Massengill v. Oliver

• Decision Date: 25 March 1942
• Docket Number: 243.
• Citation: 19 S.E.2d 253,221 N.C. 132
• Parties: MASSENGILL et al. v. OLIVER et ux.
• Court: North Carolina Supreme Court

19 S.E.2d 253

221 N.C. 132

MASSENGILL et al. v. OLIVER et ux.

No. 243.

Supreme Court of North Carolina

March 25, 1942

Civil action to set aside deed for fraud and for an accounting for rents.

Plaintiffs heirs at law of George B. Worley, Sr., and his wife, Appie Worley, both of whom died after the matters of which complaint is made herein, instituted this action on August 13, 1941, and in their complaint in substance allege:

1. That on December 18, 1923, defendants, for consideration of $4,800 recited in deed, conveyed to George B. Worley, Sr., and wife Appie Worley, two tracts of land in Johnston County, North Carolina, one containing thirty six acres and the other three-fourths of an acre.

2. That on said date George B. Worley, Sr., and wife, Appie Worley for purpose of securing the payment of the purchase price of said land, $4,800, on terms therein set out, executed a mortgage deed to defendant, D. B. Oliver, conveying therein the two tracts of land so conveyed to them, and another tract containing fifty and one-quarter acres, of value in excess of $3,500 and containing power of sale.

3. That, on January 21, 1932, though George B. Worley, Sr., and wife, Appie Worley, had by payments reduced the indebtedness due on purchase price to less than $4,000, and while the relation of mortgagor and mortgagee existed between them as mortgagors and defendant, D. B. Oliver, as mortgagee, the said defendant "by persistence, oppression and other unlawful and fraudulent means" exerted by him upon them procured a deed from them to him, conveying the three tracts of land described in the said mortgage deed, for the recited consideration of $4,000, when the balance due on indebtedness was much less than, and the reasonable value of the land more than double that amount, by reason of all of which the said deed is void.

4. That immediately upon the execution of the deed to him set forth in the preceding paragraph defendant, D. B. Oliver, went into, and has since remained in possession of said land, enjoying the rents and profits for which he, as mortgagee in possession, should account.

Defendants, in answer filed, while admitting the execution of the deeds and mortgage deed described in the complaint, deny (1) that George B. Worley, Sr., and wife, Appie Worley, made any payment on the purchase price of said land; (2) deny that the fifty and one-quarter acre tract was worth amount alleged, and (3) deny all allegations of oppression, fraud or unfair means in procuring the deed from them. And defendants aver that, though George B. Worley, Sr., and wife, had been in possession of said land for more than eight years at time when said deed was executed by them to defendant, D. B. Oliver, they had paid nothing on the purchase price and there were then due principal, interest, taxes and store account, amounting to $7,469.91; that deed was executed by them "of their own free will and accord", in order to free themselves of the said indebtedness; that the deed was accepted by D. B. Oliver at request of George B. Worley; and that as consideration therefor all of said indebtedness and the mortgage deed were cancelled.

Defendants further plead the three-year statute of limitation, C.S. § 441(9) in bar of any right of plaintiffs to recover in this action.

Upon the trial below p...