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Calloway v. Witherspoon

Supreme Court of North Carolina
Dec 1, 1847
40 N.C. 128 (N.C. 1847)


(December Term, 1847.)

If, when a man is so drunk as to render him an easy prey to the fraudulent designs of another, an unfair advantage is taken of his situation to procure for him an unreasonable bargain, a court of equity will interfere and rescind the contract, not on the ground of his drunkenness, but of the fraud.

CAUSE removed from the Court of Equity of CALDWELL, at Spring Term, 1844, by consent of parties.

Boyden for plaintiff.

Avery and Bynum for defendants.

The bill charges that the plaintiff and William Howard were the bastard and only children of one Polly Howard, and that William Howard died in August, 1840, intestate and without any lawful issue. For nine or ten years before his death he had been very intemperate, so much so that his mind was impaired; and about two months before his death he purchased from the defendant John Witherspoon a tract of land for the sum of $4,000, which he paid for in notes upon other persons.

The bill further states that at the time of the purchase, and before the deed for the land was executed, it was distinctly understood between the parties that the vendor, John Witherspoon, was to execute a deed conveying the fee simple in the land; that the deed was drawn by one of the other defendants, Dula, who was a brother-in-law of the grantor, and witnessed by him and another, who is the son of the defendant, and only conveys an estate for the life of William Howard; that nothing was, at the time of its execution, said as to the extent of the estate conveyed, and that the grantee, William Howard, accepted it under the belief that he was getting a deed in fee simple; that the sum (129) of $4,000 was a high price for the fee simple, and that from the habits of William Howard it was not worth $300 for his life estate, and the deed was executed in June, 1840. The bill charges that the defendant John Witherspoon held the land in right of his wife, and well knew he could convey a fee simple, but, by his false suggestions and fraudulent conduct, induced William Howard to believe that he could; that since the death of the latter the plaintiff requested John Witherspoon to correct the deed and make a good title in fee simple, which he refused. The bill prays that either the contract may be rescinded and the defendant John Witherspoon be decreed to repay the money received by him, or that he may be decreed to execute a good and sufficient deed in fee simple with general warranty. The bill further charges that in the division of the estate of William Dula among his heirs, the land now in question was assigned to the wife of the defendant John Witherspoon, who was one of them, and valued by the commissioners at $2,700, and that real estate was higher in market at that time than when the defendant sold to William Howard, and charges a combination between the defendants to defraud William Howard.

The answer of John Witherspoon admits the sale of the land to William Howard, at his own request and at the price of $4,000; admits that it was held by him as land which he had got by his wife, and that in the division of the estate among the heirs of her father it was assigned to her as one of them, and was valued by the commissioners at $2,700, but denies that was its true value. It avers that William Howard well knew his title to the land, and that he could not convey it in fee; and denies that he sold or intended to sell, or that Howard bought or intended to buy, anything but the life estate of the defendant. It avers that the deed was prepared by William H. Dula, who was instructed by said Witherspoon as to the interest intended to be conveyed, and before it was executed it was distinctly and fairly read over to William (130) Howard, who expressed himself fully satisfied with it, and denies that he thought he was receiving the deed in fee. He admits the deed was intended to convey an estate for said defendant's own life, and that he thought it did convey such estate, and consents to have the deed so rectified. In another part of his answer he states that he was to convey an estate for the life of Howard as well as his own, and is willing to correct that error.

The answer of William H. Dula states he knows nothing of the contract, but as told him by John Witherspoon; at the request of the latter, he drew the deed, but did not witness it, nor was he present when it was executed; was told by John Witherspoon to draw the deed so as to convey only his life estate, as that was all he had sold.

The answer of W. P. Witherspoon denies all knowledge of the trade between the parties; was a subscribing witness to the deed, and believes he read it over to William Howard, and if so, read it correctly; denies he made any attempt, or that any was made in his presence, to induce W. Howard to believe that it was a deed in fee simple.

Replications were taken to the answers, and the case was set for hearing.

