Pamlico County v. Davis

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107 S.E.2d 306 (1959)

249 N.C. 648

PAMLICO COUNTY v. Jennie DAVIS (widow), Grant Moye and wife, Beatrice Moye; Donald Moye (unmarried), and James Moye (unmarried).

No. 98.

Supreme Court of North Carolina.

March 4, 1959.

B. B. Hollowell, Bayboro, for Pamlico County and R. E. Whitehurst, New Bern, for Paul Daniels.

Taylor & Mitchell, Raleigh, and Robert D. Glass, New Bern, for defendant appellants.

RODMAN, Justice.

Typical of movants' assignments is the seventh, which reads:

"The trial Court committed prejudicial and reversible error in its charge to the jury by instructing the jury upon the law of betterments and permanent improvements, in that no evidence upon *309 the instant record justified instructions upon said law or the submission to the jury of an issue on a question of betterments and improvements; to which error Exceptions 9, 10, 11, 12, 15, 16, 17, 18, 19, and 20 (R pp 78-85, 92-98) are directed."

The assignments of error do not conform to Rules 19(3) and 21 of this Court. We have repeatedly called attention to these rules. They are mandatory. Nichols v. McFarland, 249 N.C. 125, 105 S.E.2d 294; Hunt v. Davis, 248 N.C. 69, 102 S.E.2d 405; Lowie & Co. v. Atkins, 245 N.C. 98, 95 S.E.2d 271; Tillis v. Calvine Cotton Mills, 244 N.C. 587, 94 S.E.2d 600; Armstrong v. Howard, 244 N.C. 598, 94 S.E.2d 594; Steelman v. Benfield, 228 N.C. 651, 46 S.E.2d 829; Buxton White Seed Co. v. Robert T. Cochran & Co., 203 N.C. 844, 165 S.E. 354; Greene v. Dishman, 202 N.C. 811, 164 S.E. 342; Byrd v. Southerland, 186 N.C. 384, 119 S.E. 2; Rogers v. Jones, 172 N.C. 156, 90 S.E. 117.

Assignment No. 4 directed to exception 7 for that the court refused to allow movants' motion to nonsuit Daniels' claim for betterments, although grouped with exceptions relating to the charge, is sufficient to require us to examine the evidence to ascertain if there is any evidence to support the claim for betterments. Allen v. Allen, 244 N.C. 446, 94 S.E.2d 325; Register v. Tidewater Power Co., 165 N.C. 234, 81 S.E. 326.

Protection is, by statute, G.S. § 1-340, afforded one who makes permanent improvements to property, believing that he has good title to the property so improved.

The statute has been interpreted to impose on claimant the burden of establishing (1) that he made permanent improvements, (2) bona fide belief of good title when the improvements were made, and (3) reasonable grounds for such belief. Pritchard v. Williams, 176 N.C. 108, 96 S.E. 733; Rogers v. Timberlake, 223 N.C. 59, 25 S.E.2d 167. Issues were submitted to obtain answers to these questions.

What are permanent improvements entitling claimant to reimbursement was considered in Pritchard v. Williams, 181 N.C. 46, 106 S.E. 144. The improvements for which Daniels is seeking compensation is the redemption of abandoned farm land by ditching, clearing, building roads on the property, and similar work, making it again susceptible of profitable cultivation. Claimant testified: "When I moved on the land it was grown up, it had laid out for several years; the ditches were filled up; it was just an old piece of waste-land laid out, and grown up." He detailed amounts expended to put it back in a profitable state of cultivation. The jury was instructed as to what was necessary to constitute a permanent improvement. The charge was patterned on Pritchard v. Williams, supra (181 N.C. 46, 106 S.E. 144). Movants did not except to those portions of the charge. Witnesses testified to the substantial enhancement in the value of the property resulting from the work done by claimant. We are of the opinion the evidence was sufficient for a jury to find that work was done constituting "permanent improvements" as those words are used in the statute. 42 C.J.S. Improvements § 1, pp. 422, 423; 27 Am. Jur., 273, 274.

Indeed, we do not understand movants to seriously controvert that proposition. Their motion for nonsuit is based on the assertion that claimant has failed to establish any title to which a bona fide belief could attach; therefore there could be no reasonable grounds for such belief.

The motion to vacate the order of sale alleges the contract to convey, the amount to be paid, and partial performance. The county has not pleaded the statute of frauds. It admits its obligation to Daniels. We are not called upon to determine whether a court would decree specific performance of a contract by a governmental agency. It has been settled law in this State for more than a century that an unenforceable *310 contract to convey is sufficient claim of title to support a claim for betterments. Albea v. Griffin, 22 N.C. 9, which has been repeatedly cited with approval; see Shepard's N.C. Citations. Dupree v. Moore, 227 N.C. 626, 44 S.E.2d 37; Knowles v. Wallace, 210 N.C. 603, 188 S.E. 195; Union Central Life Insurance Co. v. Cordon, 208 N.C. 723, 182 S.E. 496; Baker v. Carson, 21 N.C. 381. Here the terms of the contract and the property to be conveyed are admitted. The statute of frauds would not have defeated Daniels' claim if the county had refused to convey and sought to take possession.

Movants cannot assert the statute of frauds to defeat Daniels' claim for improvements.

Movants in their brief also argue that the motion to nonsuit should have been allowed for want of evidence establishing a bona fide belief of good title or right thereto and total absence of any basis for such a belief if in fact held.

We think the evidence ample to require submission of these questions to the jury. It tends to establish these facts: Daniels lived about a quarter of a mile from the property. The owner had apparently abandoned it because of its run-down condition. Taxes assessed against the property had not been paid for twenty years. A court of general jurisdiction had ordered the land sold. The county had purchased. No one had come forward to redeem. The contract price was the fair market value. Daniels asserts his good faith. He paid part of the purchase money. He spent three years and in excess of $2,500 in permanently improving the property. During the course of these improvements no one made an adverse claim. Not until the improvements were complete was there an assertion that he did not have good title.

Except when intended as a gift, one does not ordinarily expend substantial sums to improve property unless he has a bona fide belief in his ownership. There is plenary evidence of bona fide belief.

Did Daniels have reasonable grounds for his belief? Daniels was in effect a purchaser at a judicial sale. There is no suggestion that he had knowledge of anything which would impair his right to the property. To hold that one who bids at a judicial sale acts imprudently and unreasonably unless he employs counsel to examine the proceeding would place such a burden on judicial sales as to destroy their efficacy. The law imposes no such burden. Cherry v. Woolard, 244 N.C. 603, 94 S.E.2d 562; Jeffreys v. Hocutt, 195 N. C. 339, 142 S.E. 226. Nor can it be said that one who relies on the integrity of public officials acts imprudently.

The evidence compelled the court to submit the disputed questions to the jury.

No error.

MOORE, J., took no part in the consideration or decision of this case.

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