Burton v. Peace, 495.

• Decision Date: 28 February 1934
• Docket Number: No. 495.,495.
• Citation: 206 N.C. 99,173 S.E. 4
• Court: North Carolina Supreme Court
• Parties: BURTON . v. PEACE et al.

173 S.E. 4

206 N.C. 99

BURTON .

v.PEACE et al.

No. 495.

Supreme Court of North Carolina.

Feb. 28, 1934.

Appeal from Superior Court, Guilford County; Stack, Judge.

Action by Alma Peace Burton against John Peace and wife and another. Judgment in favor of the plaintiff, and the defendants appeal.

Affirmed.

Mary Elizabeth Peace, mother of plaintiff, was the owner of certain land in High Point township for many years prior to November 13, 1929. She lived at her homeplace and on said date it was alleged that "she was removed from her homeplace by her son, the defendant, John Peace, " and lived in his home until her death, intestate, on December 27, 1931. She left surviving the following children and only heirs at law: J. A. Peace, C. L. Peace, Alma Peace Burton, and John Peace. She had no other property except the real estate in controversy. At the time of her death the deceased was 79 years of age. On the 26th day of November, 1930, Mary Elizabeth Peace signed a paper writing purporting to be a deed for said land, in which Minnie Peace, the wife of the defendant J. A. Peace, was named grantee.

The plaintiff instituted this action to re cover a one-fourth undivided interest in the land and to set aside the deed. She offered evidence that her mother had been totally blind for ten years, previous to her death, and that she was weak, nervous, and not capable of taking care of herself. "She didn't know what she was doing. After she went to John's she could go around in the room but not out."

The deed was recorded on December 31, 1931, after the death of the grantor. The plaintiff offered the deed for the purpose of attack. There was evidence offered by the defendant tending to show that the deceased, although blind and old, was intelligent and of sound mind and memory until shortly before her death.

The only evidence with respect to the execution and delivery of the deed is contained in the testimony of J. M. Davis, a notary public, who took the acknowledgment of Mary Elizabeth Peace. He said: "I wrote her name there. She made this mark. She told me to write her name. * * * I was in the home ten or fifteen minutes. I didn't altogether read that deed to her. I asked her if she understood what it was. I went into the room where she was lying on the bed, apparently blind. I told her my business. I told her that I had come there to get her signature to a deed to a house and lot. She said she couldn't see how to write and I took it to her in bed and held it. up to her and she touched the pen and she made her mark. I had not known her prior to this time John Peace came by and got me and took me over there. She said she knew me. * * * I went with John and came back with John Peace. I took the deed to her to her bed on a book or something, and held it up to her and she touched the pen. I wrote the name. I do not recollect there was any body else in the room, but Mr. and Mrs. Peace were in the house. There were two rooms. The door was open. We went first into this room. She was lying in there on the bed and I went in there to the bed to her. I do not recollect that he (Mr. Peace) went out. The rooms, if I recollect right, could open together."

The trial judge inquired of attorneys for the...