Mrs. Nora WALTERS
v.
Charlotte Walters BRIDGERS and husband, Paul F. Bridgers, Vivian Walters Ingram and husband, Clarence P. Ingram.
No. 309.
Supreme Court of North Carolina.
November 25, 1959.*178 J. Faison Thomson & Son, Goldsboro, for plaintiff.
Paul B. Edmundson, Jr., Braswell & Strickland, Goldsboro, for defendants.
DENNY, Justice.
The plaintiff's assignments of error based on exceptions to the exclusion of evidence or the limiting of certain evidence as against the defendant Charlotte Walters Bridgers only, have been carefully considered and they are without merit and are overruled.
The only remaining assignment of error is based on an exception to the allowance of defendants' motion for judgment as of nonsuit, made at the close of the plaintiff's evidence.
It is alleged in the complaint herein that Charlotte Walters Bridgers knew that her mother, by reason of her physical and mental condition, was incapable of knowing and did not know how to transact business; and through fraud and undue influence took advantage of her mother's physical and mental condition, and contrary to the will and desire of her mother, "caused a paper writing, purporting to be a will, to be prepared, and caused her mother to go through the form of acknowledgment of her signature to the paper writing, purporting to be a deed" for the 104-acre tract of land, to Charlotte Walters Bridgers, Vivian Walters Ingram, and Nola Walters Peele.
It is further alleged that at the time of the execution of said deed, Mrs. Nora Walters was infirm and had been for several years prior thereto; that this fact was well known to Charlotte Walters Bridgers "who claims to own a one-third undivided interest in the property, under the pretended deed; that the said Charlotte Walters Bridgers * * * procured her to execute the deed for the real property, representing to this plaintiff that the paper writing * * * was a will; * * * that this plaintiff relied upon her daughter, Charlotte Walters Bridgers and, without consideration, signed the said paper writing; that the said Charlotte Walters Bridgers, by reason of the confidential relationship existing between her and this plaintiff, her mother, and for the further reason that Charlotte Walters Bridgers was strong and vigorous in mind and body, exercised a strong influence over the mind and body of this plaintiff; that this plaintiff was grossly ignorant of her act, and relied upon the representation of Charlotte Walters Bridgers, and is entitled to relief."
As we interpret the evidence introduced in the trial below, it does not support the plaintiff's allegations of fraud and undue influence. Moreover, the mere relation of parent and child does not raise the presumption of undue influence. In re Craven's Will, 169 N.C. 561, 86 S.E. 587; *179 Gerringer v. Gerringer, 223 N.C. 818, 28 S. E.2d 501; Jernigan v. Jernigan, 226 N.C. 204, 37 S.E.2d 493; Davis v. Davis, 236 N.C. 208, 72 S.E.2d 414. Cf. McNeill v. McNeill, 223 N.C. 178, 25 S.E.2d 615.
The plaintiff's daughter, Mrs. Bridgers, lived about a quarter of a mile from her. The plaintiff owned an automobile but was physically unable to drive it. She called on Mrs. Bridgers to drive for her on numerous occasions. According to plaintiff's own testimony, when she called on Mrs. Bridgers to take her to town to see her attorney in January 1945, "not much of anything was said between Charlotte and me." The evidence supports the conclusion that she sent Mrs. Bridgers to the office of her attorney to get him to come to the car and confer with her. She testified that she gave her attorney instructions as to what she wanted done and that he wrote down those instructions. There is no evidence tending to show that Mrs. Bridgers participated at all in the conversation between the plaintiff and her attorney on that occasion, or that she acted in any other capacity than that requested of her by her mother when she later took her mother to Mr. Jinnette's office on 8 February 1945 to execute the papers which had been prepared by her attorney. Likewise, there is no evidence tending to show that Mrs. Bridgers had the deeds recorded or that she requested that the deeds filed for registration were "not to be published." The evidence does support the view that after the deeds were recorded by the Register of Deeds they were mailed to the plaintiff and that she has had continuous possession of them since that time.
Furthermore, the record reveals that the plaintiff sold $4,000 worth of timber from the 71-acre tract of land in 1951, and after she found that she had conveyed this property to two of her seven children she added $200 to the proceeds from the sale of the timber and gave each of her daughters the sum of $600.
