{ "id": 8525430, "name": "MELISSA S. JUHAN (formerly MELISSA NEEDHAM) v. WILEY H. COZART and RUTH G. COZART, C. W. RUSSUM, Individually, and C. W. RUSSUM AND ASSOCIATES", "name_abbreviation": "Juhan v. Cozart", "decision_date": "1991-05-07", "docket_number": "No. 9010SC435", "first_page": "666", "last_page": "673", "citations": [ { "type": "official", "cite": "102 N.C. App. 666" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "89 S.E.2d 122", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1955, "pin_cites": [ { "page": "123" } ], "opinion_index": 0 }, { "cite": "242 N.C. 578", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8619263 ], "year": 1955, "pin_cites": [ { "page": "580" } ], "opinion_index": 0, "case_paths": [ "/nc/242/0578-01" ] }, { "cite": "126 S.E. 313", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1925, "opinion_index": 0 }, { "cite": "189 N.C. 138", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653628 ], "year": 1925, "opinion_index": 0, "case_paths": [ "/nc/189/0138-01" ] }, { "cite": "389 S.E.2d 90", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "326 N.C. 48", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5307137, 5308005, 5306311, 5308028, 5309342 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/326/0048-01", "/nc/326/0048-02", "/nc/326/0048-03", "/nc/326/0048-04", "/nc/326/0048-05" ] }, { "cite": "384 S.E.2d 284", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "96 N.C.App. 53", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520131 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc-app/96/0053-01" ] }, { "cite": "92 N.C. 213", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11273108 ], "year": 1885, "opinion_index": 0, "case_paths": [ "/nc/92/0213-01" ] }, { "cite": "312 S.E.2d 428", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "310 N.C. 438", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2393664 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/310/0438-01" ] }, { "cite": "242 S.E.2d 176", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "35 N.C.App. 622", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551093 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc-app/35/0622-01" ] }, { "cite": "166 S.E.2d 519", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1960, "pin_cites": [ { "page": "522" } ], "opinion_index": 0 }, { "cite": "4 N.C.App. 144", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552027 ], "weight": 2, "year": 1960, "pin_cites": [ { "page": "148" } ], "opinion_index": 0, "case_paths": [ "/nc-app/4/0144-01" ] }, { "cite": "71 N.C. 316", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11277973 ], "year": 1874, "opinion_index": 0, "case_paths": [ "/nc/71/0316-01" ] }, { "cite": "92 N.C. 213", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11273108 ], "year": 1885, "pin_cites": [ { "page": "220" } ], "opinion_index": 1, "case_paths": [ "/nc/92/0213-01" ] } ], "analysis": { "cardinality": 766, "char_count": 16003, "ocr_confidence": 0.758, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.20555310367515636 }, "sha256": "796ac8240a88e5acc93dcb07a6ffe207021eafab19bfaeaa8048b11d9e26428c", "simhash": "1:23fdfe2936313544", "word_count": 2665 }, "last_updated": "2023-07-14T21:20:04.252791+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge GREENE concurs in part and dissents in part with separate opinion." ], "parties": [ "MELISSA S. JUHAN (formerly MELISSA NEEDHAM) v. WILEY H. COZART and RUTH G. COZART, C. W. RUSSUM, Individually, and C. W. RUSSUM AND ASSOCIATES" ], "opinions": [ { "text": "PHILLIPS, Judge.\nSince the materials before the trial court establish without contradiction that defendants Cozart did not know that a sewer line was under the house they sold to plaintiff and her husband and that they made no oral representations to them about it, plaintiff\u2019s fraud claim was properly dismissed and we affirm that part of the judgment.\nBut plaintiff\u2019s claim for breach of warranty against encumbrances stands on a different and stronger footing. For neither the grantor\u2019s ignorance of an encumbrance nor the grantee\u2019s knowledge of it will bar the enforcement of a covenant against encumbrances, Gragg v. Wagner, 71 N.C. 316 (1874); Gerdes v. Shew, 4 N.C.App. 144, 166 S.E.2d 519 (1960), and instead of the materials before the court showing that this claim is unenforceable they establish the two elements of the claim as a matter of law. Defendants\u2019 deed to the Needhams establishes that the warranty or covenant was made and their admission that the sewer line was there when the property was conveyed to them more than 35 years earlier, along with the other evidence to the same effect, and that it was still there when they conveyed the property to the Needhams establishes that the warranty was breached upon the delivery of the deed. Philbin Investments, Inc. v. Orb Enterprises, Limited, 35 N.C.App. 622, 242 S.E.2d 176 (1978). Though, technically, plaintiff\u2019s right to an adjudication that the claim has been established is not before us, since the denial of her motion for partial summary judgment was not appealed, inasmuch as defendants\u2019 own materials indisputably establish that the claim has been established, to return the question to the trial court would only compound the errors already made there and prolong the litigation to no purpose. Thus, we reverse the court\u2019s rulings as to this claim, hold that the validity of the claim for breach of the covenant or warranty against encumbrances has been established as a matter of law, and remand the claim to the trial court for a determination of plaintiff\u2019s damages.