Melrose CONNER
v.
Mary Conner RIDLEY, Executrix of the Estate of Mrs. Lillie Conner.
No. 20.
Supreme Court of North Carolina.
September 17, 1958.*847 Don C. Young, Asheville, for plaintiff, appellant.
Hamrick & Jones, Rutherfordton, for defendant, appellee.
BOBBITT, Justice.
We pass, without discussion or decision, appellee's contention that the excluded evidence was insufficient to support a finding that Mrs. Lillie Conner made an oral agreement with plaintiff as alleged; for, in our view, the testimony tending to show such oral agreement, being in direct conflict with plaintiff's deed, is incompetent.
A well established rule is stated by Hoke, J. (later C. J.), in this oft-quoted excerpt from his opinion in the case of Gaylord v. Gaylord, 150 N.C. 222, 227, 63 S.E. 1028, 1031: "Upon the creation of these estates (parol trusts), however, our authorities seem to have declared or established the limitation that, except in cases of fraud, mistake, or undue influence, a parol trust, to arise by reason of the contract or agreement of the parties thereto, will not be set up or engrafted in favor of the grantor upon a written deed conveying to the grantee the absolute title, and giving clear indication on the face of the instrument that such a title was intended to pass." (Italics added.)
In Loftin v. Kornegay, 225 N.C. 490, 35 S.E.2d 607, 608, Denny, J., says: "A parol agreement in favor of a grantor, entered into at the time of or prior to the execution of a deed, and at variance with the written conveyance is unenforceable in the absence of fraud, mistake or undue influence. (Citations.) To permit the enforcement of such an agreement would be tantamount to engrafting a parol trust in favor of a grantor upon his deed, which purports to convey the absolute fee-simple title to the grantee. A parol trust in favor of a grantor cannot be engrafted upon such a deed. (Citations.)" Later cases in accord: Vincent v. Corbett, 244 N.C. 469, 94 S.E.2d 329; Lamm v. Crumpler, 240 N.C. 35, 81 S.E.2d 138; Jones v. Brinson, 231 N.C. 63, 55 S.E.2d 808; Bass v. Bass, 229 N.C. 171, 48 S.E.2d 48; Poston v. Bowen, 228 N.C. 202, 44 S.E.2d 881.
Plaintiff's contention that the excluded evidence was competent as tending to show the true consideration for the execution of his deed is untenable. The applicable rule is stated by Devin, J. (later C. J.), in Westmoreland v. Lowe, 225 N.C. 553, 35 S.E.2d 613, 614, as follows: "While it frequently has been said that the recital of consideration in a deed is not contractual and like other receipts is prima facie only of payment, and may be rebutted by parol, Barbee v. Barbee, 108 N.C. 581, 13 S.E. 215; Smith v. Arthur, 110 N.C. 400, 15 S.E. 197; Pate v. Gaitley, 183 N.C. 262, 111 S.E. 339; Unaka & City Nat. Bank v. Lewis, 201 N.C. 148, 159 S.E. 312, this rule may not be extended to authorize the admission of parol evidence to contradict or modify the terms of a deed, or to permit the conveyance or reservation of real property by parol. Campbell v. Sigmon, 170 N.C. 348, 87 S.E. 116; Price v. Harrington, 171 N.C. 132, 87 S.E. 986; Walters v. Walters, 172 N.C. 328, 90 S.E. 304; Whedbee v. Ruffin, 189 N.C. 257, 126 S.E. 616."
Here the alleged oral agreement purports to modify and contradict the crucial contractual provisions of the deed, namely, the provisions whereby the plaintiff conveyed his interest in the 259.25 acres to Mrs. Lillie Conner in fee simple. The alleged oral agreement, by placing an absolute restriction upon Mrs. Conner's right to dispose of this land or any part thereof by deed or by will, is wholly inconsistent with fee simple ownership. The gist of the alleged oral agreement is that, in contradiction of the express provisions of the deed, *848 the only beneficial or equitable title acquired by Mrs. Conner was a life estate, and that the remainder in fee was reserved by the grantors or that the legal title to such remainder vested in Mrs. Lillie Conner solely as trustee for her children.
Plaintiff, by his deed, having conveyed his interest in the land to Mrs. Lillie Conner in fee simple, cannot recover on an oral agreement to the effect that he did not do so.
In view of the stated basis of decision, we do not reach the question as to whether, under other factual situations, the statute of frauds, G.S. § 22-2, is applicable to an agreement not to deprive a person, by will or otherwise, of the portion of the promissor's estate or of the interest in a specific tract of land to which he would be entitled as heir.
Affirmed.