Isadore GOLDSTEIN and wife, Ida S. Goldstein,
v.
WACHOVIA BANK & TRUST COMPANY, a corporation, and Marion Green Johnston, as Executors and Trustees under the Last Will and Testament of Gay Green, Deceased.
No. 101.
Supreme Court of North Carolina.
March 9, 1955.*86 William J. Cocke, Charles N. Malone, James S. Howell, Asheville, for plaintiffs, appellants.
Wright & Shuford and Don C. Young, Asheville, for defendants, appellees.
DENNY, Justice.
The sole question presented on this appeal is whether or not the court below committed *87 error in sustaining the demurrer ore tenus to the plaintiffs' complaint.
Ordinarily, where the owner of land makes an enforceable contract to convey the land and the title to the property proves defective in some particular, or his estate is different from that which he agreed to convey, the vendee, at his election, may compel the conveyance of such interest as the vendor may have and obtain "a pecuniary compensation or abatement of the price proportioned to the amount and value of the defect in title or deficiency in the subject-matter. * * *" Flowe v. Hartwick, 167 N.C. 448, 83 S.E. 841, 843; Bryant Timber Co. v. Wilson, 151 N.C. 154, 65 S.E. 932, 134 Am. St. Rep. 982; Rodman v. Robinson, 134 N.C. 503, 47 S.E. 19, 65 L.R.A. 682, 101 Am. St. Rep. 877; Pomeroy on Contracts, section 434; 49 Am.Jur., Specific Performance, section 105, page 123, et seq.
In Timber Co. v. Wilson, supra [151 N. C. 154, 65 S.E. 933], this Court said: "* * it is well settled that, though the vendor is unable to convey the title called for by the contract, the purchaser may elect to take what the vendor can give him, and hold the vendor answerable in damages as to the rest. Kares v. Covell, 180 Mass. 206, 62 N.E. 244; Corbett v. Schulte, 119 Mich. 249, 77 N.W. 947; 29 Am. & Eng.Enc.L. 621, and cases cited." Morris v. Basnight, 179 N.C. 298, 102 S.E. 389.
It would seem that the allegations of the plaintiffs' complaint which for the purpose of our discussion are admitted to be true, are sufficient to support the view that if a duly executed conveyance of the property described in the contract under consideration, with all the rights and easements appertaining thereto, had been recorded prior to the registration of the conveyances executed by the defendants to the properties known as Nos. 4 and 6 North Pack Square, such deed would have given to the plaintiffs the right to use the stairway and hallway referred to herein for the purpose of ingress and egress to the second floor of No. 2 North Pack Square. Packard v. Smart, 224 N.C. 480, 31 S.E.2d 517, 155 A.L.R. 536; Ferrell v. Durham Bank & Trust Co., 221 N.C. 432, 20 S.E.2d 329; Carmon v. Dick, 170 N.C. 305, 87 S.E. 224; Bowling v. Burton, 101 N.C. 176, 7 S.E. 701, 2 L.R.A. 285.
In Ferrell v. Durham Bank & Trust Co., supra [221 N.C. 432, 20 S.E.2d 331], Winborne, J., speaking for the Court, said: "It is a general rule of law that where one conveys a part of his estate, he impliedly grants all those apparent or visible easements upon the part retained which were at the time used by the grantor for the benefit of the part conveyed, and which are reasonably necessary of the use of that part", citing numerous authorities. "Notwithstanding the fundamental principle that a person cannot have an easement in his own land, `it is a well settled rule that where, during the unity of title, an apparently permanent and obvious servitude is imposed on one part of an estate in favor of another part, which servitude, at the time of the severance, is in use and is reasonably necessary to the fair enjoyment of the other part of the estate, then upon a severance of the ownership, a grant of the right to continue such use arises by implication of law. * * * The underlying basis of the rule is that unless the contrary is provided, all privileges and appurtenances as are obviously incident and necessary to the fair enjoyment of the property granted substantially in the condition in which it is enjoyed by the grantor are included in the grant.' 17 Am.Jur., 945, Easements, Implied, Section 33."
On the other hand, there is a distinction between a grant and a reservation by implication. Ordinarily, a grantor can impose no reservation on land he conveys in favor of other land retained by him in derogation of his grant without an express reservation to that effect, except as to "ways of strict or imperious necessity." Thompson on Real Property (Per.Ed.), Vol. 1, section 370(332), page 599. In Blankenship v. Dowtin, 191 N.C. 790, 133 S.E. 199, 201, this Court quoted with approval the distinction in this respect as set forth by Gould on Waters (3rd Ed.), section 354, as follows: "`The general *88 rules relating to severance of tenements are that a grant by the owner of a tenement or part of that tenement, as it is then used and enjoyed, passes to the grantee by implication, and without the use of the word "appurtenances" or similar words, all those easements which the grantor can convey, which are necessary to the reasonable enjoyment of the granted property, and have been, and are, at the time of the grant, used by the owners of the entirety for the benefit of the granted tenement; and that, except in the case of ways or easements of necessity, there is no corresponding implication in favor of the grantor, who, if he wishes to reserve any right over the granted part, should reserve it expressly in the grant.'"
The plaintiffs, therefore, bottom their right to recover against the defendants on the ground that after the defendants contracted to convey No. 2 North Pack Square, including the easement rights appurtenant thereto, they conveyed the servient properties to third parties and did not reserve the easement rights they contracted to convey in connection with the sale of No. 2 North Pack Square.
Counsel for the appellees state in their brief and contended in the oral argument before this Court, that the plaintiffs allege unqualifiedly in their complaint that the defendants conveyed to them the property described in the complaint, and also an easement to the passageway and stairway. They seem to overlook the fact that the appellants do not allege in their complaint that their deed conveyed to them No. 2 North Pack Square and the easements appurtenant thereto. They allege that the deed purported to do so, but did not. They expressly alleged that the defendants by conveying No. 4 North Pack Square to M. B. Blomberg and David Sandman, and No. 6 North Pack Square to Morris Chizik, without reserving to these plaintiffs the passageway over the granted lands, made it impossible for them to convey to the plaintiffs an easement over Nos. 4 and 6 North Pack Square.
The appellees, through their counsel, on oral argument, likewise contended that the plaintiffs instituted this action against the wrong parties; that these defendants are in no way responsible for the destruction of the stairway, or the closing of the walls between Nos. 4 and 6 North Pack Square, or the closing of the wall between Nos. 2 and 4 North Pack Square. This argument, in light of the facts alleged in the complaint, is without merit on the question as to whether or not the complaint states a cause of action against the present defendants. The situation would be entirely different, however, if the contract entered into on 15th August, 1952, between the defendants and the assignor of the plaintiffs, had been registered prior to the execution and registration of the deeds to the present owners of Nos. 4 and 6 North Pack Square. But, the contract was not so registered. Even so, it is as valid and binding as between the plaintiffs and the defendants as it would have been had it been duly recorded the day it was executed. Freeman v. Bell, 150 N.C. 146, 63 S.E. 682.
In our opinion, the plaintiffs' complaint does state a cause of action against the present defendants, and the court below committed error in sustaining the demurrer ore tenus. Whether or not the defendants can make good on the defenses set up in their pleadings is a matter with which we are not concerned, and about which we express no opinion.
The ruling of the court below is
Reversed.
BARNHILL, C. J., and DEVIN, J., took no part in the consideration or decision of this case.