\nDefendants argue that the claim was properly dismissed for two reasons, the first of which is that the sewer line under the house was not an \u201cencumbrance\u201d as that word was used in their deed conveying the property to plaintiff and her husband. An encumbrance within the meaning of such a covenant is \u201cany burden or charge on the land and includes any right existing in another whereby the use of the land by the owner is restricted.\u201d Gerdes v. Shew, 4 N.C.App. at 148, 166 S.E.2d at 522. Any easement that materially affects or interferes with the full use or enjoyment of the land conveyed is an encumbrance. Waters v. North Carolina Phosphate Corp., 310 N.C. 438, 312 S.E.2d 428 (1984). Quoting from Abernathy v. Stowe, 92 N.C. 213 (1885), P. Hetrick, Webster\u2019s Real Estate Law in North Carolina Sec. 217 (rev. ed. 1988), states:\n\u2018Encumbrances\u2019 as used in the covenant against encumbrances has been said to mean \u2018such as have some foundation in right, or at least color of right, such as would require in some proper way an expenditure of money to remove them, and not such as may be set up arbitrarily and groundlessly by a pretender.\u2019\nThe municipal sewer line situated under the house met all the requirements of an encumbrance under these authorities. It was a burden upon the land conveyed; it restricted the use of the property; and it had to be removed at substantial expense.\nDefendants further argue that the sewer line was not an encumbrance because no document presented to the court establishes that the line is there under \u201cany right, or claim of right, by a third party.\u201d This argument disregards both reality and the burden they had as movants to establish that the claim is unenforceable. Since their forecast of proof did not even suggest that the sewer line was there without any claim or color of right, plaintiff was under no compulsion to show otherwise. Lynch v. Newsom, 96 N.C.App. 53, 384 S.E.2d 284 (1989), disc. review denied, 326 N.C. 48, 389 S.E.2d 90 (1990). Defendants\u2019 affidavit merely showed that no public record of the easement was found. It did not attempt to show that the Town does not claim the line was rightfully there. Nevertheless, though no document shows that the line was rightfully there other evidence presented does; evidence of the same force as the proverbial trout in the milk, which prompted Henry David Thoreau to observe that, \u201cSome circumstantial evidence is very strong.\u201d Bartlett, Familiar Quotations p. 515 (1951). For sewer lines in towns or cities which have authority under the provisions of G.S. 160A-312 and its predecessors to construct, operate and regulate sewerage collection systems do not just happen; they have to be installed at great cost and inconvenience and installing them is not the kind of thing that mere \u201cpretenders\u201d or trespassers are apt to do; and this sewer line had been there long enough, 35 or more years, to establish an enforceable right, if not authorized to start with.\nThe other reason that justifies the dismissal of the claim, so defendants argue, is that plaintiff, now the sole owner of the property, cannot enforce the covenant because a covenant against encumbrances is personal to the covenantee and does not run to a successor or assign of the original grantee, Lockhart v. Parker, 189 N.C. 138, 126 S.E. 313 (1925), and defendants\u2019 covenant was made to plaintiff and her husband by the entireties, not to plaintiff individually. This argument would overturn reality with fancy. It has been aptly said of an estate by the entireties: \u201cThe estate rests upon the doctrine of the unity of person, and upon the death of one the whole belongs to the other, not solely by right of survivorship, but also by virtue of the grant which vested the entire estate in each grantee.\u201d Carter v. Continental Insurance Company of New York, 242 N.C. 578, 580, 89 S.E.2d 122, 123 (1955). (Emphasis in original). The same thing occurs, in our opinion, when a tenancy by the entireties terminates by the failure of the marriage and one spouse\u2019s interest is conveyed to the other. Plaintiff has been a grantee and covenantee under defendants\u2019 deed since it was delivered; she did not cease to be one because her interest was increased or joined by that of her former husband.