Fraley v. Fraley
| Decision Date | 21 April 1909 |
| Citation | 64 S.E. 381,150 N.C. 501 |
| Parties | FRALEY et al. v. FRALEY et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Rowan County; B. F. Long, Judge.
Action by D. H. Fraley and others against G. W. Fraley and others. Judgment for defendants, and plaintiffs appeal. New trial granted.
The action was instituted to set aside a deed made by Jacob Fraley, now deceased, to Jane E. Stokes, daughter of said Jacob, and one of the defendants, and G. W. Fraley, his son another one of defendants, on the ground of mental incapacity and of fraud and undue influence. Issues were submitted: (1) As to the mental capacity of Jacob Fraley. (2) As to fraud and undue influence. It was shown that in March, 1900, Jacob Fraley died, leaving surviving a number of children and grandchildren, his decendants and heirs at law, who were parties plaintiff or defendant in the action; that about 16 months before his death, Jacob Fraley's home having burned, he went to live with Jane Stokes, his daughter, and G. W. Fraley, his son, staying a portion of the time with either; and that not long after making the move, to wit, on October 19, 1898, he executed to Jane E. Stokes, the daughter, and G. W. Fraley, the son, the deed in question conveying to them his home tract of 109 acres, and 10 days thereafter he executed to these same grantees a deed for 40 acres of land in Stanly county, on which there was a mortgage for $300 or over, the two deeds conveying practically all of his property. There was evidence on the part of the plaintiff tending to show mental incapacity on the part of Jacob Fraley, grantee, at the time of execution of these deeds, and of fraud and undue influence on the part of the grantees and of J. F. Stokes, husband of Jane E. Stokes, one of the grantees. There was evidence on the defendants tending to show that Jacob Fraley at the time the deeds were executed was of sound mind and memory, and that he made them of his own mind and will. Among other circumstances offered in support of defendants' position was the fact that some time before the execution of the deeds three neighbors were called in at the instance of Jacob Fraley and the grantees and perhaps other members of the family, the record not being clear as to this last statement, to consider and decide whether "his property was worth too much, or not, for taking care of him," and J. D. Austin, one of these who took part in the consultation, was allowed, over plaintiffs' objection, to state that, pursuant to the request of Jacob Fraley and the others, the three men selected met at a given time on the premises, and, after consulting over the matter, decided, in substance, that the proposed service, taking care of the old man the remainder of his life, was about a fair equivalent for the property he had. The consultation seems to have been partly in the presence of Mr. Fraley, but the decision was not made in his immediate presence, but he was immediately informed of what their decision was. Plaintiffs excepted. There was judgment for defendants, and, from judgment on the verdict, the plaintiffs appealed, having in apt time assigned for error among other things, the ruling of his honor on the question of evidence, as indicated, and in charging the jury on the second issue, in part, as follows: "That the plaintiffs were required to make out their contentions by clear, strong and convincing proof."
In suit to cancel decedent's deed to defendants for fraud, and undue influence, evidence of a decision of persons called in by him before conveying to determine whether the property was worth more than services to be rendered by defendants, and of an announcement of it to him, was admissible as res gestae; any fact in the transaction leading to and tending to affect decedent's mind in making the deed being admissible.
R. Lee Wright, P. S. Carlton, and T. J. Jerome, for appellants.
Clement & Clement and T. F. Kluttz, for appellees.
There was error in the charge of the court as to the degree and quality of proof required on an issue as to the execution of a deed by fraud and undue influence. The question was directly presented in the case of Harding v. Long, 103 N.C. 1, 9 S.E. 445, 14 Am. St. Rep. 775, and the principle declared and sustained in an elaborate and learned opinion by Associate Justice Avery that, on the issue indicated, the plaintiff was required to establish the allegation to the satisfaction of the jury by the greater weight of the evidence. The main purpose of this decision was to withdraw an issue of this character from the principle announced in Ely v. Early, 94 N.C. 1, that in a certain class of cases, notably where it was sought to correct or alter a written deed or superimpose a trust thereon by parol, the proof must be clear, strong, and convincing, and place it within the rule which ordinarily obtains in the determination of civil issues-that is, by the preponderance or greater weight of the evidence-the language of the opinion on the point in question being as follows "But, on the other hand, when the relief demanded by a party is that a deed shall be declared void because its execution was procured by false and fraudulent representations or undue influence, or that it was executed with intent to hinder, delay, or defeat creditors, the allegations material...
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