Speller v. Speller

159 S.E.2d 894 (1968) 273 N.C. 340

Mary O. SPELLER
v.
Luther W. SPELLER.

No. 195.

Supreme Court of North Carolina.

March 20, 1968.

John R. Jenkins, Jr., Aulander, for plaintiff appellant.

Gillam & Gillam, by M. B. Gillam, Jr., Windsor, for defendant appellee.

HIGGINS, Justice.

The plaintiff, widow of Aaron Speller, alleged in her amended complaint that she sold and by deed conveyed to the defendant, son of her husband by a former marriage, all her right, title and interest in the tract of land and personal property owned by her husband at the time of his death. The deed, made a part of the amended complaint, recites a consideration of $10 and other valuable considerations. She alleged the grantee paid her $2,000 in cash and executed his note for $1,000, which he has paid in full. She further alleged that the tract of land owned by her husband was reasonably worth $25,000 and that his debts, which were listed in the complaint, amounted to $13,184.72.

The amended complaint further alleged the defendant, his brothers and sisters, and the administrator of her husband's estate, had all agreed that the listed debts constituted valid obligations of her husband's estate. She alleged inferentially that although she may have been a co-signer with her husband on some of the notes listed in the schedule of debts, nevertheless they were to be satisfied out of her husband's property and that according to her agreement with all other interested parties, she was to be saved harmless from any personal liability; and that provision to the effect should have been inserted in the deed; that the omission was a result of mistake on the part of the draftsman, or on her part induced by the defendant's fraudulent and inequitable conduct.

The amended complaint, by way of attempt to show breach of the agreement to save her harmless, alleged the defendant and the other brothers and sisters had filed an answer in the special proceeding challenging the validity of some of the listed debts. The plaintiff argues the answer is a breach of the agreement to save her harmless. She contends the breach of the condition constituted a total failure of consideration and that she be permitted to return the $3,000 which she had received, and upon its return, she is entitled to have the deed set aside.

Ordinarily, the consideration recited in a deed is presumed to be correct. Hinson v. Morgan, 225 N.C. 740, 36 S.E.2d 266. The question of consideration, however, under certain circumstances may be inquired into by the court. Smith v. Smith, 249 N.C. 669, 107 S.E.2d 530; Conner v. Ridley, 248 N.C. 714, 104 S.E.2d 845. Assuming the defendant and his seven brothers and sisters, and the administrator, agreed that all the listed debts were the valid obligations of Aaron Speller, and that the answer challenging some of these debts has been filed by the defendant and his brothers and sisters; nevertheless, there has been no determination of the question. The plaintiff alleged she is a party to the special proceeding. The liability for the debts will be determined in the due course of administering the estate. The filing of the answer raises, but does not decide, the issue. The plaintiff may or may not be held liable in some amount. Admitting she has $3,000 paid to her for the property, she may not set aside the deed on contingency. However, at some future date she may be able to assert a claim that the defendant has not paid all the consideration for the property she conveyed to him. If she is forced to pay any of her husband's debts which the defendant, as a part of the consideration for the deed agreed to assume, at the proper time and in the proper tribunal, she may be heard on her claim. Where promises are honestly made and not thereafter performed, action for rescission is not the proper remedy. Hinsdale v. Phillips, 199 N.C. 563, 155 S.E. 238. In order to establish fraud, there must be a showing of actual loss, injury or damage. Johnson v. Owens, 263 N.C. 754, 140 S.E.2d 311. Any action for fraud or for rescission of an instrument must be laid on this foundation. A false representation knowingly made with intent to deceive which is relied on and does deceive, and results in loss, damage or injury. Johnson v. Owens, supra; Keith v. Wilder, 241 N.C. 672, 86 S.E.2d 444; Parker v. White, 235 N.C. 680, 71 S.E.2d 122.

In this case, the plaintiff's complaint does not allege any loss. She does not allege sufficient facts upon which to base a cause of action for rescission or even for damages. In bringing her action before ascertaining whether she has suffered loss, and if so how much, the plaintiff has jumped off side before the center snapped the ball starting the play. The judgment of the Superior Court sustaining the demurrer ore tenus is

Affirmed.