Bell v. Harrison

• Decision Date: 18 February 1920
• Docket Number: 16.
• Parties: BELL ET UX. v. HARRISON ET AL.
• Court: North Carolina Supreme Court

102 S.E. 200

179 N.C. 190

BELL ET UX. v. HARRISON ET AL.

No. 16.

Supreme Court of North Carolina

February 18, 1920

Appeal from Superior Court, Camden County; Lyon, Judge.

Action by A. B. Bell and wife against W. B. Harrison and another. Judgment for plaintiffs, and defendants appeal. No error.

If a party to a bargain avers the existence of a material fact recklessly or affirms its existence positively when he is consciously ignorant whether it be true or false, he may be held responsible for a falsehood, and this doctrine is especially applicable when the parties are not upon equal terms, the one, for instance, being under a duty to investigate and in a position to know the truth, and the other relying and having reasonable ground to rely upon the statements.

This action was brought by plaintiffs to set aside a deed made by them to defendants upon the ground of fraud.

It appeared in evidence that one John G. Gray died intestate on the 12th of September, 1917, seized and possessed of a large estate of both real and personal property, and left surviving him four heirs; the plaintiff inheriting an undivided one-fourth interest in the estate. On the day of Mr Gray's death, while plaintiff was at the home of Mrs Harrison (mother of defendants), where Mr. Gray died, for the purpose on attending the funeral, he was approached by the defendant Gregory and told for the first time that his uncle had died intestate, and that he was an heir. Gregory showed him money which he was paying the undertaker, and then called him into another room and told plaintiff he wanted to buy plaintiff's interest. He further stated that they had taken charge of the estate and investigated it, and that he did not think the estate would net above debts and expenses $4,000, making plaintiff's share not much more than $1,000, and perhaps not so much, and further that they wished (on account of his mother's health and the effect it might have upon her to let the matter drag along) to close the matter up as quickly as possible. Harrison was called in informed of what had taken place, and corroborated Gregory's statements as to the investigation and the value, and they offered plaintiff the $1,000 for his share for quick acceptance.

There was further evidence that plaintiff, having great confidence in defendants, informed them that he did not know about the estate, and that, if they had investigated the matter and thought that was all that was due him, he would take it, of course. He believed and relied upon these statements. Plaintiff knew nothing of the notes, cash, or chattels of the estate, and plaintiff signed the deed in question next day receiving in payment a note for $800 and interest and the balance of $168 in cash. Both note and cash were taken by defendant from the estate, so that plaintiff was paid out of the estate itself. Plaintiff is a man of advanced years, poor health, and limited education, with practically no business experience, and his capacity for trading is below the average.

Six days later defendants paid $3,000 to plaintiff's sister for exactly the same interests; and four days later Harrison, qualifying as administrator, made affidavit and inventory showing $2,400 worth of personalty belonging to the estate. Within 30 days the timber from a single tract of land was sold by defendants for $5,300, and there were practically no debts due by the estate. Its total net value at the time was approximately $18,000 to $24,000, and plaintiff's share was therefore $4,500 to $6,000.

Gregory and Harrison are half-brothers, sons of Mrs. Susie Harrison, sister of John G. Gray, the intestate, and they are first cousins of A. B. Bell, the plaintiff, whose father was a brother of John G. Gray.

Plaintiff testified as follows:

