Gadsden v. Johnson, 460

Decision Date06 May 1964
Docket NumberNo. 460,460
Citation261 N.C. 743,136 S.E.2d 74
CourtNorth Carolina Supreme Court
PartiesElla GADSDEN v. Catherine R. JOHNSON and husband, Glenwood G. Johnson.

Samuel S. Mitchell, Raleigh, and Earl Whitted, Jr., Goldsboro, for defendant appellants.

Allen Langston, Raleigh, for plaintiff appellee.

PARKER, Justice.

This is a summary of the crucial allegations of fact of the complaint, which was filed on 6 December 1961: In 1921 there was conveyed in fee to plaintiff by deed a house and lot at 504 Smithfield Street in the city of Raleigh. Since then she has lived in it as her home. In recent years defendants, who are married to each other, have lived in her house with her. During the two years prior to 20 May 1959 defendants were friendly and courteous to her, expressing love and respect for her, and made repeated suggestions to her that she, because of advancing years and the possibility of becoming disabled, needed some younger person or persons to care for her, and that they were suitable persons for such purpose. Plaintiff having faith in their honesty and in their apparent love and respect for her began seriously to consider their suggestions. Finally, on 20 May 1959 she conveyed in fee by deed to defendants her house and lot at 504 Smithfield Street in Raleigh in accordance with a promise and agreement by defendants that they would care for her needs and wants, that they would provide a home for her at 504 Smithfield Street, and would not convey it during the remainder of her life given in consideration of the deed. This deed, which is recorded in the public registry of Wake County and incorporated in the complaint, recites merely a consideration of 'ten dollars and other valuable considerations'; it has no recital as to any promise or agreement.

For some time after the delivery of the deed defendants were friendly to her, stating they would care for her and give her a good home, but in August 1961, when she refused to give them any more funds, they became abusive, calling her a nasty, selfish old woman, and threatening her with bodily harm. During October 1961 she learned defendants had listed her home with real estate brokers for sale. Defendants have rendered no services to her as they promised. She has requested them to reconvey her home to her and leave her home, which they refuse to do.

Wherefore, she prays that her deed for her home to defendants be annulled and cancelled of record.

Defendants by answer denied the crucial allegations of fact in the complaint, and alleged that the conveyance of plaintiff's home to them was 'for valuable monetary considerations and not for any considerations of services, kindness, or agreement to provide care.'

This is a brief summary of plaintiff's evidence, except when quoted: Plaintiff was born in 1881, she is a widow, and is now too old and feeble to work. She has worked hard during her life and saved her money. She has only a foster child living in Charleston, South Carolina. Defendants never paid her anything for the deed to her home. She gave defendants a deed for her home because of their promises to her that they would take care of her the balance of her days and do everything for her when she was sick, and that they would keep her clean and give her good food. She had the deed to her home made to defendants on the strength of their promises. She knew she could have a life estate reserved in her deed, 'but she [the feme defendant] told me, 'Mama, you know I won't go back on my word and you don't have to put that in there,' and I didn't have it put in there. She said, 'You know I will do my best for you,' and I believed her. ' Defendants kept none of their promises to her. They got all her little savings from her, about $900, and now she has none. Defendants have offered her home for sale. They drove her from her home. Since the institution of this action they have left her home, and she is living there.

She and the feme defendant on 14 May 1959 went to the office of I. Weisner Farmer, an attorney at law in Raleigh, to get him to prepare a deed conveying her home to defendants. He inquired of plaintiff if she was to retain a life estate in the property. Plaintiff said that she was conveying her home to defendants on their promise that they would continue to live in the home and take care of her, and she believed what they said. The feme defendant said, 'Yes, that is it.' As plaintiff was not retaining a life estate in her home, Mr. Farmer refused to draft a deed for her, telling her she did not know what she was doing. Plaintiff and the feme defendant came back to Mr. Farmer's office on 20 May 1959. He again asked plaintiff is she wanted to reserve a life estate. The promises were again stated, and plaintiff said she had confidence in Catherine and their promises. Plaintiff said she was going to have a deed written without a life estate reserved to her, and he then drew the deed conveying her home to the defendants. Plaintiff was paid nothing in his office.

