41 S.E. 11 | N.C. | 1902
Lead Opinion
after stating the facts. This action was brought by the plaintiffs, K. Sallenger and W. H. Sallenger, administrator of Bettie Sallenger, against the defendants, J. W. Perry and George ITenneberry, to prevent the sale of the land and to have an account taken as to the amount which might be due upon the $1,000 note executed by Mrs. Sallenger and the plaintiff K. Sallenger to' J. W. Perry & Co., with a view of declaring whatever balance may be found to be due, and for the return to the plaintiff W. H. Sallenger, administrator of Mrs. Bettie Sallenger, of the Willoughby notes for the purposes of administration.
The contention of the plaintiffs, of course, is that the Wil-loughby notes, though made payable.to K. Sallenger, were nevertheless the property of Mrs. Sallenger, that they were deposited with the defendant I. W. Perry, trading as J. W. Perry & Co., as collateral security to the $1,000 note of Mrs. Sallenger, which was secured by deed of trust on her own land, and, therefore, that after the payment of the balance due on the $1,000 note, the Willoughby notes should be returned to her administrator in order that her debts might be paid and that her encumbered real estate might be relieved and descend to her children; and that the Willoughby notes could not be applied to-the indebtedness of K. Sallenger to the J. W. Perry Co. It became the chief question in the case to find out who
Upon this question an issue was submitted to the jury (the fifth in a series), “To whom did the Willoughby notes belong at the time they were assigned to J. W. Perry & Co. ?” Ilis Honor charged the jury upon that issue, “That the burden was upon the plaintiff to establish the affirmative of the issue, No. f>, by a preponderance of the evidence, that if the plaintiffs had satisfied the jury by a preponderance of the evidence that the Willoughby notes were by mistake made payable to K. Sal-lenger, instead of to B. Sallenger, then they should answer the fifth issue, ‘B. Sallenger.’ ”
We think there was error in the instruction. Usually in .civil cases the issues are determined by a preponderance of the evidence, but there are exceptions to the rule, and it seems to us that this case falls within the exceptions. In the case of a deed, the meaning of the parties is to be found within its terms, and the law refuses to allow parol evidence to alter, add to, or vary that meaning, as a general rule.- A deed is, between the parties, their agreement and understanding reduced to' writing, and itself constitutes evidence of that meaning next- to conclusive; and it ought .not to be changed, except upon the clearest evidence of fraud or mistake.
Under the former practice, the Courts of law were not open for the correction of deeds for fraud or mutual mistake, but the complaining party had to seek relief in equity, and in that case, before the Chancellor would correct the instrument, the
Error.
Dissenting Opinion
dissenting.
I agree to the rule laid down as to evidence, but do not think it applies to this case.
Dissenting Opinion
dissenting.
I can not concur in the opinion of the Court, because, to my mind, it is erroneous in theory and totally unsupported by authority. There is no analogy between a deed which is sought to be corrected as between the parties, and a note which the payee himself says was erroneously made payable to himself. There is no testimony to the contrary, and if the jury believed the evidence they were compelled to find as they did. The notes were not used by the husband as his own, but were hypothecated as collateral security for the note of the wife. The testimony all tends to show that these notes were the proceeds of the sale of land belonging to the wife. They were, therefore, her property. But it is said that she may have given the notes’ to her husband. If that is true, it devolves upon the defendant to prove it. There is certainly no presumption to that effect. Suppose that the husband had purchased land in his own name with money belonging to his wife, a resulting trust would at once arise in favor of the wife. She need not prove that there was any mutual mistake in making the deed to the husband. She would simply be required to show that the purchase-money was her own, and a resulting trust would at once be created by operation of law. The rule almost universally adopted by text-writers and approved by the Courts, is that laid down by Lord Chief Baron Eyre in Dyer v. Dyer, 2 Cox, 93, which is as follows: “The clear result of all the cases, without a single exception, is that the trust of a legal estate, whether taken in the names of the purchaser and others jointly, or in the names of others without the purchaser, whether in one or several, whether jointly or successive, results to the man who advances the purchase-money.” If this rule universally applies to men sui juris, with how much greater force should it
Lead Opinion
FURCHES, C. J., and DOUGLAS, J., dissenting. This action was brought by the plaintiffs, K. Sallenger and W. H. Sallenger, administrators of Bettie Sallenger, against the defendants, J. W. Perry and George Henneberry, to prevent the sale of the land and to have an account taken as to the amount which might be due upon the $1,000 note executed by Mrs. Sallenger and the plaintiff K. Sallenger to J. W. Perry Co., with a view of declaring whatever balance may be found to be due, and for the return to the plaintiff W. H. Sallenger, administrator of Mrs. Bettie Sallenger, of the Willoughby notes for the purposes of administration.
The contention of the plaintiffs, of course, is that the Willoughby notes, though made payable to K. Sallenger, were nevertheless the property of Mrs. Sallenger; that they were deposited with the defendant J. W. Perry, trading as J. W. Perry Co., as collateral security to the $1,000 note of Mrs. Sallenger, which was secured by deed of trust on her own land, and, therefore, that after the payment of the balance due on the $1,000 note, the Willoughby notes should be returned to her administrator in order that her debts might be paid and that her encumbered real estate might be relieved and descend to her children; and that the Willoughby notes could not be applied to the indebtedness of K. Sallenger to the J. W. Perry Company. It became the chief question in the case to find out who was real owner of the Willoughby notes. If Mrs. Sallenger (137) was the owner, then, she not having been a party to the attachment proceedings in Virginia, the plaintiff W. H. Sallenger, her administrator, is still the owner of the notes; or, if they can not be had, is entitled to their value against the defendant J. W. Perry for their misapplication. If the notes were in fact the property of K. Sallenger, then, the attachment proceedings being apparently regular, their proceeds have been properly applied to his debt to the J. W. Perry Company.
Upon this question an issue was submitted to the jury (the fifth in a series), "To whom did the Willoughby notes belong at the time they were assigned to J. W. Perry Co.?" His Honor charged the jury upon that issue, "That the burden was upon the plaintiff to establish the affirmative of the issue, No. 5, by a preponderance of the evidence; that if the plaintiffs had satisfied the jury by a preponderance of the evidence that the Willoughby notes were by mistake made payable to K. Sallenger, instead of to B. Sallenger, then they should answer the fifth issue, `B. Sallenger.'"
We think there was error in the instruction. Usually, in civil cases *97 the issues are determined by a preponderance of the evidence, but there are exceptions to the rule, and it seems to us that this case falls within the exceptions. In the case of a deed, the meaning of the parties is to be found within its terms, and the law refuses to allow parol evidence to alter, add to or vary that meaning, as a general rule. A deed is, between the parties, their agreement and understanding reduced to writing, and itself constitutes evidence of that meaning next to conclusive; and it ought not to be changed, except upon the clearest evidence of fraud or mistake.
Under the former practice the courts of law were not open for the correction of deeds for fraud or mutual mistake, but the complaining party had to seek relief in equity, and in that case, before the chancellor would correct the instrument, the evidence was (138) required to be satisfactory, that is, "clear, strong and convincing," as was said in Ely v. Early,
Error.
