{
  "id": 8554386,
  "name": "MARGIE ECKLIN MOORE, Widow of K. E. MOORE v. WACHOVIA BANK AND TRUST COMPANY, Trustee Under the Will of K. E. MOORE, Deceased; OPAL M. NANNEY; and LISA RAKOWSKI, KEITH RAKOWSKI, and LORRIE RAKOWSKI, Minors, by Their Guardian Ad Litem, FRANKLIN B. JOHNSTON",
  "name_abbreviation": "Moore v. Wachovia Bank & Trust Co.",
  "decision_date": "1976-08-04",
  "docket_number": "No. 762SC96",
  "first_page": "390",
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  "casebody": {
    "judges": [
      "Judges Britt and Arnold concur."
    ],
    "parties": [
      "MARGIE ECKLIN MOORE, Widow of K. E. MOORE v. WACHOVIA BANK AND TRUST COMPANY, Trustee Under the Will of K. E. MOORE, Deceased; OPAL M. NANNEY; and LISA RAKOWSKI, KEITH RAKOWSKI, and LORRIE RAKOWSKI, Minors, by Their Guardian Ad Litem, FRANKLIN B. JOHNSTON"
    ],
    "opinions": [
      {
        "text": "BROCK, Chief Judge.\nThe sole question upon review is whether plaintiff\u2019s allegation that her husband asked her to convey her interest in the land so that he could \u201cmake out a will,\u201d coupled with allegations that his statement was \u201cfalse and fraudulent\u201d and induced plaintiff to execute the deed, is a sufficient allegation of either active or constructive fraud. In our opinion plaintiff\u2019s complaint is deficient, and defendant\u2019s motion for judgment on the pleadings was properly granted.\nThe essential elements of active fraud are well-established: There must be a misrepresentation of material fact, made with knowledge of its falsity and with intent to deceive, which the other party reasonably relies on to his deception and detriment. Ragsdale v. Kennedy, 286 N.C. 130, 209 S.E. 2d 494 (1974); Auto Supply Co., Inc. v. Equipment Co., Inc., 2 N.C. App. 531, 163 S.E. 2d 510 (1968). Equally well-established is the requirement that the plaintiff allege all material facts and circumstances constituting the fraud with particularity in the complaint. See G.S. 1A-1, Rule 9(b). Mere generalities and conclusory allegations of fraud will not suffice. In re Estate of Loftin and Loftin v. Loftin, 285 N.C. 717, 208 S.E. 2d 670 (1974).\nAt most, plaintiff\u2019s complaint alleges that her husband asked her to deed her interest in the land to him so that he could make out a will and that she acquiesced. Only by speculation can actionable fraud be deduced from plaintiff\u2019s allegations. \u201cA pleading setting up fraud must allege the facts relied upon to constitute fraud, and that the alleged false representation was made with intent to deceive plaintiff, or must allege facts from which such intent can be legitimately inferred.\u201d Calloway v. Wyatt, 246 N.C. 129, 97 S.E. 2d 881 (1957). In our opinion plaintiff\u2019s complaint fails to meet this standard.\nAs noted in Miller v. Bank, 234 N.C. 309, 67 S.E. 2d 362 (1951), \u201c [c] onstructive fraud differs from active fraud in that the intent to deceive is not an essential element, but it is nevertheless fraud though it rests upon presumption arising from breach of fiduciary obligation rather than deception intentionally practiced.\u201d \u201cWhere a transferee of property stands in a confidential or fiduciary relationship to the transferor, it is the duty of the transferee to exercise the utmost good faith in the transaction and to disclose to the transferor all material facts relating thereto and his failure to do so constitutes fraud. . . . Any transaction between persons so situated is \u2018watched with extreme jealousy and solicitude; and if there is found the slightest trace of undue influence or unfair advantage, redress will be given to the injured party.\u2019 \u201d Link v. Link, 278 N.C. 181, 179 S.E. 2d 697 (1971).\nAlthough plaintiff and K. E. Moore shared a fiduciary relationship as husband and wife at the time she executed the 1959 deed, there is no indication that he failed to exercise the utmost good faith in the transaction. He asked for her interest in the property so that he could \u201cmake out a will,\u201d and she generously conveyed her interest to him pursuant to his request. It appears that she understood the legal import of her actions and that she unequivocally intended to convey her interest in the land to him at the time she executed the deed. In the absence of a showing of fraudulent concealment or other form of misconduct resulting in injury to the plaintiff, the mere conveyance of a valuable interest in land by one spouse to the other spouse without consideration will not give rise to an action for constructive fraud. Here, K. E. Moore\u2019s request that his wife convey her interest in the property to him so that he could \u201cmake out a will,\u201d standing by itself, is not sufficient evidence of constructive fraud. Plaintiff\u2019s allegations are simply too sparce and fail to disclose in a convincing manner that she was deceived or taken advantage of by her husband at the time she executed the 1959 deed.\nAffirmed.\nJudges Britt and Arnold concur.",
        "type": "majority",
        "author": "BROCK, Chief Judge."
