Barnes v. House , 253 N.C. 444 ( 1960 )

117 S.E.2d 265 (1960) 253 N.C. 444

J. R. BARNES and Wife, Sadie M. Barnes,
v.
Mildred E. HOUSE and Husband, Charles H. House, et al.

No. 315.

Supreme Court of North Carolina.

November 30, 1960.

J. Faison Thomson & Son, Scott B. Berkeley, and James N. Smith, Goldsboro, for plaintiffs.

Langston & Langston, F. Ogden Parker, and Dees, Dees & Smith, Goldsboro, for defendants.

DENNY, Justice.

We have set out hereinabove a rather comprehensive statement of facts in order that the pertinent questions involved in this litigation may be fully understood.

The case of Barnes v. Dortch, 245 N.C. 369, 95 S.E.2d 872, involved a proceeding instituted by the plaintiffs herein to authorize the sale of the 30-acre tract of land now in controversy, pursuant to the provisions of G.S. § 41-11. With respect to the power to sell said tract of land and give a fee simple title thereto, this Court held that in 1945 it could not be ascertained who will ultimately take under the will of E. C. Prince; that the ultimate takers of the property allotted to Chester H. Prince, if he died without having a child or children, could not be ascertained until his death. Burden v. Lipsitz, 166 N.C. 523, 82 S.E. 863. Therefore, since the plaintiffs in that proceeding had not made all the heirs at law of E. C. Prince parties thereto, the proceeding was held to be ineffective for the purpose contemplated.

The partitioning proceeding instituted in 1913 by the life tenants under the will of E. C. Prince, having been ratified by possession and acquiescence therein by all the heirs of the testator and further validated by a decree of the Supreme Court in 1949, in which proceeding all the defendants in this action were parties defendant, except spouses by subsequent marriages, is not challenged in this proceeding. Consequently since all the heirs at law of E. C. Prince signed the warranty deed dated 3 February 1945, conveying all their interest in the 30acre tract of land allotted to Chester H. Prince to Marjorie C. Prince, and all these heirs survived Chester H. Prince, who died on 3 July 1959, and are parties to this proceeding, the deed executed by them in 1945 is valid and binding on them unless it was procured by fraud.

Where one has only a contingent interest in land and conveys such interest by warranty deed, such deed passes the contingent interest in the land, by way of estoppel, to the grantee as soon as remainder vests by the happening of contingency upon which such vesting depends. Foster v. Hackett, 112 N.C. 546, 17 S.E. 426; Ford v. McBrayer, 171 N.C. 420, 88 S.E. 736; James v. Hooker, 172 N.C. 780, 90 S.E. 925; Baker v. Austin, 174 N.C. 433, 93 S.E. 949; Bourne v. Farrar, 180 N.C. 135, 104 S.E. 170; Woody v. Cates, 213 N. C. 792, 197 S.E. 561; Thames v. Goode, 217 N.C. 639, 9 S.E.2d 485.

No question was raised or issue submitted in the trial below with respect to any consideration in connection with the execution of the warranty deed dated as of 3 February 1945. The only issue submitted with respect to consideration was as follows: "Did the plaintiffs purchase said lands for a valuable consideration?" This issue was answered in the affirmative. There was no objection made or exception interposed to any of the issues submitted to the jury.

The defendants assign as error the refusal of the court below to allow the defendants' counsel to cross-examine the plaintiff J. R. Barnes with respect to the value of other properties he had purchased from the heirs of E. C. Prince, some of such properties having been purchased about the same time the plaintiffs purchased the 30-acre tract which had been allotted to Chester H. Prince. In our opinion, the court below very properly excluded this evidence. There was no controversy in the trial below because the 1945 deed was executed for a nominal consideration only. Therefore, if the plaintiffs, as the evidence tends to show, paid Marjorie C. Prince and her husband, Chester H. Prince, $5,000 as purchase price for the 30-acre tract of land allotted to Chester H. Prince, what these plaintiffs paid for other properties would be immaterial on the question of fraud in connection with the execution of the deed dated 3 February 1945. Marjorie C. Prince and her husband, Chester H. Prince, would have had the right to have conveyed this property to these plaintiffs for a nominal consideration if they had so desired. The defendants were permitted to testify in their opinion as to the value of the 30-acre tract of land on 3 February 1945. This assignment of error is overruled.

