Baker v. . Mitchell

31 S.E. 700, 123 N.C. 337

• Court: Supreme Court of North Carolina
• Decided: November 29, 1898
• Status: Published

Opinion

Montgomery, J.:

The plaintiff brought this action to have the deed in fee to the tract of land described in the complaint which she had executed to the defendant D. 0. Baker, reformed so as to annex it to a covenant for the support and maintenance of the plaintiff, for her life, to be a charge upon the land, the allegation being that at the time of the execution of the deed it was intended and agreed that such charge for maintenance was to be inserted, but it was left out by the fraud of the grantee who prepared the deed for her signature.

The evidence objected to by the defendants and received by His Honor all pertained to the question of fraud in the execution of the deed, and as an issue of fraud was submitted to the jury and found for the defendant, it is unnecessary to consider the exceptions to his Honor’s rulings and the evidence offered under that head.

The third issue was in these words, “Was plaintiff to have her support on the land when said-deed was executed?” and the jury responded “Yes.” The defendant’s counsel asked the court to instruct the jury that there was no evidence to warrant a finding by the jury that there was an agreement between the parties to the deed that the plaintiff was to have a charge upon the land for her maintenance. The instruction was refused. After a most careful reading of the evidence offered we are of the opinion that it was not sufficient in a reasonable view of it to warrant the inference by the jury that there was any agreement as alleged by the plaintiff. His Honor was in error in refusing the instruction.

Error.