Ricks v. Brooks

• Decision Date: 18 February 1920
• Docket Number: 64.
• Citation: 102 S.E. 207,179 N.C. 204
• Parties: RICKS v. BROOKS ET AL.
• Court: North Carolina Supreme Court

102 S.E. 207

179 N.C. 204

RICKS v. BROOKS ET AL.

No. 64.

Supreme Court of North Carolina

February 18, 1920

Appeal from Superior Court, Nash County; Devin, Judge.

Action by Donnie Ricks against Mrs. R. U. Brooks and others. Judgment for plaintiff, and defendants except and appeal. Affirmed.

In an action for reformation plaintiff must allege and show by clear strong, and convincing evidence that instrument sought to be corrected failed to express the true agreement of the parties because of a mutual mistake, or because of mistake of one induced by fraud or inequitable conduct of the other, and that by reason of ignorance, mistake, fraud, or undue advantage something material has been inserted or omitted contrary to such agreement and the intention of the parties.

This is an action under the statute (Revisal, § 1589) to try and determine the title to land, or to remove a cloud from the title of plaintiff to an undivided interest in a certain tract of land; the defendants claiming the same by virtue of a foreclosure sale and deed under a power contained in a mortgage deed and mesne conveyances.

In 1905 Louis Ricks died seized and possessed of a tract of land in Nash county containing 218 acres. In his will, duly probated he devised this land to his wife, Lucinda Ricks, for life with remainder to the plaintiff and his brothers and sisters one-ninth each.

In 1906 the plaintiff and four of his brothers each executed a mortgage and crop lien to the Brooks Mercantile Company covering their respective interests in said tract of land.

In July, 1911, R. U. Brooks, president of Brooks Mercantile Company, acting in the name of the corporation, which was then in process of dissolution, sold the land under the power contained in the mortgages, and executed deeds to B. A. Brooks, his son and the attorney of the corporation, for plaintiff's interest in the land. The total consideration recited in the five deeds exceeded $1,500. At the same time B. A. Brooks reconveyed all five interests in one deed to R. U. Brooks for a recited consideration of $1,000. No consideration was actually paid for the transfer, and the plaintiff was not credited with any of the proceeds of the sale.

The alleged foreclosure deed recited that sale of said premises was had on Monday, March 12, 1907. The notice of sale published in the Nashville Graphic the week prior to the alleged sale named March 12th as the sale date; the notice as to the sale of the interest of Jonas Ricks named Tuesday, March 12, 1907, as the sale date. March 12, 1907, was on Tuesday, and the sale was made on the preceding day, March 11, 1907. There was no advertisement or notice of a sale on March 11th, which was Monday. All the conveyances are duly recorded and are admitted to be regular in form and sufficient to convey the premises in question.

R. U. Brooks devised the interest in the land acquired by him under these deeds to the defendants, his children and heirs-at-law, and the defendants in their answer set up and allege title under the foreclosure deeds and the will.

The plaintiff, in 1918, brought this suit and filed his complaint claiming that he was still the owner of the one-ninth interest in the lands and that defendants were claiming some interest unknown to him in the same, which constituted a cloud upon his title, and asked to have the same removed. The defendants answered, admitting that plaintiff once owned a one-ninth interest in the lands, but that they, through mesne conveyances from the plaintiff himself, were now the owners of the interest which had formerly belonged to the plaintiff.

The cause was tried by the court and a jury, and plaintiff offered in evidence the will of his father conveying to him the land and the admission in the answer that he did acquire said interest through his father's will, and rested. The defendants offered in evidence the mortgage from plaintiff to Brooks Mercantile Company the foreclosure deed to B. A. Brooks, and the deed from B. A. Brooks to R. U. Brooks, and it was admitted that defendants are the devisees of R. U. Brooks. The court then held that this shifted the burden of proof to plaintiff to "show by the evidence and the greater weight thereof that the foreclosure deed, which is regular and valid upon its face, is in fact inoperative as a deed, or is operative in law only as an equitable transfer of the mortgage, as he alleges same to be." The evidence offered by the plaintiff to show that said deed was inoperative was admitted, as shown by the exceptions, over defendants' objections.

The jury found that the deeds from the Brooks Mercantile Company to B. A. Brooks and from him to R. U. Brooks are void as to plaintiff, and the court held that they constituted only an equitable assignment of the mortgage given by plaintiff to the Brooks Mercantile Company. It was thereupon adjudged that the debt due by plaintiff be ascertained, and that if it is not paid the plaintiff's interest in the land be sold for its payment, etc. Defendants excepted and appealed.

E. B. Grantham, of Rocky Mount, and G. W. Taylor, of Whitakers, for appellants.

F. S. Spruill and M. V. Barnhill, both of Rocky Mount, for appellee.

WALKER, J. (after stating the facts as above).

We may as well state in the beginning that this is not an action for the correction of a deed or for its reformation, and the doctrine as to the quantity of proof required in such a case does not apply, and the contention of the defendant in this respect cannot be sustained. In an action for reformation it must be alleged and shown by evidence clear, strong, and convincing, that the instrument sought to be corrected failed to express the true agreement of the parties because of a mistake common to both parties, or because of the mistake of one party induced by the fraud or inequitable conduct of the other party, and that by reason of ignorance, mistake, fraud, or undue advantage something material has been inserted, or omitted, contrary to such agreement and the intention of the parties. Ray v. Patterson, 170 N.C. 226, 87 S.E. 212; Newton v. Clark, 174 N.C. 393, 93 S.E. 951. But this rule does not apply where the purpose is not to reform but to set aside the instrument for fraud, undue influence, or upon other equitable ground. Poe v. Smith, 172 N.C. 67, 89 S.E. 1003, and Boone v. Lee, 175 N.C. 383, 95 S.E. 659, citing Harding v. Long, 103 N.C. 1, 9 S.E. 445, 14 Am. St. Rep. 775, and other cases.

The plaintiff asserts that the whole transaction was but a fraudulent attempt to deprive him of his land, and not a genuine and bona fide effort to foreclose the mortgage by sale under the power in order to pay the debt secured thereby. The relief asked and given was that the deeds, as conveyances of his interest in the land, be set aside or annulled, agreeing, though, that they are valid for the purpose of transferring...