{
  "id": 11270552,
  "name": "A. B. NEWBERN v. J. M. NEWBERN",
  "name_abbreviation": "Newbern v. Newbern",
  "decision_date": "1919-09-10",
  "docket_number": "",
  "first_page": "3",
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      "cite": "178 N.C. 3"
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    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
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    "name_long": "North Carolina",
    "name": "N.C."
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      "category": "reporters:state",
      "reporter": "N.C.",
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      "cite": "174 N. C., 393",
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      "cite": "41 N. C., 283",
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    {
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      "cite": "118 N. C., 737",
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      "cite": "376 N. C., 325",
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    {
      "cite": "176 N. C., 328",
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  "last_updated": "2023-07-14T18:32:08.818827+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "A. B. NEWBERN v. J. M. NEWBERN."
    ],
    "opinions": [
      {
        "text": "ClaeK, C. J.\nThis was an action by tbe plaintiff against bis brother to convert a deed absolute on its face into a mortgage. In tbe original complaint there was no allegation that the clause of redemption was omitted by mistake. The amended complaint alleges that \u201cby mistake of the draftsman who drew this paper-writing the clause of redemption was omitted therefrom,\u201d and \u201cthat by reason of the ignorance or the mutual mistake of the parties or the mistake of the plaintiff, and fraud or undue advantage of the defendant, the said clause of redemption was omitted from said writing.\u201d\nThere was testimony by the plaintiff that he and his brother had agreed that the defendant should loan him money in addition to sums already loaned, and that the defendant should be secured by a conveyance of the plaintiff\u2019s interest in the lands conveyed by the father to them and their other brothers in remainder after his life estate, and that this agreement was made in North Carolina on plaintiff\u2019s visit here, and that he afterwards returned to Oklahoma where he was then residing and still resides; that thereafter the defendant sent the deed in question to the plaintiff, enclosed in an envelope, with a letter stating that it was a deed in trust drawn according to the agreement, and that ,the plaintiff and his wife executed the deed and returned it to the defendant. It was recorded immediately. This action was not begun until 18 September, 1916.\nThe defendant denied these allegations, and also pleaded the laches of the plaintiff as well as the three- and ten-year statutes of limitations. The court directed a judgment of nonsuit.\nThere was no evidence of a mutual mistake nor of a mistake induced by fraud. It appears by the plaintiff\u2019s testimony that he was a man of education, having spent two years at Randolph-Macon College, and that at the time of signing the deed he was a man of maturity and older than his brother, the defendant.\nIn Taylor v. Edmunds, 176 N. C., 328, the Court said: \u201cThe mere fact that a grantor who can read and write signs a deed does not necessarily conclude him from showing, as between himself and the grantee, that he was induced to sign by fraud on the part of the grantee, or that he-was deceived and thrown off his guard by the grantee\u2019s false statements and assurances, designedly made at the time and reasonably relied on by him.\u201d\nThere are many other cases to the same effect, but in all of them there is a clear statement that there must be-evidence either of \u201cfraud in the factum,\u201d that is, an inducement to sign by \u201ctrick or device,\u201d such as placing the instrument along with several others, as in Taylor v. Edmunds, 376 N. C., 325, or evidence of positive misrepresentation designedly made and reasonably relied upon.\nIn all other cases the negligence of the party signing the deed to read the same when he had opportunity to so do will bar the assertion of his equity, \"vigilaniibus non dormientibus aequitas subvenit Dellinger v. Gillespie, 118 N. C., 737, and cases cited thereto in Anno. Ed. In this ease, as in that, it may be said: \u201cIt is plain that no deceit was practiced here. It was pure negligence in the defendant not to have read the contract. There it was before him, and there was no trick or device resorted to by the plaintiff to keep him from reading it.\u201d\nIn this instance the defendant was not present, but when the deed was signed, 2,000 miles away, and the plaintiff had full opportunity to examine it. It does not appear in the testimony that there was any positive misrepresentation made and reasonably relied upon by the plaintiff. The only evidence relied on is the plaintiff\u2019s testimony that in the letter in which the defendant sent the deed he stated that he \u201chad enclosed the deed of trust drawn as per his agreement.\u201d He did not produce such letter, and it appears from his testimony that he kept the paper in hand a week before signing. He was a man of education and the opening words of the paper are \u201cThis deed,\u201d printed in extra large type.\n\u201cIn order to correct a deed which is absolute on its face, and to convert it into a security for debt, it must be alleged and proven that the clause of redemption was omitted by reason of ignorance, mistake, fraud or undue advantage,\u201d and tbe intention must be established by proof, not merely of declarations, but of facts, de hors tbe deed, inconsistent witb tbe idea of an absolute purchase. Sowell v. Barrett, 45 N. C., 50, citing Streator v. Jones, 10 N. C., 423; Kelly v. Bryan, 41 N. C., 283, and saying that \u201cotherwise, titles evidenced by solemn deeds would be at all times exposed to tbe slippery memory of witnesses!\u2019\nTo tbe same effect is Brown v. Carson, 45 N. C., 274, and tbe citations to that case, and to Kelly v. Bryan, supra, in tbe Anno. Ed. Also tbe most recent cases, Newton v. Clark, 174 N. C., 393, and Williamson v. Rabon, 177 N. C., 303, which are hereby cited and reaffirmed.\nTbe judgment of nonsuit is\nAffirmed.",
        "type": "majority",
        "author": "ClaeK, C. J."
      }
    ],
    "attorneys": [
      "Thompson & Wilson and Meehins & McMullan for plaintiff.",
      "Ehringhaus & Small, Aydlett, Simpson & Sawyer and A. M. Simmons for defendant."
    ],
    "corrections": "",
    "head_matter": "A. B. NEWBERN v. J. M. NEWBERN.\n(Filed 10 September, 1919.)\nDeeds and Conveyances \u2014 Equity \u2014 Correction \u2014 Trusts \u2014 Mortgages\u2014Evidence.\nA deed absolute upon its face may not be declared a mortgage by tbe courts in tbe absence of allegation and proof tbat tbe redemption clause bad been omitted by mistake or tbat it bad been induced by fraud and under advantage taken; and where tbe grantor was competent to fully understand tbe instrument, bad kept it a week before signing, though spoken of in tbe letter of transmittal as a deed in trust \u201cas per agreement,\u201d be is bound by bis deed, and bis testimony tbat tbe grantee and himself bad agreed that it should be given to secure a loan, is insufficient to convert it into a mortgage.\nAppeal by plaintiff from Bond, J., at January Term, 1919, of Oue-eituce:.\nThompson & Wilson and Meehins & McMullan for plaintiff.\nEhringhaus & Small, Aydlett, Simpson & Sawyer and A. M. Simmons for defendant."
  },
  "file_name": "0003-01",
  "first_page_order": 67,
  "last_page_order": 69
}