Vail v. Vail

Decision Date02 February 1951
Docket NumberNo. 675,675
Citation63 S.E.2d 202,233 N.C. 109
PartiesVAIL et al. v. VAIL et ux.
CourtNorth Carolina Supreme Court

Clyde E. Gooch, Salisbury, and Roberson, Haworth & Reese, High Point, for plaintiffs-appellants.

J. J. Shields and Thomas Turner, Greensboro, for defendants-appellees.

JOHNSON, Justice.

The evidence in this case tends to show these determinative factors: (1) that the defendant, Victor B. Vail, the grantee in the deed, stood in a confidential or fiduciary relation with the grantor, Mrs. Minnie P. Vail; and (2) that she retained possession and control of the lands embraced in the deed during the remainder of her life. These crucial circumstances being made to appear, along with the rest of the evidence offered below, made out a prima facie case entitling the plaintiffs to go to the jury on both the issue of fraud and that of the statute of limitations.

The issue of fraud: Fraud has no all-embracing definition. Because of the multifarious means by which human ingenuity is able to devise means to gain advantages by false suggestions and concealment of the truth, and in order that each case may be determined on its own facts, it has been wisely stated 'that fraud is better left undefined,' lest as Lord Hardwicke put it, "the craft of men should find a way of committing fraud which might escape such a rule or definition.' ' Furst & Thomas v. Merritt, 190 N.C. 397 at page 404, 130 S.E. 40, 44. However, in general terms fraud may be said to embrace 'all acts, omissions, and concealments involving a breach of legal or equitable duty and resulting in damage to another, or the taking of undue or unconscientious advantage of another.' 37 C.J.S., Fraud, § 1, p. 204.

These essential facts must appear in order to establish actionable fraud: '(1) a false representation or concealment of a material fact; (2) reasonably calculated to deceive; (3) made with intent to deceive; (4) and which does, in fact, deceive; (5) to the hurt of the injured party.' Ward v. Heath, 222 N.C. 470, 24 S.E.2d 5, 7. The material elements of fraud, a commission of which will justify the court in setting aside a contract or other transaction, are stated by Barnhill, J., in Ward v. Heath, supra, as follows: 'First, there must be misrepresentation or concealment. Second, an intent to deceive or negligence in uttering falsehoods with intent to influence the acts of others. Third, the reppresentations must be calculated to deceive and must actually deceive. And, fourth, the party complaining must have actually relied upon the representations.'

The nature and extent of the proofs required to establish fraud depend to a large extent on the relationship of the parties, and ordinarily, 'a greater degree of proof is required to show fraud as between parties dealing at arm's length than is necessary where the fraud feasor sustains a confidential relation toward his alleged victim.' 37 C.J.S., Fraud, § 114, p. 432.

Where a relation of trust and confidence exists between the parties, 'there is a duty to disclose all material facts, and failure to do so constitutes fraud.' 37 C.J.S., Fraud, § 16, p. 247.

23 Am.Jur., Fraud and Deceit, Section 14, p. 765, states the rule thus: 'Where a confidential or fiduciary relationship exists, it is the duty of the person in whom the confidence is reposed to exercise the utmost good faith in the transaction and to refrain from abusing such confidence by obtaining any advantage to himself at the expense of the confiding party. Should he obtain such an advantage, he will not be permitted to retain the benefit; and the transaction will be set aside even though it could not have been impeached had no such relation existed, whether the unconscionable advantage was obtained by misrepresentations, concealment or suppression of material facts, artifice, or undue advantage.'

The rule is amplified in 23 Am.Jur., Fraud and Deceit, Section 81, p. 858, as follows: 'It is a well-settled principle of the law of fraud, applied particularly by courts of equitable jurisdiction, that it is the duty of a person in whom confidence is reposed by virtue of the situation of trust arising out of a confidential or fiduciary relationship to make a full disclosure of any and all material facts within his knowledge relating to a contemplated transaction with the other party to such relationship, and any concealment or failure to disclose such facts is a fraud. This principle is universally observed, although the transaction cannot be impeached if no such relationship exists.'

For a comprehensive discussion of what constitutes a confidential or fiduciary relation, see Abbitt v. Gregory, 201 N.C. 577, at page 598, 160 S.E. 896. In general terms, a fiduciary relation is said to exist 'Wherever confidence on one side results in superiority and influence on the other side; where a special confidence is reposed in one who in equity and good conscience is bound to act in good faith and with due regard to the interests of the one reposing the confidence.' 37 C.J.S., Fraud, § 2, p. 213. Suffice it to say, without more, that as between principal and agent, the relation applies with all of its rigor in all of its implications. McNeill v. McNeill, 223 N.C. 178, 25 S.E.2d 615; 37 C.J.S., Fraud, § 16, pp. 248 and 249; Am.Jur., Fraud and Deceit, Section 14, p. 763 et seq.

