166 S.E. 398 | N.C. | 1932
The facts: (1) J. L. Michael and wife, L. B. Michael, on 25 April, 1921, conveyed a certain lot of land located in the city of Lexington, Davidson County, North Carolina, describing same by metes and bounds, to Will Willis and Mary Willis, who were husband and wife. Said deed is recorded in the office of the register of deeds for Davidson County, North Carolina, Book 109, p. 142. The consideration was $450. (2) Will Willis, on 19 June, 1928, conveyed one-half interest in the said land to the plaintiff Mary Willis "in consideration of one dollar and other considerations." In said deed is the following warranty clause: "And the said party of the first part, for themselves and their heirs, executors and administrators, covenant with said party of the second part, heirs and assigns, that he is seized of said premises in fee and has right to convey the same in fee simple; that the same are free and clear from all encumbrances, and that he do hereby forever warrant and will forever defend the said title to the same against the claims of all persons whomsoever." Said deed is duly recorded in the office of the register of deeds for Davidson County, North Carolina, Book 109, page 198.
At the February Term, 1931, of Davidson County Superior Court, Will Willis was decreed an absolute divorce from Mary Willis, on the ground of adultery "that the bonds of matrimony between the plaintiff and defendant be forever dissolved." The plaintiff Mary Willis brought this action against defendants for the possession of the land. Defendants denied plaintiff's right to recover on the grounds: (1) That the deed of Will Willis to Mary Willis executed on 19 June, 1928, is void and does not convey any interest whatsoever; (2) that the consideration was that the plaintiff stay at home as a wife should do and "quit running around with other men."
It is further more fully alleged by defendants: "That if said deed made by Will Willis to Mary Willis on 19 June, 1928, did not reserve a life estate to Will Willis, there was a mistake and misunderstanding in the drafting of said deed and the execution of the same and this defendant Will Willis alleges that the said deed should be reformed to conform to the agreement. . . . That the plaintiff knowingly and wilfully at the time the deed of Will Willis to Mary Willis was made, on 19 June, 1928, entered into the agreement with the defendant, to stay at home and `quit running around with other men,' for the purpose of cheating and defrauding the defendant Will Willis of his interest in the property described in paragraph two of the complaint, and did cheat and defraud the defendant by her promises (which *519 promises were the making of and consideration of said deed) in obtaining his signature to said deed knowing full well at the time that she, the plaintiff, after securing said deed intended to abandon the defendant and live in illicit cohabitation with other men. . . . That the plaintiff Mary Willis disregarded the consideration of the said deed referred to in paragraph two of the complaint dated 19 June, 1928, by immediately leaving and abandoning her husband Will Willis, and immediately continuing her old life and living in fornication and adultery with one _____________. . . . Wherefore the defendants pray: (1) That the deed of Will Willis to Mary Willis dated 19 June, 1928, be declared void. (2) That if said deed is not declared void that the same be reformed or set aside for want of consideration and violations of the terms and conditions under which said deed was delivered or be reformed to speak the truth. (3) For such further and other relief as may be just."
The issues submitted to the jury and their answers thereto were as follows:
1. Is the plaintiff the owner and entitled to the immediate possession of the land described in the complaint? Answer: Yes.
2. What amount, if any, is the plaintiff entitled to recover of the defendants for rent of said premises? Answer: Not anything."
On the verdict judgment was rendered for plaintiff. The defendants made numerous exceptions and assignments of error and appealed to the Supreme Court. Will Willis and wife Mary Willis, as husband and wife, held an estate by the entirety in a certain lot of land in Lexington, N.C. Will Willis conveyed one-half interest in the land to the plaintiff his wife, on 19 June, 1928. The deed had full covenants of warranty. Thereafter at February Term, 1931, Davidson Superior Court, an absolute divorce was granted Will Willis from his wife Mary Willis on the ground of adultery.
The first question involved: Has plaintiff under the facts a fee simple title to the land in controversy? We think so by estoppel.
In Dorsey v. Kirkland, 177 N.C. at p. 522-3, is the following: "The deed under which the defendant claims, having been made to him and his wife, they took an estate by entirety, which carried with it the right of survivorship, and neither acting alone could by deed destroy this right or affect the estate of the other (Freeman v. Belfer,
In Potts v. Payne, 200 N.C. at p. 249, is the following: "In McKinnonv. Caulk,
When Will Willis and Mary Willis were granted an absolute divorce the estate by entireties was severed and they became tenants in common, except for the fact that Will Willis had already conveyed to Mary Willis.
