THE STATE OF
In The Court of Appeals
Kenneth E. Bennett, Richard K. Bennett, James M. Hendershot, and Robert N. Parker, III, Appellants,
Investors Title Insurance Company, Respondent,
Investors Title Insurance Company, Respondent,
Crescent Resources, LLC, Bristol, LLC and CBS Surveying & Mapping, Inc., Respondents.
James C. Williams, Jr., Circuit Court Judge
Opinion No. 4152
Heard September 12, 2006 – Filed September 25, 2006
Randall S. Hiller, of
Greenville, for Appellants.
Louis H. Lang, of
Columbia, for Respondent Investors Title Insurance Company.
V. Clark Price, of
Greenville and Benjamin A. Johnson, both of Rock Hill, for Respondent Crescent Resources, LLC.
Warren C. Powell, Jr., of
Columbia, for Respondent CBS Surveying and Mapping, Inc.
ANDERSON, J.: In this dispute over liability for a surveying error, Kenneth E. Bennett, Richard K. Bennett, James M. Hendershot, and Robert N. Parker, III, (collectively Appellants), appeal the circuit court’s orders granting summary judgment to Crescent Resources, LLC and Investors Title Insurance Company. We affirm.
On December 28, 2001, Crescent conveyed 47.82 acres of real property in
The habendum clause of the Deed reads, in pertinent part:
TO HAVE AND TO HOLD all and singular the Property, unto the said Grantee and Grantee’s heirs, successors and assigns forever, except:
. . . .
(5) matters affecting title to the Property as shown on the Plat or which would be shown on a current and accurate survey of the Property (including any encroachments);
(6) easements, covenants, restrictions and conditions of record, and rights-of-way of public and private streets and roads, including, but not limited to, the road shown on the Plat as “old road bed” and the sixty-six (66) foot wide road right-of-way shown on the Plat as “SC 188 Keowee School Road (66’ R/W)” . . . .
The Deed further provides that Crescent “covenants to warrant specially the title to the Property against the lawful claims of any person claiming from, through, or under it.”
Later on the same day,
Subsequently, Appellants built two brick walls within forty-one feet of the centerline of South Carolina Highway 188. On April 25, 2002, the South Carolina Department of Transportation (SCDOT) wrote Appellants, informing them SCDOT had a 200 foot right-of-way easement over the Property. This right-of-way easement, dated August 1, 1968, and recorded at SCDOT shows Crescent granted the 200 foot right-of-way to SCDOT. See S.C. Code Ann. § 57-5-550 (2006) (directing all rights-of-way for state highways be filed at SCDOT).
Presumably, Appellants notified Investors of this problem and demanded payment for their loss. Investors alleged Appellants offered to settle the claim for $85,225. Investors explained Appellants arrived at this number by appraising the Property, dividing that number by the total number of acres included in the Property, and applying that per acre value to the acreage mistakenly assumed to be unencumbered. Investors further claimed it rejected this demand because the eastern portion of the Property bordered a lake, and this acreage would be valued higher than the portion bordering Highway 188. Investors additionally asserted it hired the same appraiser Appellants used to value the specific acreage lost. This appraiser valued the lost acreage at $64,000.
As a result, Investors sent Appellants a settlement check in the amount of $64,000 and a settlement agreement, which Appellants never executed. Investors explained Appellants hired a different attorney, who rejected the settlement offer and demanded $196,800 to settle the claim, including the “value of the improvements that were required to be relocated and/or destroyed due to the title defect . . . .” Investors refused to pay this amount, claiming the title policy excluded consequential damages. Appellants eventually agreed to settle the claim for the lost value of the Property for $64,000 but retained its consequential damages claim.
On June 26, 2003, Appellants filed a complaint against Investors, alleging breach of the title insurance contract and bad faith. Investors answered and eventually filed an amended answer, including a third-party complaint against Crescent,
In June 2004, Investors moved for summary judgment against Appellants, explaining it attempted to settle the claim and Appellants had not answered its settlement offer. According to Investors, the circuit court held a hearing on this motion, at which the parties discovered they possessed two different title insurance policy jackets with identical policy inserts. The jacket relied upon by Investors excepted claims for consequential damages. The circuit court allowed the parties time to supplement their arguments and Investors time to amend its motion.
