Waddell v. Aycock

• Decision Date: 07 March 1928
• Docket Number: 89.
• Parties: WADDELL et al. v. AYCOCK et al.
• Court: North Carolina Supreme Court

142 S.E. 10

195 N.C. 268

WADDELL et al. v. AYCOCK et al.

No. 89.

Supreme Court of North Carolina

March 7, 1928

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

Action by J. B. Waddell and others against Alexander Aycock and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

Devise to grandson for life, and at his death to his heirs forever gave grandson fee, under rule in Shelley's Case.

R. L Ray, of Selma, for appellants.

Dickinson & Freeman, of Goldsboro, for appellees.

ADAMS J.

Upon the face of the pleadings-the complaint, the answer, and the reply-there appear certain undisputed facts. Harris Waddell made a will, the second item of which is in these words:

"I give and devise to my grandsons, John Waddell and Henry Waddell, my tract of land lying on the north side of Molton branch, said to contain 150 acres, to be equally divided, John's to be to him, his heirs and assigns forever, Henry's part I lend to him for his use his lifetime and at his death I do devise to his heirs forever."

Not John's interest, but Henry's, is in controversy. It is manifest that in the devise to Henry the word "heirs" must be construed in its technical sense as carrying the estate to the entire line of heirs; that as used here it is not a word of purchase, but a word of limitation; and that Henry acquired an estate in fee under the rule in Shelley's Case. Nichols v. Gladden, 117 N.C. 497, 23 S.E. 459; Smith v. Smith, 173 N.C. 124, 91 S.E. 721; Hartman v. Flynn, 189 N.C. 452, 127 S.E. 517. On January 17, 1899, apparently after partition, Henry Waddell with the joinder of his wife executed and delivered to Barnes Aycock a deed in fee simple, with the usual covenants of warranty, conveying 57 1/2 acres of the land he had acquired under the devise. The grantee forthwith entered upon the land and retained undisturbed possession thereof until his death, which occurred in 1926. Immediately after his death the defendants went into possession claiming title to the land as his children and heirs at law. Henry Waddell died May 3, 1925, and on April 12, 1927, the plaintiffs as his heirs brought suit to recover the land he had conveyed to the ancestor of the defendants. They base their action upon these allegations; (1) When the deed was executed, a parol trust was created for the benefit of the grantor; (2) the deed, though absolute in form, was intended as a mortgage; (3) the statute of limitations did not run against the plaintiffs during the lifetime of Henry Waddell.

1. It may be said with respect to the first of these propositions that, while parol trusts are recognized and under certain conditions are upheld in our jurisprudence, in the absence of fraud, mistake, or undue influence they cannot be ingrafted in favor of the maker upon a warranty deed conveying to the grantee an absolute and unqualified title in fee. Gaylord v. Gaylord, 150 N.C. 222, 63 S. E. 1028; Tire Co. v. Lester, 192 N.C. 642, 135 S.E. 778.

2. An answer to the plaintiffs' second position is given in Norris v. McLam, 104 N.C. 159, 10 S.E. 140, and in cases subsequently decided maintaining the principle that to convert a deed absolute on its face into a mortgage it must be shown that the clause of redemption was omitted by reason of ignorance, mistake, fraud, or undue influence or advantage. Green v. Sherrod, 105 N.C. 197, 10 S.E 986; Sprague v. Bond, 115 N.C. 530, 20 S.E. 709; Frazier v. Frazier, 129 N.C. 30, 39 S.E. 634. In Fuller v. Jenkins, 130 N.C. 554, 41 S.E. 706, it was held that an agreement between grantor and grantee, made at the time a deed was delivered, that it should operate as a security for debt was sufficient to convert it into a mortgage, but this conclusion was subsequently disapproved in Newton v. Clark, 174 N.C. 393, 93 S.E. 951, and Williamson v. Rabon, 177 N.C. 302, 98 S.E. 830. The only averment of fraud is that of "fraud in deceit of Barnes Aycock practiced on plaintiffs' ancestor," and this is fatally defective. Fraud must be alleged with sufficient certainty and fullness to indicate to the opposing party what he is called upon to answer. Mottu v. Davis, 151 N.C. 237, 65 S.E. 969; Marshall v. Dicks, 175 N.C. 38, 94 S.E. 514; Galloway v. Goolsby, 176 N.C. 635, 97 S.E. 617; Evans v....