{ "id": 8628709, "name": "J. B. WADDELL et al. v. ALEXANDER AYCOCK et al.", "name_abbreviation": "Waddell v. Aycock", "decision_date": "1928-03-07", "docket_number": "", "first_page": "268", "last_page": "271", "citations": [ { "type": "official", "cite": "195 N.C. 268" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "186 N. C., 41", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652645 ], "opinion_index": 0, "case_paths": [ "/nc/186/0041-01" ] }, { "cite": "176 N. C., 635", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8657400 ], "opinion_index": 0, "case_paths": [ "/nc/176/0635-01" ] }, { "cite": "175 N. C., 38", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8656927 ], "opinion_index": 0, "case_paths": [ "/nc/175/0038-01" ] }, { "cite": "151 N. C., 237", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654460 ], "opinion_index": 0, "case_paths": [ "/nc/151/0237-01" ] }, { "cite": "177 N. C., 302", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654347 ], "opinion_index": 0, "case_paths": [ "/nc/177/0302-01" ] }, { "cite": "174 N. C., 393", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11254060 ], "opinion_index": 0, "case_paths": [ "/nc/174/0393-01" ] }, { "cite": "130 N. C., 554", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11274171 ], "opinion_index": 0, "case_paths": [ "/nc/130/0554-01" ] }, { "cite": "129 N. C., 30", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8658590 ], "opinion_index": 0, "case_paths": [ "/nc/129/0030-01" ] }, { "cite": "115 N. C., 530", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652326 ], "opinion_index": 0, "case_paths": [ "/nc/115/0530-01" ] }, { "cite": "105 N. C., 197", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652517 ], "opinion_index": 0, "case_paths": [ "/nc/105/0197-01" ] }, { "cite": "104 N. C., 159", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8650908 ], "opinion_index": 0, "case_paths": [ "/nc/104/0159-01" ] }, { "cite": "192 N. C., 642", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625799 ], "opinion_index": 0, "case_paths": [ "/nc/192/0642-01" ] }, { "cite": "150 N. C., 222", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11270486 ], "opinion_index": 0, "case_paths": [ "/nc/150/0222-01" ] }, { "cite": "189 N. C., 452", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654415 ], "opinion_index": 0, "case_paths": [ "/nc/189/0452-01" ] }, { "cite": "173 N. C., 124", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11269189 ], "opinion_index": 0, "case_paths": [ "/nc/173/0124-01" ] }, { "cite": "117 N. C., 497", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653538 ], "opinion_index": 0, "case_paths": [ "/nc/117/0497-01" ] } ], "analysis": { "cardinality": 500, "char_count": 9025, "ocr_confidence": 0.451, "pagerank": { "raw": 1.8579005000738382e-07, "percentile": 0.7244445525588558 }, "sha256": "95754c0b8bc5b16e3da1fbab5200b9e32344beaa4533f5086fc5d63dfce71673", "simhash": "1:f012c747a40ce0d6", "word_count": 1596 }, "last_updated": "2023-07-14T20:22:12.241767+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "J. B. WADDELL et al. v. ALEXANDER AYCOCK et al." ], "opinions": [ { "text": "Adams, J.\nUpon the face of the pleadings \u2014 the complaint, the answer, and the reply \u2014 there appear certain undisputed facts. Harris Waddell made a will, the second item of which is in these words: \u201cI give and devise to my grandsons, John Waddell and Henry Waddell, my tract of land lying on the north side of Molton Branch, said to contain 150 acres, to be equally divided, John\u2019s to be to him, his heirs and assigns forever, Henry\u2019s part I lend to him for his use his lifetime, and at his death I do devise to his heirs forever.