In August, Investors filed an amended motion for summary judgment against Appellants. On January 11, 2005, Crescent moved for summary judgment against both Appellants and Investors. In February 2005, Investors again amended its motion for summary judgment.
The circuit court granted Crescent’s motion for summary judgment against both Appellants and Investors, holding exceptions (5) and (6) in the Deed’s habendum clause limited Crescent’s special warranty. Furthermore, the circuit court applied this ruling to Investors, finding Investors could not recover more than Appellants could recover. Although not included in the record, Appellants and Investors filed motions to reconsider this order, which the circuit court denied. However, the court entered an amended order, correcting minor factual errors.
Summary judgment was granted to Investors with respect to Appellants’ breach of contract and bad faith claims. The circuit court held the Policy specifically excluded all matters a current and accurate survey would disclose, including the claim asserted here. Appellants appealed both summary judgment orders.
STANDARD OF REVIEW
When reviewing the grant of a summary judgment motion, the appellate court applies the same standard which governs the trial court under Rule 56(c), SCRCP: summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. David v. McLeod Reg’l
Summary judgment is not appropriate where further inquiry into the facts of the case is desirable to clarify the application of the law. Gadson v. Hembree, 364 S.C. 316, 320, 613 S.E.2d 533, 535 (2005); Miller, 365 S.C. at 220, 616 S.E.2d at 729;
The party seeking summary judgment has the burden of clearly establishing the absence of a genuine issue of material fact. Jones v. State Farm Mut. Auto. Ins. Co., 364 S.C. 222, 228, 612 S.E.2d 719, 722 (Ct. App. 2005). The moving party may discharge the burden of demonstrating the absence of a genuine issue of material fact by pointing out the absence of evidence to support the nonmoving party’s case. Lanham v. Blue Cross and Blue Shield of South Carolina, Inc., 349 S.E. 256, 361, 563 S.E.2d 331, 333 (2002). Once the party moving for summary judgment meets the initial burden of showing an absence of evidentiary support for the opponent’s case, the opponent cannot simply rest on mere allegations or denials contained in the pleadings. Wogan v. Kunze, 366, S.C. 583, 591, 623, S.E.2d 107, 112 (Ct. App. 2005). The nonmoving party must come forward with specific facts showing there is a genuine issue for trial. Rife, 363 S.C. at 214, 609 S.E.2d at 568.
The purpose of summary judgment is to expedite the disposition of cases which do not require the services of a fact finder. Dawkins v. Fields, 354 S.C. 58, 69, 580 S.E.2d 433, 438 (2003); Eagle Container, 366 S.C. at 621, 622 S.E.2d at 738; Rumpf v.
I. Appellants v. Crescent
Appellants contend the circuit court erred in holding exceptions (5) and (6) in the habendum clause of the Deed limited Crescent’s special warranty. Appellants argue (1) the granting clause and its incorporation of the Plat created a representation or covenant of the width of SCDOT’s right-of-way; (2) Crescent failed to convey 47.82 acres of real property, as provided in the property description of the Deed; (3) the habendum clause was ambiguous; and (4) the Deed’s special warranty clause automatically protects Bristol and subsequent purchasers against claims created by Crescent; otherwise, the Deed would be a quitclaim deed. We disagree.
A. Construction of the Deed
The construction of a clear and unambiguous deed is a question of
law for the court.
“One of the first canons of construction of a deed is that the intention of the grantor must be ascertained and effectuated if no settled rule of law is contravened.” S. Ry. Co. v. Smoak, 243 S.C. 331, 336, 133 S.E.2d 806, 808 (1963); Wayburn v. Smith, 270 S.C. 38, 41, 239 S.E.2d 890, 892 (1977); Estate of Sherman ex rel. Maddock v. Estate of
B. Clauses in the Deed
Guided by our mandate to read the Deed as a whole, we examine the specific clauses therein. The term “premises” is used to refer to “all that part of [a] deed preceding the habendum clause, containing generally the names or description of the parties; explanatory recitals, including consideration and its receipt; a description of the realty; the exception, if any; and sometimes a designation of the estate or interest conveyed.” 26A C.J.S. Deeds § 35 (2001); see also Artis v. Artis, 47 S.E.2d 228, 232 (N.C. 1948) (“Ordinarily the premises and granting clauses designate the grantee and the thing granted, while the habendum clause relates to the quantum of the estate.”).
