Williamson v. Rabon

• Decision Date: 15 April 1919
• Docket Number: 286.
• Parties: WILLIAMSON v. RABON ET AL.
• Court: North Carolina Supreme Court

98 S.E. 830

177 N.C. 302

WILLIAMSON v. RABON ET AL.

No. 286.

Supreme Court of North Carolina

April 15, 1919

Appeal from Superior Court, Columbus County; C. C. Lyon, Judge.

Action by N. L. H. Williamson against F. J. Rabon and another. Judgment for plaintiff, and defendants appeal. Error.

A written deed absolute in terms cannot be changed into a mortgage except upon allegation and proof that the clause of redemption was omitted by reason of ignorance, mistake fraud, or undue advantage.

The action is to have a written deed for two tracts of land from plaintiff to defendant, absolute in terms and for value declared and dealt with as a mortgage to secure about $2,000 with accrued interest, exact amount indefinite, on allegation and proof tending to show that, at the time the deed was executed, there was a parol agreement between the parties that the same should stand as mortgage to secure said amount and plaintiff should have as much as three years to redeem same.

There was denial of the agreement by the defendant, with averment and proof tending to show that the deed was absolute in term for a full and valuable consideration paid to the plaintiff.

On issues submitted, the jury rendered the following verdict:

"(1) Did the defendants procure the deed, dated January 6, 1915, in form a fee simple upon the promise that plaintiff should have the right to redeem the land therein described upon payment of money advanced for plaintiff? Answer: Yes.

If so, what is amount of debt due by plaintiff to defendants to secure the land in controversy? Answer: $2,862, with interest from January 6, 1915."

Irvin B. Tucker and H. L. Lyon, both of Whiteville, for appellants.

McLean, Varser & McLean, of Lumberton, and Lewis & Powell, of Whiteville, for appellee.

HOKE J.

It is the law of this state that--

"A written deed, absolute in terms, cannot be changed into a mortgage except upon allegation and proof that the clause of redemption was omitted by reason of ignorance, mistake, fraud, or undue advantage."

This position was approved and confirmed in the recent case of Newton v. Clark, 174 N.C. 393, 93 S.E. 951, and it was there further held that--

"Parol evidence that a deed to lands was made on an agreement to reconvey the same to the grantor on a certain contingency is incompetent to establish a parol trust in the grantor's favor," etc., citing a long line of authorities in support of both positions.

The opinion then quotes with approval from Pearson, Judge, in Sowell v. Barrett, 45 N.C. 54, as follows:

"Since Streator v. Jones, 10 N.C. 423, there has been a uniform current of decisions, by which these two principles are established in reference to bills which seek to correct a deed, absolute on its face, into a mortgage or security for a debt: (1) It must be alleged, and of course proven, that the clause of redemption was omitted by reason of ignorance, mistake, fraud, or undue advantage; (2) the intention must be established not merely by proof of declarations, but by proof of facts and circumstances, dehors the deed, inconsistent with the idea of an absolute purchase. Otherwise, titles evidenced by solemn deeds would be at all times exposed to the 'slippery memory of witnesses."'

And proceeds: "These principles are fully discussed in Kelly v. Bryan, 6 Ired. Eq. 41 N.C. 283, and it is useless to elaborate them again. This excerpt from the opinion has been quoted literally and with approval in Bonham v. Craig, 80 N.C. 224; Watkins v. Williams, 123 N.C. 170 ; Porter v. White, 128 N.C. 43 . And the same principle is declared in different language in Kelly v. Bryan, 41 N.C. 286; Brown v. Carson, 45 N.C. 272; Briant v. Corpening, 62 N.C. 325; Edgerton v. Jones, 102 N.C. 283 ; Norris v. McLam, 104 N.C. 160 ; Sprague v. Bond, 115 N.C. 532 ."

And in negation of the right to establish a parol trust in favor of the grantor, cites Gaylord v. Gaylord, 150 N.C. p. 228, 63 S.E. 1028.

It is nowhere alleged in the pleadings that the clause of redemption was omitted by mistake, nor do we find that any proof was offered to that effect, nor is it established by the verdict. This is not a case, then, of a defective statement of a cause of action which has been in any way supplemented or cured, but the case presented is one where a fact, essential to support a judgment in plaintiff's favor, is entirely lacking, and the same must therefore be set aside. Warlick v. Plonk, 103 N.C. 81, 9 S.E. 190; Emery et ux. v. R. R., 102 N.C. 209, 9 S.E. 139, 11 Am. St. Rep. 727. In the latter case, the principle is stated as follows:

"The verdict, whether in response to one or many issues, must establish facts sufficient to enable the court to proceed to judgment."

We were referred by counsel for plaintiff to the case of Fuller v. Jenkins, 130 N.C. 554, 41 S.E. 706, as an authority to the effect that a deed, absolute in form, may be changed into a mortgage by reason of a cotemporaneous parol agreement to that effect and without allegation or proof that the clause of redemption was omitted by mistake or fraud, etc., and it is insisted that the principle of stare decisis may be invoked in support of the present proceedings and in protection of the rights and interests arising to plaintiff while that case expressed the ruling of the Supreme Court on the question presented. The doctrine of stare decisis or the principle of adherence to judicial precedents is fully established in this state and, in proper instances, will continue to be steadfastly upheld. Mason v. Cotton Co., 148 N.C. 492, 62 S.E. 625, 18 L. R. A. (N. S.) 1221, 128 Am. St. Rep. 635, and Hill v. R. R., 143 N.C. 539, 55 S.E. 854, 9 L. R. A. (N. S.) 606. The position recognized in Fuller v. Jenkins having been entirely disapproved in the later case of Newton v. Clark, supra, the doctrine is not in strictness presented by the record, and the question recurs on the effect to be allowed the case of Fuller v. Jenkins as a precedent in support of the interest which plaintiff is here endeavoring to assert.

While a single decision may become a precedent sufficiently authoritative to protect rights acquired during its continuance, such a case more frequently occurs in the construction of statutes applicable, in which case an authoritative interpretation, formally made by a court of last resort, is thereafter considered a part of the law itself and may be invoked to protect titles acquired and investments made on the faith of the principle so recognized and declared. In decisions, however, declaratory of the common law or of general equitable principles, in order to establishment of such a precedent, it is more usually required that there be a series of decisions on a given subject, or, if one, that it be so definitive in its terms and so generally acquiesced in and acted on that it has come...