Willetts v. Willetts, 597

• Decision Date: 01 March 1961
• Docket Number: No. 597,597
• Citation: 118 S.E.2d 548,254 N.C. 136
• Court: North Carolina Supreme Court
• Parties: George F. WILLETTS v. H. L. WILLETTS.

Page 548

118 S.E.2d 548

254 N.C. 136

George F. WILLETTS v. H. L. WILLETTS.

No. 597

Supreme Court of North Carolina.

March 1, 1961

Kellum & Humphrey, Wilmington, and Kirby Sullivan, Southport, for plaintiffs-appellants.

Herring, Walton & Parker, Southport, for defendant-appellee.

BOBBITT, Justice.

The question is whether the evidence, considered in the light most favorable to plaintiffs, is sufficient to support the cause of action alleged by George F. Willetts. Plaintiffs have no legal rights except those derived from George F. Willetts, their father. Holt v. Holt, 232 N.C. 497, 61 S.E.2d 448, and cases cited.

There is testimony that the words 'G. F. Willetts, Pink McDowell, Joseph McDowell, J. D. Greer land, G. K. Lewis, R. M. Robbins,' preceding the particular description in the subject deed, are in the handwriting of C. Ed. Taylor, an attorney who died October 16, 1943. Apart from this, no evidence was offered as to the identity of the draftsman or as to the circumstances attending the drafting of the subject deed.

No evidence was offered as to what occurred on March 9, 1936, when George F. Willetts and wife, Mary L. Willetts, executed and acknowledged the subject deed before A. M. Beck, Justice of the Peace. In this connection, it is noted: Mary L. Willetts died June 15, 1951. George F. Willetts died February 20, 1958. No evidence was offered as to whether A. M. Beck was living at the time of the trial. In any event, A. M. Beck did not testify.

Plaintiffs' evidence was insufficient to support the allegations that defendant made false and fraudulent representations to George F. Willetts to the effect the subject deed contained provisions embodying the alleged oral agreement to reconvey or to support the allegations that such provisions were omitted from the subject deed by mistake of the draftsman.

Plaintiffs assert defendant had the means and power to take advantage of his father by reason of the alleged confidential and fiduciary relationship.

'The law is well settled that in certain known and definite 'fiduciary relations, if there be dealing between the parties, on the complaint of the party in the power of the other, the relation of itself and without other evidence, raises a presumption of fraud, as a matter of law, which annuls the act unless such presumption be rebutted by proof that no fraud was committed, and no undue influence or moral duress exerted.' Lee v. Pearce, 68 N.C. 76. Among these, are, (1) trustee and cestui que trust dealing in reference to the trust fund, (2) attorney and client, in respect of the matter wherein the relationship exists, (3) mortgagor and mortgagee in transactions affecting the mortgaged property, (4) guardian and ward, just after the ward arrives of age, and (5) principal and agent, where the agent has entire management so as to be, in effect, as much the guardian of his principal as the regularly appointed guardian of an infant.' McNeill v. McNeill, 223 N.C. 178, 181, 25 S.E.2d 615, 616, and cases cited.

It is well settled that the mere relation of parent and child does not raise the presumption of fraud. Walters v. Bridgers, 251 N.C. 289, 111 S.E.2d 176, and cases cited.

As to the actual relationship between defendant and his father prior to the execution of the subject deed, the evidence tends to show these facts:

The home in which plaintiffs and defendant were reared was on the land described in the subject deed. Apparently, defendant was the oldest child. He went to grade school in Brunswick County but did not attend high school or college. After 1921 or 1922, defendant, then married, did not live with his parents or on the tract of land described in the subject deed. Until 1931, he lived approximately one-half mile from his parents' home. After 1931, he lived approximately a mile and a half from his parents' home.

Two of the plaintiffs (Mrs. Alburger and Mrs. Thomas) had left their parents' home to pursue occupations elsewhere. One (Roger W. Willetts) was in college. (Note: Mrs. Cyphers left in July, 1936. Mrs. Potter left when '23 years old,' but the record does not disclose her age.) The record leaves the impression that, subsequent to March, 1936, such time as these plaintiffs spent in their parents' home was principally while on visits until Mrs. Cyphers and Mrs. Thomas returned in 1953 or thereafter.

There is evidence that defendant assisted his father in farming and in marketing his crops and livestock, and that his father often requested defendant's advice in connection with his business affairs and problems. Too, there is evidence that the property of George F. Willetts was listed for taxes for 1933, 1934, 1935 and 1936 in the name of George F. Willetts by H. L. Willetts. In the listing for 1933, the return was signed by H. L. Willetts 'as agent.'

