Balthrop v. . Todd , 145 N.C. 112 ( 1907 )

It is in evidence that on 1 March, 1900, the plaintiff, a feeble old woman, approaching 70 years, conveyed her entire landed estate consisting of three tracts, to her sister, Sarah J. Todd, with whom and her husband, James H. Todd, the plaintiff had made her home for some fourteen years. No money was paid or promised, and at the time the defendants did not claim that plaintiff owed them a (113) penny. Plaintiff had no other property whatever, except $108, to support herself. In her advanced age and enfeebled condition she leaned upon her brother-in-law and sister and reposed trust and confidence in them. Plaintiff was a widow, childless, could not read and write, and was in bad health. Shortly before the deeds were executed Todd told a neighbor that the plaintiff had some money and land; that he was going to promise to take care of her during her life, and thus get her property, and after he got it he was going to drop her. He told the plaintiff that her brother intended to have a guardian appointed for her, and then she could no longer control her own property. She doubtless thought that it was necessary to do as her brother-in-law told her to do in order to retain control of her property. She asked him if she could not make a will. He said: "Make a deed; it will be best, as a will can be destroyed." James H. Todd then procured the deeds to be written and executed at his house, reciting a money consideration, although not a dollar was paid or promised, and no claim made that plaintiff owed him anything.

Clearly his Honor erred in not submitting the case to the jury upon appropriate issues and under proper instructions. It is true that the evidence does not bring the case within either of the four definite fiduciary relations mentioned by Judge Pearson in Lee v. Pearce,68 N.C. 87, when the court can instruct the jury that fraud is presumed as matter of law. But the evidence discloses plainly such "confidential relation" or "position of dependence" that, if the jury find the facts to be as testified to by plaintiff, the burden of proof shifts, and to sustain the validity of the deeds the defendants must satisfy the jury of the bonafides and legality of the transaction. The evidence brings it within that class mentioned by Lord Hardwick in Chesterfield v. Jansen, where fraud arises from the circumstances and condition of the immediate parties to the transaction. 2 Pom. Eq., secs. 922, 923. It comes (114) within the fourth class of those quasi relations of confidence mentioned in Lee v. Pearce, viz.: "When the relation is that of friendly intercourse and habitual reliance for advice," which, JudgePearson says, "raises a presumption of fraud as matter of fact, to pass before the jury for what it may be worth." See, also, Buffalo v. Buffalo,22 N.C. 241; Smith v. Moore, 142 N.C. 296; Timmons v. Westmoreland,72 N.C. 587; Bigelow on Fraud (1890), p. 295; 2 Pom. Eq., secs. 928 (2) and 956.

New trial.