Steel v. . Black , 56 N.C. 427 ( 1857 )

The plaintiff, being hard pressed for money, and his land being levied upon and advertised for sale, conveyed to the defendant, then a married woman, a tract of land, worth two hundred dollars, and got her to pay off the executions that were then against him. These amounted to about $100. The plaintiff remained in possession of the land for a while after the execution of the deed, and then rented it out for a year at thirty dollars, which was paid to him with the knowledge of the defendant and with her assent. The plaintiff alleges, in his bill, that the land in question was advertised to be sold at Concord, on the week of Cabarrus county court, October term, 1854, and that the defendant meeting him at that place, proffered to advance him money to pay off the executions, and to take a deed for the land as security for the repayment of the money advanced; and as she was then a married woman, she proposed that her husband, in a few weeks thereafter, should execute a bond to reconvey the land on the repayment of the money with interest; that he agreed to the terms proposed, and accordingly made and absolute deed for the premises; that at the same time it was agreed between them, if he was unable to redeem the land, she was to advance a further sum, so as to make the whole sum three hundred dollars, which was the estimated value of the land; that in about three weeks afterwards he called on her to have the bond to reconvey executed, when she expressed a willingness to do so, but said it was not convenient to do the writing at that time, and it was further agreed that it should be done in a short time thereafter; that in about three weeks more he tendered her the sum advanced for him, which she refused, insisting that the purchase was an absolute one.

Samuel N. Black, the husband of the defendant, died in the year — — , having made and published a will, in which he devised the land in question to the defendant, and appointed her his sole executrix, and she therefore brought an action of ejectment against the terre-tenant, who had been put into possession by the plaintiff, which was still pending when the bill was filed. The bill is filed against the defendant in her individual capacity and as executrix of her husband, and prays for a reconveyance of the land upon the repayment of the money advanced, with interest, and that, for that purpose, an account may be taken to ascertain the amount.

The defendant denies, in her answer, that she made any such agreement to reconvey the premises on the repayment of the money as is alleged. She says that the plaintiff, meeting with her at Concord, on the day on which his land was to be sold, proposed the terms which he now insists on having been agree on between them, but that she refused them, and would only agree to make the necessary advance of cash, on condition that the land was sold to her absolutely for the amount he required to pay off the executions; that the plaintiff finding that she would not loan the money upon the security offered, to avoid the exposure of a public sale, agreed to sell the land to her for the amount required to satisfy the executions, which she admits was only about half its value. She utterly denies the agreement to have a bond executed by her husband, but says she gratuitously told the plaintiff, after the deed was made, that she would let him have the land back if he would pay her the money advanced, with interest. She admits that she assented to the rent's being paid to the plaintiff for the year after the deed was made, but she says this was done entirely out of favor to the plaintiff, because he was in needy circumstances and she had got the land cheap.

There were replication and proofs, and the cause being set for hearing, was sent to this Court by consent. The pleadings and proofs satisfy us of these facts: the plaintiff was pressed for money; his land had been levied on and was advertised by the sheriff for sale; the consideration paid for the land did not exceed one half of its value, as admitted by the defendant, or one third according to the proof; the plaintiff retained possession for more than a year — receipt of the rent being a possession on his part; the defendant admitted that she had agreed to execute a bond to reconvey if the money was repaid. So, undue advantage was taken of the necessitous condition of the plaintiff to get his property at much less than it would have sold for under execution. There was fraud in agreeing to execute a bond to reconvey and afterwards refusing to do so. The possession of the plaintiff was inconsistent with an absolute sale, and is a fact dehors the declarations of the defendant.

The circumstance that the defendant was a feme covert, and therefore her agreement to execute the bond was void, will not avail her as a defense. Notwithstanding her coverture, she was capable of accepting the deed so as to acquire title, and the agreement as to the bond is relied on, not for the purpose of enforcing it, but for the purpose of showing fraud and undue advantage on her part; in regard to which it is pregnant proof.

The pretext set up by the answer, that the plaintiff was willing to sell his land absolutely, at half price, to avoid the exposure of a public sale, after it had been levied on and advertised, is too flimsy to be entitled to notice.

The plaintiff has established every particular necessary to bring his case within the principle upon which this Court will declare a deed, absolute on its face, to be a security for money.

The plaintiff is entitled to a decree for redemption, upon payment of the money advanced and interest; as to which, there will be a reference.

PER CURIAM, Decree accordingly.