The First Carolinas Joint Stock Land Bank of
Columbia . . . [has] granted, bargained, sold and released, and by these presents [does] grant, bargain, sell and release unto the said [SCFC] and their successors in office all that certain piece . . . .
(emphasis removed); see also Estate of
The Latin phrase “habendum et tenendum” means “to have and to hold.” Black’s Law Dictionary 716 (7th ed. 1999). Thus, in Hunt, 358 S.C. at 567, 595 S.E.2d at 847, this court quoted the habendum clause in that deed: “To Have and to Hold all and singular the premises before mentioned unto the said [SCFC] and their successors in office, and assigns forever.” (emphasis removed); see also Smoak v. McClure, 236 S.C. 548, 549, 115 S.E.2d 55, 55 (1960) (“The
habendum clause is regular in form, as follows:
‘To have and to hold, all and singular, the said premises before mentioned unto the said Ben Garris, and his Heirs and Assigns forever.’ ”).
The habendum “is the clause usually following the granting part of the premises of a deed, which defines the extent of the ownership in the thing granted to be held and enjoyed by the grantee.” 26A C.J.S. Deeds § 36 (2001). Accordingly, in
The habendum clause in the Deed is followed by Crescent’s covenant to
In Martin v. Floyd, 282 S.C. 47, 51, 317 S.E.2d 133, 136 (Ct. App. 1984), this court explained:
A South Carolina general warranty deed embraces all of the following five covenants usually inserted in fee simple conveyances by English conveyors: (1) that the seller is seized in fee; (2) that he has a right to convey; (3) that the purchaser, his heirs and assigns, shall quietly enjoy the land; (4) that the land is free from all encumbrances; and (5) for further assurances.
A grantor seeking to include all the common law covenants of title may use the language in section 27-7-10 of the South Carolina Code to carry out this effect. The statute reads:
The following form or purport of a release shall, to all intents and purposes, be valid and effectual to carry from one person to another or others the fee simple of any land or real estate if it shall be executed in the presence of and be subscribed by two or more credible witnesses:
The State of
Know all men by these presents that I, A B, of __________, in the State aforesaid, in consideration of the sum of ___ dollars, to me in hand paid by C D of __________ County, State of __________, the receipt of which is hereby acknowledged, have granted, bargained, sold and released and by these presents do grant, bargain, sell and release unto the said C D all that (here describe the premises), together with all and singular the rights, members, hereditaments and appurtenances to said premises belonging or in any wise incident or appertaining; to have and to hold all and singular the premises before mentioned unto said C D, his heirs and assigns, forever. And I do hereby bind myself, my heirs, executors, and administrators, to warrant and forever defend all and singular said premises unto said C D, his heirs and assigns, against myself and my heirs and against every person whomsoever lawfully claiming or to claim the same, or any part thereof.
Witness my hand and seal this ___ day of __________ in the year of our Lord __________ and in the ___ year of the independence of the
United States of America. __________ [L.S.]
S.C. Code Ann. § 27-7-10 (Supp. 2005); see 17 S.C. Jur. Covenants § 32 (Supp. 2005). However, section 27-7-10 does not preclude the grantor from using other language of warranty in a deed.
Section 27-7-10 shall be so construed as not to oblige any person to insert the clause of warranty or to restrain him from inserting any other clause in conveyances, as may be deemed proper and advisable by the purchaser and seller, or to invalidate the forms formerly in use within this State.
S.C. Code Ann. § 27-7-20 (Supp. 2005).
A “special warranty” is “[a] warranty against any person’s claim made by, through, or under the grantor or the grantor’s heirs.” Black’s Law Dictionary 1581 (7th ed. 1999). The deed at issue in Knotts v. Joiner, 217 S.C. 99, 102, 59 S.E.2d 850, 851 (1950), “was a printed form but the warranty clause was so stricken with pen as to change it from the usual general warranty to a special warranty, that is, against the heirs of the grantor only.” A quitclaim deed, on the other hand, does not convey the fee, but only the right, title, and interest of the grantor. Martin v. Ragsdale, 71 S.C. 67, 77, 50 S.E. 671, 674 (1905).
