Frye v. Sovine , 58 N.C. App. 731 ( 1982 )

294 S.E.2d 748 (1982)

Leslie G. FRYE
v.
Frances A. SOVINE.

No. 8121SC1084.

Court of Appeals of North Carolina.

September 7, 1982.

Badgett, Calaway, Phillips, Davis, Stephens, Peed & Brown by Charles O. Peed, Winston-Salem, for petitioner-appellant.

Bell, Davis & Pitt by Walter W. Pitt, Jr., Winston-Salem, for respondent-appellee.

MORRIS, Chief Judge.

Petitioner assigns error to the court's findings of fact and conclusions of law concerning respondent's signing the note and deed of trust as a result of duress and threats of her son's imprisonment. In a non-jury trial the court's findings of fact are conclusive upon appeal if there is evidence to support them, even though the evidence might also support findings to the contrary. Williams v. Insurance Co., 288 N.C. 338, 218 S.E.2d 368 (1975).

The evidence presented by Barrett's testimony and respondent's testimony and affidavit support the court's findings of fact and conclusions of law. The evidence showed that after Barrett caused the warrants to be issued against Sovine, he visited respondent's home numerous times, trying to locate Sovine to obtain the money Sovine owed to him. Barrett asked her if she would take care of her son's debt and put up her house as security. Respondent refused, stating that she was a widow, 70 years old and retired, living on a fixed income. Her son never asked her to sign the note and deed of trust, because he knew she would refuse to do so. She testified that she finally signed the note and deed of trust drawn up by Barrett's attorney, for the following reasons:

"[Y]es, he [Barrett] did threaten me to a certain extent. He told me if I didn't sign this, that Mike would get 18 months and he would see that he did, and you know, when something happens like that with your child, and all, you do most anything.

* * * * * *

Well, I had to sign them. I'd had a month of that. A whole month, and when anyone has two checks in your hand and waves them at you every time they come to your house and he was there one day three times .... I think most anybody would do anything to get rid of something like that.

In her affidavit, respondent stated:

7. I am seventy years old and a widow. I live alone. I was frightened of Mr. Barrett. I was nervous and scared every time I saw him coming. I never knew what time of the day or night he would show up at my door or call me on the telephone. Every time I saw him, I asked him to leave me alone, but he ignored my pleas. During this period of time, I couldn't sleep; I was worried and frightened. I suffered a great deal of aggravation over Mr. Barrett's visits and telephone calls. I also lost seven pounds during this period.

8. The only reason I signed the papers was because I was afraid of what Mr. Barrett would do to me or Mike. Also, I was emotionally upset and couldn't take his continually harassing and dogging me to death to get me to sign the papers. I signed the papers just so that he would not put Mike in jail and so that he would stop his harassment and importuning. I have never made any payments to Mr. Barrett and signed his papers only because I felt that I was forced to do so in order to save my son from jail and to preserve my own health and peace of mind.

It can be reasonably implied from the circumstances surrounding this transaction that respondent believed that by signing the documents, she would prevent Barrett from pursuing any further criminal prosecution and subsequent imprisonment of her son. It is well-settled law that executory agreements such as the one before us made in consideration of preventing, refraining, or suppressing prosecution for a crime are void as against public policy. Johnson v. Pittman, 194 N.C. 298, 139 S.E. 440 (1927); Corbett v. Clute, 137 N.C. 546, 50 S.E. 216 (1905); Garner v. Qualls, 49 N.C. 223 (4 Jones 1856); 17 Am.Jur.2d Contracts §§ 200-204 (1964). Barrett denied that he had threatened respondent or promised her anything to get her to sign the documents. However, he admitted that he had no further interest in prosecuting on the warrants once the note and deed of trust were signed and that he had agreed to have the warrants dismissed. We hold under these particular facts that there was an implied agreement that if respondent signed the documents, there would be no further prosecution on the criminal charges against her son. There appears from the record no other consideration for respondent's signing since Barrett had never loaned her anything, she received nothing from him, and she had no connection whatsoever with the business relationship between Barrett and her son.

The evidence is also clear that respondent signed under coercion and duress. Respondent felt that Barrett was harassing her by his repeated visits. Because of the effect which Barrett's actions had upon respondent, we find that she was induced to execute the documents under circumstances which deprived her of the exercise of her own free will, which constitutes duress. Link v. Link, 278 N.C. 181, 179 S.E.2d 697 (1971).

We hold, therefore, that the findings of fact were fully supported by the evidence and that the findings support the conclusions of law. Since execution of the note and deed of trust was procured by coercion and duress and based upon illegal consideration of suppressing criminal prosecution, the instruments are void between the parties and the foreclosure proceeding was properly dismissed.

The court's order dismissing the action and cancelling the deed of trust is

Affirmed.

ROBERT M. MARTIN and BECTON, JJ., concur.