Tull v. Harvey & Son Co.

197 N.C. 329

• Court: Supreme Court of North Carolina
• Decided: June 12, 1929
• Status: Published

Opinion

Brogden, J.

Tbe record discloses that the defendant held no mortgage upon the Highway tract owned by the plaintiff. Therefore the relationship of mortgagor and mortgagee does not apply. The fact that the grantee in a deed bolds a mortgage, executed by the grantor on other property does not raise the presumption of fraud. Hart v. Cannon, 133 N. C., 10, 45 S. E., 351. Therefore, as there was no presumption of fraud arising from the relationship of the parties, it was necessary for the plaintiff to allege the specific facts, circumstances and acts constituting the fraud complained of. The principle of law is tersely expressed in Colt v. Kimball, 190 N. C., 169, 129 S. E., 406, as follows: “It is accepted in this jurisdiction that the facts relied, upon to constitute fraud, as well as the fraudulent intent, must be clearly alleged.” Foy v. Stephens, 168 N. C., 438, 84 S. E., 758; Nash v. Hospital, 180 N. C., 59, 104 S. E., 33. Tbe complaint in the case at bar does not comply with the principle of law so announced.

Tbe plaintiff, however, alleges that the defendant has not accounted to' her for the purchase price of her tract of land, and she is entitled to be beard on this cause of action.'

Affirmed.