PEGRAM-WEST, INC.
v.
HIATT HOMES, INC., et al.
No. 7118DC415.
Court of Appeals of North Carolina.
October 20, 1971.*66 Dees, Johnson, Tart, Giles & Tedder by J. Sam Johnson, Jr., Greensboro, for plaintiff appellee.
Hoyle, Hoyle & Boone by John T. Weigel, Jr., Greensboro, for defendant appellant.
*67 GRAHAM, Judge.
Appellant's first two exceptions, which are grouped under his first assignment of error, appear in the record as follows:
"At the end of the plaintiff's evidence all defendants moved that the case be dismissed, motion denied, to which all the defendants took exception.
(EXCEPTION # 1)
"At the close of all the evidence all defendants moved for a dismissal. Motion denied to which all defendants took exception.
(EXCEPTION # 2)"
Appellee argues that those exceptions are ineffectual in that they fail to point out specifically and distinctly the alleged error of which review is sought. The point is well taken. All of the evidence was to the effect plaintiff had delivered materials to Hiatt for the construction of a residence on the subject lot. There was no evidence payment had been made and defendant Hiatt admitted in its answer and at the trial that it was indebted to plaintiff. G.S. § 1A-1, Rule 41(b) provides that a defendant may move for a dismissal on the ground that upon the facts and law the plaintiff has shown no right to relief. No one disputes the fact that the plaintiff here was entitled to a money judgment at least, so it was certainly not error for the court to refuse to dismiss the case.
Rather than simply joining with the other defendants in general motions to dismiss the case, defendant should have made separate motions specifying the particular relief which he was seeking and the grounds therefor. Nevertheless, we treat the motions as having sufficiently raised the question of whether the evidence was sufficient to establish plaintiff's right to the particular relief sought against appellant; that is, to have the judgment declared a lien and to have the lien declared superior to the lien of appellant's deed of trust.
We hold that the evidence was sufficient.
G.S. § 44-1, in effect at the time of the transactions in question, provided in pertinent part: "Every building built, rebuilt, repaired or improved, together with the necessary lots on which such building is situated * * * shall be subject to a lien for the payment of all debts contracted for work done on the same, or material furnished." (The sections of Chapter 44 dealing with liens on real property have been replaced by G.S. § 44A-8, et seq., effective 1 January 1970.)
Where a lien claimant properly files notice of lien within six months of the last date on which materials were furnished and commences an action to enforce the lien within six months from the date of filing the notice of lien in the county where the property is situated, the lien relates back to the time when the lien claimant began the furnishing of materials, and takes precedence over the lien of a deed of trust on the property recorded after the first materials were furnished. Rural Plumbing and Heating Co. v. Hope Dale Realty Co., 263 N.C. 641, 140 S.E.2d 330, and cases therein cited.
Here plaintiff's evidence was that the first materials were delivered to the lot on 8 January 1969 and the last delivery was made 14 February 1969. There was also evidence that the footings to the house were poured before 13 January 1969. Notice of claim of lien, specifying in detail the materials furnished and the dates thereof, was filed on 20 June 1969, which was well within the time required. G.S. § 44-39. Suit to enforce the lien was filed 19 December 1969, which was within six months of the filing of the notice of claim of lien. G.S. § 44-43. Thus there was sufficient evidence to show that plaintiff was entitled to a valid lien which under the relation back doctrine would relate back and become effective before 27 January 1969, the date on which appellant's deed of trust was recorded.
*68 Appellant argues that since Hiatt did not record his deed to the property until 16 January 1969, no lien for material furnished could attach before that date. Even so, this would not benefit appellant, because his deed of trust was not recorded until 27 January 1969, eleven days after the recordation of Hiatt's deed. Materials were delivered on 23 January after the deed was recorded and before the deed of trust was recorded.
Appellant contends that the case of Smith Builders Supply Co. v. Rivenbark, 231 N.C. 213, 56 S.E.2d 431, is controlling here. There materials were furnished to the purchasers of a lot before title to the lot passed to them. The purchasers executed a deed of trust to secure the purchase price of the lot simultaneously with the execution and delivery to them of a deed to the lot. The instruments were recorded simultaneously. In holding the lien of the deed of trust to be superior to that of the materialman, the court employed the well established principle that no lien against a vendee can attach to the title of property superior to that of the holder of the purchase money mortgage. The rule, generally known as the doctrine of instantaneous seisin, and the theory behind it are set forth in Virginia-Carolina Chemical Co. v. Walston, 187 N.C. 817, 825, 123 S.E. 196, 200:
"It is generally held that when a vendor conveys property and simultaneously takes back a mortgage to secure the payment of all or a part of the purchase price, and such mortgage is at once registered, the title to the property conveyed does not rest in the purchaser for any appreciable length of time, but merely passes through his hands, without stopping, and vests in the mortgagee. During such instantaneous passage no lien of any character held against the purchaser * * * can attach to the title, superior to the right of the holder of the purchase-money mortgage."
"[T]his rule is equally applicable where a third party loans the purchase price and takes a deed of trust to a trustee to secure the amount so loaned." Smith Builders Supply Co. v. Rivenbark, supra, 231 N.C. at 214, 56 S.E.2d at 432.
There was evidence here that appellant's deed of trust was given by Hiatt to secure the purchase price which was loaned by E. H. Tucker, holder of the secured note. There was also evidence that the deed of trust in question was executed by Hiatt on the same date that he obtained a deed to the lot in question. However, the deed of trust was not recorded until eleven days after the recordation of the deed. In order for appellant to benefit from the doctrine of instantaneous seisin it must appear not only that his deed of trust and the deed to the property were executed and delivered as part of the same transaction, but that they were also recorded as part of the same transaction. "These cases [Smith Builders Supply Co. & Virginia-Carolina Chemical Co.] hold that when a deed to the vendee and his mortgage to the vendor for the unpaid purchase priceor to a third party for money loaned to pay the vendee the purchase priceare delivered and recorded as a part of the same transaction, no lien against the vendee can take precedence over `the purchase money mortgage.'" (Emphasis added). Childers v. Parker's, Inc., 274 N.C. 256, 162 S.E.2d 481.
Since the instruments here were not recorded as a part of the same transaction the doctrine of instantaneous seisin is not applicable.
Plaintiff argues that several of the court's findings of fact are unsupported by the evidence. However, no exceptions were taken to any of the court's findings and they are therefore presumed to be supported by competent evidence and are binding on appeal. Rural Plumbing & Heating Co. v. Hope Dale Realty Co., supra; Schloss v. Jamison, 258 N.C. 271, 128 S.E.2d 590; Rule 21, Rules of Practice in the Court of Appeals of North Carolina. A motion to dismiss under G.S. § 1A-1, *69 Rule 41, challenges the sufficiency of the evidence to permit a recovery. Airport Knitting, Inc. v. King Kotton Yarn Co., 11 N.C.App. 162, 180 S.E.2d 611. "[M]otion under Rule 41(b) * * * challenges the sufficiency of the plaintiff's evidence to establish his right to relief." Wells v. Sturdivant Insurance Co., 10 N.C.App. 584, 588, 179 S.E.2d 806, 809. Such a motion does not raise the question of whether the particular findings made by the court are supported by the evidence, but only the question of whether any findings could be made from the evidence which would support a recovery.
We have nevertheless reviewed the findings of fact made in this case and conclude that they are supported by competent evidence. The findings of fact support the court's conclusion which in turn supports the judgment.
Appellant's final assignments of error are formal and raise no questions of substance. We overrule them without discussion.
No error.
BROCK and VAUGHN, JJ., concur.