Bobby MacBryan GREEN and Daniel Joseph Maddalena, Plaintiffs-Appellants,
v.
Baxter C. CRANE, Jr., and wife, Ceanne J. Crane, Defendants-Appellees.
No. 8924DC209.
Court of Appeals of North Carolina.
January 4, 1990.*759 Bobby MacBryan Green, pro se.
Daniel Joseph Maddalena, pro se.
Miller and Moseley by Allen C. Moseley, Boone, for defendants-appellees.
EAGLES, Judge.
Plaintiffs make four arguments on appeal. First, plaintiffs assert that the documents recorded by defendants did not effectively restrict the property in question as required by paragraph 1 of the consent judgment. Second, plaintiffs assert that the trial court erred in finding that an additional lawsuit would be required to force compliance with the restrictions contained in the consent judgment. Third, plaintiffs assert that the consent judgment placed the burden of proof on the defendants to show compliance with the judgment on motion of the plaintiffs. Plaintiffs argue that defendants failed to meet their burden. Finally, plaintiffs argue that the trial court erred in failing to tax defendants with costs. We agree with plaintiffs' argument that the recorded documents did not effectively restrict the six acre tract. Therefore, the judgment of the trial court is vacated and the cause is remanded.
Plaintiffs argue that the documents recorded in the Avery County Register of Deeds Office were executed by the trustee under the deed of trust and did not effectively restrict the use of the property in question. Plaintiffs assert that there is no written authority for the trustee to impose restrictions on the property encumbered by the deed of trust. Additionally, plaintiffs argue that a "Joinder Agreement" as originally recorded did not include a six acre tract in the legal description of the property; the six acre tract was the subject of the original complaint. Although the joinder agreement was rerecorded and the property description amended to contain the six acre tract, plaintiffs argue that the rerecording was ineffective because the mortgagee bank (holder of the note) did not join in its execution. Plaintiffs also assert that defendants cannot declare restrictive covenants which will run with the land unless there is a delineation of dominant and servient tenements. Finally, plaintiffs argue that the legal description of the property contained in the recorded restrictive covenants is ambiguous and therefore ineffective to restrict the property.
In North Carolina a deed of trust to secure a debt passes legal title to the trustee. See Riddick v. Davis, 220 N.C. 120, 125, 16 S.E.2d 662, 666 (1941). Because the trustee held legal title to the six acre tract in question, he had authority to execute the joinder agreement. Plaintiffs' arguments to the contrary are without merit. However, defendants admitted at the hearing on plaintiffs' motion that, as originally recorded, the joinder agreement did not include the six acre tract which was the subject of the original complaint. However, defendants argue that by rerecording the agreement with the new description the inadvertant omission of the six acre tract was rectified. Defendants rely on G.S. 47-36.1 which provides that
an obvious typographical or other minor error in a deed or other instrument recorded with the register of deeds may be corrected by rerecording the original instrument with the correction clearly set out on the face of the instrument and with a statement of explanation attached. The parties who signed the original instrument or the attorney who drafted the original instrument shall initial the correction and sign the statement of explanation. If the statement of explanation is not signed by the parties who signed the original instrument, it shall state that the person signing the statement is the attorney who drafted the original instrument.
At the hearing defendants characterized the omission of the six acre tract as "inadvertently left out." The trial court found that the rerecorded document was sufficient. We do not agree that the rerecording corrected "an obvious typographical or other minor error." The record here shows *760 that the description of the property in the original joinder agreement was as follows:
Being Lots 1, 2, 3, 4, 5, 6, 7, 8, 9, 10 and 11 of Lost Cove Estates Subdivision as shown on a map and survey by Michael M. Lacey, R.L.S. No. L-1491, dated July 2, 1984, titled "Lost Cove Estates, Property of Baxter Crane", and being Surveyor's Map No. 84-7-2-136 and being recorded in Plat Book 21, Pages 30 and 31 of the Avery County Register of Deeds.
The description found in the rerecorded joinder agreement is as follows:
Being all of that certain tract or parcel of land more fully described in the Deed recorded in Book 135, Page 677, Avery County Registry, which property specifically includes Lots 1, 2, 3, 4, 5, 6, 7, 8, 9, 10 and 11 of Lost Cove Estates Subdivision as shown on a map and survey by Michael M. Lacey, R.L.S. No. L-1491, dated July 2, 1984, titled "Lost Cove Estates, Property of Baxter Crane", and being Surveyor's Map No. 84-7-2-136 and being recorded in Plat Book 21, Pages 30 and 31 of the Avery County Register of Deeds. (Emphasis added.)
The addition of the first phrase above is not the correction of an obvious typographical or clerical error. Therefore the trial court erred when it found that defendants were in compliance with the consent judgment.
Plaintiffs' second argument is that the trial court erred when it stated to plaintiffs that "[i]f you think [defendants are] not in compliance with their restrictions on the property, then you're going to have to bring another lawsuit. It's not a part of this one." However, the consent judgment on which plaintiffs' contempt proceeding was based provided that "[d]efendants shall make subject to, and bring into full compliance with, the Declaration of Restrictions for Lost Cove Estates," the property in question [emphasis ours]. Plaintiffs listed noncompliance with the Restrictions as a basis for their "Motion for Show Cause." Therefore, the trial court erred in not allowing plaintiffs the opportunity to argue noncompliance as a basis of the contempt proceeding. The consent judgment (which the parties have agreed to) provides: "Failure to comply ... shall be punishable as for contempt. The burden of proof shall be upon the Defendants." Once plaintiffs assert noncompliance with the requirement for recording the Restrictions, and therefore noncompliance with the consent judgment, defendants have the burden of showing compliance.
Finally, plaintiffs argue that the trial court erred in failing to tax defendants with costs. Plaintiffs' argument is without merit. "A North Carolina court has no authority to award damages [in the form of costs] to a private party in a contempt proceeding." Glesner v. Dembrosky, 73 N.C.App. 594, 599, 327 S.E.2d 60, 63 (1985). "[C]ontempt proceedings are sui generis and criminal in nature. Although labeled `civil' contempt, a proceeding as for contempt is by no means a civil action or proceeding to which G.S. 6-18 (when costs shall be allowed to plaintiff as a matter of course), or G.S. 6-20 (allowance of costs in discretion of court) would apply." United Artists Records, Inc. v. Eastern Tape Corp., 18 N.C.App. 183, 188, 196 S.E.2d 598, 601, cert. denied, 283 N.C. 666, 197 S.E.2d 880 (1973). The trial court did not err in refusing to tax defendants with costs.
For the reasons stated, we vacate the order of the trial court and remand the case to the trial court for further proceedings to determine whether defendants should be held in contempt and if so, what sanctions, if any, are appropriate.
Vacated and remanded.
PARKER and GREENE, JJ., concur.