Ollis v. . Board of Education , 210 N.C. 489 ( 1936 )

This is a civil action wherein the plaintiffs are asking for the reformation of a deed executed by them to the Board of Education of Mitchell County on 27 December, 1904, and wherein it is alleged by the plaintiffs that at the time said deed was executed the draftsman, through mistake, failed to insert a clause providing for the land to revert to the grantors in the event it ceased to be used for school purposes.

It is conceded that the title of the Board of Education of Avery County is that title vested in the Board of Education of Mitchell County by said deed, Avery County having been created in 1911 in part from that portion of Mitchell County wherein the land described in said deed is situated; and it is further conceded that said land is not now used for school purposes.

The issues submitted to and answers made by the jury were as follows:

"1. Was the provision that the lands in controversy in this action should revert to the plaintiffs when the property ceased to be used as public school property, left out of the deed by the mistake of the draftsman, as alleged in the complaint? Answer: `Yes.'

"2. Is the plaintiffs' cause of action barred by the statute of limitations, as alleged in the answer? Answer: `No.'"

From judgment declaring the plaintiffs to be the owners of the land and reforming the deed as prayed for in the complaint the defendants appealed, assigning errors. The defendant assigns as error the ruling of the court in denying its motion for judgment as in case of nonsuit lodged when the plaintiffs had introduced their evidence and rested their case. C. S., 567. This assignment of error cannot be sustained.

The plaintiffs' evidence tends to show that J. T. Ollis offered to give to the Board of Education the land described in the deed as long as the board would keep a school on it, "but it was to revert back to him when the school was abandoned," and that one R. L. Wiseman was appointed by the board to survey the land and draw the deed with reversionary clause. The evidence further tends to show that Wiseman thought the reversionary clause was in the deed, and that he represented to the grantors at the time they signed the deed that such a clause was contained therein, and that the grantors signed the deed relying upon the representation that Wiseman, the draftsman, made to them that the reversionary clause was therein contained.

This evidence made out a prima facie case, and his Honor correctly submitted the case to the jury, charging them that the burden was upon the plaintiffs to satisfy them by evidence clear, strong, and convincing that the first issue should be answered in the affirmative. Our decisions have established the principle that where there is any evidence to go to the jury on the question of mistake in the drafting of a bond or deed that the jury are to determine under proper instructions whether the evidence is of the character required. King v. Hobbs, 139 N.C. 170.

The defendant also assigns as error the ruling of the court in denying its motion for judgment as in case of nonsuit upon the ground that the evidence showed that the deed in question had been of record since 1907, and that such registration was notice to the plaintiffs of the provisions of the deed, and for this reason the plaintiffs' alleged cause of action was barred by the three-year statute of limitations. C. S., 441. This position is untenable.

In Modlin v. R. R., 145 N.C. 218 (227), which was an action to recover damages for deceit growing out of drawing a deed for timber so as to include certain timber not included in the contract of sale, it is written: "Defendant assigns for error, further, that on the issue as to the statute of limitations the judge below declined to charge, as requested, that the registration of defendant's deed was in itself such a notice of the alleged fraud as would put the statute in motion for the defendant's protection and in bar of plaintiff's claim; but the point has been resolved against the defendant. The statute applicable (Revisal, sec. 395, subsec. 9) (Now C. S., 441-9), provides that actions of the present kind are barred in three years after the discovery by the aggrieved party of the facts constituting the fraud, and, construing this subsection, the Court has decided that the statute commenced to run when the aggrieved party first discovered the facts, or could have discovered them by the exercise of proper effort and reasonable care, and that the registration of the deed, or knowledge of its existence, by which the fraud was accomplished, was not of itself sufficient notice of such facts. Peacock v. Barnes, 142 N.C. 215; Stubbsv. Motz, 113 N.C. 458."

The evidence in the instant case tended to show that the first knowledge the plaintiffs had that the deed did not contain the reversionary clause was gained by them the first of November, 1933, and that summons in this case was issued 5 October, 1935. His Honor's ruling that the registration of the deed did not constitute notice to the plaintiffs that the reversionary clause had been omitted therefrom was in accord with the decisions of this Court.

Defendant also assails by exceptive assignments of error the rulings of the court in admitting over its objection certain testimony of the draftsman of the deed, R. L. Wiseman, in regard to communications between himself and J. M. Parsons, deceased member of the Board of Education of Mitchell County, the grantee in the deed, and in regard to communications between himself and Dock Green, deceased superintendent of schools. These assignments of error, based upon the theory that such testimony was in violation of C. S., 1795, cannot be sustained for the reason that it nowhere appears that the witness Wiseman was "a person interested in the event, or a person from, through, or under whom such a party or interested person derives his interest or title by assignment or otherwise." Nor are such assignments tenable upon the theory that the testimony of the witness Wiseman was hearsay evidence. The testimony objected to was to the effect that Wiseman was instructed by J. M. Parsons, a member of the Board of Education, and Dock Green, superintendent of schools to place the reversionary clause in the deed. This was competent to show that the draftsman in drawing the deed failed, through mistake, to carry out his instructions from the grantee in the deed, as well as from the grantors, namely, to put in the deed the reversionary clause. "While negotiations leading up to the execution of the contract are merged in it at law, they are competent in equity to show what was the real agreement, for the purpose of correcting the instrument and doing justice." Potato Co. v. Jeanette, 174 N.C. 236 (242).

We have examined each of the assignments of error not abandoned in the brief of the appellee and find

No error.