Hill v. Lassiter

CLARK, Judge. We affirm the trial court’s order of summary judgment against plaintiff on his claim against Priscilla Lassiter Hill on the grounds that “the judgment in File No. 77CYD837 (Johnston County) is conclusive as to all matters in controversy between the plaintiff and Priscilla Lassiter Hill .... ” — 38 — We note that the parties’ consent judgment of 24 January 1978 recites that: “the parties have compromised and settled all matters of controversy regarding child support and custody, settlement of property rights and the [other] contested issues ... and by consenting to this judgment authorize the Court to enter this judgment as its own judgment to be enforced by contempt or any other means set forth in the General Statutes of North Carolina or by the inherent powers of this Court.” (Emphasis added). The judgment provides for plaintiff to sell his farm equipment and apply the proceeds to pay off his wife’s Buick automobile and his daughter’s Vega, with the remainder of the proceeds to “be applied to the loan ... incumbering plaintiffs [plaintiff in this domestic case was Priscilla Lassiter Hill] property known as ‘The Pond Farm.’ ” (Emphasis added.) We believe that the consent judgment is res judicata as to “all matters of controversy regarding ... settlement of property rights.” We view the reference to the Pond Farm and the provision for plaintiff Larry Braxton Hill [defendant in the domestic action] to pay proceeds of the sale of his farm equipment to reduce the indebtedness on “plaintiffs [the wife’s] property” as establishing that both the subject matter and the issue of ownership of the property were contemplated by the parties. Plaintiff had every reason to litigate title to the farm at the time of the prior action, but did not. Rather he admitted in his pleadings that his wife was “the owner by virtue of a life estáte of the home formerly occupied by the parties,” and signed a consent judgment settling the property rights of the couple. That judgment was a final judgment, not subject to modification. Bunn v. Bunn, 262 N.C. 67, 136 S.E. 2d 240 (1964). We hold that plaintiff’s claim against his former wife was merged into the consent judgment estopping plaintiff from re-litigating a claim arising out of the same property interests determined in the former action. See Brondum v. Cox, 292 N.C. 192, 232 S.E. 2d 687 (1977). We next turn to plaintiffs claim against his father-in-law, Melvin Lassiter. Defendant argues that plaintiffs claim was properly characterized by the trial judge as one for mistake or an implied contract, and asserts that the three-year statute of — 39 — limitations in G.S. 1-52 was properly applied. Plaintiff argues that his claim was an action for unjust enrichment and as such should be barred only after ten years as provided in G.S. 1-56. We see no reason to be concerned either with the nature of plaintiffs action or with which of the two statutes should apply. Regardless of the tag placed on plaintiffs action, or the statute applied, it is the accrual of the action which determines when the applicable statute begins to run. We find two events significant to the accrual of plaintiffs action, and since one occurred more than ten years before the action was instituted and the other occurred within the three years next preceding its institution, the effect of these events must be the same whether the statute is ten years or three. Our decision on this issue must be controlled by the decision of our Supreme Court in the analogous case of Fulp v. Fulp, 264 N.C. 20, 140 S.E. 2d 708 (1965). In that case the parties, husband and wife, placed improvements on land titled in the name of the husband alone. The husband agreed that if the wife would contribute one-half of the cost of the improvements, he would have her name added to the deed. The wife paid one-half the costs of the improvements which were completed in 1952. The wife then requested that the property be titled in the names of both her and her husband, to which the husband replied, “You don’t think I’m a damn fool, do you?” The parties separated in 1959, at which time the wife brought an action to impress a resulting or constructive trust, or in the alternative, to recover her contributions to the cost of the improvements. The opinion by Justice (later Chief Justice) Sharp, discusses the inapplicability of the resulting and constructive trust doctrines, the applicability of the equitable lien doctrine, the applicability of the statute of limitations to actions between husband and wife, and the appropriate statute of limitations to be applied in that particular case; but the significance of that case to the case sub judice is its formulation of when such a cause of action accrues. “Unquestionably ... the statute of limitations began to run against plaintiffs claim against defendant when, upon completion of the house in 1952, she called upon him to perform his agreement ‘to put her name on the deed’ and he replied ‘You don’t think I’m a damn fool, do you?’ This was a flat repudiation of his agreement and was notice to plaintiff that he intended to misappropriate the funds which he had — 40 — received from her through their confidential relationship.” Id. at 26, 140 S.E. 2d at 714. Applying this analysis to the case sub judice, we find that plaintiff’s cause of action accrued when there were sufficient repudiations by defendant Lassiter of his representations to give the land to plaintiff to put plaintiff on notice that Lassiter had no intention of ever letting plaintiff have the land. We find two events significant as repudiations and thus notice to plaintiff that Lassiter did not intend ever to give the farm to the plaintiff. Plaintiff admits in his testimony that: “I had read part of the deed that was recorded in 1965.1 didn’t read that Melvin had a life estate retained. I don’t think I read that. ... ... I didn’t read it, I just glanced at it, how it was done, and threw it down.” It is clear from the record that plaintiffs reference is to the deed, dated 29 January 1965 and recorded 22 November 1966, which conveyed the farm “to Priscilla Lassiter Hill for and during her natural lifetime only and then to the children of Priscilla Lassiter Hill and their heirs and assigns ... subject to life estate in Melvin Lassiter.” We are aware that the mere registration of the deed, particularly where the plaintiff was not a party thereto, cannot of itself constitute notice to plaintiff of its contents. See Elliott v. Goss, 250 N.C. 185, 108 S.E. 2d 475 (1959); Vail v. Vail, 233 N.C. 109, 63 S.E. 2d 202 (1951); Tuttle v. Tuttle, 146 N.C. 484, 59 S.E. 1008 (1907); Cowart v. Whitley, 39 N.C. App. 662, 251 S.E. 2d 627 (1979). We believe, however, that plaintiff’s admission that he read part of the deed suggests he had an opportunity to read all of it. He knew the deed contained property in which he expected to receive an interest. There is no indication that defendant practiced a fraud on plaintiff to prevent his reading the deed. Under circumstances where a party has every reason and opportunity to read an instrument, and can show no reason for his failure to do so, we see nothing unfair or inequitable with charging him with notice of the instrument’s contents. We hold that plaintiff Larry Braxton Hill was chargeable with knowledge of the retained life estate of defend — 41 — ant Melvin Lassiter from the deed drafted in 1965 and recorded in 1966. According to plaintiffs testimony, Lassiter said he would give the farm to plaintiff. Lassiter could give to plaintiff no more than he had. After the 1965 deed, he had nothing but a life estate and plaintiff had notice of this fact. He could still give his life estate to plaintiff, but he could no longer pass the fee. Plaintiffs action, therefore, accrued in 1965 or 1966, which is well outside even the longer ten-year statute of limitations, as to that part of Lassiter’s interest in the farm that was then alienated. Regardless, then, of the statute applied, plaintiffs action against Lassiter must be limited to his father-in-law’s retained life estate, since the execution, delivery, and recordation of the 1965 deed constitutes a repudiation of any earlier agreement to give the farm to plaintiff in fee, since plaintiff is chargeable with notice of the contents of the deed from the fact he admits he read part of the deed and presumably had the opportunity to read all of it, and since more than ten years passed before plaintiff instituted the present action in 1979. Plaintiff’s testimony indicates he made the improvements to the farm in the expectation that Lassiter would someday deed it to him. Although Lassiter’s interest in the farm was limited to a life estate after 1965, we cannot say as a matter of law that Lassiter’s conveyance of a future interest to his daughter and then to her children constituted a full repudiation of his promise to plaintiff to convey the property to him. Lassiter could still convey to plaintiff his life estate, and we think plaintiff cannot fairly be charged with notice of any intention not to do so from the 1965 deed. On the contrary, Lassiter had the ability and, so far as plaintiff knew, the intent someday to convey to plaintiff what interest he had in the farm right up until plaintiff and his wife separated in 1977. At that time plaintiff testified that Lassiter told him, “You get off,” and “[Y]ou will have to get off this property and so on across the road.” We believe these statements constitute a sufficient repudiation by Lassiter of his agreement to give his interest in the farm to plaintiff to constitute notice to plaintiff that Lassiter had no intention ever to make good on his promise. Thus under the rule laid down in Fulp, supra, plaintiffs cause of action with regard to Lassiter’s retained life estate accrued in — 42 — 1977 and is barred by neither the three-year nor the ten-year statute of limitations. The summary judgment entered 27 February 1980 in favor of Priscilla Lassiter Hill and all other defendants except defendant Melvin Lassiter is affirmed; the judgment entered 5 March 1980 barring plaintiffs action against defendant Melvin Lassiter is reversed and the cause is remanded. Affirmed in part; Reversed in part and Remanded. Judges Hedrick and Martin (Robert M.) concur.