Ruth Bain GURTIS and Sarah M. Ballard
v.
CITY OF SANFORD et al.
No. 7311DC270.
Court of Appeals of North Carolina.
June 27, 1973.*585 Adams, Lancaster, Seay, Rouse & Sherrill by Basil Sherrill, Raleigh, for plaintiff appellants.
Lowry M. Betts, Pittman, Staton & Betts, Sanford, for City of Sanford, defendant appellee.
Jimmy L. Love, Sanford, for Southern National Bank of North Carolina, Trustee, defendant appellee.
BRITT, Judge.
By two assignments of error, plaintiffs contend the court erred (1) in allowing defendant city's motion to dismiss at the close of all the evidence and (2) in signing and entering the judgment.
The record reveals that when plaintiffs rested their case, defendants moved to dismiss but the court overruled their motions; that after defendant city rested its case, it renewed its motion to dismiss and the motion was allowed. However, in its judgment the court made findings of fact as provided in G.S. § 1A-1, Rule 52(a), based upon the evidence, concluded that plaintiffs are not entitled "to recover anything from the defendants, or either of them," and adjudged that plaintiffs recover nothing from either defendant.
We hold that the effect of the court's action was to enter judgment on the merits rather than dismiss the case and that being true, the only assignment of error to be considered is that the court erred in signing and entering the judgment. In Morris v. Perkins, 11 N.C.App. 152, 180 S.E.2d 402 (1971), cert. den. 278 N.C. 702, 181 S.E.2d 602, we quoted from the case of Fishing Pier v. Carolina Beach, 274 N.C. 362, 163 S.E.2d 363 (1968), as follows: "This sole assignment of error to the signing of the judgment presents the face of the record proper for review, but review is limited to the question of whether error of law appears on the face of the record, which includes whether the facts found or *586 admitted support the judgment, and whether the judgment is regular in form."
In the case at bar, while we hold that error of law does not appear on the face of the record proper, the facts found or admitted support the judgment, and the judgment is regular in form, we will proceed further and answer plaintiffs' argument that there was a "holding over" as a matter of law.
The principle of law applicable here appears to be well stated in Webster's Real Estate Law in North Carolina, as follows:
(§ 65, p. 79.) "Every estate which by the terms of its creation must expire at a period certain and prefixed by whatever words created, is an estate for years. An estate for years arises from a contract whereby a tenant is to have the right to possession of lands or tenements for some determinate period. Whether the term be for a hundred years, or for only one year, or for a month or week or day even, still the estate of the lessee is termed in law an `estate for years.'"
* * * * * *
(§ 78, p. 90.) "When a tenant holds over, the landlord has the initial option to treat the tenant who holds over as a trespasser and may eject him. If the landlord recognizes the tenant, however, by accepting rent, a presumption arises that a tenancy from year to year is intended and the law creates a tenancy from year to year between the parties under the same terms and conditions of the previously existing lease for years so far as the same may be applicable.
This presumption of a tenancy from year to year is rebuttable, however, and will yield to an actual intention of the parties not to create such a tenancy. For instance, the fact that a tenant has been compelled to continue in possession of necessity due solely to his sickness or by reason of the sickness of some member of his family, making removal dangerous or impracticable, or pending negotiation of a new lease wherein the landlord acquiesces in the tenant's remaining in possession until the matter is determined, will rebut the presumption that a tenancy from year to year was intended."
See also Murrill v. Palmer, 164 N.C. 50, 80 S.E. 55 (1913).
The evidence in the case at bar was sufficient to rebut the presumption of a tenancy from year to year following the ten years lease period. A question of fact was presented and the court, sitting as a jury, resolved the question in favor of defendant city. Mr. Harris, who served as defendant city's manager during 1970 and 1971, testified: In the summer of 1970 he was aware of the option to purchase but did not think the property was worth $25,000. At that time he began negotiating with defendant bank with respect to a lower figure and continued negotiations until May of 1971. Prior to 7 September 1970, the city "bagged" the meters it had placed on the property and exercised no control over the property after 7 September 1970 except to remove the meters shortly after May of 1971. He felt defendant city had a moral obligation to pay rent through May of 1971 and on his recommendation, the city council authorized a final rental payment of $1,125.
Plaintiffs' evidence showed that "the family" erected a barricade around the lot in August of 1971. Defendant bank presented no testimony but the evidence disclosed that it filed a final account on 2 August 1971 showing receipt of $1,125 from defendant city on 3 June 1971 and disbursement of that amount. The evidence further tended to show that defendant bank attempted to resign as trustee because of "differences" with plaintiffs over the subject property.
Defendant city's contention that it did not hold over but merely left its meters on the property pending negotiations with respect to purchasing the property, and that *587 defendant bank, acting as trustee for plaintiffs, acquiesced until negotiations terminated is fully supported by the evidence.
The judgment appealed from is
Affirmed.
HEDRICK and VAUGHN, JJ., concur.