{
  "id": 8555242,
  "name": "LUCY BURRUS MAURICE and husband, SAMUEL S. MAURICE, ALONZO BURRUS, JR. and wife, CORA G. BURRUS, ADOLPHUS BURRUS, JR. and wife, GOLDIE S. BURRUS, GRACE BURRUS BLAND and husband, HENRY F. BLAND, WILLIAM Z. BURRUS and wife, MINNIE A. BURRUS, MARION BURRUS AUSTIN and husband, BRUCE AUSTIN v. HATTERASMAN MOTEL CORPORATION",
  "name_abbreviation": "Maurice v. Hatterasman Motel Corp.",
  "decision_date": "1978-11-07",
  "docket_number": "No. 781SC88",
  "first_page": "588",
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  "last_updated": "2023-07-14T21:32:33.594298+00:00",
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    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [
      "Judges Clark and Webb concur."
    ],
    "parties": [
      "LUCY BURRUS MAURICE and husband, SAMUEL S. MAURICE, ALONZO BURRUS, JR. and wife, CORA G. BURRUS, ADOLPHUS BURRUS, JR. and wife, GOLDIE S. BURRUS, GRACE BURRUS BLAND and husband, HENRY F. BLAND, WILLIAM Z. BURRUS and wife, MINNIE A. BURRUS, MARION BURRUS AUSTIN and husband, BRUCE AUSTIN v. HATTERASMAN MOTEL CORPORATION"
    ],
    "opinions": [
      {
        "text": "MARTIN (Harry C.), Judge.\nPlaintiffs urge two assignments of error.\nFirst. Plaintiffs contend the trial court erred in granting summary judgment. In the summary judgment, the court found:\n[I]t appearing to the Court that the descriptions of the property claimed by the Plaintiffs as set out in the complaint and as contained in the Plaintiffs\u2019 deeds is such that the descriptions leave the identity of the land absolutely uncertain and refer to nothing extrinsic by which the same may be identified with certainty and are therefore patently ambiguous, and therefore the motion should be allowed.\nThe summary judgment was based solely upon this finding of the court.\nPlaintiffs rely upon this description:\n[I]n Hatteras Township, Dare County, North Carolina, and more particularly described as follows:\nAll that certain parcel of land at Cape Hatteras, known as Fulchers\u2019 homestead and described as follows:\nBeginning at D. W. Fulcher\u2019s North corner line, and running from thence along W. J. Williams\u2019 heirs\u2019 line Northwesterly to the Sound; from thence with the Sound Southwesterly, to A. C. Guidly\u2019s heirs\u2019 line Southeasterly to the place of beginning. Containing twenty-five acres more or less, and also another tract said to contain five acres on such interest in said tract as formerly belonged to George L. Fulcher and which was conveyed by said Fulcher to said Shipp the 25th day of February, 1886, and described as follows:\nBeginning at D. T. Fulcher\u2019s north corner and running Northeastwardly to William Salter\u2019s Heirs\u2019 line; from thence Northwesterly to the Sound and with the Sound Northwesterly to George L. Fulcher\u2019s line; and with said Fulcher\u2019s line to the beginning.\nA description of land is void unless it is sufficient to identify the land or refers to something extrinsic by which the land may be identified with certainty. When the description itself, including the references to extrinsic things, describes with certainty the property, parol evidence is admissible to fit the description to the land. Overton v. Boyce, 289 N.C. 291, 221 S.E. 2d 347 (1976); Searcy v. Logan, 226 N.C. 562, 39 S.E. 2d 593 (1946); N.C. Gen. Stat. 8-39. Parol evidence is not admissible to enlarge the scope of the description. Overton v. Boyce, supra. If an ambiguity in the description be latent and not patent, it will not be held void for uncertainty but parol evidence will be admitted to fit the description to the thing intended. There must be language in the description sufficient to serve as a guide to the ascertainment of the location of the land. If the ambiguity in the description is patent, the instrument is void for uncertainty. A patent ambiguity is such an uncertainty appearing on the face of the instrument that the court, reading the language in the light of all the facts and circumstances referred to in the instrument, is unable to derive therefrom the intention of the parties as to the land involved.\nA description of lands by name, where lands have a known name, is sufficient to allow parol evidence. Hurdle v. White, 34 N.C. App. 644, 239 S.E. 2d 589 (1977); Moore v. Fowle, 139 N.C. 51, 51 S.E. 796 (1905); Scull v. Pruden, 92 N.C. 168 (1885). In Smith v. Low, 24 N.C. 457 (1842), the property involved was described as the \u201cJulius Coley home place,\u201d the \u201cLeonard Greeson place, containing 400 acres, more or less,\u201d and the \u201cLynn Place.\u201d The Court held parol evidence was admissible. The great Chief Justice Ruf-fin said:\nThe name of a place, like that of a man, may and does serve to identify it to the apprehension of more persons than a description by coterminous lands and water-courses, and with equal certainty. For example, \u201cmount Vernon, the late residence of General Washington,\u201d is better known by that name than by a description of it, as situate on the Potomac River, and adjoining the lands of A, B, and C. . . . [T]his question of identity is one for the jury. If the description in the levy or deed be not so indefinite that by the help of no evidence can it be told to what subject it applies, the identity of that subject is not for the court, but for the jury to determine on the evidence; . . ..\nId. at 461.