Willis v. . Willis

Clarkson, J. Will Willis and wife Mary Willis, as husband and wife, held an estate by the entirety in a certain lot of land in Lexington, N. 0. Will Willis conveyed one-half interest in the land to the plaintiff his wife, on 19 June, 1928. The deed had full covenants of warranty. Thereafter at February Term, 1931, Davidson Superior Court, an absolute divorce was granted Will Willis from his wife Mary Willis on the ground of adultery. The first question involved: Has plaintiff under the facts a fee simple title to the land in controversy? We think so by estoppel. In Dorsey v. Kirkland, 117 N. C., at p. 522-3, is the following: “The deed under which the defendant claims, having been made to him and his wife, they took an estate by entirety, which carried with it the right of survivorship, and neither acting alone could by deed destroy this right or affect the estate of the other (Freeman v. Belfer, 173 N. C., *520 581), but while this is so, during the joint lives of the husband and wife, the husband is entitled to the control and use of the land as his own property. ... In Bynum v. Wicker, 141 N. C., 96, a mortgage executed by the husband alone was sustained, the Court saying, ‘This estate by entirety is an anomaly, and it is perhaps an oversight that the Legislature has not changed it into a cotenancy, as has been done in so many states. This not having been done, it still possesses here the same properties and incidents as at common law. Long v. Barnes, 87 N. C., 333. At common law, “the fruits accruing during their joint lives would belong to the husband.” (Simonton v. Cornelius, 98 N. C., 437), hence the husband could mortgage or convey it during the term of their joint lives, that is, the right to receive the rents and profits; but neither could encumber it so as to destroy the right of the other, if survivor, to receive the land itself unimpaired/ and in Greenville v. Gornio, 161 N. C., 342, a lease for ten years made by the husband was held to be valid, and the Court said of the nature of the estate and the rights and powers of the husband during the life of the wife: ‘As Brady and his wife held, not as tenants in common or joint tenants, but by entireties, their rights must be determined by the rules of the common law, according to which the possession of the property during their joint lives vests in the husband, as it does when the wife is sole seized ‘ ” In Potts v. Payne, 200 N. C., at p. 249, is the following: “In McKinnon v. Caulk, 167 N. C., 411, it is held that a decree of absolute divorce destroys the unity of husband and wife, and therefore converts an estate by the entirety into a tenancy in common.” When Will Willis and Mary Willis were granted an absolute divorce the estate by entireties was severed and they became tenants in common, except for the fact that Will Willis had already conveyed to Mary Willis. In Hallyburton v. Slagle, 132 N. C., at p. 952, we find: “Indeed, it has been said to have been fully established as a principle by the best authority, that the doctrine of estoppel applies to conveyances without warranty where it appears, by the deed, that the parties intended to deal with and convey a title in fee simple. Graham v. Meek, 1 Ore., 325; 1 Greenleaf on Ev., sec. 24. And, if this is not true, the estoppel certainly arises when the conveyance of the land is coupled with a covenant of warranty. Mr. Greenleaf says: ‘A covenant of warranty estops the grantor from setting up an after-acquired title against the grantee, for it is a perpetually operating covenant.’ ” Capps v. Massey, 199 N. C., 196. From the facts and circumstances of this case we do not think the question of estoppel had to be pleaded. In Meyer v. Thompson, 183 *521 N. C., at p. 545 (quoting from Bank v. Glenn, 68 N. C., 36) is tbe following : “ ‘And if, after tbe sale to tbe vendee, tbe vendor perfects tbe title, sueb subsequently acquired title inures to tbe vendee by estoppel; wbicb, being a part of tbe title, may be given in evidence without being specially pleaded.’ ” By tbe divorce absolute tbe estate by entireties was converted into a tenancy in common — Mary Willis and defendant Will Willis eaeb having an undivided half interest. Will Willis having deeded a half interest to Mary Willis by warranty, is estopped to deny plaintiff’s title. Tbe second question involved: Have tbe defendants alleged sufficient facts to set aside tbe deed from Will Willis to Mary Willis for fraud and deceit, and is tbe evidence of sufficient probative force to sustain tbe allegations? We think not. In Stone v. Milling Co., 192 N. C., at p. 586, it is said: “The general conditions under which factual misrepresentations may be made the basis of an action for deceit are stated in Pollock on Torts (12 ed.), 283, as follows: ‘To create a right of action for deceit there must be a statement made by the defendant, or for which be is answerable as principal, and with regard to that statement all the following conditions must concur: (a) It is untrue in fact, (b) The person making the statement, or the person responsible for it, either knows it to be untrue, or is culpably ignorant (that is, recklessly and consciously ignorant) whether it be true or not. (c) It is made to the intent that the plaintiff shall act upon it, or in a manner apparently fitted to induce him to act upon it. (d) The plaintiff does act in reliance on the statement in the manner contemplated or manifestly probable, and thereby suffers damage.’ (At p. 581.) Our decisions are to the effect that ‘where it is sought to base one’s relief on the ground of fraud, the allegations of fact must be specific and definite.’ Evans v. Davis, 186 N. C., p. 45.” Hawkins v. Carter, 196 N. C., 538. In Hinsdale v. Phillips, 199 N. C., at p. 572, citing numerous authorities, we find: “As a general rule, fraud as a ground for the rescission of contracts, cannot be predicated upon promissory representations, because a promise to perform an act in the future is not in the legal sense a representation. Fraud, however, may be predicated upon the nonperformance of a promise, when it is shown that the promise was merely a device to accomplish the fraud. A promise not honestly made, because the promisor at the time bad no intent to perform it, where the promisee rightly relied upon the promise, and was induced thereby to enter into the contract, is not only a false, but also 'a fraudulent representation, for wbicb the promisee, upon its nonperformance is ordinarily entitled to a rescission of the contract.” *522 In Young v. Hamilton, 196 N. C., at p. 819, is tbe following: “pre-termitting the question as to whether the defendant in her counterclaim has alleged facts sufficient to constitute a defense or a cause of action for deceit (Stone v. Milling Co., 192 N. C., 585, 135 S. E., 449) we are of opinion that the evidence offered in support thereof is too vague and indefinite or too gossamery to sustain such an action or to defeat plaintiff’s claim.” The deed to plaintiff was made and executed by defendant "Will Willis on 19 June, 1928. He obtained a divorce from plaintiff nearly three years thereafter, February Term, 1931, Davidson Superior Court. This action was commenced 2 October, 1931, and the alleged defense of fraud, etc., set up over three years after the deed was made and in and after this action was instituted. The defendants tendered no issue of fraud nor did they except to the issues upon which the theory of the case was tried. In May v. Loomis, 140 N. C., 359, the Court says: “In order to rescind, however, the party injured must act promptly and within a reasonable time after the discovery of the fraud, or after he should have discovered it by due diligence; and he is not allowed to rescind in part and affirm in part; he must do one or the other.” McNair v. Finance Co., 191 N. C., at p. 718. Defendant Will Willis testified in part: “The consideration between me and my wife, was when I made her this deed that she would stop riding, running around with this man at night. . . . And I made her this deed and she left with him three weeks after that.” Conceding that there was fraud, yet with the knowledge of the fraud that the defendant Will Willis alleged was practiced on him, more than three years before, he never brought an action to set aside or rescind the deed for fraud, but set up the defense of fraud in this action, over three years after he knew of the fraud. He is too late under the facts and circumstances of this case. 72 A. L. R., p. 729. Of course the three-year statute if pleaded is also applicable. O. S., 441(9); Stancill v. Norville, ante, 457. We see no evidence of mutual mistake. In Black on Rescission and Cancellation, 2nd ed. (1929), part sec. 541, p. 1334, speaking to the subject: “It is also a general principle that a person who knows that he is entitled to rescind a contract cannot wait until suit is brought for payment or other enforcement of the contract and then set up his grounds of rescission, or at least, such a course is regarded with great disfavor by the courts if there has been any considerable lapse of time since his discovery of the facts.” “In Van Gilder v. Bullen, 159 N. C., 291, 74 S. E., 1059, it is said: ‘It is also well' established that the right to rescind must be exercised promptly, and if there is unreasonable delay, the right is lost, and the *523 party defrauded is generally relegated to bis action for damages. Alexander v. Utley, 42 N. C., 242; Knight v. Houghtalling, 85 N. C., 17.’ In tbat case it was beld tbat tbe party wbo alleged tbat be bad been induced to enter into tbe contract by fraudulent representations made by tbe other party bad no right of rescission, as there bad been a delay of about two years after tbe discovery of tbe alleged fraud, before tbe action in which be prayed for rescission was commenced.” Hinsdale v. Phillips, supra, at p. 574. Conceding that the allegations of the defendants’ further answer to the complaint is plenary, yet the evidence offered by defendants is not of sufficient probative force to be submitted to a jury. We do not think tbe other exceptions and assignments of error made by defendants material and necessary to be considered. For the reasons given, we find No error.