\u201d Not John\u2019s interest, but Henry\u2019s, is in controversy. It is manifest that in the devise to Henry the word \u201cheirs\u201d must be construed in its technical sense as carrying the estate to the entire line of heirs; that as used here it is not a word of purchase, but a word of limitation; and that Henry acquired an estate in fee under the rule in Shelley's case. Nichols v. Gladden, 117 N. C., 497; Smith v. Smith, 173 N. C., 124; Hartman v. Flynn, 189 N. C., 452. On 17 January, 1899, apparently after partition, Henry Waddell with the joinder of his wife, executed and delivered to Barnes Aycock a deed in fee simple, with the usual covenants of warranty, conveying 57% acres of the land he had acquired under the devise. The grantee forthwith entered upon the land and retained undisturbed possession thereof until his death, which occurred in 1926. Immediately after his death the defendants went into possession claiming title to the land as his children and heirs at law. Henry Waddell died 3 May, 1925, and on 12 April, 1927, the plaintiffs as his heirs brought suit to recover the land he had conveyed to the ancestor of the defendants. They base their action upon these allegations: (1) When the deed was executed a parol trust was created for the benefit of the grantor; (2) the deed, though absolute in form, was intended as a mortgage; (3) the statute of limitations did not run against the plaintiffs during the lifetime of Henry Waddell.\n1. It may be said with respect to the first of these propositions that while parol trusts are recognized, and under certain conditions are upheld in our jurisprudence, in the absence of fraud, mistake, or undue influence, they cannot be engrafted in favor of the maker upon a warranty deed conveying to the grantee an absolute and unqualified title in fee. Gaylord v. Gaylord, 150 N. C., 222; Tire Co. v. Lester, 192 N. C., 642.\n2. An answer to the plaintiffs\u2019 second position is given in Norris v. McLam, 104 N. C., 159, and in cases subsequently decided maintaining the principle that to convert a deed absolute on its face into a mortgage it must be shown that the clause of redemption was omitted by reason of ignorance, mistake, fraud, or undue influence or advantage. Green v. Sherrod, 105 N. C., 197; Sprague v. Bond, 115 N. C., 530; Frazier v. Frazier, 129 N. C., 30. In Fuller v. Jenkins, 130 N. C., 554, it was held that an agreement between grantor and grantee, made at the time a deed was delivered, that it should operate as a security for debt was sufficient to convert it into a mortgage; but this conclusion was subsequently disapproved in Newton v. Clark, 174 N. C., 393, and Williamson v. Rabon, 177 N. C., 302. The only averment of fraud is that of \u201cfraud in deceit of Barnes Aycock practiced on plaintiffs\u2019 ancestor,\u201d and this is fatally defective. Fraud must be alleged with sufficient certainty and fullness to indicate to the opposing party what he is called upon to answer. Mottu v. Davis, 151 N. C., 237; Marshall v. Dicks, 175 N. C., 38; Galloway v. Goolsby, 176 N. C., 635; Evans v. Davis, 186 N. C., 41. Nor under the admitted facts is the allegation as to \u201cthe mutual mistake of the draftsman\u201d sufficient to impeach the judgment.\n3. The plaintiffs were likewise in error as to the running of the statute of limitations. The father of the defendants, the grantee in the deed, had possession of the land in controversy from 1899 to 1926, and the defendants have since held uninterrupted possession. This is admitted by the plaintiffs, but they say that the possession of the defendants was not adverse for the reason that Henry Waddell acquired only a life estate under the will and that during his lifetime the statute did not run against them as remaindermen. This is an erroneous interpretation of the devise, and such an error cannot affect the character of the defendants\u2019 possession. A suit for relief on the ground of fraud or mistake is barred by the lapse of three years, and a suit to redeem a mortgage, when the mortgagee is in possession, must be instituted within ten years after the right of action accrued. It is alleged in the complaint that the debt was payable at any time, or in effect that it was payable on demand; so in any event the plaintiffs are not entitled to the relief demanded.\nWe have pointed out the appellants\u2019 allegations for the purpose of showing that their claim is not meritorious; but they now assail the judgment on another ground. They except because the trial judge did not permit them to take a voluntary nonsuit.