In March, 1936, George F. Willetts was 61 years of age. Defendant was 36. There is neither allegation nor evidence that George F. Willetts was mentally or physically incapable of transacting business in March, 1936. Mrs. Thomas, one of the plaintiffs, testified: 'My father was not a little bit weak-minded. I said that my father was perfectly capable of taking care of his own business up until the day he died. * * * in 1936 he was perfectly capable of taking care of his own business and I know that during his life and during those years in the 1930's there was not any time when he was sick or unable or when his mind was gone. His mind was all right.'

In our opinion, the evidence is insufficient to establish that defendant's relationship to his father in March, 1936, was that of a fiduciary within the meaning of the fifth category of fiduciary relations set forth in McNeill v. McNeill, supra. The evidence leaves the impression that all defendant did was to assist his father when called upon to do so. Indeed, Roger W. Willetts, one of the plaintiffs, testified: 'I would think that if my father asked Sinker (defendant) for any advice it would be his duty to give it to him. There is nothing wrong with that so far as I know.' This witness, a college graduate and Education Officer for the U. S. Army Transportation Corps, stationed at Williamsburg, Virginia, testified as to his own relationship with his father: 'My father and I were real close. If my father asked any advice about what to do on any matter, of course, I would give it to him to the best of my ability. I would think that was my duty as a son.'

There is no evidence tending to show any incident or transaction either before or after the execution and delivery of the subject deed in which defendant exercised or attempted to exercise a dominating influence over his father. Moreover, the allegations as to fraud relate solely to alleged misrepresentations as to the contents of the subject deed.

The foregoing impels the conclusion that the evidence is insufficient to establish that, at the time of the execution and delivery of the subject deed, defendant's relationship to his father was such a confidential and fiduciary relationship as to give rise to the presumption of fraud.

We have not overlooked plaintiffs' contention that, at and prior to the execution and delivery of the subject deed, defendant occupied the status of mortgagee and his father the status of mortgagor in respect of the land described therein. As to this, the complaint contains no allegations as to such mortgagor-mortgagee relationship. The evidence relevant to this contention is as follows: In 1917, prior to his execution of the mortgage securing the Brooks debt, George F. Willetts had executed a mortgage to J. C. Potter. The Potter mortgage covered a tract of 150 acres which included the land conveyed by the subject deed. Upon payment of the Potter debt (presumably by George F. Willetts) in 1930, the Potter mortgage was assigned to H. L. Willetts. It was not cancelled of record until March, 1936, when the new loan obtained by defendant from C. Ed. Taylor, Guardian, was closed. The cancellation in March, 1936, was authorized by 'H. L. Willetts, assignee.' Mrs. Alburger, one of the plaintiffs, testified that defendant told her the Potter paper was assigned to him 'so that he could use that as collateral at any time that he might need it for business reasons.' There is no evidence that defendant at any time had or asserted a claim against his father on account of the Potter mortgage or that defendant ever used the Potter mortgage as collateral to borrow money either for himself or for his father. (Note: The Brooks mortgage, which was executed in 1919, contained a provision to the effect that it was made subject to the said Potter mortgage.) Apart from the absence of allegation, the evidence is insufficient, in our opinion, to establish that George F. Willetts was obligated to defendant in March, 1936, in the relationship of mortgagor to mortgagee.

Absent sufficient evidence to establish that defendant procured the subject deed by fraud or mistake of the draftsman, plaintiffs' case rests upon the breach by defendant of the alleged oral agreement to reconvey.

A well established rule is stated by Hoke, J. (later C. J.), in this oft-quoted exerpt from his opinion in the case of Gaylord v. Gaylord, 150 N.C. 222, 227, 63 S.E. 1028, 1031: 'Upon the creation of these estates (parol trusts), however, our authorities seem to have declared or established the limitation that except in cases of fraud, mistake or undue influence, a parol trust, to arise by reason of the contract or agreement of the parties thereto, will not be set up or engrafted in favor of the grantor upon a written deed conveying to the grantee the absolute title, and giving clear indication on the face of the instrument that such a title was intended to pass.' (Our italics)

In Loftin v. Kornegay, 225 N.C. 490, 35 S.E.2d 607, 608, Denny, J., says: 'A parol agreement in favor of a grantor, entered into at the time of or prior to the execution of a deed, and at variance with the written conveyance is...