37 S.E.2d 493 | N.C. | 1946
Petition to sell land for partition.
It is alleged that the feme petitioners and respondents, as the only children and heirs at law of Susan Jernigan, deceased, are tenants in common by inheritance of a tract of land in Johnston County, containing 88 1/2 acres, which their mother left undevised at the time of her death, 27 October, 1943.
The respondents denied the cotenancy and pleaded sole seizin, R. A. Jernigan to part of the land under deed from his father and mother, and Minnie (Jernigan) Raynor to the remainder, consisting of 42 3/4 acres, under deed executed by her widowed mother 26 May, 1941, and registered the same day.
The petitioners replied and attacked the validity of both deeds on the ground of alleged undue influence in their procurement. The claim of R. A. Jernigan was settled by consent judgment. The case was then tried out on the issue raised by the feme respondent's plea.
The jury returned the following verdict:
"1. Was the execution of the deed from Susan Jernigan to Minnie Raynor, dated May 26, 1941, procured by undue influence exerted by the said Minnie Raynor upon the said Susan Jernigan as alleged in the plaintiffs' pleadings? Answer: No."
From judgment on the verdict adjudging the respondent, Minnie Raynor, to be the owner of the 42 3/4 acres in question, the petitioners appeal, assigning errors. The first question arises upon the challenge to the sufficiency of the record to support the judgment.
The petition to sell the land for partition among the alleged tenants in common was duly filed with the Clerk of the Superior Court of Johnston County on 20 April, 1945. The feme respondent denied the cotenancy and pleaded sole seizin to a part of the land under a deed from the common ancestor, dated 26 May, 1941. The petitioners replied and attacked the validity of respondent's deed. The matter was transferred. to the civil issue docket for trial during term as in other special proceedings. G.S.,
When the petitioners offered the respondent's deed in evidence for purpose of attack, Higgins v. Higgins,
It is the rule with us, both in civil and criminal actions, that a verdict may be given significance and correctly interpreted by reference to the pleadings, the facts in evidence, admissions of the parties, and the charge of the court. Pierce v. Carlton,
Nor is the case of Lester v. Haward,
Secondly, the petitioners contend that they were not allowed the benefit of a factual presumption of fraud or undue influence which arises from the relationship of the parties, to wit, parent and child. McLeod v. Bullard,
The law on the subject was announced in Wessell v. Rathjohn,
"It may be that there are cases where a parent conveyed property to his child in which the presumption of fact is so strongly adverse to the latter, that the court ought to instruct the jury that they ought to find against the deed, unless the child shall prove to their satisfaction that it was fairly and honestly made; but in such a case, there must be evidence *208 tending to show, not simply that there might have been, but that there wasmala fides.
"The relation of parent and child, as to presumptions of fraud and theonus of proof to rebut the same, in business transaction between them, does not stand upon the same footing as the relation of trustee and cestui quetrust, guardian and ward, attorney and client, principal and agent, and like relations; it belongs to a different class of fiduciary relations, in which the presumption is not so strong, nor does it arise under the same circumstances. Besides, the presumption is always against the party having the superior or dominant position or control, and this in the case of parent and child is that of the parent. Lee v. Pearce,
A careful perusal of the record leaves us with the impression that no reversible error has been made to appear.
No error.