Wallace v. Johnson

• Decision Date: 14 October 1959
• Docket Number: No. 168,168
• Parties: John Fletcher WALLACE and wife, Rena Wallace, v. Nash JOHNSON.
• Court: North Carolina Supreme Court

Page 488

110 S.E.2d 488

251 N.C. 11

John Fletcher WALLACE and wife, Rena Wallace, v. Nash JOHNSON.

No. 168

Supreme Court of North Carolina.

Oct. 14, 1959

Jones, Reed & Griffin, Kinston, for plaintiffs, appellants.

Butler & Butler, Clinton, Hubert E. Phillips, Kenansville, for defendant, appellee.

PARKER, Justice.

This case bears the number A-7849 on the civil issue docket of the Superior Court of Duplin County, and is brought by John Fletcher Wallace, and wife, against Nash Johnson. These facts appear from the complaint's allegations:

E. M. Johnson died testate in 1946. At the time of his death he owned several thousand acres of land in Duplin and Pender Counties on which large quantities of timber were growing. Among the devisees of his last will and testament, which was duly admitted to probate on 16 June 1946, are the defendant Nash Johnson, a brother, B. D. Johnson, a brother, plaintiff John Fletcher Wallace, the son of a prior deceased sister, sisters, and other nephews and nieces.

Plaintiffs and others by a deed executed on 2 September 1946, and duly recorded, conveyed to the defendant Nash Johnson two small tracts of land which E. M. Johnson owned at the time of his death.

Plaintiffs and others by an agreement dated 27 August 1947, and duly recorded, vested the defendant Nash Johnson and B. D. Johnson with title to their interest in all the personal property owned by E. M. Johnson at the time of his death.

Plaintiffs and others by a deed executed on 27 August 1947, and duly recorded, conveyed to defendant Nash Johnson and B. D. Johnson, all their interest in the real property owned by E. M. Johnson at the time of his death, excepting from the conveyance the two small tracts of land owned by E. M. Johnson at the time of his death heretofore conveyed to defendant Nash Johnson.

Plaintiffs and others by deed executed on 24 November 1947, and duly recorded, conveyed to defendant Nash Johnson and B. D. Johnson 38 tracts of land consisting of several thousand acres owned by E. M. Johnson at the time of his death.

Lucy Wallace Cookenmaster and others by deed executed on 16 April 1948, and duly recorded, conveyed to defendant Nash Johnson and B. D. Johnson, all their right, title and interest in all the personal property bequeathed to them under the will of E. M. Johnson. There is no allegation that plaintiffs signed this deed.

B. D. Johnson died intestate on 15 November 1950, without a widow or issue him surviving.

Plaintiffs and others by deed executed on 1 February 1951, and duly recorded, conveyed to defendant Nash Johnson all of their right, title, and interest in 37 tracts of land described in the deed of plaintiffs and others to defendant Nash Johnson and B. D. Johnson dated 24 November 1947, confirming the execution and delivery of the other instruments heretofore referred to vesting defendant Nash Johnson and B. D. Johnson with the grantors' interest in the real and personal properties owned by E. M. Johnson at his death.

These deeds and the agreement are not in the record. They are summarized in the complaint. According to the averments of the complaint the deed dated 24 November 1947 conveys 38 tracts of land, and the deed dated 1 February 1951 conveys 37 tracts of land.

Plaintiffs and others by deed executed on 8 May 1951, and duly recorded, vested defendant Nash Johnson with all their right, title and interest 'in all of the lands of B. D. Johnson, deceased, situated in Duplin County and Pender County, or any other lands owned by B. D. Johnson at the time of his death, including all lands that he owned in fee and including all lands which he held an interest in.'

Plaintiffs and others, by a written power of attorney dated ---- day of ------, 1951, and duly recorded in Duplin County, appointed defendant Nash Johnson their attorney in fact to sell and convey all the merchantable timber from certain tracts of land in Duplin and Pender Counties described in the instrument, including 16 tracts consisting of several thousand acres, and authorized him to execute deeds incident to the sale or sales, and to receive the proceeds from such sale or sales for the use of plaintiffs and others.

Plaintiffs and others by a similar written power of attorney dated 2 April 1951, and duly recorded in Duplin County, appointed defendant Nash Johnson their attorney in fact to sell and convey all merchantable timber on all the lands which B. D. Johnson owned at his death, or in which he had an interest, and to receive and distribute the proceeds from such sale or sales to plaintiffs and the others according to their respective interests, less five per cent commissions and expenses of the sale or sales.

These powers of attorney are not in the record. They are summarized in the complaint.

The defendant Nash Johnson procured the execution and delivery of all the instruments set forth by fraud, the facts of which are averred in detail.

Plaintiffs aver on information and belief, that defendant Nash Johnson in the exercise of the powers vested in him by the powers of attorney, sold timber in the amount of $500,000. That he has never accounted to them for the proceeds of the sale or sales, and their distributive share of the proceeds amounts to at least $12,500.

Plaintiffs did not discover the fraud defendant Nash Johnson practiced upon them until on or about ---- September 1952, and could not in the exercise of reasonable diligence have discovered it earlier.

Wherefore plaintiffs pray that they have and recover of the defendant Nash Johnson the sum of $12,500 as the distributive share of the plaintiff John Fletcher Wallace in the proceeds from the sale of timber from the lands of B. D. Johnson, which he owned at the time of his death, or in which he owned an interest at such time.

In this case the complaint is for the recovery by the plaintiffs of at least $12,500, representing John Fletcher Wallace's distributive share as an heir at law of B. D. Johnson from the sale of timber by defendant Nash Johnson acting under the powers vested in him by powers of attorney on the lands which B. D. Johnson died seised and possessed of, or in which he had an interest, and to set aside for fraud the instruments set forth in the complaint. It would seem that the estate of E. M. Johnson is involved only to the extent that B. D. Johnson is a devisee under his will.

Defendant in his answer, inter alia, alleges that there is now pending on the civil issue docket of the Superior Court of Duplin County three prior actions between the same parties for the same cause instituted prior to this action, numbered A-7840, A-7842 and A-7844, and attaches the complaints in these cases to his answer, and incorporates them by reference therein.

Case number A-7840. The plaintiffs are the same as in the instant case. The defendants are different. In the instant case there is one defendant Nash Johnson. In case number A-7840 the defendants are Nash Johnson, his wife, the surviving sisters of E. M. Johnson, and his nephews and nieces. Case number A-7840 is an action to set aside by reason of fraud the deed dated 2 September 1946, the agreement dated 27 August 1947, 24 November 1947, and 16 April 1948, all of which are referred to above, and all of which relate to the estate of E. M. Johnson, deceased, and a partition proceeding relating to lands owned by E. M. Johnson at the time of his death and to have the plaintiff John Fletcher Wallace as a devisee under the last will and testament of E. M. Johnson, deceased, adjudged the owner of a 1/40th undivided interest in the realty owned by E. M. Johnson at the time of his death, to recover from the defendant Nash Johnson $1,000, as plaintiff John Fletcher Wallace's share under the will of E. M. Johnson, deceased, of the rents and profits received by Nash Johnson and B. D. Johnson from their joint operations of the farm lands owned by E. M. Johnson at the time of his death until the time of the death of B. D. Johnson, including the crop year 1950, and to recover from Nash...