Prior to the introduction of evidence, defendants filed a demurrer ore tenus to the complaint on the ground, inter alia, that the complaint shows on its face that it is an action to cancel and annul a fee simple warranty deed reciting a consideration of ten dollars and other valuable considerations, merely because of the grantees' failure or refusal to furnish care and a home for plaintiff and not to convey the home during her lifetime in accordance with an oral promise given in consideration for the deed, without any allegation that the deed was procured by fraud, mistake, duress, or undue influence. The trial court reserved its ruling upon the demurrer until after the introduction of evidence. Plaintiff introduced evidence; defendants offered none. After the introduction of evidence, and before the submission of the case to the jury, the trial court overruled the demurrer, and to this ruling defendants excepted and assign this as error.

Defendants also assign as error the denial of their motion for judgment of compulsory nonsuit. They contend that the consideration for plaintiff's deed, according to her allegation and proof, was their promises to support and care for plaintiff. That the consideration being promissory, any breach of their promises, if such there was, would merely be grounds for damages for breach of their promises and would not be a ground for annulment and cancellation of the deed.

Defendants have misconceived the nature of plaintiff's action. Plaintiff's action is not, as they contend, an action to recover damages for breach of promises or an agreement for services to be rendered as a consideration for conveyance of her home and the lot on which it is situate. Indubitably, a deed based upon a promise or agreement of the grantee to maintain and care for and support the grantor is a valuable consideration for the transfer of property. Minor v. Minor, 232 N.C. 669, 62 S.E.2d 60; Lee v. Ledbetter, 229 N.C. 330, 49 S.E.2d 634; Salms v. Martin, 63 N.C. 608. If plaintiff's action were such, as defendants erroneously conceive it to be, the proper measure of damages would be, as defendants contend, 'the value of the promised support lost by the grantor,' Norwood v. Carter, 242 N.C. 152, 87 S.E.2d 2 50 A.L.R.2d 608, and a verdict in plaintiff's favor for such breach would not support a judgment in her favor annulling her deed and ordering it cancelled of record. Minor v. Minor, supra.

In Higgins v. Higgins, 223 N.C. 453, 27 S.E.2d 128, it is said: 'Courts will guard with jealous care the rights of the aged and infirm who have conveyed their land in the belief that they were making provision for support and maintenance in their declining years.'

This is said in 26 C.J.S. Deeds § 21b: 'Courts of equity have a marked tendency to afford the grantor relief because of the grantee's failure or refusal to furnish support in accordance with a...

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11 cases
  • Smith v. Central Soya of Athens, Inc.
    • United States
    • U.S. District Court — Eastern District of North Carolina
    • March 5, 1985
    ...the basis for an action for fraud unless the promise was made fraudulently with no intention to carry it out. Gadsden v. Johnson, 261 N.C. 743, 747, 136 S.E.2d 74, 77 (1964) (demurrer sustained where complaint merely alleged failure by defendants to carry out promissory representations). Mo......
  • Dillon v. Leazer Group, Inc.
    • United States
    • U.S. District Court — Eastern District of North Carolina
    • March 18, 2019
    ...misrepresentation preceding contract formation and identified lack of present intent to perform terms thereof. See Gadsden v. Johnson, 261 N.C. 743, 747, 136 S.E.2d 74 (1964) (stating that fraud may be alleged "where [a] promise is made fraudulently with no intention to carry it out").Plain......
  • Williams v. Williams
    • United States
    • U.S. District Court — Middle District of North Carolina
    • August 19, 2021
    ...cancellation of a deed made in consideration of an agreement to support.” Mills v. Dunk, 140 S.E.2d 358, 361 (N.C. 1965); see also Gadsen, 136 S.E.2d at 77 (indicating that a of consideration may justify setting aside a deed where additional circumstances exist that make other remedies inad......
  • Islet Sciences Inc. v. Brighthaven Ventures, LLC
    • United States
    • Superior Court of North Carolina
    • March 6, 2017
    ... ... representation made on October 29, 2013 was false is fatal to ... the claim for fraud. Gadsden v. Johnson , 261 N.C ... 743, 748, 136 S.E.2d 74, 78 (1964) (holding that the ... plaintiff did ... ...
  • Request a trial to view additional results

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