{ "id": 11274824, "name": "J. M. POWELL et al. v. J. K. MORISEY et al.", "name_abbreviation": "Powell v. Morisey", "decision_date": "1887-09", "docket_number": "", "first_page": "426", "last_page": "430", "citations": [ { "type": "official", "cite": "98 N.C. 426" } ], "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": "93 N. C., 415", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11273941 ], "opinion_index": -1, "case_paths": [ "/nc/93/0415-01" ] }, { "cite": "6 Jones Eq., 365", "category": "reporters:state", "reporter": "Jones Eq.", "case_ids": [ 8682718 ], "opinion_index": -1, "case_paths": [ "/nc/59/0365-01" ] }, { "cite": "1 Dev. Eq., 101", "category": "reporters:state", "reporter": "Dev. Eq.", "opinion_index": -1 }, { "cite": "6 Jones Eq., 90", "category": "reporters:state", "reporter": "Jones Eq.", "case_ids": [ 8681617 ], "opinion_index": -1, "case_paths": [ "/nc/59/0090-01" ] }, { "cite": "84 N. C., 408", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8694973 ], "opinion_index": -1, "case_paths": [ "/nc/84/0408-01" ] }, { "cite": "84 N. C., 421", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8695415 ], "opinion_index": 0, "case_paths": [ "/nc/84/0421-01" ] }, { "cite": "93 N. C., 415", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11273941 ], "opinion_index": 0, "case_paths": [ "/nc/93/0415-01" ] }, { "cite": "6 Jones Eq., 365", "category": "reporters:state", "reporter": "Jones Eq.", "case_ids": [ 8682718 ], "opinion_index": 0, "case_paths": [ "/nc/59/0365-01" ] }, { "cite": "1 Dev. Eq., 101", "category": "reporters:state", "reporter": "Dev. Eq.", "opinion_index": 0 }, { "cite": "6 Jones Eq., 90", "category": "reporters:state", "reporter": "Jones Eq.", "case_ids": [ 8681617 ], "opinion_index": 0, "case_paths": [ "/nc/59/0090-01" ] }, { "cite": "84 N. C., 408", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8694973 ], "opinion_index": 0, "case_paths": [ "/nc/84/0408-01" ] } ], "analysis": { "cardinality": 477, "char_count": 8874, "ocr_confidence": 0.515, "pagerank": { "raw": 3.26318377778688e-07, "percentile": 0.8696371873418103 }, "sha256": "9420906b531e4e3d048dc7f5c7826ded007b0bc6601925b64c5abdb96b1420a3", "simhash": "1:628f63f3d2712a4d", "word_count": 1526 }, "last_updated": "2023-07-14T17:51:55.485321+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "J. M. POWELL et al. v. J. K. MORISEY et al." ], "opinions": [ { "text": "Davis, J.\nThe consideration' m\u00e9ntioned in the deed is the \u201cnatural love and affection\u201d of the grantor for the grantees, his grandchildren, and the sum of \u201cone dollar;\u201d\u2019 and the deed recites that \u201cthesaid James Vann, Sr., has bargained and sold, given, granted, aliened, enfeoffed and conveyed, and does by these presents give, grant, alien, enfeoff and convey (reserving his life estate, or estate during his life, in the following lands): all fhat lot of land, &c., (describing it) * * * To have and to hold the above described lands and premises to the said James N. Register, Harman H. Register, Gibson S. Register, Jno. R. Register and Edmund N. Register, saving and reserving the life estate of the said James Vann in the aforesaid lands.\u201d\nThe record is voluminous, but the foregoing is the case on appeal, as settled and signed by counsel for both sides, and present the single question: Could the Court correct the mistake mentioned ? All agreements, so far as the binding efficacy of their promises is concerned, must be referred to one or the other of these causes: a valuable consideration, a mere voluntary bounty, or the'performance of a moral duty. The first alone is binding at law, and enables the promiser to enforce the obligation against the obligor. * * * *\nThe third constitutes the meritorious or imperfect consideration of equity, and is recognized as affection by it, within very narrow limits, although not at all by law. While this species of consideration does not render an agreement en-forcible against the promiser himself, nor against any one in whose favor he has altered his original intention, yet if an intended gift, based upon such a meritorious consideration, has been partially and imperfectly executed or carried into effect by the donor, and if his original intention remains unaltered at his death, then equity will, within certain narrow limits, enforce the promise thus imperfectly performed as against a third person, claiming by operation'of law, who has no equally meritorious foundation for his claim. The equity thus described, as based upon a meritorious consideration, only extends to cases involving the duties either of charity, of paying creditors, or of maintaining a wife and children. This last duty of maintaining children includes persons to whom the promisor stands in loco parentis.\u201d Pomeroy\u2019s Equity Jurisprudence, Vol. 2, \u00a7588.\nUpon a review of the authorities, this, we think, is as far as equity has gone, and it will only perfect or correct mistakes in deeds supported by valuable or meritorious consideration.\nIn Day v. Day, 84 N. C., 408, the Chief Justice citing Hunt v. Frazier, 6 Jones\u2019 Eq., 90, says \u201cThe jurisdiction to reform deeds is not exercised unless the transaction is based on a valuable or meritorious consideration,\u201d\nIn the latter case of Hunt v. Frazier, the Court refused to reform a deed executed in favor of the wife and children of the brother of the grantor.\n\u201cIt is,\u201d says Judge Hall, in Dawson v. Dawson, 1 Dev. Eq., 101, \u201c the old beaten ground, long since occupied by the Courts of Equhw, not to aid voluntary conveyances \u201d\nAll the cases cited by the counsel for the defendant, in which the mistakes were corrected and the deeds reformed were based upon valuable considerations.\nThe deed from James Vann to his grandsons was voluntary and without valuable consideration. Was the consideration meritorious f Did James Vann stand in loco parentis to the grandchildren ?