C. Incorporation of the Plat
Appellants’ first contention that the incorporation of the Plat creates a representation or covenant of the width of SCDOT’s right-of-way completely ignores the habendum and warranty clauses in the Deed.
“The question as to the purpose and effect of a reference to a plat in a deed is ordinarily one as to the intention of the parties to be determined from the whole instrument and the circumstances surrounding its execution.”
In Blue Ridge Realty Co. v. Williamson, 247 S.C. 112, 118, 145 S.E.2d 922, 925 (1965), our Supreme Court stated the general rule that when the owner of land has it subdivided and platted into lots and streets and sells and conveys lots with reference to the plat, he thereby dedicates said streets to the use of such lot owners, their successors in title, and the public. See also Carolina Land Co., 265 S.C. at 105, 217 S.E.2d at 19. Thus, the purchaser of lots with reference to the plat of the subdivision acquires every easement, privilege and advantage shown upon said plat, including the right to the use of all the streets, near or remote, as laid down on the plat by which the lots are purchased.
A plat, however, is not an index to encumbrances, and the mere reference in a deed, as in this case, to a plat for descriptive purposes does not incorporate a notation thereon as to an easement held by a third party so as to exclude such easement from the covenant against encumbrances in the absence of a clear intention that it so operate.
Both Blue Ridge and
D. Failure to Convey 47.82 Acres
We observe Appellants’ second contention that Crescent failed to convey 47.82 acres of property directly contravenes well-established law in
‘An easement is a right which one person has to use the land of another for a specific purpose.’ Steele v. Williams, 204 S.C. 124, 28 S.E.2d 644; and ‘gives no title to the land on which the servitude is imposed,’ Morris v. Townsend, 253 S.C. 628, 172 S.E.2d 819. An easement is therefore not an estate in lands in the usual sense.’
Reading the Deed as a whole, the granting clause conveyed fee simple title in 47.82 acres of property to
E. The Habendum Clause
Appellants complain the habendum clause is ambiguous. Exception (6) in the habendum clause provides:
[E]asements, covenants, restrictions and conditions of record, and rights-of-way of public and private streets and roads, including, but not limited to, the road shown on the Plat as “old road bed” and the sixty-six (66) foot wide road right-of-way shown on the Plat as “SC 188 Keowee School Road (66’ R/W)” . . . .
(emphasis added). Appellants claim the emphasized language warrants the width of SCDOT’s right-of-way. We agree the emphasized language indicates the parties assumed SCDOT’s right of way was sixty-six feet wide. However, all of the language in exception (6), read with the Deed as a whole, clearly and unambiguously placed the liability of error with respect to the Plat on
F. Limitation on Special Warranty
Appellants argue the special warranty clause in the Deed automatically provides protection against prior encumbrances created by Crescent. To hold otherwise allegedly would render it a quitclaim deed. A special warranty binds the grantor and the grantor’s heirs. See Knotts, 217 S.C. 99, 102, 59 S.E.2d 850, 851 (1950). However, “[t]he grantor can, and often does, limit [covenants] so as to exclude existing encumbrances.” G.W. Thompson, Thompson on Real Property § 82.10(c)(3) (Supp. 2005); see § 27-7-20; see also Steele v. McRaney, 855 So. 2d 1114, 1122-23 (Ala. Civ. App. 2003) (finding language grantee would take “subject to” matters a survey or inspection of the property would have uncovered prevented grantee from prevailing in breach of deed covenant claim); Kamenar R.R. Salvage, Inc. v. Ohio Edison Co., 607 N.E.2d 1108, 1113 (Ohio Ct. App. 1992) (holding when a deed provides grantee would take subject to “the state of facts which a personal inspection or accurate survey would disclose,” grantee has no claim against grantor for power line easement).
Here, exceptions (5) and (6) in the habendum clause of the Deed limit Crescent’s special warranty to
II. Appellants v. Investors
A. Policy Coverage
Appellants maintain an owners’ title insurance policy always provides coverage against a surveying error. We disagree.
