Pierce v. Bierman

• Decision Date: 17 February 1932
• Docket Number: 471.
• Parties: PIERCE v. BIERMAN et al.
• Court: North Carolina Supreme Court

162 S.E. 566

202 N.C. 275

PIERCE v. BIERMAN et al.

No. 471.

Supreme Court of North Carolina

February 17, 1932

Appeal from Superior Court, Mecklenburg County; Harding, Judge.

Action by J. J. Pierce against F. H. Bierman, Mabel B. Bierman, and others, in which named defendants set up cross-action against the other defendants. From the judgment for cross-complainants, cross-defendants appeal.

Reversed.

Intelligent plaintiff exchanging property "subject to debt" for property on which he "assumed debt," after full study of contract, held entitled to no relief notwithstanding his misunderstanding of terms.

The plaintiff instituted an action against the defendants F. H Bierman and wife to recover $600 evidenced by three promissory notes. The defendants Bierman and wife filed a petition asking that the other defendants be made parties to the suit. This was done. Thereupon the Biermans filed an answer admitting the execution of the notes held by the plaintiff and setting up a cross-action against the other defendants. The cross-action of Bierman and wife against their co-defendants is founded in substance upon the following facts: Bierman and wife owned a lot in Mecklenburg county on Hutchison avenue, sometimes referred to as the Derita road property. The defendant Lex Marsh and H. J. Anthony owned a piece of property in Mecklenburg county known as the North Brevard street property. The defendant McKee was a real estate agent in Charlotte, who approached the Biermans and inquired if they would be interested in trading or exchanging the Hutchison avenue property for the Brevard street property. Thereafter Bierman looked over the Brevard street property owned by Lex Marsh, and, after examining the property, notified the defendant McKee that he was interested, and requested McKee to come to see him about the trade.

On September 6, 1928, all of the defendants entered into a written contract stipulating "that Bierman and wife were to convey to Lex Marsh Company, their executors or assigns a lot of land fronting on Derita Road. *** Lex Marsh Company their executors or assigns, agree to take title to the above mentioned property, subject to $12,000.00, payable $2,000.00 per year over a period of six years." Lex Marsh Company agreed to convey to Bierman and wife the North Brevard street property, and F. H. Bierman and wife, Mabel B. Bierman agreed ""to assume and execute a total mortgage of $20,000.00 and agree to pay together with interest from date of transfer of the property."

Thereafter, on September 18, 1928, Bierman and wife executed a warranty deed to the defendant G. L. Bryson, conveying the Derita road property, in which said deed it is provided: "This conveyance is made subject to the indebtedness represented by said deed of trust in the amount of $12,102.00." On the same day Lex Marsh and Anthony conveyed to Bierman and wife the Brevard street property by a warranty deed, which said deed contains the following stipulations in the warranty clause: "Except for that certain deed of trust to E. J. Caffrey, Trustee for the Mechanics Perpetual Building & Loan Association, recorded in Book --, at page --, of the Mecklenburg Registry, securing a loan in the gross amount of $12,000.00, on which there is a balance of $11,550.00, which balance the parties of the second part hereby assume and agree to pay."

The final result of these transactions was that Bryson, Bierman's grantee, received Bierman's property subject to a mortgage or deed of trust of $12,102, whereas Bierman received the Brevard street property, and agreed to assume and pay off a mortgage or deed of trust of $11,550 thereon.

Bierman and his wife allege that the other defendants played a trick on them or defrauded them by reason of the fact that McKee the real estate agent, gave them to understand that each party to the transaction was to assume and pay the indebtedness of the other, whereas, in fact, Bierman assumed the payment of the mortgage on the Brevard street property, while Bryson purchased Bierman's property subject to a mortgage, thereby incurring no personal liability. Bierman testified that he completed the tenth grade in school, and "at that time that was considered a pretty good education." He further testified that, when the defendant, McKee, brought him the contract, "I did not sign it *** because I wanted to look it over, examine it, and see if it was in accordance with the terms I had talked over with him. I read it and the same language is in it now as was in it when I read it. I did not read it over while McKee was in my office, but did read it over sometime within a day or two after I got it. I read it over to my wife, and she is a woman of similar education to mine. I discussed the contract with her. I read the deeds made pursuant to that contract and checked them over to see whether they conformed with the terms of the contract, and found they did." He further testified that he examined the Brevard street thoroughly, and "after my investigation I thought the trade I was...