Ollis v. . Board of Education

Schenck, J. The defendant assigns as error the ruling of the court in denying its motion for judgment as in case of nonsuit lodged when the plaintiffs had introduced their evidence and rested their case. C. S., 567. This assignment of error cannot be sustained. The plaintiffs’ evidence tends to show that J. T. Ollis offered to give to the Board of Education the land described in the deed as long as the board would keep a school on it, “but it was to revert back to him when the school was abandoned,” and that one E. L. Wiseman was appointed by the board to survey the land and draw the deed with reversionary clause. The evidence further tends to show that Wiseman thought the reversionary clause was in the deed, and that he represented to the grantors at the time they signed the deed that such a clause was contained therein, and that the grantors signed the deed relying upon the representation that Wiseman, the draftsman, made to them that the rever-sionary clause was therein contained. This evidence made- out a prima facie case, and his Honor correctly submitted the case to the jury, charging them that the burden was upon the plaintiffs to satisfy them by evidence clear, strong, and convincing that the first issue should be answered in the affirmative. Our decisions have established the principle that where there is any evidence to go to the jury on the question of mistake in the drafting of a bond or deed that the jury are to determine under proper instructions whether the evidence is of the character required. King v. Hobbs, 139 N. C., 170. *492 The defendant also assigns as error the ruling of the court in denying its motion for judgment as in case of nonsuit upon the ground that the evidence showed that the deed in question bad been of record since 1907, and that such registration was notice to the plaintiffs of the provisions of the deed, and for this reason the plaintiffs’ alleged cause of action was barred by the three-year statute of limitations. C. S., 441. This position is untenable. In Modlin v. R. R., 145 N. C., 218 (227), which was an action to recover damages for deceit growing out of drawing a deed for timher so as to include certain timher not included in the contract of sale, it is written: “Defendant assigns for error, further, that on the issue as to the statute of limitations the judge below declined to charge, as requested, that the registration of defendant’s deed was in itself such a notice of the alleged fraud as would put the statute in motion for the defendant’s protection and in bar of plaintiff’s claim; but the point has been resolved against the defendant. The statute applicable (Revisal, sec. 395, subsec. 9) (now C. S., 441-9), provides that actions of the present kind are barred in three years after the discovery by the aggrieved party of the facts constituting the fraud, and, construing this subsection, the Court has decided that the statute commenced to run when the aggrieved party first discovered the facts, or could have discovered them by the exercise of proper effort and reasonable care, and that the registration of the deed, or knowledge of its existence, by which the fraud was accomplished, was not of itself sufficient notice of such facts. Peacock v. Barnes, 142 N. C., 215; Stubbs v. Motz, 113 N. C., 458.” The evidence in the instant case tended to show that the first knowledge the plaintiffs bad that the deed did not contain the reversionary clause was gained by them the first of Novemher, 1933, and that summons in this case was issued 5 Octoher, 1935. His Honor’s ruling that the registration of the deed did not constitute notice to the plaintiffs that the reversionary clause bad been omitted therefrom was in accord with the decisions of this Court. Defendant also assails by exceptive assignments of error the rulings of the court in admitting over its objection certain testimony of the draftsman of the deed, R. L. "Wiseman, in regard to communications between himself and J. M. Parsons, deceased memher of the Board of Education of Mitchell County, the grantee -in the deed, and in regard to communications between himself and Dock Green, deceased superintendent of schools. These assignments of error, hased upon the theory that such testimony was in violation of C. S., 1795, cannot be sustained for the reason that it nowhere appears that the witness Wiseman was “a person interested in the event, or a person from, through, or under whom such a party or interested person derives his interest or title by *493 assignment or otherwise.” Nor are such assignments tenable upon tbe theory that the testimony of the witness Wiseman was hearsay evidence. The testimony objected to was to the effect that Wiseman was instructed by J. M. Parsons, a member of the Board of Education, and Dock Green, superintendent of schools, to place the reversionary clause in the deed. This was competent to show that the draftsman in drawing the deed failed, through mistake, to carry out his instructions from the grantee in the deed, as well as from the grantors, namely, to put in the deed the reversionary clause. “While negotiations leading up to the execution of the contract are merged in it at law, they are competent in equity to show what was the real agreement, for the purpose of correcting the instrument and doing justice.” Potato Co. v. Jeanette, 174 N. C., 236 (242). We have examined each of the assignments of error not abandoned in the brief of the appellee and find No error.