Lee BRADSHER
v.
Eula MORTON, Widow, James H. Morton, Arthur C. Smith and Beatrice Morton, Administrator and Administratrix of the Estate of James Morton, Deceased.
No. 385.
Supreme Court of North Carolina.
December 10, 1958.Charles B. Wood, R. P. Burns, R. B. Dawes, Roxboro, for plaintiff, appellee.
M. Hugh Thompson, Durham, Donald J. Dorey, Roxboro, William A. Marsh, Jr., Durham, for defendants, appellants.
HIGGINS, Justice.
This appeal comes to us from a judgment of the superior court which, after review, modified and affirmed findings of fact and conclusions of law made by the referee. Based on the findings, the trial judge ordered the defendants to pay to the plaintiff the sum of $20,000 and the court costs.
The referee held hearings over a period of several days. His findings of fact are in great detail. Upon exceptions filed thereto the trial judge carefully reviewed them and the evidence upon which they were based. He modified some in minor detail and made the additional findings referred to in the statement of facts. "When exceptions are taken to a referee's findings of fact and law, it is the duty of the judge to consider the evidence and give his own opinion and conclusion, both upon the facts and upon the law." Anderson v. McRae, 211 N.C. 197, 189 S.E. 639, 640.
In passing on the judgment from which this appeal was taken it becomes the duty of this Court to determine two things: (1) Are the facts found supported by competent evidence? (2) Are the facts found to have been thus supported sufficient to support the judgment?
The first essential inquiry relates to the question whether at the time he paid $20,000 to the defendant the plaintiff was actually indebted to the defendants' intestate. A number of separate findings of the referee, when combined, answer this question. The evidence in support of the referee's findings that nothing was due comes from different sources. Walter Bradsher, who had charge of his father's safe, testified that at the time of James Morton's death he had $11,600 in the safe. He further testified that during the many years he had charge of the safe he kept a book account of all amounts paid to James Morton during his lifetime, and that he had thus paid the sum of $38,418. (The defendants objected to this evidence.) The plaintiff introduced before the referee two disinterested witnesses who testified that shortly before Morton's death he made the statement he had about $11,000 in the plaintiff's safe. The plaintiff also introduced evidence that Morton took receipts for all deposits and from time to time when he made withdrawals he removed a receipt representing the amount of the withdrawal from the other receipts and "stuck" it on a filing wire he kept for that purpose. All receipts showed total deposits of $50,048.85. The receipts with wire perforations amounted to $38,688.85. Thus the unperforated receipts kept for the purpose of showing what was still in the safe amounted to $11,360slightly less than the amount shown by Walter Bradsher's books and slightly less than the amount turned over to the defendants after the death of their intestate.
Another circumstance tending to show that nothing was due the estate was the failure (as appears from the clerk's records) on the part of the defendants to include the payment in the list of assets belonging to the estate. The evidence is ample to support the findings that the plaintiff, at the time he made the payment which he seeks to have returned to him, was not indebted to the Morton estate.
In order to permit recovery, the plaintiff is required to show that the payment was involuntary. On this question the referee heard much evidence as to the effect the defendants' demands for money had upon the illiterate and worried old man, especially the defendants' claim that they had receipts which showed deposits of more than $50,000. With respect to the contested payment, the plaintiff testified: "Yes, I did that because I wanted to relieve *222 this burden. It was not the money burden because I knowed I didn't owe it. The burden was the family and the union that we might have between each other. I was not feared of the people as far as that part goes, but I didn't know what might arise. You take this like I was, then some folks kill folks for a quarter. * * * After he died, I wasn't thinking about nobody going to kill me, and I didn't think I was going to kill nobody, but I had them eight or nine boys and she had two or three. * * * but what I was studying about was hereinafter. I didn't want to die and leave them fighting and me and Jim brothers, * * * It said (the letter from the defendants) we want $18,000, and if you don't pay it * * * we will take further steps * * * That frightened me because I knowed they had my papers."
Members of the plaintiff's family testified he was so worried over the defendants' demands that he was unable to eat. He stated unless he got the trouble settled he would go crazy. The evidence before the referee and the court was sufficient to support the finding the payment here involved was not voluntary, but was made under duress.
