Austin v. Crisp, 186 N.C. 616 (1923)

Dec. 12, 1923 · Supreme Court of North Carolina

186 N.C. 616

T. W. AUSTIN v. HARRY CRISP.

(Filed 12 December, 1923.)

1. Ijandlord and Tenant — Contracts—Deeds' and Conveyances — Equity.

Tbe relation of landlord and tenant rests upon contract between tbe parties and does not exist without their mutual intent and tbe mutuality of consideration, as in other contracts, nor preclude tbe supposed tenant from showing there was no such tenancy, or from invoking the interposition of a court of equity for his equitable relief, in proper instances.

2. Same — Estoppel.

, Where a supposed tenant has rented a tract of land included in the boundaries of several tracts in a deed he has theretofore received from his supposed landlord, in his action to correct his deed for mistake he is not estopped to show that because of his illiteracy and ignorance of the description of the lands in the deed he has taken, he has afterwards leased the locus in quo by mistake.

3. Appeal ancl Error — Objections and Exceptions^ — Questions and Answers.

Exception, on appeal, to the exclusion of an unanswered question is untenable unless it is properly made to appear what the answer would have been.

4. Appeal and Error — Objections and Exceptions — Records—Briefs— Rules of Court.

Exceptions of record on appeal not mentioned in appellant’s brief are deemed as abandoned on appeal, under tbe Rules of Court.

Appeal by plaintiff from Finley, J., at June Special Term, 1923, of Caldwell.

Civil action. On 5 May, 1917, tbe plaintiff executed a deed to tbe defendant purporting to convey four tracts of land. In bis complaint be alleges tbat by mutual mistake one of these tracts (tbe second in tbe deed) was erroneously inserted, and tbat it is necessary to correct tbe deed in tbis respect in order to make it conformto tbe intention of tbe parties. He further alleges tbat in tbe fall of 1917 tbe defendant leased from tbe plaintiff tbe land in dispute for an annual rental of $60.

Tbe defendant denied any mistake, and alleged tbat tbe plaintiff claimed to be tbe owner of five tracts and sold him four; tbat tbe defendant was unable to read and write, did not know tbe boundaries of tbe land, and, relying upon tbe plaintiff’s representations, leased tbe tract in dispute without knowing tbat it was included in bis boundaries.

Tbe following verdict was returned:

“1. Was tbe second tract in tbe deed of 5 May, 1917, from tbe plaintiff to tbe defendant, included therein by reason of tbe mutual mistake of tbe plaintiff and defendant? Answer: ‘No.’

“2. If so, what damages is tbe plaintiff entitled to recover of tbe defendant ? Answer: ‘.’ ”

Judgment, and appeal by tbe plaintiff.

TP. A. Self and Lawrence Wakefield for plaintiff.

W. G. Newland, J. H. Burke, and Mark Squires for defendant.

Adams, J.

Tbe seventh, eighth, and ninth exceptions involve, directly or indirectly, tbe alleged estoppel of tbe defendant to deny tbe plaintiff’s title, but in our opinion neither of them can be sustained.

It is established as a general rule of law tbat a tenant who is in tbe undisturbed possession of tbe demised premises may not dispute tbe title of bis landlord; but as tbe relation of landlord and tenant is tbe result of a contract, tbe rule is based on tbe assumption tbat such relation exists by the mutual agreement of tbe parties. Unless there is “an agreement which creates an obligation,” there is no contract. There must be mutuality of obligation as well as mutuality of agreement. Clapp v. Coble, 21 N. C., 179; Davis v. Davis, 83 N. C., 71; Dixon v. Stewart, 113 N. C., 410; Shew v. Call, 119 N. C., 450; Shell v. West, 130 N. C., 171; Hargrove v. Cox, 180 N. C., 360; Hobby v. Freeman, 183 N. C., 240.

The doctrine of estoppel applies to the simple relation of lessor and lessee, unaffected by other complications, and does not preclude the tenant from showing there was no contract of tenancy, or from invoking the interposition of a court of equity for his relief. Timber Co. v. Yarbrough, 179 N. C., 340. The defendant alleges, in substance, that he relied upon the plaintiff’s representations, and was misled by reason of his ignorance of the boundary lines; and his evidence tends to show that he leased his own land through inadvertence and mistake. By reason of such mistake, the jury evidently concluded that no contract had been made. One is not permitted to accept a promise when he knows the other party understands it in a sense different from that in which he understands it, for in such case there is no agreement. Mistake may be such as to prevent any real agreement, and in such case the agreement is not merely voidable, as in the case of fraud, but is absolutely void, both at law and in equity. A meeting of the minds is essential. Freeman v. Croom, 172 N. C., 524.

It is also worthy of notice that the plaintiff does not plead the estop-pel, but seems to depend on the lease as evidence of the alleged mistake in the execution of the deed. In fact, the object of the action is the correction of the deed, the plaintiff in express terms praying the court to reform the conveyance so as to make it speak the truth and comply with the agreement, and his Honor’s instruction upon this phase of evidence was certainly not unfavorable to the plaintiff.

The third and sixth exceptions have reference to' excluded evidence, but the record does not show what the answer would have been or what evidence was proposed, and we must follow the ruling in several familiar precedents and hold that these exceptions also are without merit. The others are not discussed in the appellant’s brief. Schas v. Assurance Society, 170 N. C., 420; Fulwood v. Fulwood, 161 N. C., 601. We find

No error.