Cornatzer v. Nicks

187 S.E.2d 385 (1972)

14 N.C. App. 152

Bessie H. CORNATZER, widow, v. Fern P. (Mrs. G. N.) NICKS.

No. 7221SC31.

Court of Appeals of North Carolina.

March 29, 1972.

Certiorari Denied May 2, 1972.

*386 Hatfield, Allman & Hall by Weston P. Hatfield, and James W. Armentrout, Winston-Salem, for plaintiff appellant.

Deal, Hutchins & Minor, by William Kearns Davis, Winston-Salem, for defendant appellee.

Certiorari Denied by Supreme Court May 2, 1972.

PARKER, Judge.

The judgment must be affirmed. In the absence of fraud or other ground for equitable relief, a grantor may not impose a parol trust for his benefit on land which he conveys by deed purporting to vest title in the grantee. Willetts v. Willetts, 254 N.C. 136, 118 S.E.2d 548. Plaintiff's counsel recognizes this and seeks to distinguish Willetts by the contention that in the present case a confidential or fiduciary relationship existed between plaintiff and her son. An allegation to that effect was included in the complaint, but plaintiff's own deposition conclusively demonstrates that she cannot support it. The mere relationship of parent and child does not raise a presumption of fraud or undue influence, Walters v. Bridgers, 251 N.C. 289, 111 S.E.2d 176, and plaintiff's deposition discloses that in fact none existed here. She testified that she always handled all of her own affairs and did so in 1961, that the conveyance was her idea in the first place, and that her son did not misrepresent anything to her, did not use "any bit of undue influence," and did not pressure her in any way. Her testimony that her son would come over and take her where she wanted to go, fix anything she wanted him to, or mow the yard sometimes, bespeaks more a familial than a fiduciary relationship. McNeill v. McNeill, 223 N.C. 178, 25 S.E.2d 615, relied on by appellant, is not applicable.

*387 No genuine issue as to any material fact being shown and the undisputed facts disclosing that defendant is entitled to judgment in her favor as a matter of law, disposition by summary judgment was proper. Kessing v. National Mortgage Corp., 278 N.C. 523, 180 S.E.2d 823.

In passing, we note that defendant stated in her affidavit that she intended to let plaintiff live in the house as long as she wanted to, and plaintiff testified in her deposition that no one had asked her to move out of the house and she had been told she could stay there the rest of her life.

Affirmed.

CAMPBELL and MORRIS, JJ., concur.