155 A.L.R. 536; Dulin v. Williams, 239 N.C. 33, 79 S.E.2d 213; State Trust Co. v. Braznell, 227 N.C. 211, 41 S.E.2d 744.

The court properly refused to permit the defendants to introduce parol evidence of a contemporary agreement between the Amicks and the plaintiff different from the written instrument. "This Court has consistently held that `parol evidence will not be heard to contradict, add to, take from or in any way vary the terms of a contract put in writing, and all contemporary declarations and understandings are incompetent for such purpose, for the reason that the parties, when they reduce their contract to writing, are presumed to have inserted in it all the provisions by which they intend to be bound.'" Bost v. Bost, 234 N.C. 554, 67 S.E.2d 745, 747. "* * * in the absence of fraud or mistake or allegations thereof, parol testimony of prior or contemporaneous negotiations and conversations inconsistent with the writing, * * * is incompetent." Neal v. Marrone, 239 N.C. 73, 79 S.E.2d 239, 242.

*681 The plaintiff's evidence was amply sufficient to support the allegations of the complaint and to sustain the verdict and judgment. The evidence was insufficient to show the defendants were entitled to have the grant removed as a cloud upon their title. Therefore, the question, whether the three years statute of limitation bars an action to remove a cloud upon title, does not arise.

No error.