Best v. Utley

• Decision Date: 01 April 1925
• Docket Number: 251.
• Citation: 127 S.E. 337,189 N.C. 356
• Parties: BEST ET AL. v. UTLEY.
• Court: North Carolina Supreme Court

127 S.E. 337

189 N.C. 356

BEST ET AL. v. UTLEY.

No. 251.

Supreme Court of North Carolina

April 1, 1925

Appeal from Superior Court, Franklin County; Horton, Judge.

Action by Charles F. Best and another against R. H. Utley. Judgment for defendant, and plaintiffs appeal. No error.

Statutes relative to probate and registration interpreted to encourage confidence in records affecting title.

Plaintiffs are nephew and niece of Mrs. Bettie D. Utley, who died in Franklin county on January 30, 1924, leaving a last will and testament, in which plaintiffs are the residuary legatees and devisees. Defendant was her second husband. At the date of her marriage to defendant she owned certain tracts of land situate in Franklin county, containing about 1,700 acres devised to her in the last will and testament of her first husband, George Winston. After his marriage to the deceased defendant moved from his home in Wake county to the home of his wife in Franklin county, where he and she lived together until her death. During these years defendant, at the request of his wife, managed and controlled her farms, accounting to her for the rents and profits arising therefrom.

The fifth paragraph of the complaint filed in this action is as follows:

"Plaintiffs are informed and believe, and therefore allege, that the defendant in every way in his power, from shortly after his marriage until the time of his wife's death, coaxed begged, teased, persuaded, and endeavored to intimidate said Mrs. Bettie D. Utley into conveying to him part of her real estate and into devising to him the same or to his children. In the prosecution of the said effort and purpose he succeeded in obtaining from his wife a deed dated July 20, 1920, recorded in book 229, at page 35, of the registry of Franklin county, for 173 1/2 acres of her land that was then worth $6,000 or more, which deed the plaintiffs are informed and believe and allege was and is null and void for the lack of valuable consideration to support it, and because there was a fraud upon his wife as well as not executed in accordance with the form of the law."

In his answer to said paragraph defendant denies each and every allegation thereof, except that his wife conveyed to him a tract of land containing 173 1/2 acres, by deed, which he alleges was for a valuable consideration, and was duly executed according to the form of law in every respect.

Plaintiffs further allege that defendant procured from his wife a deed of trust to A. S. Joyner, trustee, securing the payment of a note for $6,000, payable to defendant; said deed of trust bearing date January 1, 1921. Plaintiffs allege that "said deed was fraudulent and is void for lack of proper consideration and because of the presumed and known fraudulent influence of defendant over his wife, and because same was not executed in accordance with the forms of law." Defendant in his answer admits the execution by his wife of the deed of trust to A. S. Joyner, trustee, as alleged in the complaint, but denies that the said deed was fraudulent or that it is void because not executed in accordance with the forms of law.

The issues, with the answers thereto, as submitted to the jury, were as follows:

(1) Was the deed from Mrs. Bettie D. Utley to R. H. Utley, recorded in Book 229, page 35, for 173 acres of land, called the Spruill tract, obtained by the said R. H. Utley from the said Mrs. Bettie D. Utley by fraud or undue influence, as alleged in the complaint? Answer: No.

(2) Was the deed of trust securing R. H. Utley $6,000 made to A. S. Joyner, trustee, recorded in Book 224, page 487, obtained by the said R. H. Utley from the said Mrs. Bettie D. Utley by fraud or undue influence, as alleged in the complaint? Answer: No.

From the judgment in accordance with this verdict, plaintiffs appealed, assigning errors set out in the case on appeal.

T. T. Hicks & Son, of Henderson, and W. H. Yarborough, Jr., and Ben T. Holden, both of Louisburg, for appellants.

W. M. Person and W. H. & Thos. W. Ruffin, all of Louisburg, and R. N. Simms, of Raleigh, for appellee.

CONNOR J.