\nWe hold the description of the land in plaintiffs\u2019 complaint is not void as a matter of law. The description refers to the property as \u201cFulchers\u2019 homestead\u201d in Hatteras Township, Dare County, on the Sound at Cape Hatteras. The witness Burrus called it \u201cthe old home of George Leftus Fulcher\u201d and that \u201cthe Fulcher homestead can be located on the ground by the oak trees and the trees that surround it.\u201d Plaintiffs\u2019 description refers to such extrinsic guides as \u201cD. W. Fulcher\u2019s North corner line,\u201d \u201cW. J. Williams\u2019 heirs\u2019 line,\u201d \u201cA. C. Guidly\u2019s heirs\u2019 line,\u201d \u201cdeed from George L. Fulcher to Shipp 25th February 1886.\u201d Such ambiguities as are contained in the description are latent and parol evidence may be received to fit the description to the location of the land. This assignment of error is sustained.\nSecond. Can a plaintiff defeat a motion for summary judgment by taking a voluntary dismissal after a hearing on the summary judgment motion where plaintiff introduces evidence and after the court signs the summary judgment but before it is filed with the clerk? The answer is \u201cno.\u201d The decision of the court resulting from a motion for summary judgment is one on the merits of the case. All parties have an opportunity to present evidence on the question before the court. Where a party appears at a summary judgment hearing and produces evidence or is given an opportunity to produce evidence and fails to do so, and the question is submitted to the court for decision, he has \u201crested his case\u201d within the meaning of Rule 41(a)(l)(i) of the North Carolina Rules of Civil Procedure. He cannot thereafter take a voluntary dismissal under Rule 41(a)(l)(i). To rule otherwise would make a mockery of summary judgment proceedings.\nPlaintiffs\u2019 effort to take a voluntary dismissal also fails for the reason that defendant had filed a counterclaim seeking affirmative relief against plaintiffs arising out of the same transactions alleged in plaintiffs\u2019 complaint. Where defendant sets up a claim for affirmative relief against plaintiffs arising out of the same transactions alleged by plaintiffs, plaintiffs cannot take a voluntary dismissal under Rule 41 without the consent of defendant. McCarley v. McCarley, 289 N.C. 109, 221 S.E. 2d 490 (1976). The purported voluntary dismissal by plaintiffs is void and is hereby vacated.\nThis assignment of error is overruled.\nReversed and remanded.\nJudges Clark and Webb concur.",
        "type": "majority",
        "author": "MARTIN (Harry C.), Judge."
      }
    ],
    "attorneys": [
      "Twiford, Trimpi & Thompson, by Russell E. Twiford and John G. Trimpi, and Herbert L. Thomas for plaintiff appellants.",
      "Kellogg, White and Reeves, by Thomas L. White, Jr., for defendant appellee."
    ],
    "corrections": "",
    "head_matter": "LUCY BURRUS MAURICE and husband, SAMUEL S. MAURICE, ALONZO BURRUS, JR. and wife, CORA G. BURRUS, ADOLPHUS BURRUS, JR. and wife, GOLDIE S. BURRUS, GRACE BURRUS BLAND and husband, HENRY F. BLAND, WILLIAM Z. BURRUS and wife, MINNIE A. BURRUS, MARION BURRUS AUSTIN and husband, BRUCE AUSTIN v. HATTERASMAN MOTEL CORPORATION\nNo. 781SC88\n(Filed 7 November 1978)\n1. Boundaries \u00a7 10.2\u2014 description of land conveyed \u2014 admissibility of parol evidence\nIn an action to quiet title to land, the trial court erred in granting summary judgment for defendant where the description of the land in question referred to the property as \u201cFulchers\u2019 homestead\u201d in Hatteras Township, Dare County, on the Sound at Cape Hatteras and referred to such extrinsic guides as \u201cD. W. Fulcher\u2019s North corner line,\u201d \u201cW. J. Williams\u2019 heirs\u2019 line,\u201d \u201cA. C. Guidly\u2019s heirs\u2019 line,\" and \u201cdeed from George L. Fulcher to Shipp 25th February 1886,\u201d since such ambiguities as were contained in the description were latent, and parol evidence could be received to fit the description to the location of the land.\n2. Rules of Civil Procedure \u00a7 41.1\u2014 voluntary dismissal \u2014 time for taking \u2014 improper procedure when affirmative relief sought\nPlaintiffs could not defeat defendant\u2019s motion for summary judgment by taking a voluntary dismissal after a hearing on the summary judgment motion where plaintiffs introduced evidence and after the court had signed the summary judgment but before it was filed with the clerk; moreover, plaintiffs could not take a voluntary dismissal because defendant had filed a counterclaim seeking affirmative relief against plaintiffs arising out of the same transactions alleged in plaintiffs\u2019 complaint.\nAPPEAL by plaintiffs from Cowper, Judge. Judgment entered 10 November 1977 in Superior Court, DARE County. Heard in the Court of Appeals 24 October 1978.\nPlaintiffs instituted this action to quiet title to a tract of land lying in Hatteras Township, Dare County, on the Pamlico Sound. Defendant answered, denying plaintiffs\u2019 title and alleging sole ownership. Following discovery, defendant moved for summary judgment. This motion was allowed 9 November 1977, and the judgment was filed 10 November 1977. On 9 November 1977, after the judgment had been signed but before it had been filed, plaintiffs filed a notice of voluntary dismissal with the Clerk of Dare County. Plaintiffs appealed from the granting of summary judgment.\nTwiford, Trimpi & Thompson, by Russell E. Twiford and John G. Trimpi, and Herbert L. Thomas for plaintiff appellants.\nKellogg, White and Reeves, by Thomas L. White, Jr., for defendant appellee."
  },
  "file_name": "0588-01",
  "first_page_order": 616,
  "last_page_order": 620
}