"I do not recall who was at the house when I got there, but saw Mr. Harrison and Mr. Gregory there. I had not been there over an hour before mention was made to me of my uncle's affairs. At the time I went there I had no information that I would participate in the estate of my uncle. It was first brought up by Mr. Gregory. Q. Tell what was said by him, and how it came up? A. He said, 'Brother John is dead and left no will.' Q. I want to know if you were present when any money was paid to the undertaker? A. Yes; he came out there with three bills in his hands, 20's and a 10, and he came out there and said, 'Do you see that?' and then went on and gave it to the undertaker. Q. Was anything else said by him? A. No. Q. What was the next thing that he did? A. He touched me on the shoulder and said, 'Let me see you a minute;' and I went on down there and went in the house, and got in a room on the south end of the house and locked the door, and then he said he wanted to buy me off, and he said that Brother John had died without a will, and 'our attorney says that you and your sister are half owners in the estate,' and I said, 'Are we?' and he said 'Yes,' and I told him I did not know anything about it, and he said, 'We want to buy you off.' Q. Did Mr. Harrison come in? A. Yes; later; he said, 'We want to buy you off and we have investigated the matter, and I think that $1,000 is as much as you will get, and we want to close up the matter as quickly as possible on account of Mother [Mrs. Susie Harrison].' He said that it might amount to more than $1,000, or not quite as much. Q. Why on account of her? A. He said that she was frail, and that it would be the end of her. I had no information about the indebtedness of my uncle, and none at all about the expenses. I said I did not know anything about it. Harrison was not in there then. After he said he would give $1,000, and I might not get as much, he said, 'I will go back and get Billie and we will talk the matter over.' He [Gregory] says, 'You know that you have had $2,000, and I [Gregory] have not had a penny, and have been for 30 years a servant, and have had nothing, not even a penny.' I said, 'I will leave the matter to you, and if you have been and investigated it I reckon I will take it.' He then went and got Billie (who is Harrison), and he told Billie what I had agreed on. Mr. Harrison said, 'I think that is a fair proposition.' He mentioned to Harrison what he told me about having taken charge and investigated. He said to Mr. Harrison that he did not think it would exceed over $1,000, and Mr. Harrison said that he did not think so either. No one else was present. Mr. Gregory said that he did not want to go in court. I said, 'I do not know about the estate, and if you have investigated the matter and think that is all that is due me, of course I will take it.' It is a fact that I had not investigated it, and relied upon them. I had confidence in them, and we were brother and sister's children. We were always friends. I associated with them. We have always been warm friends, and I had all manner of confidence in them and thought that they would treat me right, because we were boys together and cousins. I believed what they said about it. They told me to keep it a secret and not even to tell my wife when I went home. This was said at the time, before we left the room. I do not know what personal property my uncle had. I knew nothing about the notes. He never said anything about any notes, said nothing about cash. All the cash that I saw was what he brought out there, and he just mentioned that much. I do not know anything about the gas boat that my uncle owned. I knew nothing about his indebtedness. This was on the 13th of September, between 12 and 1 o'clock. I remained until after 2 o'clock, until after the funeral was over. I think Mr. Harrison is a good, ordinary farm man. He had good experience; he had been a steward in the Methodist Church; and I thought he could be relied upon. I had confidence in him. Do not think either one of them had ever lived with their uncle, Mr. Gray. They used to go to the house where he and their mother lived right often, and they were there most every time I went. I went home about sundown. I went home from the burial. The body was still in the house when the conversation took place. Saw them next morning, near 8 o'clock. They were down the road in an automobile, coming to my house. They came there, and I went and got in the automobile and went to the register of deeds' office. The register of deeds had an office in a store in Shiloh, where we went. When we reached the office of Mr. Forbes, the register of deeds of Shiloh, they said we have come to have a deed fixed. I went with them to Mr. Forbes. I only knew the boundaries of the place on one side. It was the piece of land that I had inherited from my grandmother. Mr. Gregory told Mr. Forbes who came to my corner; then I gave the description down to my line. This piece was known as the Flora place. Q. Tell if you signed the deed there. A. Yes. Q. Was anything paid you then? A. No. Q. Was anything said about the note? A. No. Q. What did you do then? A. They went back to my house. Q. All three of you together? A. Yes. Q. Did you see your wife there? A. Yes. Q. Did you go in? A. No. Q. Had you told your wife anything about this trade? A. No; not until I started from the house to the steps in an automobile. She asked me where I was going, and I said I was going to make a deed to them, and I said that they had promised to give $1,000, and asked her what she thought about it, and about that time I was on the steps and they were hurrying me up. Q. Did you tell her what the estate would net? A. No; I said they would give me $1,000 for my interest in the estate. Q. Do you remember everything that you said to her? A. That was all that I said to her. Q. When you came back she signed the deed then? A. Yes; we all went in the porch, and Mr. Forbes went in the house, and none of the others. Forbes went in

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