Plaintiffs offered in evidence, for the purpose of attack, deed from Bettie D. Utley to her husband, R. H. Utley, defendant. This deed is dated July 12, 1920. The consideration recited therein is "one thousand dollars and other valuable considerations to her paid by the said R. H. Utley." The deed is sufficient, in form, to convey the land described therein, containing 173 1/2 acres, known as the Spruill land, to R. H. Utley in fee simple, and contains the usual covenants and warranties. The execution of the deed was acknowledged by Bettie D. Utley and her husband, R. H. Utley, grantors, before G. R. Moye, a notary public, whose certificate, in due form, is annexed thereto and recorded. The certificate as to the private examination of Mrs. Bettie D. Utley, a married woman, is in full compliance with the statute, and concludes with these words:

"And upon full examination I am satisfied and certify that the same is not unreasonable or injurious to her."

The deed was recorded on August 24, 1920, in Book 229, at page 35, registry of Franklin county.

Plaintiffs offered as a witness G. R. Moye, who testified that he was the notary public who took the acknowledgment by Mr. and Mrs. Utley of the execution of the deed by them. He further testified that the acknowledgment was taken at her home. Nothing unusual happened. She was very pleasant about it. Mr. Utley signed the deed and left the room. He then asked Mrs. Utley the usual questions, and made his certificate in accordance with her replies to these questions. Witness was then asked the following question by plaintiff:

"Did you ask her any questions or make any investigation from any source to determine whether it was to her advantage or interest to convey the 173 1/2 acres?"

Defendant objected. Objection sustained. Plaintiff excepted. If permitted by the court to answer the question, witness would have testified as follows:

"I did not ask Mrs. Utley any questions or make any investigations from any source to determine whether it was to her advantage or interest to convey the land. I do not remember whether I read the certificate. She was very pleasant. I had no reason to believe other than that she signed it of her own free will and accord. I did not know or inquire the circumstances under which she gave Mr. Utley the 173 1/2 acres. I knew he was looking after her estate for her. I lived next door to them. The certificate I signed contained the words, 'I do certify that the same is not unreasonable or injurious to her.' If she had shown any reluctance in signing the deed, I would not have probated it. My mind is of the same opinion to-day as on that morning, that the deeding of the land to Mr. Utley was not unreasonable or injurious to her. The only investigation I made was if she signed of her own free will, without fear or compulsion of her husband or anybody. I also asked her if she had read over the paper and knew what she was signing, and she said she did. I did not know this particular piece of land and did not know its value."

Plaintiffs also offered in evidence, for the purpose of attack, deed of trust from Bettie D. Utley to A. S. Joyner, trustee, securing payment of her note, payable to R. H. Utley, her husband, for $6,000. This deed is dated January 1, 1921. The deed contains a recital that Bettie D. Utley is indebted to R. H. Utley in the sum of $6,000, as evidenced by her bond of even date herewith for $6,000, due and payable January 1, 1922, and that she desires to secure payment of said bond at maturity. The deed is sufficient in form to convey the land described therein to A. S. Joyner, trustee, for the purpose therein expressed. The lands are described as "being the land formerly known as the George Winston home place, less 173 1/2 acres, conveyed to R. H. Utley by deed recorded in Book 229, page 35, leaving about 1,438 acres. There is a recital in the deed that "it is given in renewal of balance due on note secured by deed of trust recorded in Book 224, page 425, which latter deed of trust is to be canceled." It contains the usual covenants and warranties. The execution of the deed of trust was acknowledged by Bettie D. Utley and her husband, R. H. Utley, grantors, before J. W. Daniel, notary public, whose certificate, in due form, is annexed thereto and recorded. The certificate as to the private examination of Mrs. Bettie D. Utley, a married woman, is in full compliance with the statute, and concludes with these words:

"And, after full examination into the facts of the transaction, I am satisfied the same is in no way unreasonable or injurious to her interest." This deed was recorded on February 9, 1921, Book 224, page 487, registry of Franklin county.

Plaintiffs offered as witness J. W. Daniel, who testified that he was the notary public who took the acknowledgment by Mr. and Mrs. Utley of their execution of the deed. The acknowledgment was taken either at his office or at her home. Witness was asked the following question by plaintiffs:

"I ask you if at the time you took the examination you investigated the trade that was then made?"

Defendant objected. Objection sustained. Plaintiffs excepted. If permitted by the court to answer the question, witness would have testified that he did nothing but ask Mrs. Utley if she freely and voluntarily assented thereto, and did not make any examination whatever into the nature of the transaction, as to the consideration, or its value.

By these exceptions and the assignments of error, based thereon plaintiffs present to this court for review, upon their appeal, the exclusion of evidence offered by plaintiffs tending to show that the facts relative to the...