It likewise appears that thereafter, in January 1955, she again went to town with Mrs. Bridgers for the purpose of having a will written, notwithstanding the fact that she testified she thought she had a will in her possession, prepared in 1945, and that she did not discover otherwise until May 1957. The evidence does not indicate any intent to change her will or to add a codicil thereto; her purpose, according to her testimony, was to have a will prepared.
The plaintiff is relying principally on the case of Vail v. Vail, 233 N.C. 109, 63 S.E.2d 202, for a reversal of the judgment below. The factual situation in the Vail case is unlike the facts in the instant case. In the Vail case there was competent evidence to the effect that the mother authorized one of her sons to have a deed prepared, for her execution, for the purpose of conveying to him a lot on Vail Alley, in High Point, which was worth about $1,200. Instead of carrying out his mother's instructions, he had a deed prepared to the Vail homeplace located on South Main Street in the City of High Point, which was worth about $16,000. Certainly that evidence, together with other evidence tending to show that the defendant had acted on numerous occasions as agent for his mother, was sufficient to carry the case to the jury on the issue of fraud and deceit.
In the instant case, there is not a scintilla of evidence that tends to show that the defendant Mrs. Bridgers ever had anything to do with the preparation of any instrument for her mother; and the fact that she said to her mother on the way to town, "If we all share alike, wouldn't any of them get anything," etc., is not sufficient to establish fraud or undue influence.
If Mrs. Bridgers did assert any undue influence or practice any fraud on the plaintiff in the procurement of the deed in controversy, the plaintiff has failed to offer any competent evidence sufficient to support the allegations with respect thereto.
In the case of Jernigan v. Jernigan, supra, in a case similar to that before us, *180 Chief Justice Stacy said [226 N.C. 204, 37 S.E.2d 495]: "* * * the petitioners contend that they were not allowed the benefit of a factual presumption of fraud or undue influence which arises from the relationship of the parties, to wit, parent and child. McLeod v. Bullard, 84 N.C. 515, 516; Lee v. Pearce, 68 N.C. 76; Abbitt v. Gregory, 201 N.C. 577, 160 S.E. 896, 898. In answer to this position, it suffices to point out that while the adult daughter acquired the 42¾ acres of land from her mother in 1941, there is no evidence of any confidential or fiduciary relation, existing between them at the time, which would give rise to a presumption of fraud. Gerringer v. Gerringer, 223 N.C. 818, 28 S.E.2d 501; In re Will of Atkinson, 225 N.C. 526, 35 S.E.2d 638; In re Craven's Will, 169 N.C. 561, 86 S.E. 587. The mother lived in her home; the daughter in hers, a quarter of a mile away. The mother managed her own affairs; the daughter helped her in her old age. This seems to be all. In re Craven, supra. `The mere relation of parent and child does not raise a presumption of undue influence.' Gerringer v. Gerringer, supra."
What was said in the Jernigan case seems to apply with equal force to the present case.
The plaintiff contends that this is an action to quiet title and that she is entitled to judgment as a matter of law upon a plea of confession and avoidance if the defendants fail to prove the new matter alleged by them as an affirmative defense, citing Wells v. Clayton, 236 N.C. 102, 72 S.E.2d 16. We agree with what was said in that case; that case, however, is not controlling here. Here, the plaintiff alleged and offered evidence tending to show that the record title to the premises in controversy is in the defendants, except the one-third undivided interest therein which Nola Walters Peele and her husband, who live in Florida, reconveyed to the plaintiff. Consequently, this is simply an action to set aside a deed allegedly procured by fraud and undue influence. There is no plea of confession and avoidance involved here as there was in Wells v. Clayton, supra. Therefore, the burden rested upon the plaintiff in the trial below to prove not by clear, cogent and convincing evidence that the deed was procured by fraud or undue influence, Ricks v. Brooks, 179 N.C. 204, 102 S.E. 207, but by the preponderance or greater weight of the evidence. Bolich v. Prudential Insurance Co., 206 N.C. 144, 173 S.E. 320.
The judgment of the court below is
Affirmed.
HIGGINS, J., not sitting.