Jernigan v. . Jernigan
37 S.E.2d 493
N.C.
1946
Check Treatment
*206 Stacy, O. J.

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., 1-399. For all practical purposes, this converted the proceeding into an action to try title to the land claimed by the respondent, with the burden on the petitioners as in ejectment. Gibbs v. Higgins, 215 N. C., 201, 1 S. E. (2d), 554; Bailey v. Hayman, 218 N. C., 175, 10 S. E. (2d), 667; S. c., 222 N. C., 58, 22 S. E. (2d), 6; Ditmore v. Rexford, 165 N. C., 620, 81 S. E., 994; McIntosh on Procedure, 1060. Specifically, the burden was on the petitioners to show title as alleged, i.e., title by tenancy in common. Sipe v. Herman, 161 N. C., 108, 76 S. E., 556; Alexander v. Gibbon, 118 N. C., 796, 24 S. E., 748; Huneycutt v. Brooks, 116 N. C., 788, 21 S. E., 558. See Bailey v. Hayman, 220 N. C., 402, 17 S. E. (2d), 520.

When the petitioners offered the respondent’s deed in evidence for purpose of attack, Higgins v. Higgins, 212 N. C., 219, 193 S. E., 159, and failed to make good the attack, they thereby fell short of showing the alleged tenancy in common. Huneycutt v. Brooks, supra. In fact, they regarded it as showing just the reverse. And while the issue submitted to the' jury deals only with the allegation of undue influence in the procurement of respondent’s deed, the verdict seems sufficient to support the judgment when considered in the light of the record and the theory of the trial. McKeel v. Holloman, 163 N. C., 132, 79 S. E., 445. It is stated in the case on appeal that, after a consent judgment was entered as to R. A. Jeringan, “the question of the sufficiency of the deed to Minnie Raynor . . . was left to be tried.” This was the battle ground selected by the petitioners and accepted by the respondent. Shipp v. Stage Lines, 192 N. C., 475, 135 S. E., 339. Having thus proceeded in the trial court, the appeal ex necessitate rests upon the same premise. Simons v. Lebrun, 219 N. C., 42, 12 S. E. (2d), 644; Gorham v. Ins. Co., 214 N. C., 526, 200 S. E., 5; Apostle v. Ins. Co., 208 N. C., 95, 179 S. E., 444.

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, 184 N. C., 175, 114 S. E., 13; Kannan v. Assad, 182 N. C., 77, 108 S. E., 383; Howell v. Pate, 181 N. C., 117, *207 106 S. E., 454; Reynolds v. Express Co., 172 N. C., 487, 90 S. E., 510; Bank v. Wilson, 168 N. C., 557, 84 S. E., 866; S. v. Cody, 224 N. C., 470, 31 S. E. (2d), 445; S. v. Morris, 215 N. C., 552, 2 S. E. (2d), 554; S. v. Whitley, 208 N. C., 661, 182 S. E., 338. Tested by tbis rule, it would seem that the exception addressed to the alleged inadequacy of the verdict to support the judgment should be overruled. Pierce v. Garitón, supra. It was conceded on the hearing, and at the bar here, that unless respondent’s deed was procured by overreaching or undue influence, it conveys 42%-aere tract. The petitioners say in their brief: “Under the rule applicable in an action of ejectment, when an instrument relied upon is introduced as part of the chain of title, it is then open to attack for all purposes on the general issue, regardless of whether the instrument is introduced by the plaintiff for the purpose of attack. Higgins v. Higgins, 212 N. C., p. 220.” The verdict, then, was intended to establish, and does establish, the validity of respondent’s title.

Nor is the case of Lester v. Haward, 173 N. C., 83, 91 S. E., 698, presently helpful to the petitioners, for, there, the single issue of sole seizin was answered against the respondents, without any further matters appearing of record to support the judgment quod recuperet. Newbern v. Gordon, 201 N. C., 317, 160 S. E., 182.

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, 84 N. C., 516; Lee v. Pearce, 68 N. C., 76; Abbitt v. Gregory, 201 N. C., 577, 160 S. E., 898. In answer to this position, it suffices to point out that while the adult daughter acquired the 42% acres of land from her mother in 1941, there is no evidence of any confidential or fiduciary relation, existing between them at the time, which would give rise to a presumption of fraud. Gerringer v. Gerringer, 223 N. C., 818, 28 S. E. (2d), 501; In re Will of Atkinson, 225 N. C., 526; In re Craven, 169 N. C., 561, 86 S. E., 587. The mother lived in her home; the daughter in hers a quarter of a mile away. The mother managed her own affairs; the daughter helped her in her old age. This seems to be all. In re Craven, supra. “The mere relation of parent and child does not raise a presumption of undue influence.” Gerringer v. Gerringer, supra.

The law on the subject was announced in Wessell v. Rathjohn, 89 N. C., 377, as follows:

“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 was mala fides.
“The relation of parent and child, as to presumptions of fraud and the onus of proof to rebut the same, in business transactions between them, does not stand upon the same footing as the relation of trustee and cestui que trust, 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, 68 N. C., 76; Wright v. Howe, 52 N. C., 412; Horah v. Knox, 87 N. C., 483; McConnell v. Caldwell, 73 N. C., 338; Big. Fraud, 190, 264, 265; Best Presumptions, 43 et seq.”

A careful perusal of the record leaves us with the impression that no reversible error has been made to appear.

No error.