Newton v. Clark

• Decision Date: 24 October 1917
• Docket Number: 302.
• Citation: 93 S.E. 951,174 N.C. 393
• Parties: NEWTON v. CLARK ET AL.
• Court: North Carolina Supreme Court

93 S.E. 951

174 N.C. 393

NEWTON v. CLARK ET AL.

No. 302.

Supreme Court of North Carolina

October 24, 1917

Appeal from Superior Court, Cumberland County; Connor, Judge.

Action by J. Sprunt Newton against Thorne Clark and others. Judgment of nonsuit, and plaintiff appeals. Affirmed.

Suit to have deed absolute in form declared mortgage cannot be maintained, in absence of allegation and proof that instrument was not executed as it was intended to be, or that the clause of defeasance was omitted by reason of ignorance fraud, or undue advantage.

Bullard & Stringfield, of Fayetteville, for appellant.

Robinson & Lyon, of Fayetteville, and Manning & Kitchin, of Raleigh for appellees.

ALLEN J.

There is neither allegation nor proof that the deed, which the plaintiff asks to have reformed, was not executed as it was intended to be, or that the clause of defeasance was omitted by reason of ignorance, mistake, fraud, or undue advantage and this, under our authorities, is fatal to the plaintiff's action. Pearson, J., stated the principle clearly and succinctly in Sowell v. Barrett, 45 N.C 54, as follows:

"Since * * * Streator v. Jones, 10 N.C. 423, there has been a uniform current of decisions, by which these two principles are established in reference to bills which seek to correct a deed, absolute on its face, into a mortgage or security for a debt: (1) It must be alleged, and of course proven, that the clause of redemption was omitted by reason of ignorance, mistake, fraud, or undue advantage; (2) the intention must be established, not merely by proof of declarations, but by proof of facts and circumstances, dehors the deed, inconsistent with the idea of an absolute purchase. Otherwise, titles evidenced by solemn deeds would be, at all times, exposed to the 'slippery memory of witnesses.' These principles are fully discussed in Kelly v. Bryan, 41 N.C. 283, and it is useless to elaborate them again."

This excerpt from the opinion has been quoted literally and with approval in Bonham v. Craig, 80 N.C. 224, Watkins v. Williams, 123 N.C. 170, 31 S.E. 388, and Porter v. White, 128 N.C. 43, 38 S.E. 24, and the same principle is declared in different language in Kelly v. Bryan, 41 N.C. 286, Brown v. Carson, 45 N.C. 272, Briant v. Corpening, 62 N.C. 325, Edgerton v. Jones, 102 N.C. 283, 9 S.E. 2, Norris v. McLam, 104 N.C. 160, 10 S.E. 140, and Sprague v. Bond, 115 N.C. 532, 20 S.E. 709.

Nor does the alleged agreement, if established, raise a trust in favor of the plaintiff. This question was dealt with in Bonham v. Craig, in which the authorities are discussed, and the court says:

"Nor will it avail the plaintiff to treat the alleged agreement as raising a trust which, not being within our statute of frauds, may be enforced upon sufficient parol proof. The case made in the complaint on which relief is sought is the omission to insert in the deed a

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