Anne G. PHILLIPS
v.
Carl R. WOXMAN, Jr. and wife, Susanne K. Woxman, J. D. Dixon, and John Henry Banks and wife, Christine M. Banks.
No. 783SC1122.
Court of Appeals of North Carolina.
November 20, 1979. Certiorari Denied March 5, 1980.*99 Lanier, McPherson & Miller by Jeffrey L. Miller, Greenville, and Ward & Smith by John A. J. Ward, New Bern, for plaintiff-appellee.
Howard, Vincent & Duffus by J. David Duffus, Jr., Greenville, for defendants-appellants, Banks.
Certiorari Denied by Supreme Court March 5, 1980.
ERWIN, Judge.
Defendants contend that the federal marketing quotas for tobacco are controlled by Part I of Section B, Subchapter II of the Agricultural Adjustment Act of 1938, as amended, 7 U.S.C. § 1311, et seq., and thus, the Superior Court of Pitt County did not have jurisdiction over the subject matter of this action. We disagree and hold that the Superior Court had jurisdiction to hear and to decide whether deeds describing North Carolina land executed by North Carolina residents may be reformed although such reformation relates to a tobacco allotment.
Defendants contend the failure of the trial court to grant defendants' motions for directed verdicts was improper and constituted reversible error. We do not agree.
This case was tried by the court without a jury. In trials by the court, the former motion for nonsuit has been replaced by the motion for a dismissal. G.S. 1A-1, Rule 41(b), of the Rules of Civil Procedure. We will treat the motion for nonsuit at the close of all the evidence as a motion for dismissal. Schafran v. Cleaners, Inc., 19 N.C.App. 365, 198 S.E.2d 734, cert. denied, 284 N.C. 255, 200 S.E.2d 655 (1973).
This Court stated in Town of Rolesville v. Perry, 21 N.C.App. 354, 357, 204 S.E.2d 719, 721 (1974):
"`In ruling on a motion to dismiss under Rule 41(b), applicable only "in an action tried by the court without a jury," the court must pass upon whether the evidence is sufficient as a matter of law to permit a recovery; and, if so, must pass upon the weight and credibility of the evidence upon which the plaintiff must rely in order to recover.' Knitting, Inc. v. Yarn Co., 11 N.C.App. 162, 180 S.E.2d 611."
The court made the following findings of fact: Plaintiff and the original purchaser, Woxman, had agreed that the farm land would be sold without the agricultural allotments. Through the inadvertence of and mistake of the deed's draftsman, the deed as executed and recorded failed to express this intent of the parties, and defendants Banks, subsequent purchasers of the property, had purchased the land with actual knowledge that the land had been sold without the agricultural allotments.
The court's findings of fact are supported by the evidence in the record, and the evidence in the record before the trial court was sufficient to deny defendants' motion for a dismissal under G.S. 1A-1, Rule 41(b), of the Rules of Civil Procedure. We do not find error.
The Court stated in Durham v. Creech, 32 N.C.App. 55, 58-60, 231 S.E.2d 163, 166-67 (1977):
"Where a deed fails to express the true intention of the parties, and that failure is due to the mutual mistake of the parties, or to the mistake of one party induced by fraud of the other, or to the mistake of the draftsman, the deed may be reformed to express the parties' true intent. Parker v. Pittman, 18 N.C.App. 500, 197 S.E.2d 570 (1973). . . .
* * * * * *
When, due to the mutual mistake of the parties, or perhaps a mistake by their draftsman, the agreement expressed in a written instrument differs from the *100 agreement actually made by the parties, the equitable remedy of reformation is available. However, reformation on grounds of mutual mistake is available only where the evidence is clear, cogent and convincing. Parker v. Pittman, supra.. . .
* * * * * *
Reformation is not barred because Margie Creech conveyed the land to third parties, the Smiths. In Archer v. McClure, 166 N.C. 140, 144, 81 S.E. 1081 (1914), our Supreme Court said:
`. . . where, because of mistake, an instrument does not express the real intention of the parties, equity will correct the mistake unless the rights of third parties, having prior and better equities, have intervened.'
A third party's equities are not great enough unless he is a bona fide purchaser, i. e., one who purchases without notice, actual or constructive, and who pays valuable consideration. Morehead v. Harris, 262 N.C. 330, 137 S.E.2d 174 (1964); Crews v. Crews, 210 N.C. 217, 186 S.E. 156 (1936); Dobbs, Remedies, § 11.6 (1973)."
The equitable remedy of reformation of a deed will be granted when it is shown by clear, cogent, and convincing evidence that due to the mutual mistake of the parties, the deed does not express the actual agreement made between the parties. Yopp v. Aman, 212 N.C. 479, 193 S.E. 822 (1937); Durham v. Creech, supra. The record is replete with competent evidence supporting all the material facts found by the trial court. The conclusions of law as entered by the trial court are proper. In holding that there was clear, cogent, and convincing evidence entitling plaintiff to reformation of her deed, we do not intimate what effect this reformation will have with any governmental agency's actions relating to the allotments.
The judgment entered below is
Affirmed.
ROBERT M. MARTIN and WEBB, JJ., concur.