Nixon v. Nixon

132 S.E.2d 590 (1963)

260 N.C. 251

Palmer NIXON, Executor of Charlie Nixon, Deceased, Lettie N. Bunch and Adele Nixon, v. Queen Esther NIXON, Carl Nixon and wife, Savannah Nixon.

No. 169.

Supreme Court of North Carolina.

October 9, 1963.

*593 Cherry & Cherry, Ahoskie, and Pritchett & Cooke, by J. A. Pritchett, Windsor, for plaintiffs-appellants.

Jones, Jones & Jones, Ahoskie, and LeRoy, Wells & Shaw, by Charles C. Shaw, Jr., Elizabeth City, for defendants-appellees.

PARKER, Justice.

It is hornbook law that when a motion for judgment of nonsuit is made, the plaintiff is entitled to have his evidence considered in the light most favorable to him, and he is entitled to the benefit of every reasonable inference to be drawn therefrom. Bridges v. Graham, 246 N.C. 371, 98 S.E.2d 492. "Discrepancies and contradictions, even in plaintiff's evidence, are for the twelve and not for the court," Barlow v. Bus Lines, 229 N.C. 382, 49 S.E.2d 793, and do not justify a nonsuit. Keaton v. Taxi Co., 241 N.C. 589, 86 S.E.2d 93.

Considering plaintiffs' evidence according to the rule, it would permit a jury to find *594 that Charlie Nixon, a man 80 years old, had social security, that his daughter Clara Watford came to him with some papers and asked him if he knew he was going to lose his social security, and he told her "no," and she said to him, "you are and you are going to lose it if you don't pay $78.00 to the social security office and sign these papers that I have, and if you don't do that you won't get any more social security"; that these were misrepresentations of material facts made by Clara Watford, with knowledge of their falsity or with a reckless disregard of their truth or falsity, with a fraudulent intent that they should deceive Charlie Nixon and be relied upon by him; that under the circumstances such representations were of a character to induce action by a person 80 years old; that Charlie Nixon reasonably relied upon the representations, and acted upon them to his injury by executing and delivering a deed of conveyance of his real estate with a reasonable market value of $18,000 to his children Queen Esther Nixon and Carl Nixon, who paid him nothing for his land; that Charlie Nixon received nothing for the conveyance of his land; that Charlie Nixon, by reason of the wilful misrepresentation of the contents of the instrument, did not know that he was executing a deed to his real estate, but intended to execute a paper writing to prevent his losing his social security payments; and that Queen Esther Nixon and Carl Nixon knew beforehand of the preparation of this deed.

"The line of demarcation between fraud in the factum and fraud in the treaty is frequently obscure and in a measure dependent upon the attendant facts and circumstances." Parker v. Thomas, 192 N.C. 798, 136 S.E. 118, where certain well-recognized indicia of fraud in the treaty and of fraud in the factum are stated.

It seems indubitable that if Charlie Nixon had lived to testify in the action he instituted, the record would contain clearer and fuller testimony as to the attendant facts and circumstances in respect to the execution of the deed by him to defendants. We lack in the evidence any testimony by the draftsman of the deed, and by the notary public who took his acknowledgment of the deed.

Considering the frequent obscurity of the line of demarcation between fraud in the factum and fraud in the treaty, it seems that plaintiffs' evidence tends to show fraud in the factum arising from a want of identity or a disparity between the instrument executed and the one intended to be executed, or if it does not show fraud in the factum, it at least tends to show fraud in the treaty in that there were misrepresentations as to the contents of the instrument and Charlie Nixon signed the identical instrument which he intended to sign. Griffin v. Lumber Co., 140 N.C. 514, 53 S.E. 307, 6 L.R.A.,N.S., 463; Furst v. Merritt, 190 N.C. 397, 130 S.E. 40; Parker v. Thomas, supra; Mills v. Lynch, 259 N.C. 359, 130 S.E.2d 541. If the deed was procured by fraud in the factum or by fraud in the treaty, the judgment of compulsory nonsuit was improvidently entered.

The execution of a deed procured by fraud in the factum cannot be said to be the deed of the maker at all. "No title passes under such an instrumentit is voidand no rights may be acquired thereunder even by innocent third parties * *." Furst v. Merritt, supra; Medlin v. Buford, 115 N.C. 260, 20 S.E. 463.

Parol evidence is competent to show the actual consideration for a deed or the lack of consideration. Barbee v. Barbee, 108 N.C. 581, 13 S.E. 215; Pate v. Gaitley, 183 N.C. 262, 111 S.E. 339; Willis v. Willis, 242 N.C. 597, 89 S.E.2d 152. Plaintiffs' evidence tends to show not only false representations, but also a total lack of consideration for the deed. Garris v. Scott, 246 N.C. 568, 99 S.E.2d 750.

Defendants contend, inter alia, that there is no evidence that they participated in the false representations, or that they requested or persuaded their father to execute the deed, and, therefore, that the judgment of *595 nonsuit should be affirmed. With this contention we do not agree.

"A person may be charged with fraud, although he is not a party to the transaction into which the complainant is induced, by the misrepresentation, to enter. To render one liable in an action of deceit, no privity of contract between the plaintiff and defendant need be shown * * *. In this respect, the action differs from one on a warranty." 23 Am.Jur., Fraud and Deceit, sec. 187.

It is clear that when the execution of a deed is procured by fraud in the treaty, the grantor is entitled to appropriate relief in a court of equity as against the author of the fraud, as to any interest derived by him from the deed. Furst v. Merritt, supra. A transaction is not purged of fraud by a showing that it was brought about by a third person. And in case of fraud in the treaty appropriate and adequate relief will be afforded in a court of equity, not only against the principal, where he is grantee in the deed, but also against persons who were or have become beneficiaries of such fraud and wrong done the grantor in the deed, when they are volunteers or purchasers with notice, or when the deed has been procured by fraud of one who is acting in the transaction as agent of the grantee; otherwise fraud would, or could, place itself beyond the reach of the court, and an interest gained by one person by the fraud of another be held by him. Harris v. Delamar, 38 N.C. 219; Tisdale v. Bailey, 41 N.C. 358; Beeson v. Smith, 149 N.C. 142, 62 S.E. 888; Ferrall v. Bradford, 2 Fla. 508, 50 Am.Dec. 293; Graham v. Burch, 44 Minn. 33, 46 N.W. 148; Jones v. Wolfe (Tenn.Ch.), 42 S.W. 216; Wynne v. Mason, 72 Miss. 424, 18 So. 422; Stone v. Walker, 201 Ala. 130, 77 So. 554, L.R.A. 1918C, 839; Porter v. O'Donovan, 65 Or. 1, 130 P. 393; 23 Am.Jur., Fraud and Deceit, sec. 187; Restatement of the Law of Restitution, Am.Law Institute, sec. 167. If the deed here was procured by fraud, and if the defendants claim the benefits of it as volunteers, they must take it tainted with the fraud. Corbett v. Clute, 137 N.C. 546, 551, 50 S.E. 216, 217.

The judgment of compulsory nonsuit is

Reversed.