Tull v. L. Harvey & Son Co.

• Decision Date: 12 June 1929
• Docket Number: 215.
• Citation: 148 S.E. 425,197 N.C. 329
• Parties: TULL v. L. HARVEY & SON CO.
• Court: North Carolina Supreme Court

148 S.E. 425

197 N.C. 329

TULL v. L. HARVEY & SON CO.

No. 215.

Supreme Court of North Carolina

June 12, 1929

Appeal from Superior Court, Lenoir County; Grady, Judge.

Action by Ollie H. Tull against the L. Harvey & Son Company. From the judgment rendered, plaintiff appeals. Affirmed.

Plaintiff held entitled to hearing on cause of action for price of land, conveyed by deed sought to be set aside for fraud though complaint insufficiently alleged fraud.

The plaintiff alleged that she was the owner of a tract of land in Lenoir county, containing 125 acres and known as the Highway tract, and that her husband was the owner of a tract of land in said county known as the Tower Hill tract; that on January 18, 1919, the plaintiff and her husband executed and delivered to R. C. Strong, trustee for Henry Strong, a deed of trust on the Highway tract to secure an indebtedness of $5,000, and thereafter on April 18, 1922, plaintiff and her husband executed and delivered to F. E. Wallace, trustee for the National Bank of Kinston, a mortgage on said Highway tract to secure an indebtedness of $1,750.

Plaintiff further alleged that the following deeds of trust were executed by her and her husband on the Tower Hill tract, to wit:

(a) July 24, 1919, to secure an indebtedness of $10,000 to the Farm Loan Bank of Columbia, S. C.

(b) January 29, 1920, to secure an indebtedness of $2,000 to the National Bank of Kinston.

(c) April 15, 1921, to secure an indebtedness of $5,259 due the defendant.

(d) November 24, 1922, to secure an indebtedness of $1,846 due the defendant.

Thereafter on February 2, 1923, the plaintiff and her husband executed and delivered to the defendant a deed for the said Highway tract belonging to the plaintiff for the sum of $12,000.

Plaintiff further alleged that the defendant secured a deed for her said Highway tract by means of fraud and coercion, for that "the defendant took undue advantage of the fact that the lands of both the plaintiff and her husband were encumbered by deeds of trust and mortgages as hereinbefore recited unlawfully to induce, impel and coerce the plaintiff to execute to the defendant the said paperwriting, in form a deed, for her said Highway tract of land. And further, that during the fall of 1922 the defendant began to threaten and did threaten plaintiff and her husband with the foreclosure of the deed of trust on the Tower Hill tract," and "moved by such threats *** the plaintiff and her husband decided to surrender Tower Hill farm to the defendant." Whereupon the "defendant dissuaded the husband of plaintiff from so surrendering said Tower Hill farm, and by fraudulent inducements and promises which deceived the plaintiff, caused a change of purpose of her said husband and the plaintiff to surrender Tower Hill and secure from the plaintiff and her husband by representations and assurances which, as plaintiff believes and alleges, were fraudulent and never intended to be performed, the execution to the defendant of the paperwriting, in form a deed, for the Highway farm."

Plaintiff further alleged that the defendant had failed to account for the purchase price of said property, and that said defendant had wrongfully and unlawfully misapplied said purchase price.

Upon these allegations the plaintiff asks:

(a) That the deed for the Highway tract be set aside and that she be...