“Owners’ title insurance policies generally exclude coverage for . . . matters which would be disclosed by an accurate survey and inspection of the premises.” 16 Powell on Real Property § 92.12 (2005); see also Stephen A. Spitz, Real Estate Transactions Cases and Materials 498 (2d ed. 1998) (“Title commitments or policies often include an exception to those matters which a survey and examination of the ground would reveal.”). In Walker Rogge, Inc. v. Chelsea Title & Guar. Co., 562 A.2d 208, 217 (N.J. 1989), the Supreme Court of New Jersey explained the rationale behind this rule:
The purpose of the survey exception is to exclude coverage when the insured fails to provide the insurer with a survey. From a search of relevant public records, a title company cannot ascertain the risks that an accurate survey would disclose. It is for this reason that the title company puts that risk on the insured, who can control it either by obtaining a survey or arranging for the elimination of the survey exception. Thus, the very purpose of a survey exception is to exclude from coverage errors that would be revealed not by a search of public records, but by an accurate survey.
(citation omitted); see also 16 Powell on Real Property § 92-12 (2005) (“Extended coverage for survey matters is available upon request. The extra coverage is more expensive than standard coverage and may require the purchase of a property survey.”).
Moreover, a legion of case law recognizes title insurance policies using survey exceptions. See, e.g., Daniel v. Coastal Bonded Title Co., 539 So. 2d 567, 568 (Fla. Dist. Ct. App. 1989); Heyd v. Chicago Title Ins. Co., 354 N.W.2d 154, 155 (
B. Title Commitment
Appellants assert that Investors’ failure to put a survey exception in the title commitment rendered the survey exception in the Policy invalid. Appellants did not preserve this issue for our review. The circuit court did not rule on this issue, and Appellants did not seek a ruling on it in their Rule 59, SCRCP, motion. See Jones v. State Farm Mut. Auto. Ins.
Additionally, Appellants fail to cite any case law for this proposition and make only conclusory arguments in support thereof. Thus, Appellants abandoned this issue on appeal. See Mulherin-Howell v. Cobb, 362 S.C. 588, 600, 608 S.E.2d 587, 593-94 (Ct. App. 2005) (noting when an appellant fails to cite any supporting authority for his position and makes conclusory arguments, the appellant abandons the issue on appeal). Consequently, we decline to address this issue.
We affirm the circuit court’s summary judgment order. Crescent did not represent or covenant the width of SCDOT’s right-of-way by incorporating the Plat. Moreover, Crescent coveyed 47.82 acres of real property to
We decline to hold a title insurance policy always insures against surveying errors. Appellants failed to preserve the issue of whether the commitment precluded Investors from including the survey exception to the Policy. Alternatively, Appellants offered only conclusory arguments to support this contention on appeal and, therefore, abandoned that argument.
KITTREDGE, J. and SHORT, J., concur.
 Investors later referred to this commitment as one made to Appellants. Appellants deeded the Property to Executive on June 10, 2002. During a hearing, Appellants’ attorney indicated they had formed Executive “for the purposes of developing the Property.” Executive is not a party to the circuit court proceedings or this appeal.
 Crescent Resources, LLC conveyed the Property to
 Although our case caption lists CBS and
 Investors separately appealed the circuit court’s grant of summary judgment to Crescent. See Court of Appeals Docket No. 14360, Bennett v. Investors (2).
 For further edification, we note Appellants do not contend the loss here arose from a surveying error discoverable through the public records. However, the parties do not dispute SCDOT recorded its right-of-way. See S.C. Code Ann. § 57-5-550 (2006) (directing all rights-of-way for state highways be filed at SCDOT). Furthermore, we recognize “[t]he survey exception is aimed at excluding from coverage certain risks that can be ascertained by a physical inspection of the property.” G.W. Thompson, Thompson on Real Property § 93.06(c) (2002) (emphasis added). Our Supreme Court, in I’On, L.L.C. v. Town of
An appellate court may not, of course, reverse for any reason appearing in the record. The losing party must first try to convince the lower court it has ruled wrongly and then, if that effort fails, convince the appellate court that the lower court erred. This principle underlies the long-established preservation requirement that the losing party generally must both present his issues and arguments to the lower court and obtain a ruling before an appellate court will review those issues and arguments.
(emphasis in original). Accordingly, we refuse to apply a rule of law Appellants failed to point out to this court or the circuit court.