The defendants assign as error the failure of the court below to include in its instruction to the jury with respect to fraud, not only as to the quantity of land conveyed but also as to the alleged fraudulent misrepresentation as to the grantee. The evidence supports the view that these defendants were entirely willing to convey their interest in the homeplace to Chester H. Prince in order that he might convey it to the plaintiffs, but they insist that a fraud was committed upon them by inserting Marjorie C. Prince as grantee, who had theretofore been conveyed the life interest in the 30-acre tract of land allotted to Chester H. Prince. The evidence establishes unequivocally that the grantee in the 1945 deed, with the joinder of her husband, did convey the 30-acre tract which contained the homeplace to the plaintiffs in accordance with the understanding of the defendants. Their only complaint with respect thereto is that the title passed through Marjorie C. Prince instead of through Chester H. Prince. If the deed had been made to Chester H. Prince, he could not have conveyed a good title to the premises to the plaintiffs without the joinder of his wife, Marjorie C. Prince, and she could not convey a good title thereto without the joinder of Chester H. Prince. Since Marjorie C. Prince and her husband carried out exactly what all the defendants say they understood was to be done by Chester H. Prince at the time they executed the deed in 1945, insofar as the old homeplace was concerned, no possible harm has been done to these defendants by the transfer through Marjorie C. Prince instead of through Chester H. Prince. This assignment of error is wholly without merit and is overruled.

Now as to the quantity of land conveyed in the warranty deed executed in 1945. A number of these defendants testified that they did not know that the entire 30-acre tract, which included the homeplace, was conveyed in the 1945 deed until after the death of Chester H. Prince in 1959. Others testified that they read the deed and knew the 30-acre tract was included. The reasons given by other defendants as to why they did not read the deed they executed in 1945 before signing it, are, in our opinion, insufficient to support an issue of fraud in the procurement of the deed. All the grantees in the deed executed in 1945 were at that time of legal age, none of whom was under any disability, all of whom were literate, and many of them were operating businesses of their own or holding responsible positions.

In the case of Security Finance Co. v. McGaskill, 192 N.C. 557, 135 S.E. 450, 451, it is 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 the absence of any mistake, fraud or oppression, is a circumstance against which no relief may be had, either at law or in equity. Grace [& Co.] v. Strickland, 188 N.C. [369] at page 373, 124 S.E. 856, 35 A.L.R. 1296. There are none so blind as those who have eyes and will not see; none so deaf as those who have ears and will not hear. Furst v. Merritt, 190 N.C. page 402, 130 S.E. 40, and cases there cited."

Moreover, in our opinion, had there been fraud in the procurement of the deed in 1945 with respect to the quantity of land included therein, the counterclaim to recover possession of the 30-acre tract of land by reason of such alleged fraud is barred by the statute of limitations, as found by the jury.

In this connection, these defendants, if they had really desired to do so, could have read the deed involved herein before they signed it in 1945. Furthermore, in the Crawford-Norwood proceeding referred to hereinabove, it was expressly pointed out in the complaint therein that all these defendants, except spouses by subsequent marriage, did, in 1945, execute a warranty deed to Marjorie C. Prince to the land allocated to Chester H. Prince, and that Marjorie C. Prince and her husband, Chester H. Prince, did execute a deed to such lands which conveyed the same to the plaintiffs herein. Summons and a copy of the complaint in the above proceeding were served on each and every one of the defendants, in 1945, except spouses by subsequent marriages. It is true that none of the defendants filed an answer in the Crawford-Norwood proceeding. Even so, this does not change the fact that they were served with a complaint that expressly set out the fact that said deed in 1945 purported to convey the very land they now claim, and which they now claim they did not know they conveyed until after the death of Chester H. Prince in 1959.

The defendants assign as error the instruction given by the court to the jury with respect to the burden of proof on the issue as to whether or not the defendants' counterclaim was barred by the three-year statute of limitations, G.S. § 1-52. The instruction given was erroneous. However, at the end of the charge and before the jury retired, the court informed the jury that such erroneous instruction had been due "to a slip of the tongue," and should be corrected, the court then said, "I now do so," and proceeded to give a correct instruction on the issue. This assignment of error is likewise overruled.

There are a number of other assignments of error brought forward on this appeal, but upon a careful examination of them, in our opinion, no sufficient prejudicial error has been shown in the trial below that would justify a new trial.

No error.