Chilton v. . Smith

Clabic, C. J. Tbe defendant, John E. Smith,1 did not allege in bis answer tbat bis deed to tbe plaintiff was intended as a mortgage, nor did be allege, or offer proof, tbat tbe clause of defeasance or redemption was omitted therefrom by reason of ignorance, mistake, fraud, or undue influence or advantage, but admits tbat it was a deed absolute upon its' face; tbat be knew it was sucb, and was intended to be so drawn; tbat it was mailed to bim by tbe plaintiff, who was 12 miles away, and-was signed and acknowledged by bim, witb full knowledge of its contents in tbe absence of tbe plaintiff, and was then delivered by bim to tbe plaintiff. *474 The defendant baying failed to allege and offer proof that the clause of defeasance or redemption was omitted from the deed by reason of ignorance, mistake, fraud, or undue influence, the evidence tendered by him to show an oral agreement by the plaintiff to reeonvey, or that he made the deed relying on such promise, which the defendant did not intend to keep, was incompetent, and was properly excluded. Sowell v. Barrett, 45 N. C., 50; Brown v. Carson, ib., 272; Campbell v. Campbell, 55 N. C., 364; Briant v. Corpening, 62 N. C., 325; Bonham v. Craig, 80 N. C., 224; Egerton v. Jones, 102 N. C., 278; Norris v. McLam, 104 N. C., 159; Sprague v. Bond, 115 N. C., 530; Newton v. Clark, 174 N. C., 393; Williamson v. Rabon, 177 N. C., 302; Newbern v. Newbern, 178 N. C., 3. In Gaylord v. Gaylord, 150 N. C., 227, it was held that a parol trust cannot be established between the parties in favor of the grantor in a deed, when the effect will be to contradict or change by a contemporaneous oral agreement the written contract clearly and fully expressed. This is a well considered case in which the subject was elaborately discussed, and which has been repeatedly recited as authority — see citations in the Anno. Ed. And it has been followed since that volume has been annotated in Newton v. Clark, 174 N. C., 394, citing numerous cases; and Williamson v. Rabon, supra, and Newbern v. Newbern, supra, where the subject was again discussed. To permit the terms of a solemn conveyance, absolute on its face, to be contradicted by a contemporaneous parol agreement would be in the teeth of the letter and the intent of the statute of frauds. C. S., 988. In Fuller v. Jenkins, 130 N. C., 554, it was held that “Where it was agreed between the grantor and the grantee at the time the deed was delivered that it should operate as a mortgage, the grantor is entitled to have the deed declared a mortgage by reason of such agreement,, although the redemption clause was not omitted by reason of ignorance, mistake, fraud, or undue advantage.” But this case seemingly stands alone, and in Williamson v. Rabon, 177 N. C., 306, it was fully considered and expressly overruled. If .a mortgagor conveys to the mortgagee the mortgaged property, the conveyance is prima facie made under undue influence, because the mortgagor is in chains and the burden is on the mortgagee to prove the contrary. But that is not the case here, though there was a mortgage for $1,000 given by the defendant to secure a debt to which the plaintiff was his surety and John R. Smith was debtor to a bank, of which the plaintiff was president, for money borrowed. It is not alleged or shown that any confidential relation existed, which placed the defendant under the control or undue influence of the plaintiff. The defendant’s case *475 rests solely upon an alleged contemporaneous oral agreement in conflict with, the terms of the conveyance. In view of the uniform decisions of this Court, and the elaborate discussion of the principles now presented by the defendant in Gaylord v. Gaylord, 150 N. C., 222, and Williamson v. Rabon, 177 N. C., 304, we could add nothing that would justify our restatement of the principle® so clearly laid down in those and other cases above- cited. No error. WaleeR, I., concurs in result only.