\n\u201c The proper definition of a. person in loco parentis to a child, is that of a person who means to put himself in the situation of the lawful father of the child, with reference to the father\u2019s office in and duty of making provision for the child.\u201d Chitty\u2019s Equity Digest- \u2014 -title, \u201c Parties in Loco Pa-rentis,\u201d and the cases there cited.\nThe simple fact that the grandfather voluntarily conveyed to the grandchildren is not proof that he intended to assume the office and duty of the father in making provision for them, and in the absence of other evidence the Court cannot assume that he had taken or intended to take upon himself such relation. Upon proof of such relation the consideration becomes meritorious, and Courts of Equity will lend their aid, as in favor of children, but in the absence of proof, they will not. In this case no such proof appears? and the Court cannot reform the deed. A defective execution cannot be supplied in favor of the grandchild. Adams\u2019 Equity, 101.\nIt does not come within the class of cases represented in Mordecai v. Boylan, 6 Jones\u2019 Eq., 365, and Scott v. Moore, Winston\u2019s Eq., 98, (Hinsdale\u2019s Edition. 641).\nThis disposes of the only question presented in the case \u2022on appeal.\nThe special proceeding was originally commenced in 1879, and the case was before this Court at January Term, 1881, upon appeal of plaintiffs, which appeal was dismissed upon the ground then stated, 84 N. C., 421. The counsel for the .appellants now insist that it should have been remanded by the Court below to the clerk of the Superior Court; that there was no judgment rendered by the clerk, and that it could only get properly into the Superior Court in term by \u2022an appeal from his judgment. For this he cites Taylor v. Bostic, 93 N. C., 415.\nThis is a misapprehension, and if it were not, we do not see how it could avail the appellants. It is only upon questions of law that there must be a judgment of the clerk from which an appeal maybe taken; but \u201call issues of fact joined before the clerk shall be transmitted to the Superior Court for trial at the next succeeding term of said Court.\u201d The Code, \u00a7116.\nThe appellants claim title under the will of James Vann, -deceased, which is set out in the petition. We pass no judgment upon the sufficiency of that title, but only declare that the plaintiffs are not entitled to a reformation of the deed .stated in the case.\nError.", "type": "majority", "author": "Davis, J." } ], "attorneys": [ "Messrs. M. G. Richardson and Haywood & Haywood, for the plaintiffs.", "Mr. J. L. Stewart, for the defendants." ], "corrections": "", "head_matter": "J. M. POWELL et al. v. J. K. MORISEY et al.\nEquity \u2014 Mistake in Deed, When Corrected \u2014 Practice.\n1. Equity will not correct a mistake in a voluntary deed \u2014 e. g., by inserting the word \u201cheirs,\u201d which was omitted by the inadvertance of the draughtsman; but otherwise, where the deed is supported by a valuable or meritorious consideration.\n2. The fact that the consideration in the voluntary deed in this case is \u201c natural love and affection and the sum of one dollar,\u201d is not sufficient to establish an intention of the grantor (grandfather) to place himself in loco parentis to the grantees (grandchildren), and raise a meritorious consideration.\n3. Where an issue of fact is raised before the clerk, no judgment can be rendered, but the case must be transferred to the Court for trial. The Code, \u00a7116. It is only upon questions of law where the clerk must give judgment, from which an appeal may be taken.\n(Day v. Day, 84 N. C., 408; Hunt v. Frazier, 6 Jones Eq., 90; Dawson v. Dawson, 1 Dev. Eq., 101; Mordeeaiv. JBoylan, 6 Jones Eq., 365; Scott v. Moore, Winst. Eq., 98, and Taylor v. Bostic, 93 N. C., 415, cited).\nSpecial PROCEEDING for the sale of land for partition, commenced before the clerk and tried at February Term; 1886, of SampsoN Superior Court, before Gilmer, Judge.\nThe petitioners allege that James Vann, their ancestor, by deed made in 1860, which is set out in full in the pleadings, conveyed to his grandsons, James N., Harman H., Gibson S., John R., and Edward N. Register, the' lands mentioned in the petition, for life, and that the said grandsons are dead and the petitioners are entitled to partition of said land.\nThe defendants claim the entire interest in the land. They \u201c admit that the deed appears from its face to convey only a life estate, but say that the intention of the grantor was to convey a fee simple estate in said lands to the Registers, and that the word \u201cheirs \u201d was omitted from said deed by mistake, through the inadvertance of the draughtsman. It appeared to the Probate Court that an issue of fact was raised by the pleadings, and the case was sent up to the Superior Court to be tried by a jury upon the following issue:\n\u201c Was it the intention of James Vann, deceased, in making the deed to his grandchildren, James M. Register and others, of the lOth'day of April, 1860, to convey a fee simple interest to the grantees therein named in the lands described in the said deed, and were the words of inheritance omitted in said deed by reason of the mistake and inadvertance of the draughtsman ?\u201d\nTo which the jury answered, \u201cYes.\u201d\nThe plaintiffs contended that a Court of Equity could not correct a mistake in a voluntary deed of conveyance, unless-by consent of all parties.\nThe defendants insisted that a Court of Equity could correct such a mistake in a voluntary deed.\nJudgment was rendered for the defendants, from which the plaintiffs appealed.\nMessrs. M. G. Richardson and Haywood & Haywood, for the plaintiffs.\nMr. J. L. Stewart, for the defendants." }, "file_name": "0426-01", "first_page_order": 458, "last_page_order": 462 }