Brown v. Gurkin

Court of Appeals of North Carolina

Brown v. Gurkin

206 S.E.2d 504, 22 N.C. App. 456, 1974 N.C. App. LEXIS 2356

CourtCourt of Appeals of North Carolina

DecidedJuly 17, 1974

DocketNo. 742SC251

StatusPublished

This text of 206 S.E.2d 504 (Brown v. Gurkin) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Brown v. Gurkin, 206 S.E.2d 504, 22 N.C. App. 456, 1974 N.C. App. LEXIS 2356 (N.C. Ct. App. 1974).

Pincite

Opinion

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]*459was 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.

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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]*459was 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.

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206 S.E.2d 504, 22 N.C. App. 456, 1974 N.C. App. LEXIS 2356, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-gurkin-ncctapp-1974.

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