Pelaez v. Pelaez

192 S.E.2d 651 (1972)

16 N.C. App. 604

Jessie S. PELAEZ v. Oswald PELAEZ v. Carlos F. PELAEZ, Sr., and Carlos F. Pelaez, Jr.

No. 7228SC729.

Court of Appeals of North Carolina.

November 22, 1972.

Certiorari Denied January 18, 1973.

Cecil C. Jackson, Jr., Asheville, for plaintiff appellant.

*652 Bennett, Kelly & Long, P. A. by E. Glenn Kelly, Asheville, for defendant appellee Oswald Pelaez.

Peter L. Roda, Asheville, for defendant appellees Carlos F. Pelaez, Sr., and Carlos F. Pelaez, Jr.

Certiorari Denied by Supreme Court January 18, 1973.

HEDRICK, Judge.

The question presented on this appeal is whether plaintiff's evidence was sufficient to carry the case to the jury on the issue of whether exhibits P-4 and P-5 were deeds of gift.

At the trial plaintiff offered evidence tending to show that after the date of execution and delivery of exhibits P-4 and P-5 she and her husband, Carlos F. Pelaez, Jr., were divorced on 14 February 1971. Plaintiff testified:

"With reference to P-4, the Deed containing a description of three tracts, I did not receive anything, money or anything of value, upon execution of that deed. I did not discharge, as a result of execution of that deed, any debt or anything. With reference to P-5, I did not receive any consideration or discharge any debt as a result of the execution of that deed." "I am telling this jury that my father-in-law gave these properties to me and Carlos, Jr., my then husband, and that they were ours absolutely without any strings attached. He gave them to us before he married. He gave them to us; and there wasn't no inheritance tax to be. I didn't give anything to Oswald, nor voluntarily turn around and give them to Oswald less than a month later. I am saying that they were not gifts to Oswald, they were deeds to us. My signature is on the two deeds, but I have not, knowingly, given anything to Oswald."

Exhibits P-4 and P-5 each contain the following recital:

"WITNESSETH: That the Grantors, for and in consideration of the sum of Ten Dollars, and other good and valuable considerations to them in hand paid by the Grantees, the receipt whereof is hereby acknowledged, have given, granted, bargained, sold and conveyed, and by these presents do give, grant, bargain, sell, convey and confirm unto the Grantees, their heirs and/or successors and assigns. . . ."

In Speller v. Speller, 273 N.C. 340, 159 S.E.2d 894 (1968) it is stated:

"Ordinarily, the consideration recited in a deed is presumed to be correct. Hinson v. Morgan, 225 N.C. 740, 36 S.E.2d 266. The question of consideration, however, under certain circumstances may be inquired into by the court. Smith v. Smith, 249 N.C. 669, 107 S.E.2d 530; Conner v. Ridley, 248 N.C. 714, 104 S.E.2d 845."

In Randle v. Grady, 224 N.C. 651, 32 S.E.2d 20 (1944), Justice Winborne writing for the North Carolina Supreme Court said, "[D]ecisions of this Court are uniform in holding that in the purchase of land the recital acknowledging receipt of consideration contained in a deed therefor is prima facie evidence of that fact and is presumed to be correct."

Plaintiff has offered no evidence to overcome the presumption that the consideration recited in exhibits P-4 and P-5 is correct. Her own testimony tends to show that the deeds were not deeds of gift.

In view of our holding that the trial judge correctly allowed the defendants' motions for a directed verdict, it is not necessary that we discuss plaintiff's other assignments of error.

The judgment appealed from is

Affirmed.

VAUGHN and GRAHAM, JJ., concur.