Berwer v. Union Cent. Life Ins. Co

• Citation: 200 S.E. 1,214 N.C. 554
• Decision Date: 14 December 1938
• Docket Number: No. 593.,593.
• Court: United States State Supreme Court of North Carolina
• Parties: BERWER. v. UNION CENTRAL LIFE INS. CO.

214 N.C. 554

200 S.E. 1

BERWER.

v.UNION CENTRAL LIFE INS. CO.

No. 593.

Supreme Court of North Carolina.

Dec. 14, 1938.

CLARKSON, J., dissenting.

Appeal from Superior Court, Columbus County; Luther Hamilton, Special Judge.

Action by Margaret Rushing Berwer, individually and as guardian of Walter A. Rushing and another, minors, against the Union Central Life Insurance Company to recover purchase money on ground of fraud, and to enjoin sale of land under a deed of trust. From a judgment of nonsuit, plaintiffs appeal.

Affirmed.

Civil action for recovery of purchase money paid by reason of alleged actionable fraud, and to enjoin sale of land under deed of trust.

These are substantially the uncontroverted facts: On September 30, 1927, for recited consideration of $3,000, defendant conveyed to Walter Frederick Rushing, by warranty deed, two tracts of land in Columbus County, North Carolina, specifically described, the first tract "containing 100.1 acres", and the second "4 acres, more or less, --containing in all 104.1 acres more or less". In the deed there is no other reference to the acreage. Rushing paid $800 in cash, and evidenced the balance by ten promissory notes, each in the sum of $298.91, secured by a deed of trust of even date therewith conveying the said lands.

Walter Frederick Rushing died November 24, 1927, leaving as his only heirs at law his widow, Margaret Rushing, now Margaret Rushing Berwer, and two minor children, Walter F. Rushing and William A. Rushing, for whom Margaret Rushing Berwer is the duly appointed and acting guardian. Margaret Rushing Berwer isalso the duly appointed administratrix of the said Walter F. Rushing, deceased.

Three notes due prior to October, 1931, have been paid. Plaintiff, Margaret Rushing Berwer, testified that one note was paid by her, and two were paid out of money of her children and co-plaintiffs. Under the power of sale contained in the deed, defendant caused the land to be advertised for sale on July 26, 1933. Whereupon plaintiffs instituted this action to enjoin the sale, to cancel the said deed of trust and notes and for recovery of purchase money, taxes and other expenses paid, less rents for which plaintiffs shall account.

Plaintiffs allege in substance that the defendant, through its agent, falsely, fraudulently and knowingly represented to Walter F. Rushing: (1) That the said tracts of land contained 104.1 acres and that same had been surveyed and the lines and boundaries checked and a plat made of the land, when in fact no such survey had been made and there was a shortage of 43.1 acres in the acreage; (2) that in showing to Walter F. Rushing the lands offered to and bought by him, defendant, by its agent, pointed out as a part of the tracts well timbered "land lying about northwardly of Millican Branch Run and about southwardly of Whiteville-Clarkton Road", stating that said timbered land would about pay for all of the land; (3) that said representations were made for the purpose of inducing the said Rushing to buy; (4) that relying upon them, he purchased the land; (5) that they kept the payments up until they discovered and notified defendant of the shortage in acreage and that the deed did not embrace all the land said Walter F. Rushing had purchased; and (6) that they refused to make further payments until defendant adjusted the shortage, which it refused to do, but instead it caused the lands to be advertised for sale under the power contained in the deed of trust. Defendant denies material allegations.

Plaintiff offered evidence tending to show that: Mrs. Margaret Rushing Berwer, until she was fourteen years old, lived in Columbus County about a mile from the farm in question and that her family still lives there. Prior to the purchase of the farm, she and her husband, Walter Frederick Rushing, came from Florence, South Carolina, for a day, went into the Waccamaw Bank & Trust Company and deposited $800, and while in the bank inquired of Mr. Coburn, the cashier, "if they had any farms for sale". He told them that he did, and after they talked it over, he made an engagement to take them out to show them the farm. They went with him through the farm on the Clarkton and Whiteville highway. Mrs. Berwer testified: "He showed us the farm. We went down a road in the field, and over to the right of this * * * were shown quite a bit of timber * * * located on the right of the road on the south side * * * going in, north of Millican Branch. Mr. Coburn made the statement that there was just about enough timber there to finish paying for the place. We asked him if everything would be all right to go ahead. Mr. Coburn stated that Mr. Pierce had made a map and a plat of the land, that the place had been recently surveyed and a map made". She further testified that after the conversation with Mr. Coburn they went back to Florence, and in consequence of information received by wire, came down and, with no one present except Mr. Coburn, signed the papers in the bank and deed was delivered to them. No others talked to them or showed them the land. Mrs. Rosa High, mother of Mrs. Berwer, testified that "back in 1927, while they were negotiating this deal for the land Mr. Coburn came to my house one night and told me and my daughter to come up and fix up the papers, that they could turn it now and make a good deal. It was about bedtime when he come. I wired my daughter the next day".

Plaint...