The defendants, contending that the evidence was insufficient to take the case to the jury on the issue of fraud, urge that there is no evidence showing that Victor B. Vail said or did anything at the time the deed was signed to prevent his mother from reading it, and that in the absence of some proof that she did not read the deed, or was prevented from reading it, she being literate, is presumed to have read it. On this premise, defendants contend that the evidence does not justify the inference that Minnie P. Vail was deceived by anything her son Victor said or did. Defendants say the case is governed by the rule which ordinarily precludes a literate person who signs an instrument from asserting, in the absence of fraud, that he did not read the instrument and was ignorant of its purport. The defendants rely on the decisions in Ward v. Heath, supra; Colt Co. v. Kimball, 190 N.C. 169, 129 S.E. 406, and cases therein cited.

The defendants' position is untenable and the authorities relied on are distinguishable. In the cases cited, the parties were dealing at arm's length, and in neither of the cases was the complaining party lulled into security by fraud or artifice of the other party and thereby prevented from reading the instrument. In the instant case the parties stood in a confidential relation, and the evidence tends to show elements of positive fraud and deception, reasonably calculated to dull the mother's call to vigilance and justify her in not discovering the contents of the deed: It appears in evidence that Mrs. Vail was a widow about seventy-two years of age when she made the deed; that she lived alone; that 'Victor was accustomed to looking after his mother, running a great many errands and performing many personal services for her'; that he helped collect her rents. It is also in evidence that two days after his mother's funeral Victor confessed to some of the plaintiffs that: '* * * I gave the wrong description and had the deed made out to the old homeplace instead of the little place that mother told me I could have on Vail Alley. I came by this property wrong. * * * I got it wrong. I will deed it back to the estate just any time you all say so.'

The evidence here, standing as it does undenied and unexplained, is sufficient to support these findings and inferences: that Mrs. Vail, reposing confidence in her son, Victor, directed him, as her agent, to have the small Vail Alley lot run off and deed thereto prepared so she might convey it to him as a gift; that he, in breach of his trust, surreptitiously substituted the description of the larger, more valuable Vail homeplace on South Main Street; that by fraudulently suppressing the true state of facts while silently pretending that the deed contained the Vail Alley property, he thereby procured from his mother lands not intended by her to be conveyed, and that she, under the circumstances of the confidential relation with her son, was lulled into security by his fraud and signed the deed without discovering, in the exercise of due diligence, the true state of facts. In short, we conclude that the evidence, measured by the applicable rules of law, is sufficient to sustain, though not necessary to impel, a finding of all the essential elements of fraud. That makes it a prima facie case for the jury.

The issue of the statute of limitations: The defendants having set up the three-year statute of limitations, G.S. § 1-52, subsection 9, in bar of plaintiffs' right to recover, the burden of proof devolved upon the plaintiffs to show that their cause of action was not barred, i. e., the burden was upon the plaintiffs to show that their cause of action did not accrue until sometime within the period of three years next before the commencement of the action. Taylor v. Edmunds, 176 N.C. 325, 97 S.E. 42; Sanderlin v. Cross, 172 N.C. 234, 90 S.E. 213; Hooker v. Worthington, 134 N.C. 283, 46 S.E. 726; 54 C.J.S., Limitations of Actions, § 388, p. 527.

Under the statute pleaded here, a cause of action, like this one,...

To continue reading

Request your trial
131 cases
  • King v. Bryant
    • United States
    • United States State Supreme Court of North Carolina
    • 27 January 2017
    ...conscience is bound to act in good faith and with due regard to the interests of the one reposing the confidence." Vail v. Vail , 233 N.C. 109, 114, 63 S.E.2d 202, 206 (1951) (internal quotation marks omitted). A number of relationships have been held to be inherently fiduciary, including t......
  • Merchants & Planters Nat. Bank of Sherman v. Appleyard
    • United States
    • United States State Supreme Court of North Carolina
    • 23 September 1953
    ...within the time prescribed, plaintiff's right to judgment on its claim is destroyed and his action must be dismissed. Vail v. Vail, 233 N.C. 109, 63 S.E.2d 202; Marks v. McLeod, 203 N.C. 257, 165 S.E. 693; Southerland v. Crump, 199 N.C. 111, 153 S.E. 845; Phillips v. Penland, 196 N.C. 425, ......
  • Conti v. Fid. Bank (In re NC & VA Warranty Co.)
    • United States
    • United States Bankruptcy Courts. Fourth Circuit. U.S. Bankruptcy Court — Middle District of North Carolina
    • 27 September 2018
    ..."a duty to disclose all material facts[,]" Harris v. Testar, Inc., 243 N.C. App. 33, 38, 777 S.E.2d 776, 780 (2015) (quoting Vail v. Vail, 233 N.C. 109, 114, 63 S.E.2d 202, 206 (1951) ("Where a relation of trust and confidence exists between the parties, ‘there is a duty to disclose all mat......
  • King v. Michael S. Bryant, M.D. & Vill. Surgical Assocs., P.A., 294PA14
    • United States
    • United States State Supreme Court of North Carolina
    • 27 January 2017
    ...and good conscience is bound to act in good faith and with due regard to the interests of the one reposing the confidence." Vail v. Vail, 233 N.C. 109, 114, 63 S.E.2d 202, 206 (1951) (internal quotation marks omitted). A number of relationships have been held to be inherently fiduciary, inc......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT