Patterson v. Wachovia Bank & Trust Co., N.A. , 68 N.C. App. 609 ( 1984 )

315 S.E.2d 781 (1984)

Kathleen Coble PATTERSON, (Widow); Agnes Coble White and husband, Arthur I. White; Helen Coble Byers and husband, Dillard M. Byers; Rebecca Coble Robertson and husband, Wilson A. Robertson, Cornelia Coble Stanton and husband, Robert G. Stanton, and Ross Coble and wife, Notie J. Coble
v.
WACHOVIA BANK & TRUST COMPANY, N.A., as Trustee.

No. 8315SC351.

Court of Appeals of North Carolina.

June 5, 1984.

Charles N. Stedman, Burlington, for plaintiffs-appellants.

Petree, Stockton, Robinson, Vaughn, Glaze & Maready by Jackson N. Steele and Jeffrey C. Howard, Winston-Salem, for defendant-appellee.

PHILLIPS, Judge.

The basis for adjudging that Mattie Thompson Coble did not own the land involved at her death is that the deeds from Ross and Cecil Coble back to her were void, because they were deeds of gift and were not recorded within two years after their execution, as G.S. 47-26 requires. Since the deeds in question admittedly were not recorded until more than eighteen years after their execution and G.S. 47-26 plainly states, without exception or equivocation, that a deed of gift that is not recorded within two years after execution is void, the preliminary question that arises is whether the court's conclusion of law that the deeds were deeds of gift is supported by adequate findings of fact. The trial court's finding of fact pertinent thereto was as follows:

(13) None of the conveyances [referred to] ... were supported by the payment of consideration in money or money's worth, nor was consideration exchanged in the form of a promise for a promise or in any other manner.

This finding so clearly supports the conclusion that the deeds were deeds of gift, we proceed to the remaining and decisive question, which is whether the findings are supported by competent evidence. If they are, the findings are conclusive. Brooks v. Brooks, 12 N.C.App. 626, 184 S.E.2d 417 (1971). In our opinion, the finding that the deeds were without consideration is supported by competent evidence and the judgment appealed from must be affirmed.

Under the provisions of G.S. 105-228.28, et seq., every person who deeds real estate away for a consideration must pay the county an excise tax based on the consideration involved, but no tax is required of those who give property away. Yet, though the evidence shows that the property was worth over $90,000, and the plaintiff Ross Coble, the only living person with personal knowledge as to the consideration involved, if there was any, is the one who had the deeds eventually recorded, no excise stamps were ever affixed to the deeds by the grantors. Nor did Ross Coble, who testified at the hearing, or anyone else, present any evidence that any payment or promise of payment was made or received because of the deeds. He did testify, however, though not very clearly, and apparently not very convincingly, at least as the trial judge heard it, that he and Cecil deeded the land back to their mother for her to hold for each of them to farm during his lifetime, and to distribute to her surviving issue after both of them died. Though this testimony does tend to support the contention that the deeds were given in consideration of Mattie Coble's promise to hold the land in trust, its weight and credibility was for the trial court, who categorically found that the deeds were not given in exchange for a promise or consideration of any kind. The judge's evaluation of this evidence is understandable, particularly in view of the other pertinent evidence that was before him. Their mother, who was 24 years older than Cecil and 28 years older than Ross, could hardly have been reasonably expected to hold the land until their deaths; she did not revise her will to dispose of the land at her death; and when she did die and her will was probated, neither Ross nor any of the other children objected to the land not being included in her estate. Not long thereafter, Ross and Cecil hired a surveyor to map and divide the land—and through the mutual quitclaim deeds, in effect, agreed to and did partition it. Finally, after his brother Cecil died, as his own testimony shows, Ross expressed interest in buying the land held by the defendant Trustee, if it could be obtained at a reasonable price, and did not begin contending that he and the other children owned the land until the Bank put it on the market for sale at a beginning price of $90,000.

The plaintiffs' several contentions that various evidence was improperly received or rejected are without merit and require no discussion. Their last reliance, likewise unwarranted, is upon the legal implications that arise from the recorded facts that the deeds recited a consideration and also were under seal. While it is true, as plaintiffs contend and numerous appellate decisions of this Court and our Supreme Court have stated, that recitals in a deed are presumed to be correct, that is only a presumption and the law does not stop there. Under suitable circumstances our law has long permitted deed recitals of all kinds to be overcome by proof, including even the recital that it is a deed; and deed recitals of consideration have been overcome by proof in many cases. See Penninger v. Barrier, 29 N.C.App. 312, 224 S.E.2d 245, rev. denied, 290 N.C. 552, 226 S.E.2d 511 (1976); Harris v. Briley, 244 N.C. 526, 94 S.E.2d 476 (1956). Furthermore, even if the consideration recitals in the two deeds to Mattie Thompson Coble had either been accepted as, or proven to be, true, that would not necessarily require, as plaintiffs contend, a reversal of the judgment appealed from. Both reason and eminent authority suggest otherwise. In Kirkpatrick v. Sanders, 261 F.2d 480 (4th Cir.1958), cert. denied, 359 U.S. 1000, 79 S. Ct. 1138, 3 L. Ed. 2d 1029 (1959), deeds conveying two parcels of Wilkes County land, each worth more than $20,000, were held to be deeds of gift under G.S. 47-26, even though it appeared that the recited considerations of $100 in one deed and $1 in the other were actually paid. In language that reason can hardly refute, Chief Judge Sobeloff stated: "The District Judge correctly held that, in any event, the payment of these nominal amounts would not convert the gifts to transfers for a valuable consideration." Id. at 482. Thus, we doubt that the trial judge would have concluded, or been required to conclude, that the deeds involved here were not deeds of gift if the parties had even stipulated that the $20 recited in the two deeds was paid for land that was worth $90,000.

Finally, though our courts have also stated in many cases that a seal on a deed "imports" consideration or gives rise to a presumption that consideration was present, that presumption, too, from the nature of things, is overcomable by proof. If not, there would be no such thing in this State as a deed of gift and the Legislature would have done a vain and foolish thing in enacting G.S. 47-26. Because one of the classic requirements for a deed in this State has always been and still is that the paper be under seal. Turlington v. Neighbors, 222 N.C. 694, 24 S.E.2d 648 (1943); Hetrick, Webster's Real Estate Law in North Carolina § 197 (rev. ed. 1981).

Affirmed.

WELLS and BRASWELL, JJ., concur.