McNeill v. Minter, 12 N.C. App. 144 (1971)

Aug. 4, 1971 · North Carolina Court of Appeals · No. 7111DC464

12 N.C. App. 144

CURTIS LEE McNEILL v. MALCOLM A. MINTER

No. 7111DC464

(Filed 4 August 1971)

1. Trover and Conversion § 1— conversion defined

Conversion is an unauthorized assumption and exercise of the right of ownership over goods or personal chattels belonging to another, to the alteration of their condition or the exclusion of an owner’s rights.

2. Trover and Conversion § 1— nonapplicability to realty

Conversion applies only to personal property and does not apply to real property.

Appeal by defendant from Lyon, District Judge, 11 January 1971 Session of Lee County District Court.

Plaintiff instituted this action to recover $650.00 in damages from defendant. Plaintiff’s evidence tended to show: He signed a note and a contract to purchase a certain lot in a real estate subdivision owned by Minter Realty Company, of which defendant was an officer and shareholder. The sale of the lot was made to plaintiff by defendant, acting on behalf of the realty company. Plaintiff paid $50.00 down and his note obligating him to pay $30.00 per month was assigned to Southern National Bank; he was to receive a deed to the property at the completion of the payments. Plaintiff’s contract for the purchase of the lot was signed by him only and was never recorded. Over a year after this transaction, defendant, as vice president of Minter Realty Company, negotiated a sale of the lot plaintiff had agreed to purchase, as well as other lots in the subdivision, to Carr Creek Estates, Inc. Acting as assistant secretary of Minter Realty Company, defendant signed the deed transferring the property to Carr Creek Estates, Inc. Then defendant, as president of Carr Creek Estates, Inc., signed a deed of trust on the lots in the subdivision from Carr Creek Estates, Inc. to E. T. Newton and S. C. Brawley, Jr., Trustees. Plaintiff subsequently discovered a house on “his” lot with people living in it and stopped making payments to Southern National Bank.

Defendant’s evidence tended to show that defendant was acting in a corporate capacity when he engaged in the transactions complained of, and that he did not receive any personal remuneration from the transactions. Defendant has since been adjudged a bankrupt, the discharge in bankruptcy being granted over the objection of plaintiff.

At the conclusion of all the evidence, the trial judge made findings of fact and conclusions of law and entered judgment in favor of plaintiff for $650.00 plus interest. The judgment also provided for execution against the person of defendant. Defendant appealed.

Hoyle & Hoyle by J. W. Hoyle for plaintiff appellee.

Cameron & Harrington by J. Allen Harrington (by brief) for defendant appellant.

BRITT, Judge.

Defendant assigns as error the conclusion of law of the trial judge that “[t]he plaintiff was damaged by defendant’s deceit and conversion of real property to the extent and in the amount of $650.00, with six (6%) percent interest thereon from June 25,1968.” The assignment of error must be sustained.

[1, 2] “Conversion” is defined as “an unauthorized assumption and exercise of the right of ownership over goods or personal chattels belonging to another, to the alteration of their condition or the exclusion of an owner’s rights.” (Emphasis ours.) Wall v. Colvard, Inc., 268 N.C. 43, 149 S.E. 2d 559 (1966) ; Peed v. Burleson’s, Inc., 244 N.C. 437, 94 S.E. 2d 351 (1956) ; 89 C.J.S., Trover & Conversion, § 1, p. 531 (1955). While there appears to be no North Carolina case that expressly so holds, the language quoted above indicates that conversion applies only to goods and personal property and does not apply to real property. Other jurisdictions have expressed this view. See Graner v. Hogsett, 84 Cal. App. 2d 657, 191 P. 2d 497 (1948) and Eadus v. Hunter, 268 Mich. 233, 256 N.W. 323 (1934). C.J.S. states: “An action of trover lies only for the conversion of personal chattels. Such action does not lie for a wrongful deprivation of, or for injuries to, land or other real property . ...” 89 C.J.S., Trover & Conversion, § 11, p. 538 (1955).

As the trial judge erroneously concluded that there was a conversion of real property, the judgment based upon that conclusion is

Reversed.

Judges Morris and Parker concur.