Appeal by plaintiff from Alexander, Judge. Judgment entered 6 February 1981 Session of Forsyth County District Court. Heard in the Court of Appeals 21 October 1981.
Morris, Chief Judge. Judges Arnold and Becton concur.
Rule 56 does not require the movant to set forth the grounds upon which he bases a motion for summary judgment, Conover v. Newton, 297 N.C. 506, 256 S.E.2d 216 (1979), and, of course, the very nature of the motion obviates the necessity for findings of fact. We assume that the trial judge determined defendant's evidence of ratification sufficient to meet her burden of persuasion on the affirmative defense, negating the existence of any genuine issue of material fact on the allegations of incompetency and undue influence. These grounds, which we find sufficient, are dispositive. Hence, we choose only to outline the basis of our determination that evidence of plaintiff's ratification of the separation agreement resulted in a lack of triable issue of fact.
G.S. 1A-1, Rule 8(c) requires that "[i]n pleading to a preceding pleading, a party shall set forth affirmatively . . . any . . . matter constituting an avoidance or affirmative defense." We note that defendants' answer did not contain the defense of ratification. Rule 56, however, does not limit consideration of a motion for
summary judgment to the pleadings. The court may consider depositions, answers to interrogatories, admissions on file and affidavits. Indeed,
[T]he nature of summary judgment procedure (G.S. 1A-1, Rule 56), coupled with our generally liberal rules relating to amendment of pleadings, require that unpleaded affirmative defenses be deemed part of the pleadings where such defenses are raised in a hearing on motion for summary judgment. Bank v. Gillespie, 291 N.C. 303, 230 S.E.2d 375 (1976). See also 6 Moore, Federal Practice (2d ed. 1976) § 56-736.
Cooke v. Cooke, 34 N.C. App. 124, 125, 237 S.E.2d 323, 324, cert. denied, 293 N.C. 740, 241 S.E.2d 513 (1977). Thus, although it is better practice to require a formal amendment to the pleadings, unpleaded defenses, when raised by the evidence, should be considered in resolving a motion for summary judgment. Bank v. Gillespie, 291 N.C. 303, 230 S.E.2d 375 (1976).
A transaction procured by undue influence may be ratified by the victim, foreclosing a subsequent suit to vitiate the contract. Link v. Link, 278 N.C. 181, 179 S.E.2d 697 (1971). The pleadings, answers to interrogatories and affidavits clearly show that plaintiff acceded to the separation agreement. Plaintiff maintains that the acts constituting defendant's exercise of undue influence occurred prior to execution of the agreement, and he does not allege, nor does the record reveal, any undue influence after 8 June 1978, the date the agreement was signed. Plaintiff, between 8 June 1978 and the filing of his action on 29 November 1978, accepted and retained all benefit growing out of the agreement. Defendant made all the tax, mortgage, and insurance premium payments on the dwelling owned by defendant and plaintiff as tenants in common. She also contributed to its general maintenance. She transferred to plaintiff certain property listed in the separation agreement, including title to and possession of a 1974 Cadillac automobile. Plaintiff recognized the legitimacy of the agreement by continued performance thereunder after any purported duress had terminated. He made alimony payments from July until November of 1978. He further acknowledged the validity of the agreement by conveying full possession and title to the parties' 1967 Chevrolet automobile. Plaintiff thus acquiesced for months in the separation agreement which he would now
avoid. He has shown no ground for rescission based upon the exercise of undue influence.
Plaintiff, in addition, was unable to show that he could support his position on incompetency by the offer of proof at trial. With regard to the standard of competency required validly to enter a contract,
[w]e have said . . . that . . . a person has mental capacity sufficient to contract if he knows what he is about [ Moffit v. Witherspoon, 32 N.C. 185; Paine v. Roberts, 82 N.C. 451], and that the measure of capacity is the ability to understand the nature of the act in which he is engaged and its scope and effect, or its nature and consequences, not that he should be able to act wisely or discreetly, nor to drive a good bargain, but that he should be in ...