Griggs v. Griggs
| Decision Date | 25 May 1938 |
| Docket Number | 601. |
| Citation | 197 S.E. 165,213 N.C. 624 |
| Parties | GRIGGS et ux. v. GRIGGS et ux. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Anson County; F. D. Phillips, Judge.
Action by Herbert C. Griggs and wife, Colon B. Griggs, against H Battle Griggs and wife, Essie S. Griggs, for reformation of deed on the ground of fraud and mistake and for the recovery of an alleged debt. From a judgment sustaining defendants' demurrer for failure to state a cause of action and for improper joinder of causes of action, the plaintiffs appeal.
Affirmed.
A complaint alleging that plaintiff's attorney reading deed failed to call plaintiff's attention to the fact that two pieces of realty were included, that attorney was at the time acting for defendant, that attorney advised plaintiff that it was safe for him to sign deed, that plaintiff signed deed without reading it, and that attorney delivered to plaintiff four notes for purchase of "said real estate interests," was insufficient to state cause of action for reformation of deed on ground of fraud of defendants and mistake of plaintiff.
Action for reformation of deed on the ground of fraud and mistake and for the recovery of an alleged debt. Defendants' demurrer for failure to state a cause of action and for improper joinder of causes of action was sustained, and plaintiffs appealed.
Vann & Milliken, of Monroe, and Barrington T. Hill, of Wadesboro for appellants.
J. C. Sedberry, of Rockingham, for appellees.
The case comes to us upon appeal from a judgment sustaining a demurrer to the complaint on the ground that it did not state facts sufficient to constitute a cause of action, and for improper joinder of causes of action.
This makes it necessary that we examine the allegations of the complaint, under the rule requiring liberal construction, in order to determine whether a cause of action has been sufficiently set out. The material facts alleged may be stated as follows:
As a first cause of action, it is alleged that plaintiffs are residents of Robeson County, and that defendants reside in Anson County; that on and prior to 15 August, 1934, Fred J. Cox, an attorney of Wadesboro, represented plaintiffs in the matter of the sale of certain real property in Wadesboro; that plaintiff Herbert C. Griggs and defendant H. Battle Griggs (who are brothers) each owned an interest in the estates of Henry Haynie and Sarah A. Griggs, and that defendant had retained the same attorney to collect his interest in these estates. The plaintiffs further allege in their complaint:
"That on or about the 15th day of August, 1934, the plaintiffs, at the instance of the said Cox, who was acting for the defendant, H. Battle Griggs, or within the scope of his authority as attorney for H. Battle Griggs, executed a certain paper-writing in the form of a deed which, as they thought and believed, conveyed only their interests in the Wadesboro property. That the said paper-writing was prepared by the said Cox at the instance of the defendant H. Battle Griggs, and when the said Cox undertook to read same to the plaintiff, Herbert C. Griggs, he read only the part of said paper-writing purporting to convey the Wadesboro property, told the said plaintiff that the paper-writing was a deed for the Wadesboro property, that it was perfectly safe and all right for him to sign same, advising him to sign it immediately, have his wife to sign it, and return it to him at once as he was in a hurry to get back to Wadesboro.
That at the same time and as evidence of the debt due plaintiff, Herbert C. Griggs, for the purchase price of said real estate interests, the said Cox delivered to the plaintiff, Herbert C. Griggs, four promissory notes under seal in the sum of $500.00, each dated August 15th, 1934, and maturing on the 15th days of November, 1934, 1935, 1936 and 1937, bearing interest from maturity of each at the rate of six per cent. per annum, and that Fred J. Cox requested this plaintiff to endorse the note due November 15th, 1937, and retained and kept same as his compensation for services rendered or to be rendered the plaintiff as his attorney.
That as a result of the fraud and deceit of the defendant H. Battle Griggs, by and through the said Cox, being lulled into security by their confidence in the said Cox to the knowledge of H. Battle Griggs, these plaintiffs did not read the said paper-writing and signed same without reading it, upon the advice of the said Cox, who was acting for the said H. Battle Griggs, and unknown to these plaintiffs the said paper-writing undertook to convey to the defendant H. Battle Griggs, not only the Wadesboro property hereinbefore mentioned, but also all right, title and interest of the plaintiffs in and to the property of every kind and description, including real, personal and mixed, that may be coming to them or either of them from the estate of Henry Haynie, deceased, or the estate of Sarah A. Griggs, deceased which they would not have conveyed by said paper-writing except as a result of the...
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