In Hallyburton v. Slagle, 132 N.C. at p. 952, we find: "Indeed, it has been said to have been fully established as a principle by the best authority, that the doctrine of estopped applies to conveyances without warranty where it appears, by the deed, that the parties intended to deal with and convey a title in fee simple. Graham v. Meek,
From the facts and circumstances of this case we do not think the question of estopped had to be pleaded. In Meyer v. Thompson, *521
183 N.C. at p. 545 (quoting from Bank v. Glenn,
By the divorce absolute the estate by entireties was converted into a tenancy in common — Mary Willis and defendant Will Willis each having an undivided half interest. Will Willis having deeded a half interest to Mary Willis by warranty, is estopped to deny plaintiff's title.
The second question involved: Have the defendants alleged sufficient facts to set aside the deed from Will Willis to Mary Willis for fraud and deceit, and is the evidence of sufficient probative force to sustain the allegations? We think not.
In Stone v. Milling Co., 192 N.C. at p. 586, it is said: "The general conditions under which factual misrepresentations may be made the basis of an action for deceit are stated in Pollock on Torts (12 ed.), 283, as follows: `To create a right of action for deceit there must be a statement made by the defendant, or for which he is answerable as principal, and with regard to that statement all the following conditions must concur: (a) It is untrue in fact. (b) The person making the statement, or the person responsible for it, either knows it to be untrue, or is culpably ignorant (that is, recklessly and consciously ignorant) whether it be true or not. (c) It is made to the intent that the plaintiff shall act upon it, or in a manner apparently fitted to induce him to act upon it. (d) The plaintiff does act in reliance on the statement in the manner contemplated or manifestly probable, and thereby suffers damage.' (At p. 587.) Our decisions are to the effect that `where it is sought to base one's relief on the ground of fraud, the allegations of fact must be specific and definite.' Evans v. Davis,
In Hinsdale v. Phillips, 199 N.C. at p. 572, citing numerous authorities, we find: "As a general rule, fraud as a ground for the rescission of contracts, cannot be predicated upon promissory representations, because a promise to perform an act in the future is not in the legal sense a representation. Fraud, however, may be predicated upon the nonperformance of a promise, when it is shown that the promise was merely a device to accomplish the fraud. A promise not honestly made, because the promisor at the time had no intent to perform it, where the promisee rightly relied upon the promise, and was induced thereby to enter into the contract, is not only a false, but also a fraudulent representation, for which the promisee, upon its nonperformance is ordinarily entitled to a rescission of the contract." *522
In Young v. Hamilton, 196 N.C. at p. 819, is the following: "pretermitting the question as to whether the defendant in her counterclaim has alleged facts sufficient to constitute a defense or a cause of action for deceit (Stone v. Milling Co.,
The deed to plaintiff was made and executed by defendant Will Willis on 19 June, 1928. He obtained a divorce from plaintiff nearly three years thereafter, February Term, 1931, Davidson Superior Court. This action was commenced 2 October, 1931, and the alleged defense of fraud, etc., set up over three years after the deed was made and in and after this action was instituted. The defendants tendered no issue of fraud nor did they except to the issues upon which the theory of the case was tried.
In May v. Loomis,
Defendant Will Willis testified in part: "The consideration between me and my wife, was when I made her this deed that she would stop riding, running around with this man at night. . . . And I made her this deed andshe left with him three weeks after that."
Conceding that there was fraud, yet with the knowledge of the fraud that the defendant Will Willis alleged was practiced on him, more than three years before, he never brought an action to set aside or rescind the deed for fraud, but set up the defense of fraud in this action, over three years after he knew of the fraud. He is too late under the facts and circumstances of this case. 72 A.L.R., p. 729. Of course the three-year statute if pleaded is also applicable. C. S., 441(9); Stancill v. Norville,ante, 457. We see no evidence of mutual mistake.
In Black on Rescission and Cancellation, 2nd ed. (1929), part sec. 541, p. 1334, speaking to the subject: "It is also a general principle that a person who knows that he is entitled to rescind a contract cannot wait until suit is brought for payment or other enforcement of the contract and then set up his grounds of rescission, or at least, such a course is regarded with great disfavor by the courts if there has been any considerable lapse of time since his discovery of the facts."
"In Van Gilder v. Bullen,
Conceding that the allegations of the defendants' further answer to the complaint is plenary, yet the evidence offered by defendants is not of sufficient probative force to be submitted to a jury. We do not think the other exceptions and assignments of error made by defendants material and necessary to be considered. For the reasons given, we find
No error.