\n\u2022 The attorney who represented the plaintiffs did not attend the term of court at which the judgment was rendered. He \u201cadvised\u201d the presiding judge \u201cthat it was impossible to try the case,\u201d but afterwards received information that a continuance would not be granted. He then prepared a judgment of nonsuit and mailed it to the judge requesting th\u00e1t it be signed. It was not signed, and upon this ground only the plaintiffs prosecute their appeal. Waiving the contention that upon the allegations and admissions in the pleadings the defendants were entitled to affirmative relief of which they could not be deprived by a voluntary nonsuit, we are unable to discover any error in the refusal to sign the judgment tendered. \"While an attorney is not a public officer in the constitutional or statutory sense, he is an officer of the court, charged with the performance of an obligation to the public no less significant than his obligation to his client. His right to practice law is a privilege, not a natural right; and the manner in which the privilege is exercised is subject to the supervisory power of the court. For this reason he is expected to be present when he undertakes to represent his client in term, and if he is not, the court is under no obligation to waive his presence. The judgment is\nAffirmed.", "type": "majority", "author": "Adams, J." } ], "attorneys": [ "B. L. Bay for plaintiffs.", "Dichinson & Freeman for defendants." ], "corrections": "", "head_matter": "J. B. WADDELL et al. v. ALEXANDER AYCOCK et al.\n(Filed 7 March, 1928.)\n1. Wills \u2014 Construction\u2014Nature of Estates and Interests Created \u2014 Rule in Shelley\u2019s Case.\nA devise of lands to testator\u2019s two sons, J. and H., to be equally divided; to the former \u201cto be to him, his heirs and assigns forever\u201d; to the latter, \u201cI lend to him for his use his lifetime, and at his death I devise to his heirs forever\u201d: Held, the word \u201cheirs,\u201d as applied to the devise to H., is construed in its technical sense as carrying the estate to his entire line of heirs and according to the rule in Shelley\u2019s case H. takes a fee-simple absolute in the lands so devised to him.\n2. Trusts \u2014 Constructive Trusts \u2014 Grounds Therefor \u2014 Parol Trusts.\nA parol trust cannot be engrafted on an unqualified fee simple with full warranty and covenant deed in favor of the maker in the absence of fraud, mistake, or undue influence.\n3. Same \u2014 Mortgages\u2014Equity.\nEquity will not convert a deed, conveying upon its face an absolute fee-simple title to lands, into a mortgage when it is not shown that the clause of redemption was omitted by reason of fraud, mistake, or undue influence.\n4. Fraud \u2014 Pleadings\u2014Sufficiency of Allegations.\nWhen fraud is relied on to convert, in equity, a deed which upon its face conveys an, absolute fee-simple title to lands into a mortgage, the fraud must be alleged in the pleadings with sufficient certainty and fullness to indicate to tjie opposing party what he is called upon to answer.\n5. Limitation of Actions \u2014 Statute of Limitations \u2014 On Equitable Relief for Fraud, Mistake, etc., and to Convert Fee into Mortgage.\nA suit for equitable relief on the ground of fraud or mistake is barred by the lapse of three years, and one to convert the fee-simple title into a mortgage within ten years after the right of action accrued when the alleged mortgagee is in possession.\n6. Attorney and Client \u2014 Offices of Attorney \u2014 Duties and .Privileges\u2014 Supervision of Court.\nAn attorney at law is an officer of the court in the sense that he owes a duty to the public, as well as to his client, and the manner of his exercise of his right to practice is subject to the court\u2019s supervisory power.\n7. Trials \u2014 Voluntary Nonsuit \u2014 On Transmission by Absent Attorney.\nIt is not error for the trial judge to omit or refuse to sign a voluntary judgment as of nonsuit transmitted to him by the attorney of the defendant, or waive the appearance of the attorney in court, for the purpose of the motion.\nAppeal by plaintiffs from Grady, J., at November Term, 1927, of Wayne. Judgment on the pleadings.\nAffirmed.\nB. L. Bay for plaintiffs.\nDichinson & Freeman for defendants." }, "file_name": "0268-01", "first_page_order": 340, "last_page_order": 343 }