The equity of the plaintiff's bill is that in purchasing the land in dispute from John Witherspoon, William Howard bargained for, and intended to buy, a fee simple in the land, and was induced by the fraudulent representations of the said Witherspoon to accept a deed which did not convey such an interest, under the belief that it did convey it and that it was sufficient for that purpose. The bill charges that the price paid for the land was full value of the fee simple, and the answers do not deny it. It is indeed admitted by the (131) defendant, John Witherspoon, that the land, when allotted to his wife, was valued at $2,700, but he denies that was its full value, but does not state what it was worth.

No person was present when the bargain was made. We are left, therefore, to draw our opinion from the deed itself, and the after declarations of the parties, and the facts admitted. Upon its face, the deed conveys to William Howard nothing but an estate for his life, with a general warranty from J. Witherspoon and his heirs of title to him and his heirs forever. The price given was the full value of the fee simple of the land, and the defendants admit that it was the intention of the grantor to convey to Howard a title for the life of John Witherspoon, or for his own life and that of Howard. It is further admitted that William Howard was a very intemperate man, and that at the time the deed of conveyance was executed he had been drinking. The plaintiff does not pretend that William Howard was, at the time of making the contract, drunk to that extreme point as would, of itself, invalidate the act, but that he was so drunk as to render him an easy prey to the fraudulent designs of the defendant, John Witherspoon, and if, while in that situation, an unfair advantage has been taken of him to procure from him an unreasonable bargain, a court of equity will interfere and rescind the contract, not on the ground of his drunkenness, but of the fraud. Cook v. Clagworth, 18 Ves., Jr., 12; Say v. Barwick, 1 Ves. and Be., 195; Story's Eq., 236, sec. 231. The witnesses, on both sides, agree as to the intemperate habits of William Howard, but differ as to its effect upon his ability to manage and transact his business, or make contracts. Some of those on the part of the plaintiff state that he was rarely sober, and when drinking appeared to have no mind; those examined for the defendants never saw him so drunk as to disqualify (132) him. There are three witnesses to the conveyance; only one has been examined, and he by the plaintiff — David E. Bowers. He states that Howard, "for some time before his death, had become very intemperate from excessive drink," and "that he had frequently seen him when intoxicated; that his mind appeared to be entirely void of reason," and "that he was intoxicated at the time the deed was executed." On his cross-examination he was asked by the defendant, "If, at the time the deed was executed, Howard's mind was not in a situation to know very well what he was doing?" The answer is, "He appeared to be in a situation in which he might do business — not so bad as he had sometimes seen him, and not so good," etc. It is then established that he was, at the time the contract was executed, in a state of intoxication. Was an unfair advantage taken of the situation, to obtain from him an unreasonable bargain? We think the evidence fully establishes such to have been the fact. If the contract was such as the defendant alleges, then it is unreasonable upon its face. No witness valued the fee simple at more than $4,000, and all but one at prices ranging from $3,000 to that sum, and yet we are told that Howard agreed to give for the life estate of John Witherspoon the large sum of $4,000, the full value of the fee. As a reason, however, why he should be willing so to do, it is alleged that there was a feud between him and the plaintiff's family, and that he had at different times declared that they should not enjoy any of his property; that he had so fixed it they should not. It is strange, if such was his determination, it had not occurred to him that a will would have been more efficacious. It would have executed his purpose, and left him in the full and free enjoyment of his property during his life. Instead of so doing, it is alleged that while in the enjoyment of his mental faculties, and with a full knowledge of what he is doing, he accepts a deed which not only deprives the plaintiff and her family of the enjoyment of his property after his death, (133) but actually makes his own enjoyment of it dependent upon the life of Witherspoon. The land excepted, Mr. Bowers tells us, he was not worth $150, and the witnesses for the defendant testify that he was a young man, and as likely to live a long time as any one. Now, it is certainly true that Howard had the legal right to dispose of his property as it is alleged he did, but the unreasonableness of such a disposition is, in our opinion, strong evidence either that he was imposed on or that he did not understand the nature of the conveyance he accepted. But further to show that Howard was not imposed on, the defendant alleges that the deed was distinctly and deliberately read over to him before it was executed, and he expressed himself, and that to