Newbern v. Newbern

• Decision Date: 10 September 1919
• Docket Number: 15.
• Citation: 100 S.E. 77,178 N.C. 3
• Parties: NEWBERN v. NEWBERN.
• Court: North Carolina Supreme Court

100 S.E. 77

178 N.C. 3

NEWBERN v. NEWBERN.

No. 15.

Supreme Court of North Carolina

September 10, 1919

Appeal from Superior Court, Currituck County; Bond, Judge.

Action by A. B. Newbern against J. M. Newbern. From a judgment of nonsuit, plaintiff appeals. Affirmed.

The deed from plaintiff to defendant was dated September 1, 1904 was executed on August 24, 1904, and was recorded on September 20, 1904.

An action to convert a deed absolute on its face, opening with the words "This deed," printed in extra large type into a mortgage, where signed in defendant grantee's absence by plaintiff grantor, an educated, mature man, with full opportunity to examine, cannot be maintained without testimony, showing mistake, undue influence, or positive misrepresentation, made and reasonably relied upon by plaintiff.

Thompson & Wilson and Meekins & McMullan, all of Elizabeth City, for appellant.

Ehringhaus & Small and Aydlett, Simpson & Sawyer, all of Elizabeth City and A. M. Simmons, of Currituck, for appellee.

CLARK C.J.

This was an action by the plaintiff against his brother to convert a deed absolute on its face into a mortgage. In the original complaint there was no aliegation that the clause of redemption was omitted by mistake. The amended complaint alleges that "by mistake of the draftsman who drew this paper writing the clause of redemption was omitted therefrom," and "that by reason of the ignorance or the mutual mistake of the parties, or the mistake of the plaintiff and fraud or undue advantage of the defendant, the said clause of redemption was omitted from said writing."

There was testimony by the plaintiff that he and his brother had agreed that the defendant should loan him money in addition to sums already loaned, and that the defendant should be secured by a conveyance of the plaintiff's interest in the lands conveyed by the father to them and their other brothers in remainder after his life estate, and that this agreement was made in North Carolina on plaintiff's visit here, and that he afterwards returned to Oklahoma, where he was then residing and still resides; that thereafter the defendant sent the deed in question to the plaintiff, inclosed in an envelope with a letter stating that it was a deed in trust drawn according to the agreement, and that the plaintiff and his wife executed the deed and returned it to the defendant. It was recorded immediately. This action was not begun until September 18, 1916.

The defendant denied these allegations, and also pleaded the laches of the plaintiff, as well as the 3 and 10 year statutes of limitations. The court directed a judgment of nonsuit. There was no evidence of a mutual mistake, nor of a mistake induced by fraud. It appears by the plaintiff's testimony that he was a man of education, having spent two years at Randolph-Macon College, and that at the time of signing the deed he was a man of maturity, and older than his brother, the defendant.

In Taylor v. Edmunds, 176 N.C. 328, 97 S.E. 43, the court said:

"The mere fact that a grantor who can read and write signs a deed does not necessarily conclude him from showing, as between himself and the grantee, that he was induced to sign by fraud on the part of the grantee, or that he was deceived and thrown off his guard by the grantee's false statements and assurances, designedly made at the time, and reasonably relied on by him."

There are many other cases to the same effect, but in all of them there is a clear statement...