Sowell v. Barrett

• Decision Date: 31 December 1852
• Citation: 45 N.C. 50
• Parties: DEMPSEY SOWELL v. SAMUEL BARRETT.
• Court: North Carolina Supreme Court

45 N.C. 50

DEMPSEY SOWELL

v.SAMUEL BARRETT.

Supreme Court of North Carolina.

December Term, 1852.

In a bill filed to redeem property, conveyed to the defendant by a deed absolute on its face, a Court of Equity will not relieve the plaintiff, upon mere proof of the parties' declarations. There must be proof of fraud, ignorance or mistake, or of facts inconsistent with the idea of an absolute purchase.

(The case of Kelly v. Bryan, 6 Ire. Eq., 283, cited and approved.)

Cause removed from the Court of Equity for Moore County, at Fall Term, 1852.

In his bill, filed November 22d, 1850, the plaintiff states, that early in the year 1847, he was much involved in debt, and addicted to intemperate habits, which greatly impaired his mind, “though his recollection of the business transactions in which he was engaged is very distinct.” That whilst thus distressed by pecuniary embarrassments, the defendant, who is his near relative, in affluent circumstances, and a shrewd manager, professed to feel great sympathy in his condition; that on some few occasions theretofore, the defendant had advanced him money; and that on the 25th January, 1847, he called on and obtained from defendant a loan of $383, which, together with sums previously borrowed from him, amounted to $500; and to secure the payment thereof, he conveyed to William Barrett a tract of land worth $350, and a slave named Jack, worth $550 to $600, in trust, for the benefit of the defendant--the deed stipulating that the property was to remain in the plaintiff's possession for one year, at the end of which time it was to be sold, in the event the debt secured was not paid. That he rented the land for that year; and the defendant received the profits, promising to account for the same in their final settlement. That the said slave, being in the possession of plaintiff, was seised and put in jail, under executions issuing from a Justice of the Peace, for $181,35.; and that, on 1st May, 1847, whilst the said slave was in jail, and the plaintiff “was much confused and excited with liquor, and busily engaged in preparing for the funeral of an aged lady that had been a member of his family, the defendant came to his house--stated that said property was liable to the satisfaction of the said executions--and advised your orator, excited with liquor, confused with business, and bewildered in intellect as he was, to execute to him instruments purporting to be an absolute bill of sale for said Jack and tract of land, &c.” That he then stated to the defendant, that the negro, Jack, was a favorite servant, and that “he would not consent to sell him absolutely; but if defendant would allow your orator to redeem the boy and the land when he got able to do so, and would pay said executions, your orator would execute the instruments proposed.” That the defendant agreed that he might redeem the said property at any time within ten years, and such was the understanding between them when he executed said deeds. He admits that the defendant, in 1849 or 1850, paid off the said Justices' executions, $181,35., which sum, added to the said sum of $500, constituted the whole amount of his indebtedness to him.

The plaintiff further states that in 1847, the defendant assumed the payment of a debt due by him to one Ritter, and that to secure himself therein, the defendant “caused him to convey to him by deeds purporting to be absolute, but with the express understanding that your orator might redeem, a large amount of personal and real property, of value much greater than the debt assumed, &c.,” and in May, 1848, he did redeem the same--though, before he was permitted by defendant so to do, the defendant claimed $50 for his trouble, and services rendered, which he paid. That this conduct on the part of the defendant first awakened his suspicions of him, and before he paid the said $50, he required defendant to admit, before a witness, his right to redeem the boy Jack and the land aforesaid, upon his payment of the debt due, to wit., $681,35. That acting on this understanding, he sought a purchaser for said land, and finally bargained to sell the same to one Cole for $350--intending to apply the purchase money towards the payment of his debt to the defendant.

That since that time the defendant has on sundry occasions and to different persons, admitted his right to redeem said property; and on 26th September, 1850, he tendered to the defendant the whole amount of his debt, and demanded a reconveyance of the said land and negro--and that the defendant refused to comply with his demand. The prayer is for a redemption of the property, and for an account.

The defendant, in his answer, admits that the plaintiff was, in 1847, addicted to intemperate habits,...