In determining whether one acts under duress, "The mental condition of the person acted on must always be taken into consideration. The law does not leave the old, the weak, the ignorant, and the timid at the mercy of those who would operate on their fears to secure the payment of an unlawful demand." Am.Jur., 40, Sections 161, 162, pp. 825, 826. "Whatever be the cause of the mental weaknesswhether it arises from permanent injury to the mind, or temporary illness, or excessive old ageit will be enough to make the court scrutinize the contract with a jealous eye," and any unfairness or over-reaching will be promptly redressed." Bolich v. Prudential Ins. Co., 206 N.C. 144, 173 S.E. 320, 324. "Undue influence is frequently employed surreptitiously and is chiefly shown by its result." In re Thompson's Will, 248 N.C. 588, 104 S.E.2d 280.
From the foregoing and other authorities, it may be gathered that an unjust payment loses its voluntary character if it is brought about by fraud, duress, or undue influence. The evidence is sufficient to sustain the findings of the referee, as amended by the court, that the payment of $20,000 was obtained by undue influence and pressure which deprived the plaintiff of his "reason and discretion, and caused him to act to his detriment."
Finally, the defendants contend they are entitled to another hearing because the referee and the court considered incompetent evidence admitted over their objection. Thy say, especially, the book account of Walter Bradsher should have been excluded. While there may be technical objection to some of the evidence, it must be borne in mind that the hearing was being conducted before a referee appointed by the court to make inquiry, to hear evidence, make findings of fact, and state conclusions of law arising thereona situation quite different from that which arises in a hearing before a jury. In the nature of things the referee must hear the evidence before he can rule on its competency, whereas the jury is not permitted to hear incompetent evidence. The law recognizes this distinction and only requires that the findings by the referee and by the court be supported by competent evidence. Bizzell v. Bizzell, 247 N.C. 590, 101 S.E.2d 668; Reid v. Johnston, 241 N.C. 201, 85 S.E.2d 114; Board of Managers of the James Wa.ker Memorial Hospital of Wilmington v. City of Wilmington, 237 N.C. 179, 74 S.E.2d 749; Cameron v. Cameron, 232 N.C. 686, 61 S.E.2d 913.
We are not unmindful of the holding of this Court in Thompson v. Smith, 156 N.C. 345, 72 S.E. 379: "If there is any evidence to support the findings, and no error has been committed in receiving or rejecting testimony, and no other question of law is raised with respect to the findings, we accept what the judge has found as final, as we do in the case of a jury." And in Pack v. Katzin, 215 N.C. 233, 1 S.E.2d 566, 567, *223 in passing on a referee's findings, this Court said: "Thereupon, the adoption of these findings by the County Court, affirmed by the Superior Court, would render the facts so found conclusive and not open to review upon appeal, unless it be shown that the findings were based upon testimony which was incompetent and prejudicial."
"It is settled by all of the decisions on the subject, with none to the contrary, that the findings of fact, made by a referee and approved by the trial judge, are not subject to review on appeal, if they are supported by any competent evidence." Kenney v. Balsam Hotel Co., 194 N.C. 44, 138 S.E. 349, 350; Dorsey v. North Carolina Talc & Mining Co., 177 N.C. 60, 97 S.E. 746.
In passing on the referee's findings of fact, the correct rule seems to be to approve them if they are supported by competent evidence. However, if the only evidence upon which they are based is incompetent, they must fail for lack of support, and should be set aside on appeal. If both competent and incompetent evidence is introduced, it will be presumed the findings were based on the competent evidence, and if it is sufficient to support them, the findings will stand.
Questions whether Walter Bradsher's evidence, because of his relationship to the plaintiff, is admissible in his father's suit against the dead man's estate, and whether his book account is admissible as a record under Flippen v. Lindsey, 221 N. C. 30, 18 S.E.2d 824, are immaterial. Both personal representatives testified in detail with respect to the transactions here involved, thus opening the door. Highfill v. Parrish, 247 N.C. 389, 100 S.E.2d 840; Hayes v. Ricard, 244 N.C. 313, 93 S.E.2d 540; Peek v. Shook, 233 N.C. 259, 63 S.E. 2d 542.
For the foregoing reasons, the judgment of the Superior Court of Person County is
Affirmed.
PARKER, J., not sitting.