Gibbs v. Gibbs

BECTON, Judge.

Plaintiffs made eighteen (18) assignments of error and raise two arguments on appeal. We affirm the judgment below.

By assignments of error one and three, Fitzgerald and Ira Gibbs argue that the trial court erred by failing to continue the hearing of the case when their vital witness was unable to attend the trial. This witness, Delma Gibbs Alligood, was to testify that defendant verbally promised Fitzgerald Gibbs a life estate in the property.

It is textbook law that a motion for continuance is addressed to the sound discretion of the trial court. Shankle v. Shankle, 289 N.C. 473, 223 S.E. 2d 380 (1976). In Shankle, our Supreme Court, quoting 17 C.J.S. Continuances § 5 (1963) said: “The chief consideration to be weighed in passing upon the application is whether the grant or denial of [the] continuance will be in furtherance of substantial justice.” Id. at 483, 223 S.E. 2d at 386 (1976). Plaintiffs’ right to a fair hearing was not abrogated by the denial of the motion since evidence of an oral agreement made prior to the delivery of the deed was and is irrelevant to the construction of the deed in the case sub judice. Interests in land can be passed only by a validly executed writing. N.C. Gen. Stat. § 22-2 (1965). This Court ruled earlier, in Rourk v. Brunswick County, that:

It is well settled that except in cases of fraud, mistake, or undue influence, parol trusts or agreements will not be set up or engrafted in favor or the grantor upon a written deed conveying to the grantee the absolute title, and giving clear indication on its face that such title was intended to pass. Testimony tending to show an oral agreement in direct conflict with the deed is incompetent. [Citations omitted.]

46 N.C. App. 795, 796-97, 266 S.E. 2d 401, 403 (1980). Since plaintiffs present no evidence of the presence of fraud, mistake, or undue influence at the execution of the deed, nor make any argument concerning these defenses, we are hard pressed to determine what aid the proffered testimony would have given their case. The trial court did not abuse its discretion in denying the motion for continuance.

Plaintiffs’ second contention is that the trial court made findings of fact not supported by the evidence. The record on appeal is replete with evidence to support the trial court’s findings of fact and conclusions of law. While some testimony was adduced at the hearing tending to show that Fitzgerald Gibbs lacked sufficient mental capacity to understand the nature and consequences of his execution of the deed, the trial court found, and there is evidence in the record to support its finding, that Fitzgerald Gibbs failed to prove this fact by even the greater weight of the evidence. Assuming, arguendo, that Fitzgerald was incompetent on 2 November 1971, his own witnesses produced evidence that he was capable of handling his own affairs by 1974. The statute of limitations for bringing an action for recovery of title to realty based on mental disability is three years after the disability is removed; thus plaintiffs’ prayer to void the deed is, in any event, barred by the statute. N.C. Gen. Stat. § 1-17 (1981).

For the above reasons, the judgment below is áffirmed.

Affirmed.

Chief Judge MORRIS and Judge JOHNSON concur.