Culbreth v. Hall
| Decision Date | 16 October 1912 |
| Citation | 75 S.E. 1096,159 N.C. 588 |
| Parties | CULBRETH v. HALL et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Sampson County; Carter, Judge.
Action by Jane Culbreth against M. M. Hall and another. From a judgment for plaintiff, defendants appeal. Modified and affirmed.
In an action to have an absolute deed declared a mortgage, an instruction that the plaintiff's burden is to sustain her allegations not only by the greater weight of evidence, but by clear, strong, cogent and convincing evidence, held proper, and an instruction that there must be proof dehors the deed held not necessary.
On a restoration of realty from which a mortgagor was ousted damages for the value of the equity of redemption held not assessable.
These issues were submitted:
From the judgment rendered the defendants appealed.
Faison & Wright, of Clinton, for appellants.
George E. Butler, of Clinton, for appellee.
This action is brought to convert a deed into a mortgage, upon the ground of fraud, the plaintiff averring that she was induced by the fraud of the draughtsman to sign the instrument, thinking it was a mortgage, instead of an absolute deed. We have examined the 18 assignments of error, and find nothing in the record that justifies us in directing another trial.
1. It is contended that his honor should have sustained the motion to nonsuit. The plaintiff's evidence tends to prove that she purchased a dwelling house and lot from one Melvin, and owed him a balance of $319 on it; that the property was worth about $700; that she applied to defendant Hall for a loan of $319; that, after some "chaffering," defendant agreed to lend plaintiff $319 on two years' credit at interest, and that Hall paid said sum to Melvin for her, and Melvin executed a deed to plaintiff. The deed from plaintiff to Hall was written by his son, James Hall, a notary public, who also probated it. The plaintiff testifies positively that the transaction was a loan, and not a sale, and that the notary fraudulently substituted an absolute deed for a mortgage. There is abundant evidence to support the plaintiff's own testimony. It is in evidence that she is an illiterate, ignorant colored woman of excellent character, and the "washerwoman" for Hall's family; that she had purchased the property from Melvin and made payments on it; that the exact sum she obtained from Hall was the sum she owed Melvin; that Hall agreed to lend it to her for two years; that plaintiff remained in possession for twelve months, without any demand for rent; that she listed the property for taxes, and claimed it as her own. The motion to nonsuit was properly denied.
2. It is contended his honor erred in not charging the jury that there must be evidence "dehors the deed" before it can be set aside. His honor charged the jury that the plaintiff must sustain her allegations, not only by the greater weight of evidence, but by evidence clear, strong, cogent, and convincing. The theory upon which this case was tried was that the defendant Hall fraudulently and falsely substituted an absolute deed for a mortgage and took advantage of plaintiff's ignorance. The gravamen of the action is a pure fraud, and not mutual mistake. In view of this, it may be open to doubt as to whether his honor did not err on the side of the defendants as to the quantum of proof. In Harding v. Long, 103 N.C. 1, 9 S.E. 445, 14 Am. St. Rep. 775, the subject is elaborately discussed by Justice Avery, and it is held that, where it is sought to have a deed declared void because its execution was obtained by false and fraudulent representations of the grantee, the degree of proof, as stated by his honor in the case at bar, is not required. We think his honor's charge under the facts of this case is not justly open to exception by the defendants. Cobb v. Edwards, 117 N.C. 245, 23 S.E. 241; Avery v. Stewart, 136 N.C. 426, 48 S.E. 775, 68 L. R. A. 776; Ely v. Early, 94 N.C. 1; Wilson v. Land Co., 77 N.C. 447.
Besides, there are facts in evidence dehors the deed, and inconsistent with the claim of absolute ownership upon the part of Hall, such as gross inadequacy of price; possession retained by plaintiff, and no demand for rent. Kelly v. Bryan, 41 N.C. 287.
3. It is contended that his honor erred in holding...
To continue reading
Request your trial