Oliver v. . Hecht

ClakksoN, J. At the close of plaintiff’s evidence, defendants in the court below made a motion for judgment as in case of nonsuit, C. S., 567. The motion was allowed, and in this we can see no error. *485 Tbe defendants, in their brief, say: “The testimony of E. L. Oliver with reference to an alleged contract with Charles K. Hecht was objected and excepted to, but those exceptions are not before the court in view of the judgment of nonsuit. The complaint did not allege any such contract, and if it had, the testimony would have been incompetent as parol evidence in contradiction of the written contract, the deed.” “It is the well-settled rule of practice and accepted position in this jurisdiction that, on a motion of nonsuit, the evidence which makes for the plaintiffs’ claim and which tends to support the cause of action, whether offered by the plaintiffs or elicited from the defendants’ witnesses, will be taken and considered in its most favorable light for the plaintiffs, and they are ‘entitled to the benefit of every reasonable inference to be drawn therefrom.’ ” Mindful of this rule, on the pleadings and evidence in this case, we think the nonsuit was properly granted. The covenants in the deed are as follows: “And the said party of the first part, for himself, his heirs, executors, and administrators, covenants with the said parties of the second part, their heirs and assigns, that he is seized of said premises in fee, and has right to convey the same in fee simple; that the same are free and clear from all encumbrances, and that he will warrant and defend the said title to the same against the lawful claims of all persons whomsoever.” We do not think the covenant in this solemn instrument, the deed, “that the same are free and clear from all encumbrances,” can be so amended by the uncertain and vague allegations in the complaint and testimony of the plaintiff E. L. Oliver. In the beginning of his testimony he said: “On 20 August, 1930, 1 received a deed from the defendants Charles X. Hecht and wife, the copy being marked Exhibit A, attached to the complaint,” etc. This deed, with the written covenants in it, was the gravamen of this action, and made a part of the complaint and allegations. The plaintiffs did not, in the complaint, allege fraud or seek reformation of the part of the covenant that the land was free and clear from all encumbrances, by allegation of mutual mistake, or the mistake of one induced by the fraud of the other. Winstead v. Mfg. Co., ante, 110. In Crawford v. Willoughby, 192 N. C., 269 (271-272), it is said: “If the deed or written instrument fails to' express the true intention of the parties, it may be reformed by a judgment or decree of the court, to the end that it shall express such intent whether the failure is due to mutual mistake of the parties, Maxwell v. Bank, 175 N. C., 183, to the mistake of one and the fraud of the other party, Potato Co. v. Jeanette, 174 N. C., 236, or to the mistake of the draughtsman, Pelletier v. Cooperage Co., 158 N. C., 405. *486 “Tbe party asking for relief by reformation of a deed or written instrument must allege and prove, first, tbat a material stipulation, as alleged, was agreed upon by tbe parties, to be incorporated in tbe deed or instrument as written, and second, tbat sucb stipulation was omitted from tbe deed or instrument as written by mistake, either of both parties or of one party, induced by tbe fraud of tbe other, or by tbe mistake of tbe draughtsman. Equity will give relief by reformation only when a mistake has been made, and tbe deed or written instrument because of tbe mistake does not express tbe true intent of both parties. Tbe mistake of one party to tbe deed or instrument alone, not induced by tbe fraud of tbe other, affords no ground for relief by reformation.” It is said in Oil and Grease Co. v. Averett, 192 N. C., 465 (467-8) : “On the issue of fraud tbe burden is on the defendant to satisfy tbe jury of tbe fraud by tbe greater weight of tbe evidence, or a preponderance of tbe evidence. McNair v. Finance Co., 191 N. C., 715. Not so where it is proposed to correct a mistake in a deed, or similar cause — tbe quantum of proof. Tbe evidence must be clear, strong, and convincing. Speas v. Bank, 188 N. C., p. 528.” In Ray v. Blackwell, 94 N. C., 10 (12), it is said: “It is a rule too firmly established in tbe law of evidence to need a reference to authority in its support, tbat parol evidence will not be beard to contradict, add to, take from, or in any way vary tbe terms of a contract put in writing, and all contemporary declarations and understandings are incompetent for sucb purpose, for tbe reason tbat tbe parties, when they reduce their contract to writing, are presumed to have inserted in it all tbe provisions by which they intend to be bound, 1 Greenleaf Ev., sec. 76. Etheridge v. Palin, 72 N. C., 213.” We have frequently quoted tbe Ray case, supra, as it is a clear and concise exjDression of tbe law on tbe subject. Tbe deed which, includes tbe covenant is made a part of tbe complaint and allegations. "We think tbat tbe other allegations in tbe pleadings and tbe evidence too uncertain and vague and contradictory of tbe covenant in tbe deed to constitute a cause of action. So tbe material question involved on this record is as follows: Tbe defendants Charles K. Hecht and wife, tbe owners of a lot of land in tbe city of Charlotte, conveyed tbe same to tbe plaintiffs by deed dated 20 August, 1930, and containing usual covenants of warranty and against encumbrances. On 5 October, 1931, tbe city council of Charlotte confirmed an assessment for street and sidewalk improvements against this and other property. Does this assessment constitute a lien in violation of tbe covenants of tbe defendants in their deed? We think not. We think this matter, on tbe present record, is settled in Coble v. Dick, 194 N. C., 732 (733), where it is there said: “C. S., 2713, in part, is as *487 follows: ‘Whenever the governing body shall confirm an assessment for a local improvement, the clerk of the municipality shall enter on the minutes of the governing body the date, hour, and minute of such confirmation, and from the time of such confirmation the assessments embraced in the assessment roll shall be a lien on the real property against which the same are assessed, superior to all other liens and encumbrances.’ ... In Hahn v. Fletcher, 189 N. C., at p. 732, it is said: ‘From the facts found, the covenant in plaintiff’s deed was “against encumbrances.” When the defendant delivered the deed to plaintiff, this covenant was broken with the street assessment — a lien or a statutory mortgage on the land. Plaintiff could have at once sued for the breach.’ ” In the present case the deed from defendants to plaintiffs was made 20 August, 1930, and the street assessments were confirmed on 5 October, 1931. Under the statute the street assessment became a lien from the confirmation. Under the covenant in the deed, plaintiffs cannot recover, as the confirmation of the street assessment was on 5 October, 1931' — ■ some 13 months after the deed was made, executed, and delivered from defendants to plaintiffs. In 72 A. L. R., p. 320, citing authorities, is the following: “A covenant of warranty and against encumbrances is not breached by a street-paving assessment against the property to which the covenant related, where, at the time of the making of the covenant, the assessment did not constitute a lien on the land, under a statute providing that the lien for paving does not attach until the assessment order or resolution is passed by the council and the amount fixed.” For the reasons given, the judgment of the court below is Affirmed.