Tomllns v. Cranford

• Decision Date: 09 April 1947
• Docket Number: No. 381.,381.
• Citation: 227 N.C. 323,42 S.E.2d 100
• Court: North Carolina Supreme Court
• Parties: TOMLlNS. v. CRANFORD et al.

227 N.C. 323

42 S.E.2d 100

TOMLlNS.

v.CRANFORD et al.

No. 381.

Supreme Court of North Carolina.

April 9, 1947.

Appeal from Superior Court, Montgomery County; J. H. Clement, Judge.

Civil action by Mrs. Loretta Necomb Tomlins, by her next friend, Frank M. Ledbetter, against Etta Lee Cranford and another to annul a deed for want of mental capacity of grantor. From an adverse judgment, defendants appeal.

No error.

Civil action to annul a deed for want of mental capacity of the grantor.

In August 1934 plaintiff was committed to the State institution for the insane at Morganton, N. C. In May 1941 the directors of said hospital ordered "that she be discharged from said hospital and delivered to the proper person or authority, and that entry be made that said patient is discharged as Improved * * *."

On 20 February 1946 plaintiff executed a deed to defendant Etta Lee Cranford for two small tracts of land containing a totalof twelve acres, for the recited consideration of $500. Defendant Floyd Cranford bargained for the land, procured the preparation and execution of the deed, and otherwise handled the transaction in behalf of his wife, the grantee. He approached a lawyer about preparing a deed and was informed that plaintiff had been to Morganton and could not give a deed; that a next friend would have to be appointed; and that, to get a good deed, it would have to go through court. He then went to someone else, had a deed prepared, and presented it to plaintiff for her signature. After the deed was executed he made certain improvements on the land of the value, as defendants allege, of $1500.

The cause was duly calendared for trial at the September Term 1946. Being duly reached and called for trial, "the defendant, Floyd Cranford, moved the Court for a continuance of the case for the reasons that his attorney, J. G. Prevette, Asheboro, N. C, was not in Court. Motion denied. Defendants except."

The jury having found for their verdict that plaintiff, on 20 February 1946, did not have sufficient mental capacity to execute a valid conveyance and that defendants, at the time, were aware of her mental incapacity, the court signed judgment vacating and annulling said deed. Defendants excepted and appealed.

Currie & Garriss, of Troy, for plaintiff appellee.

J. G. Prevette, of Asheboro, for defendant appellant.

BARNHILL, Justice.

The record states that the case was called at a time counsel for defendants was not in court and the court denied a motion to continue for that reason. Nothing further is made to appear. Hence the disposition of the motion was within the discretion of the presiding judge. But see Moore v. Dickson, 74 N.C. 423.

The defendants, it is true, set forth in their brief certain facts, controverted in part by plaintiff, leading up to and causing the absence of counsel at the time the case was unexpectedly reached for trial. But the Supreme Court can judicially know only what appears of record. State v. DeJournette, 214 N.C. 575, 199 S. E. 920; North Carolina Utilities Comm. v. City of Kinston, 221 N.C. 359, 20 S.E.2d 322; State v. Morgan, 225 N.C. 549, 35 S. E.2d 621.

Perhaps defendants may draw some consolation from the provisions of G.S. § 1-220. At least the procedure therein provided is still open to them.

The motion to dismiss as in case of nonsuit was made for the first time at the conclusion of all the evidence. Hence the exception thereto brings up no question for review. Even so, under the circumstances, we have reviewed the testimony and find therein evidence sufficient to require the submission of...