Lizzie Herring MILLS, Widow,
v.
Bessie Ingram DUNK and husband, William H. Dunk.
No. 110.
Supreme Court of North Carolina.
February 24, 1965.*360 Albion Dunn, Greenville, for plaintiff.
Fred W. Harrison and H. E. Beech, Kinston, for defendants.
SHARP, Justice.
Defendants' assignments of error, properly made, present one question only, the sufficiency of the evidence to withstand their motions for judgment as of nonsuit. In this Court, however, they demur ore tenus to the complaint on the ground that it contains no allegation that at the time defendants made their promise to support plaintiff for life, and thereby secured from her a deed to the property described in the complaint, they did not intend to perform the agreement.
If we construe the complaint liberally in plaintiff's favor, it sufficiently alleges fraud in the treaty, i. e., that, in order to secure her signature on the deed in question, defendants knowingly and intentionally represented to her that it contained their agreement to support her when, in fact, it did not; that plaintiff, who could not read, relied upon defendants' fraudulent misrepresentation that the deed had been drawn in accordance with their agreement, and executed the deed when, but for the fraudulent misrepresentation, she would not have done so.
Although a deed in proper form will convey the land described therein without any consideration, except as against creditors or innocent purchasers for value, Smith v. Smith, 249 N.C. 669, 676, 107 S.E.2d 530, 535, its consideration is a most material part of the transaction, unless the deed is actually a deed of gift. If a grantee who has secured a conveyance in consideration of his promise to support the grantor, falsely and fraudulently represents that the deed contains the agreement when it does not, from the grantor's point of view the misrepresentation relates to the most material part of the transaction. In such a case, for rescission the grantor relies on the fraud and not merely on the *361 failure of consideration. North Carolina is aligned with a minority of jurisdictions holding that, if there is no fraud or mistake and unless performance is made a condition precedent or subsequent, failure of consideration alone does not authorize cancellation of a deed made in consideration of an agreement to support. Murray v. King, 42 N.C. 19, followed in Minor v. Minor, 232 N.C. 669, 62 S.E.2d 60, and in Cherry v. Walker, 232 N.C. 725, 62 S.E.2d 329; Annot., Remedy of rescission for grantee's breach of agreement to support grantor, 112 A.L.R. 670; 50 Am.Jur., Support of Persons § 28 (1944). See McCall, Estates on Condition and on Special Limitation in North Carolina, 19 N.C.L.Rev. 334, 358-360.
Notwithstanding, an agreement to support and maintain a grantor during his remaining lifetime creates a peculiarly personal relationship and obligation. It calls for services and supervision over a long time, and mutual trust and respect are essential for satisfactory performance, on the one side, and acceptance, on the other. The grantor who discovers that the person to whom he has conveyed his land in consideration of such an agreement has secured the deed by false representations clearly indicating his bad faith, should not be relegated to successive actions for damages, even though in such actions the true consideration may be shown by parol. Such a remedy is as unrealistic as it is unjust.
The principle of law applicable to such a situation is quoted with reference to a release in Cowart v. Honeycutt, 257 N.C. 136, 142, 125 S.E.2d 382, 386:
"`If a misrepresentation amounting to fraud is made as to any matter embraced in the release the instrument is vitiated as a whole, and not merely as to the matter to which the misrepresentation relates; every portion and clause of a release voidable for fraud in its inception is unenforceable and not binding.' 76 C.J.S. Release § 27, p. 651."
A misrepresentation such as plaintiff has here alleged would taint the entire transaction with fraud entitling plaintiff to rescind her deed without any specific allegation that defendants did not intend to comply with their promise at the time they made it. Compare Gadsden v. Johnson, 261 N.C. 743, 136 S.E.2d 74, wherein the complaint was demurrable for failure to allege any fraud. Actually, however, from the allegations that defendants fraudulently omitted the agreement from the deed and thereafter failed to support plaintiff, an inference arises that defendants never intended to fulfill their promise to support her. The complaint states a cause of action for rescission for fraud, and the demurrer ore tenus is overruled.
Plaintiff's evidence was sufficient to establish the case she has alleged. Defendants' motions for nonsuit were, therefore, properly overruled.
Had this case been submitted to the jury on the theory alleged, i. e., fraud in the treaty, this appeal would present no problem. The difficulty comes about because the judge submitted the case to the jury on the theory of a promissory misrepresentation which, although implicit both in the allegations of the complaint and in plaintiff's evidence, is not specifically alleged. In so doing, however, the judge did not change the nature of the action; he merely substituted another brand of fraud. Upon the trial, had defendants wished to object to this deviation from the strict letter of the pleadings, they should have excepted to the issues and tendered those which they considered more appropriate. Upon appeal they should have excepted to the charge as it relates to the fourth issue and made assignments of error, in the manner prescribed by the rules of this Court, based on each of these exceptions. This they did not do. The record contains no exceptions and no assignments of error presenting for review the protest they now make, i. e., that the case was not submitted to the jury upon the *362 facet of fraud alleged in the complaint. A litigant, however, may not acquiesce in the trial of his case in the Superior Court upon one theory and here complain that it should have been tried upon another. In re Drainage of Ahoskie Creek, 257 N.C. 337, 125 S.E.2d 908; Edgerton v. Perkins, 200 N.C. 650, 158 S.E. 197.
Perhaps it is not amiss to say that on this same evidence it is not improbable that the final judgment would have been the same had the judge submitted the case to the jury as defendants now contend he should have done. Jurorsno less than courts"will guard with jealous care the rights of the aged and infirm who have conveyed their land in the belief that they were making provision for support and maintenance in their declining years." Denny, J. (now C.J.) in Higgins v. Higgins, 223 N.C. 453, 456, 27 S.E.2d 128, 130.
No error.