43 N.C. App. 386 | N.C. Ct. App. | 1979
The defendant does not contend there was a mistake in the option which provided that the consideration for the sale would be paid to plaintiff and defendant. He does contend that in spite of the option’s terms the plaintiff agreed that the note and deed of trust would be drawn so that the full purchase price would be paid to the defendant, and it was a mistake on the part of the draftsman that the note and deed of trust were not so drawn. The question raised by this appeal is whether this contention of the defendant presents a genuine issue of material fact. G.S. 1A-1, Rule 56; Executive Leasing Associates v. Rowland, 30 N.C. App. 590, 227 S.E. 2d 642 (1976).
Based on the defendant’s affidavit, it appears that when the option was made, which provided the note would be payable to plaintiff and defendant, the defendant gave plaintiff one-half the proceeds of the proposed sale. A gift is presumed when a husband has the title to personal property placed in his and his wife’s joint names. Underwood v. Otwell, 269 N.C. 571, 153 S.E. 2d 40 (1967). Defendant by his affidavit offers nothing that would rebut this presumption of gift. He does contend that at the time the note and deed of trust were executed, the draftsman was told, with the consent of the plaintiff, to make the note payable to defendant. He does not state there was any consideration for this transfer by the wife of her share of the note to him. Plaintiff, relying on Tile and Marble Co. v. Construction Co., 16 N.C. App. 740, 193 S.E. 2d 338 (1972), contends there must be consideration to support the transfer by plaintiff to defendant of her interest in the note. That case involved an executory contract. The defendant in the case sub judice has offered evidence by way of affidavit that the plaintiff consented to his instruction to the draftsman to make the note payable to him. No consideration would be required for this fully executed agreement. 17 Am. Jur. 2d, Contracts, § 86, p. 429. The defendant in effect says by his affidavit
We hold it was error for the court to enter a summary judgment for plaintiff.
Reversed and remanded.