different persons, that he was satisfied, and that he had got such a deed as he had bargained for. Mr. Bowers is asked if the deed was read to or by Howard; he states he does not know; he is then asked what kind of a title he understood was to be conveyed; he answers, he does not recollect to have heard anything said by the parties at the time, as to the title, but he understood it was to be a full, good, and absolute title. At the time the conveyance was executed there were four persons present, beside the parties to the instrument, towit, William H. Dula, the brother-in-law of the defendant, and the three attesting witnesses, of whom Mr. Barnes was one, and the son of the defendant another. Mr. Barnes alone is examined, and no reason is assigned why the testimony of the others has not been brought before us. If they could have sustained the allegation of the answer of John Witherspoon upon this point, we have little doubt it would have been done. The allegation, then, that the deed was read over to Howard, and that he understood it, is not sustained. But it is proved that to different persons he did state that he was satisfied, and that he had got such a deed as he had bargained for. Did he get such a conveyance as, according to the answer of John Witherspoon, he had bargained for? Certainly not; he was (134) then either mistaken or had been imposed on; he did not get the estate he had contracted for, but one which, though of a higher, was of a different, character, and which in the event turned out to be worth little or nothing. Did he understand the deed as written? We cannot believe he did. Howard lived but about two months after the conveyance was executed, and after it was so executed he offered to sell the land to Daniel Horton, and, a short time before his death, he consulted James Brown, another witness, as to arranging his worldly affairs, as he said he was sick, and thought he would die; and after the payment of his debts he intended to give the land to the son of Polly Simmons. He had no land to give but that now in question, and if he had known the nature of the deed he had gotten, he must have known he had nothing in it to devise; that his interest expired with his life. His meaning, then, when he declared he was satisfied with the deed, that he had gotten what he had bargained for, was not that he had purchased nothing but his life estate, but that he had got a deed from John Witherspoon, with general warranty, and that would make his title good. He relied upon the warranty, either as conveying the fee or as binding the grantor to make it, and such belief was produced on his mind by the fraudulent representations of the defendant Witherspoon. We are confirmed in the opinion that William Howard believed he was purchasing the fee in the land, and that he had done so, from the additional facts that John offered the land to Thomas Isbell, one of the subscribing witnesses, at the price of $3,500, the full value of the fee simple, and that, after the sale, he advised Catlett Jones to purchase it from William Howard, telling him it would suit him, and upon neither of these occasions did he speak of a life estate. Whether, however, the conveyance was drawn so as to convey but a life interest to Howard, by mistake or fraud, (135) is not material to the relief of the plaintiff, for in either case the Court will correct the instrument. We are perfectly satisfied it was so drawn either by fraud or mistake. So far from Howard understanding it, Witherspoon himself, according to his answer, did not. He says in one part of it that he sold his own estate, namely, for his own life, and in another part that the contract was for a conveyance of the land for the lives of himself and William Howard, while the deed conveys but an estate for the life of Howard. It is admitted, therefore, that there was an error or mistake, to some extent at least, and the defendant says he is willing the plaintiff shall enjoy the estate while he lives, and that he has not disturbed her. But where a mistake is thus clearly established, upon the parties' own admission, we are the more at liberty to give weight to other circumstances, as to the extent of it. Upon that point, the value of the estate, the understanding of the only subscribing witness as to that bargained for, the purpose of the purchaser to dispose of the land as if he had the fee, the omission of the defendant to produce evidence that the treaty was for a life estate only, or that the deed was read by Howard or to him when he was in a condition to understand it, and when it appears really not understood by any of the persons present, all satisfy us that the contract was for a sale and purchase in fee, or at least that Witherspoon was to convey in fee, with general warranty. And we must so declare, and that the deed was otherwise drawn, either by fraud or mistake. The plaintiff, therefore, is entitled to the relief she seeks.

PER CURIAM. Decree accordingly.


Summaries of

Calloway v. Witherspoon

Supreme Court of North Carolina
Dec 1, 1847
40 N.C. 128 (N.C. 1847)
Case details for

Calloway v. Witherspoon

Case Details


Court:Supreme Court of North Carolina

Date published: Dec 1, 1847


40 N.C. 128 (N.C. 1847)

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