Brown v. Gurkin

HEDRICK, Judge. The only question presented on this appeal is whether the Court erred in directing verdict for the defendants. It is well-settled in this State that in order to reform a deed, absolute on its face, into a mortgage or security for a debt, it must bp alleged and proven that the clause of redemption was omitted by reason of ignorance, mistake, fraud, or undue advantage. This must be established by proof of declarations and proof of facts and circumstances, dehors the deed, inconsistent with the idea of an absolute conveyance. Isley v. Brown, 253 N.C. 791, 117 S.E. 2d 821 (1960); Perkins v. Perkins, 249 N.C. 152, 105 S.E. 2d 663 (1958). In Harris v. Bingham, 246 N.C. 77, 97 S.E. 2d 453 (1957), Parker, J., later C.J., quoting from Harrison v. R. R., 229 N.C. 92, 47 S.E. 2d 698 (1948), said: “The duty to read an instrument or to have it read before signing it, is a positive one, and the failure to do so, in absence of any mistake, fraud, or oppression, is a circumstance against which no relief may be had, either at law or in equity.” See also, Williams v. Williams, 220 N.C. 806, 18 S.E. 2d 364 (1941). In the present case, the plaintiff neither alleged nor offered any evidence tending to show that the clause of redemption was omitted from the deed, which she signed, because of ignorance, mistake, fraud, or undue advantage. There is no evidence in this record tending to show that plaintiff was prevented in any way from ascertaining that the “paper” which she was signing [459] was a deed conveying the property to the defendants with a life estate in the home reserved to her. When evidence in this case is considered in the light most favorable to the plaintiff and all contradictions and conflicts in plaintiff’s testimony are resolved in her favor, we are of the opinion that Judge Cohoon was correct in directing a verdict for defendants. The judgment is Affirmed. Judges Britt and Carson concur.