84 N.C. 293 | N.C. | 1881
The said John B. Morris now makes application, verified November 6th, 1879, on oath, for a reformation of so much of the judgment as substitutes the defendant Tomlinson to his rights and interests and recognizes the efficacy of the assignment; and he alleges that the assignment was procured *295 by the fraud of the trustee and the concealment of the true condition of the fund, through the agency of Tomlinson acting surety for him; that the suit was brought without his knowledge or consent, nor did he know until long after the judgment that the said Tomlinson was a party to the proceedings, and he asks that the money now in, and about to be paid into, the clerk's office, claimed by him, be retained and he restrained from receiving or disposing of it, until the validity of the assignment shall be determined.
The defendants, Willard and Tomlinson, explicitly deny every imputation of fraud, imposition or concealment, giving a minute and detailed explanation of the transactions resulting in the sale and assignment, and attributing the great advancement in value of the property since to the growth and prosperity of Durham, but not up to the estimate put upon it by said Morris. These statements accepted as truthful, repel every allegation of fraud and unfairness and show that the sale was the voluntary and deliberate choice and act of Morris himself without influence from either of them. A court of equity never interferes with an owner's disposition of his property when not procured by fraud or false representations or other improper artifice, however insufficient the consideration may be, if it be his voluntary act. Inadequacy of price is only regarded as evidence of imposition and undue advantage taken, and often raises a presumption almost insurmountable, with other circumstances of the fraud. Winslow v. Wood,
But the testimony is essentially conflicting and the complaint presents the case of a trustee dealing with a cestui que trust, through an intermediate agency, and for an *296
insignificant price obtaining a transfer of part of the trust estate, and if this be correct, relief would without hesitation be afforded. Lee v.Pearce,
The allegation that the action was instituted without the knowledge or authority of said Morris, and his ignorance of the fact that the assignee was a party, meets with no response from either defendant in their respective answers, and if so, the judgment ought not to be conclusive against his right to have it reopened as far as it affects himself. The defendant, Tomlinson, in his answer seems to have been under the impression that the said Morris was not a party and explains the supposed absence of his name upon the ground that his entire interest had been transferred; and he refers to and adopts as his own the answer of his co-defendant, Willard, which relies upon that fact as an estoppel resting upon him.
Upon the consideration of the controversy at this preliminary stage, we concur in the ruling of the court in retaining the fund and issuing the restraining order, and affirm the judgment. Let this be certified.
No error. Affirmed. *297