      }
    ],
    "attorneys": [
      "Frazier T. Woolard for the plaintiff.",
      "Gaylord, Singleton & McNally, by Danny D. McNally, and Mayo & Mayo, by William P. Mayo, for the defendant, Wachovia Bank and Trust Company."
    ],
    "corrections": "",
    "head_matter": "MARGIE ECKLIN MOORE, Widow of K. E. MOORE v. WACHOVIA BANK AND TRUST COMPANY, Trustee Under the Will of K. E. MOORE, Deceased; OPAL M. NANNEY; and LISA RAKOWSKI, KEITH RAKOWSKI, and LORRIE RAKOWSKI, Minors, by Their Guardian Ad Litem, FRANKLIN B. JOHNSTON\nNo. 762SC96\n(Filed 4 August 1976)\nFraud \u00a7 9\u2014 wife\u2019s conveyance to husband \u2014 insufficient allegations of fraud\nPlaintiff\u2019s allegations that she conveyed her interest in entirety property to her husband because her husband falsely told her that he could not make a will unless her name was taken off the deed were insufficient to state a claim for setting aside her deed to her husband on the ground of active or constructive fraud.\nAppeal by plaintiff from Rouse, Judge. Judgment entered 24 November 1975 in Superior Court, Beaufort County. Heard in the Court of Appeals 12 May 1976.\nBy deed dated 17 March 1959 plaintiff Margie Moore, wife of K. E. Moore, conveyed her interest in approximately 500 acres of land owned jointly by her and her husband to her husband, K. E. Moore. The deed was properly acknowledged pursuant to G.S. 52-6. Plaintiff and her husband have been married since 1930. K. E. Moore died on 30 May 1969. Four years after his death on 5 October 1973, plaintiff instituted this action to set aside the 1959 deed on the grounds that it was fraudulently procured by her husband. In paragraph 6 of the complaint the following allegations appear:\n\u201c6. That the fraud complained of is that K. E. Moore in violation of the mutual trust he and plaintiff had exercised towards one another for nearly 40 years fraudulently and falsely stated to the plaintiff that he could not make a will unless her name was taken off the deed. That the plaintiff believed the representations of the said K. E. Moore and acceeded to his procurement of her signature on the said deed.\u201d\nThe defendant, Wachovia Bank and Trust Company, moved for judgment on the pleadings. The motion was granted, and judgment dismissing the action was entered on 24 November 1974.\nPlaintiff appealed.\nFrazier T. Woolard for the plaintiff.\nGaylord, Singleton & McNally, by Danny D. McNally, and Mayo & Mayo, by William P. Mayo, for the defendant, Wachovia Bank and Trust Company."
  },
  "file_name": "0390-01",
  "first_page_order": 418,
  "last_page_order": 421
}