62 S.E. 744 | N.C. | 1908
The pleadings, evidence and verdict disclose the following case: Defendant, Enoch Morgan, was the owner of the tract of land described in the complaint, on which he resided for many years. He married thefeme defendant, Esther, the mother of the plaintiff, by a former marriage. Plaintiff was, at that time, about five years of age and lived with defendants, on the land in controversy, until he was about eighteen years of age. On 27 March, 1902, defendant, Enoch Morgan, executed his note to Charles N. Simpson for $248.35, and, to secure the payment thereof, he, with his wife, executed a mortgage on said land. On 24 August, 1903, the defendant Enoch Morgan, with his wife and plaintiff, executed a contract in writing, whereby the defendants agreed to convey to plaintiff the portion of said land described in the contract, being one-half of the tract, reserving to themselves and the survivor a life estate. Plaintiff, in consideration of said promise to convey, agreed to pay off and discharge the note and mortgage to Simpson, in annual installments of $40. It was further agreed, and so written in the contract, that if plaintiff was unable to pay said debt at the time Simpson demanded payment, he should find some one to carry it and, "if it should be necessary to that end, said Enoch Morgan and wife are to renew the note and mortgage." The contract concludes with these words: "Now, on payment of said note and mortgage, or any renewal or renewals thereof, the said Enoch Morgan and wife Esther are to execute and deliver to said J. Madison Cuthbertson a deed in fee simple for said tract of land, reserving a life estate for them and the survivor of them in that (74) portion above mentioned, and then this contract shall be fully performed." The contract was duly proven and recorded. Plaintiff paid $40 on the debt, and borrowed from L.S. Griffin the sum of $300 with which to pay the balance, executing to H.B. Adams, Esq., a deed in trust on the said land for the purpose of securing the payment of said $300. The following words are endorsed on the note: "Paid in full by J. Madison Cuthbertson, 5 January, 1907. C. N. Simpson." Plaintiff demanded that defendant execute a deed to him or join in the mortgage to secure the amount borrowed to take up the Simpson note, which defendant refused to do. Defendant claimed that, in addition to paying the Simpson note, plaintiff was to maintain and support his wife and himself, and that this promise was a part of the consideration for the conveyance of the land. He also claimed that this part of the agreement was omitted from the contract by the mistake or inadvertence of the draftsman. The defendant, at all times, continued to live on the land, cultivating or renting it, and using the produce made thereon; he made no demand upon plaintiff for any support. Morgan says: "I gave *55
it to him to pay Mr. Simpson a little money that was between me and him — no other consideration. He was to take care of me and my wife and see that we don't suffer for anything." There was testimony tending to sustain and also to contradict the defendant's contention in respect to the agreement to take care of him. Mr. Simpson, who drew the contract, testified that "all of the parties were present, that he drew the contract at the request of Enoch Morgan." "They all rehearsed what they agreed to do and asked me to fix the paper. I drew the paper and asked them if that was what they wanted, and they all agreed to it. I had them all then to sign it and I witnessed it. I just read it over to them; they told me what they wanted, and they agreed to the paper that I drew. This clause about providing for a renewal of mortgage in case I did not want to wait, was really a suggestion of mine, but they approved that part of it and readily assented to it." He says he (75) did not suggest to plaintiff to go into it; knew nothing about it until they came to him; he did not remember that anything was said about plaintiffs supporting defendants. Defendant Esther Morgan corroborated plaintiff and Simpson in regard to the agreement and what occurred when it was written. There was evidence that plaintiff put permanent improvements on the land. Upon issues submitted, the jury found that the contract was executed and written, and that defendant had refused to execute the mortgage in renewal of the one held by Simpson; that it was a part of the consideration of the contract that plaintiff should maintain and support the defendant, as alleged in the answer; that this part was omitted from the contract by mistake or inadvertence of the draftsman; that plaintiff had not complied with his part of the contract and that the value of the improvements put upon the land by plaintiff was $300. The plaintiff moved for judgment upon the verdict, that the contract be reformed in accordance with the verdict. Refused, and plaintiff excepted. He then moved for judgment for the value of his improvements. Refused, and plaintiff excepted. His Honor rendered judgment that plaintiff was not entitled to a conveyance of the land; that the debt due L.S. Griffin of $300 be declared a lien upon the land, and that defendant execute a mortgage to secure same. Plaintiff excepted. There were other exceptions to the admission and rejection of testimony and to instructions to the jury. Plaintiff appealed.
After stating the case: We have examined the record and exceptions in regard to the conduct of the trial, including his Honor's instructions to the jury, and find no prejudicial or reversible error. His *56
Honor instructed the jury, upon the issue directed to the alleged mistake in the contract, in accordance with the decisions of this (76) Court. It must, we think, be conceded that the evidence, in this respect, was not so "clear, cogent and convincing" as would have been required by a chancellor, under the procedure prevailing prior to the change in our system of administering equitable remedies. The weight of the evidence, conceding that all of the witnesses were speaking truly, was against the contention of the defendant in that respect. Having held, however, that although the evidence must be "clear, cogent and convincing" to entitle a party to correct or reform a written instrument, the court had no right to withhold the case from the jury. If there was more than a scintilla of evidence, we cannot hold, as a matter of law, that the evidence is not "clear, cogent and convincing," that being for the jury. Lehew v. Hewitt,
But we are of the opinion that, as reformed, the provision in regard to support was not a condition but a covenant, the performance of which should be secured by declaring it a charge on plaintiff's interest in the land to be enforced in such way as the court may determine. We had occasion to consider a similar question in Helms v. Helms,
Modified and affirmed.
Cited: Gray v. Jenkins,