98 S.E. 830 | N.C. | 1919
The action is to have a written deed for two tracts of land from plaintiff to defendant, absolute in terms and for value, declared and dealt with as a mortgage to secure about $2,000, with accrued interest, exact amount indefinite, on allegation and proof tending to show that at the time the deed was executed there was a parol agreement between the parties that the same should stand as mortgage to secure said amount and plaintiff should have as much as three years (304) to redeem same.
There was denial of the agreement by the defendant with averment and proof tending to show that the deed was absolute in term for a full and valuable consideration paid to the plaintiff.
On issues submitted the jury rendered the following verdict:
1. Did the defendants procure the deed, dated 6 January, 1915, in form a fee simple, upon the promise that plaintiff should have the right to redeem the land therein described upon payment of money advanced for plaintiff? Answer: "Yes."
If so, what is amount of debt due by plaintiff to defendants to secure the land in controversy? Answer: "$2,862, with interest from 6 January, 1915."
Judgment on the verdict for plaintiff, and defendant excepted and appealed.
It is the law of this State that "a written deed, absolute in terms, cannot be changed into a mortgage except upon allegation and proof that the clause of redemption was omitted by reason of ignorance, mistake, fraud, or undue advantage." This position was approved and confirmed in the recent case of Newton v. Clark,
It is nowhere alleged in the pleadings that the clause of redemption was omitted by mistake, nor do we find that any proof was offered to that effect nor is it established by the verdict. This is not a case then of a defective statement of a cause of action which has been in any way supplemented or curved but the case presented is one where a fact, essential to support a judgment in plaintiff's favor, is entirely lacking and the same must therefore be set aside. Warlick v. Plonk,
It is said that a Supreme Court decision in that class of cases does not constitute the law but is only evidence of it, and the general rule is that when a court of last resort has felt called on to overrule such a decision it is not thereafter considered bad law but as never having been the law applicable in such case.
Mason v. Cotton Co., supra, and authorities cited: Ram on Judgments, ch. 3, p. 47, and the question of how far it should serve to protect intervening rights, is largely in the discretion of the court that rendered it. Black on the Law of Judicial Precedents, p. 187; dependent on the character of the decision itself, that is, whether it is sufficiently definitive and purposts to establish a given principle; the nature of the right for which protection is claimed and whether it was considered and reasonably relied upon in the case presented, and how far a sound public policy is involved and must be allowed to affect the question. The principle appearing in Fuller v. Jenkins is in direct antagonism to the law of this State, as established by a current of decisions, well nigh from the beginning of the Court, certainly as far back as Streator v. Jones,
". . . 2. Where the decisions of the Supreme Court are conflicting or are so recently made that the parties cannot be presumed to have contracted in reference thereto, the doctrine of stare decisis cannot be invoked in support of a contract." In Stockton, Trustee v. The Duncan Mfg. Co.,
For the reasons indicated we are of opinion, as stated, that the facts established by the verdict and shown in the record are insufficient to support the judgment and that the same must be set aside and a new trial had, with leave given to plaintiff to amend his pleadings, making further averment of his cause of action if the facts available should justify such a course.
Error.
Cited: Newbern v. Newbern,