\nStill another argument \u2014 though without standing since no authority is cited for it, and without foundation since it is contradicted by the clear wording of their own deed \u2014 is that in excepting from the covenant against encumbrances the \u201csewer line easement across the western half of said lot,\u201d they also excepted the sewer line that ran under the house, if it is ruled to be an encumbrance, which they deny.\nPlaintiff\u2019s argument that the court also erred in refusing to receive and consider the other notarized statements that she submitted and the original verified complaint need not be determined, for the claim has been established by the other materials and the facts asserted by the rejected materials are merely cumulative or explanatory. For example, the affidavit of the Bowlings, who contracted to purchase the property from plaintiff, explained that the presence of the line was discovered by their surveyor and that they refused to complete the purchase until the encroaching sewer line was rerouted at no expense to them and to the Town\u2019s satisfaction; and the affidavit of their surveyor states that he ascertained from searching the Town\u2019s records that the line was designed in the 1940\u2019s and installed in the early 1950\u2019s. These and other statements were refused because the Notary\u2019s certification did not expressly state that the statements were subscribed and sworn to before the Notary. The statements were labeled affidavits; each stated over the maker\u2019s signature, \u201cI . . . being first duly sworn, do depose and say\u201d and concluded with \u201cFurther, the Affiant sayeth not\u201d; and each jurat over the signature and seal of the Notary Public stated, \u201cI . . . do hereby certify that [so and so] personally appeared before me this day and acknowledged the due execution of the foregoing instrument.\u201d Whether such statements qualify as affidavits apparently has not been decided by our Courts or any others, as neither party referred us to a decision involving a similar document.\nAs is apparent from the opinion of Judge Greene that follows, that opinion, concurred in by Judge Orr, is the majority opinion on the issue of the sewer line not being an encumbrance, and this opinion is a dissent on this issue. On all the other issues, this opinion is the opinion of the Court. Thus, the holding of the majority of this Court is that the summary judgment entered by the trial court for the Cozarts is affirmed.\nAffirmed.\nJudge ORR concurs in the above opinion except for the holding that the sewer line is an encumbrance, and as to that issue he concurs with the dissenting opinion of Judge GREENE.\nJudge GREENE concurs in part and dissents in part with separate opinion.", "type": "majority", "author": "PHILLIPS, Judge." }, { "text": "Judge GREENE\nconcurring in part and dissenting in part.\nContrary to the opinion of Judge Phillips, I do not believe that the underground sewer line is an encumbrance.\nAt the hearing on summary judgment, there was no dispute in the evidence material to a resolution of the issue in question. On the date the plaintiff and her husband purchased the property from Wiley H. Cozart and Ruth G. Cozart (Cozarts), there existed underneath the house on the property a Fuquay-Varina sewer line for which there was no recorded easement.\nBecause this undisputed evidence does not reveal that the Town of Fuquay-Varina has any \u201cright, or . . . color of right\u201d to maintain the sewer line across the property in question, there exists no encumbrance. Abernathy v. Stowe, 92 N.C. 213, 220 (1885); R. Cunningham, W. Stoebuck & D. Whitman, The Law of Property \u00a7 11.13 (1984) (encumbrance is outstanding right or interest in third party); 7 G. Thompson, Commentaries on the Modern Law of Real Property \u00a7 3183 (repl. 1962) (unfounded claims not encumbrances). The mere presence of an underground sewer line is not an encumbrance on the land through which it passes. Whether the Town of Fuquay-Varina has some prescriptive right by virtue of adverse possession was not an argument asserted by the plaintiff, and in any event her failure to present evidence on this issue at the summary judgment hearing is a bar to its consideration by this Court.\nTherefore, my vote is to affirm summary judgment for the Cozarts on the plaintiff\u2019s claim for breach of warranty against encumbrances. I join with Judge Phillips in his resolution of the remaining issues.", "type": "concurring-in-part-and-dissenting-in-part", "author": "Judge GREENE" } ], "attorneys": [ "Monroe, Wyne, Atkins & Lennon, P.A., by George W. Lennon, for plaintiff appellant.", "Maupin Taylor Ellis & Adams, P.A., by John C. Cooke and William J. Brian, Jr., for defendant appellees." ], "corrections": "", "head_matter": "MELISSA S. JUHAN (formerly MELISSA NEEDHAM) v. WILEY H. COZART and RUTH G. COZART, C. W. RUSSUM, Individually, and C. W. RUSSUM AND ASSOCIATES\nNo. 9010SC435\n(Filed 7 May 1991)\n1. Fraud \u00a7 12.1