Appeal by plaintiffs from Herring, Judge. Judgment dismissing plaintiffs' claim pursuant to Rule 50 entered 11 April 1978 in Superior Court, Columbus County. Heard in the Court of Appeals 29 May 1979.
Clark, Judge. Judge Carlton concurs. Judge Vaughn dissents
Plaintiffs first assign as error the granting of a directed verdict pursuant to G.S. 1A-1, Rule 50, in favor of defendant. The trial court indicated that the basis of its ruling was that plaintiffs presented insufficient evidence to establish that a trust had been created in their favor. Plaintiffs, however, contend that the complaint set forth a claim for relief based on equitable estoppel; that plaintiffs presented sufficient evidence of equitable estoppel to reach the jury; and, therefore, the directed verdict was improperly granted.
It is contended by defendant that the estoppel is not pleaded in the complaint. This contention is without merit. Construing the complaint liberally with a view to substantial justice between the parties, the facts which are necessary to constitute the estoppel
are alleged in the complaint. The plaintiffs alleged in their complaint the recital in the deed to defendant and prayed for equitable and legal title in the three tracts of land. Everything does appear in the complaint which is necessary to plead an estoppel except simply naming it as an estoppel in terms. See Faircloth v. Ohio Farmers Insurance Co., 253 N.C. 522, 117 S.E.2d 404 (1960); Allston v. Connell, 140 N.C. 485, 53 S.E. 292 (1906).
Plaintiffs contend that the deed of the fourth tract of land to defendant contained a recital which estops defendant from asserting an interest in the three tracts of land. The deed provided in pertinent part that:
"it is understood and agreed that this conveyance is accepted as an advancement to Richard V. Soles of his entire interest in the real property of the estate of the grantor [Nettie Soles] and of his father, S. C. Soles, deceased."
"Where, however, a fact recited in a deed is of the essence of the contract and the intention of the parties to place such fact beyond question or to make it the basis of the contract is clear, the recital is effectual and operates as an estoppel against both parties and their privies . . . ." 6 Thompson on Real Property, § 3110, 843 (Repl. 1962). Fort v. Allen, 110 N.C. 183, 14 S.E. 685 (1892). It is true that all recitals are not binding. Recitals in a deed are binding, however, "when they are of the essence of the contract, that is, where unless the facts recited exist, the contract, it is presumed, would not have been made." Brinegar v. Chaffin, 14 N.C. 108, 109 (1831). The rule is based upon the premise that it would offend every principle of equity and good morals to permit a party to enjoy the benefits of a contract or deed and at the same time deny its terms or qualifications. Fort v. Allen, supra; see Shuford v. Asheville Oil Co., 243 N.C. 636, 91 S.E.2d 903 (1956); Pure Oil Co. v. Baars, 224 N.C. 612, 31 S.E.2d 854 (1944); Joint Stock Land Bank v. Moss, 215 N.C. 445, 2 S.E.2d 378 (1939); Perry v. Southern Surety Co., 190 N.C. 284, 129 S.E. 721 (1925). This rule is technically a form of equitable estoppel. It is not based upon the formalities of a deed, but rather, it is based upon the principle that one cannot accept the benefits of a transaction and deny the accompanying burdens. Therefore, it is similar to the theory of estoppel by acceptance of benefits under a contract or instrument. See 28 Am. Jur. 2d Estoppel and
Waiver § 59 (1966). It is also similar to the equitable doctrine of election which provides that a person designated as a beneficiary under a will cannot take under the instrument and at the same time assert a title or claim in conflict with the same writing. See Rouse v. Rouse, 238 N.C. 568, 78 S.E.2d 451 (1953). An election, in equity, is a choice which a party is compelled to make between the acceptance of a benefit under a written instrument and the retention of some property already his own which is to be disposed of in favor of a third party by the same paper. Wells v. Dickens, 274 N.C. 203, 162 S.E.2d 552 (1968). 13 Strong's N.C. Index Wills § 64 (1978).
In Allen v. Allen, 213 N.C. 264, 195 S.E. 801 (1938), Mrs. Allen, deceased, had conveyed a tract of land to two of her children, with the intention that this land would constitute their full share in the lands of both her and her husband. After the death of both parents, one of the grantees and grandchildren of the other grantee sought to invalidate certain deeds delivered by T. W. Allen to other children, and sought to be declared the owners of the land. The North Carolina Supreme Court denied the relief on the grounds that the grantees had accepted the deed to the tracts of land
". . . as representing their full share of the lands belonging to their mother and father, and . . . they accepted the deed with full knowledge that it was so tendered and after first debating whether to accept it or not. They have received the full benefits of the deed. It would be contrary to all the principles of equity to permit them now to disavow the conditions upon which the deed ...