Isley v. Brown

Annotate this Case

117 S.E.2d 821 (1961)

253 N.C. 791

Ernest ISLEY and wife, Jaronia Isley, v. Perry BROWN.

No. 601.

Supreme Court of North Carolina.

January 20, 1961.

*823 Hoyle, Boone, Dees & Johnson, Greensboro, for defendant.

Smith, Moore, Smith, Schell & Hunter, David McK. Clark, Greensboro, for plaintiff.

WINBORNE, Chief Justice.

The pivotal question on this appeal is whether or not the court below erred in refusing to grant defendant's motion of nonsuit. It is conceded that the deed from the plaintiffs to the defendant is an absolute deed on its face. Furthermore, it is well settled in North Carolina that in order to correct a deed, absolute on its face, into a mortgage or security for a debt, it must be alleged and proven that the clause of redemption was omitted by reason of ignorance, mistake, fraud or undue advantage. This must be established by proof of declarations and proof of facts and circumstances, dehors the deed, inconsistent with the idea of an absolute purchase. And the quantum of proof in such cases must be clear, cogent, and convincing. See Perkins v. Perkins, 249 N.C. 152, 105 S.E.2d 663, where numerous cases are cited.

As is said in Williamson v. Rabon, 177 N.C. 302, 98 S.E. 830, 832; "There is no rule in our system of jurisprudence that has a greater tendency to maintain the stability of titles and the security of investments than that which upholds the integrity of [a] solemn written deed * * *."

Applying the facts of the present case to the law as stated above, the conclusion is that the court should have granted defendant's motion for nonsuit. There is nowhere alleged in the pleadings that the clause of redemption was omitted by mistake, nor do we find any proof was offered to that effect. If there was mistake, it was unilateral and not mutual and was caused by the plaintiffs' failure to read the deed. Furthermore, the record reveals no evidence that defendant Brown told the plaintiffs anything about the contents of the deed, or did anything to prevent him from reading it. Indeed plaintiff testified as follows: "When Perry Brown came down to my house, it wasn't at night; it was late in the evening. When he came in the house, he had the paper in his hand. When he came in, I was holding the baby in my arms. He told me to sign first. I put the baby down; I gave it to my wife. He handed me the paper folded down. It wasn't straight out that I can see, and it was folded something just like that. I didn't know what kind of paper it was. I didn't make any attempt to read it. He just said sign it, and the husband comes first. I told my wife to sign the paper first, and he said, `No, the husband comes first.' I signed it first and then my wife signed it. I might have been signing to be electrocuted, and I didn't know; but I was signing * * *."

In this connection these are pertinent decisions of this Court: Harris v. Bingham, 246 N.C. 77, 97 S.E.2d 453, 454, where Parker, J., quoting from Harrison v. Southern R. Co., 229 N.C. 92, 47 S.E.2d 698, said: "The duty to read an instrument or to have it read before signing it, is a positive one, and the failure to do so, in absence of any mistake, fraud or oppression, is a circumstance against which no relief may be had, either at law or in equity."

In Williams v. Williams, 220 N.C. 806, 18 S.E.2d 364, 366, it is said: "In this state it is held that one who signs a paper-writing is under a duty to ascertain its contents, and in the absence of a showing that he was wilfully misled or misinformed by the defendant as to these contents, or that they were kept from him in fraudulent opposition to his request, he is held to have signed with full knowledge and assent as to what is therein contained."

Furthermore, it is said in Newbern v. Newbern, 178 N.C. 3, 100 S.E. 77, 78, "`The mere fact that a grantor who can read and write signs a deed does not necessarily conclude *824 him from showing, as between himself and the grantee, that he was induced to sign by fraud on the part of the grantee, or that he was deceived and thrown off his guard by the grantee's false statements and assurances, designedly made at the time, and relied on by him.'

"There are many other cases to the same effect, but in all of them there is a clear statement that there must be evidence either of `fraud in the factum', that is, an inducement to sign by `trick or device,' such as placing the instrument along with several others * * * or evidence of positive misrepresentation designedly made and reasonably relied upon. In all other cases the negligence of the party signing the deed to read the same when he had an opportunity to so do will bar the assertion of his equity. `Vigilantibus non dormientibus aequitas subvenit.' Dellinger v. Gillespie, 118 N.C. 737, 24 S.E. 538 * * *. In this case, as in that, it may be said: `It is plain that no deceit was practiced here. It was pure negligence in the defendant not to have read the contract. There it was before him, and there was no trick or device resorted to by the plaintiff to keep him from reading it.'" See also Furst & Thomas v. Merritt, 190 N. C. 397, 130 S.E. 40.

And it has been appropriately said in Upton v. Tribilcock, 91 U.S. 45, 23 L.Ed. 203: "It will not do for a man to enter into a contract and, when called upon to respond to its obligations, to say that he did not read it when he signed it, or did not know what it contained. If this were permitted, contracts would not be worth the paper on which they are written. But such is not the law. A contractor must stand by the words of his contract; and, if he will not read what he signs, he alone is responsible for his omission."

And in Poston v. Bowen, 228 N.C. 202, 44 S.E.2d 881, a case where the action was to have a deed declared a mortgage, and after the execution of the absolute deed the grantor became a tenant and paid rent, the Court affirmed the nonsuit holding that there was no showing of mistake, undue advantage, fraud, or contrary intention.

Therefore, the conclusion is that the plaintiffs were guilty of heedlessness in signing the absolute deed to convey their interest in the property. They cannot avoid their own conduct in executing the instrument, and then call that heedlessness someone else's fraud. Having so concluded, other errors brought forward on appeal need not be considered.

For reasons stated motion for judgment as of nonsuit should have been granted. Hence the judgment rendered is


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