Cutler v. Roanoke Railroad & Lumber Co., 128 N.C. 477 (1901)

June 5, 1901 · Supreme Court of North Carolina

128 N.C. 477

CUTLER v. ROANOKE RAILROAD AND LUMBER CO.

(Filed June 5, 1901.)

1. CANCELLATION OP INSTRUMENTS — Fraud — Deed — Sufficiency of Evidence — Fraud in Treaty — Fraud in Factum— Contract.

Evidence in this case as to fraud in making a deed was sufficient to submit to the jury.

2. EVIDENCE — Competency—Parol Evidence — Deeds■—Fraud.

Evidence to vary and contradict the terms of a deed is competent upon the auestion whether there was fraud in making the deed.

ActioN by J. M. land J. A. Cutler against the Roanoke Railroad and Lumber Company, heard by Judge T. A. Mc-Neill and a jury, at Fall Term, 1900, of the Superior Court of WASHINGTON County. From a judgment for the plaintiffs, the defendant appealed.

H. 8. Ward, for tbe plaintiffs.

A. 0. Gaylord, for tbe defendant.

Furct-ies, 0. J.

Tbis is an action to recover damages for trespass by defendant on the land of tlie plaintiff, for timber cu'fc and removed from siaid land and to vacate a deed dated tbe 17th of March, 1899, or to have it corrected.

It appeared on tbe trial and Was admitted by ail parties, that the plaintiff bad conveyed all tire timber on tbe land embraced in tbe deed of ‘the 17th of March, 1899, to tbe defendant, by deed dated 28th February, 1887, of a size above 13 inches diameter at the stump; iamd that the time in which defendant was to cut and remove said timber bad not expired by some months. Tbe •allegation of the plaintiff is that on the 17th of March, 1899, one Freeman, agent of the defendant came to Mm in the store of one Bowen, and stated to him that since the date of the first deed, 28th February, 1887, other timber on tbe land bad grown to thirteen inches and proposed to buy that growth; or, in other words, toi buy all the timber on said land above 13 inches'; that defendant did not want any further time in which to get said timber off tbe land ■ — said that it would all be taken off by June,which was within the time named in the original deed. Tbe original deed of February, 1887, authorized tire defendant to put such tram-roads on said land as might be necessary to remove the timber therefrom.

The plaintiff alleges that the contrae was to sell defendant the growth of the timber since the date of tbe first deed, to 13 inches, for $25.00, and that- tbis was 'the only contract that was made. Tbe case rests on the plaintiff’s testimony, which is as follows:

“The bargain between me and Mr. Freeman, the defendant’s agent, for tbe sale of ‘the timber under the deed of March 17, 1899, was made at Horace Bowen’s store. Freeman said that- tbe company would out tbe timber I bad sold to it by deed oí June 13, 1887 (wbicb was same sold in last deed before tbe time went out on June 13, 1899), and that tbe company didn’t want any more time, but that there was a lot of timber on tbe land that bad grown up over thirteen inches at stump since that deed was executed, that they could not cut under that deed, and that- the company wanted to buy tbe growth that had grown up- slinlce June 13, 1887. I thought they Would break it to pieces in cutting the other, so I agreed to sell it. I told him I Would not sell him any more ■time on the other’ timber because be wouldn’t offer me as much as he Was offering others in -the neighborhood. He said all right be didn’t want anything but the growth, as be already bad tiie balance. When we bargained, I went home to get my wife to sign the deed. It was about one-balf or three-fourths of a mile. He went along with me to where the log was across the path, where he could not pass. He was in a buggy. I walked. I left him at the log hoi write the deed while I went to tbe house for my wife. When I got back he had the deed written. It was late in the evening, tbe sun was about an hour high. Hi's horse was so- restless be Wouldn’t be still a. minute. He said to me, ‘Make baste and sign it; it is late and I am in a great burry. I’ve got to go to Washington to-night. This h'orse hasn’t got sense enough to stand still.’ My son was off some distance cutting wood. He handed me the deed to sign, and asked me if I wanted to read it. I told Mm that if it was like the bargain be made it was all right. He said it was just as the bargain was. That be would have all tbe 'timber cut off by June and before. I thought he was telling me the truth, and I trusted to Ms honesty. He paid me only $25.00 for the timber passed in this deed and didn’t read it. I can not read good. I didn’t have my glasses and when I tried to read without 'them tibe lines ran together. I can read print better than writing. Tbe timber is described in tbe printed part of tbe deed. I can read tbe words of tbe printed part, of tbe deed as tbe counsel mwes bis pencil to them, bait tbe lines, aA ornee run together when lie stops (council here took the deed, pointing’ with his pencil to portion of it and witness’s statements were in reference to tbe principal portions of the paper). Freeman was Notary and took my acknowledgment and exiamination of wife.

“I thought when I signed the deed it did not convey all my timber, and was misled and induced to sign it by tbe statement of Freeman that it was as we bargained.”

Tbe Court thought 'this testimony sufficient evidence of fraud to submit tbe question to. the jury, and this is tbe question presented by the appeal.

Frauds affecting’ the validity of deeds are of tiwoi kinds'— fraud in the facitium, and fraud in tbe treaty. This distinction, though not as material nioiw as formerly, is still material in some ciases. Medlin v. Buford, 115 N. C., 260. Besides the importance of the distinction pointed out in Medlin v. Buford; it was important before the junction of legal and equitable jurisdiction in tire sianie Court, to. determine the jurisdiction, as courts of law -had jurisdiction of frauds in the factum., but not of frauds in the treaty which were cognizable alone in courts of equity. This made it important to- determine, before commencing the action, whether it was fraud in the fadtimi or fraud in the treaty, 'as 'the proper Court in which to bring the action depended on this distinction. And while the distinction is important, it is not of that importance that it formerly was^ as one is sure now to get into the right Court, if there is fraud whether in the factum or in 'the 'treaty. In this, case, while there- may he some slight evidence of fraud in -the fiacbum — such as the unsuitable place where the deed was executed, the apparent haste with which it was done, the remarks of defendant’s agent to burry and sign the deed — that bis horse did not have sense enough to stand; thait. it was then l'ate and he had to go to Washing-ton that night, a distance of 18 miles. Besides, it see-ms to us that Freeman was doing a little too much. He was agent of the defendant company and an officer of the law. When 'the deed was signd he moved “the previous question” and by taking the acknowledgment and privy examination, undertook to “lay the matter on the table.” We do not say 'that lie could not in llarw take this acknowledgment and privy examination, but these things, taken in connection with the fact that 'the- deed was not read to the parties making it-, is some evidence we think of fraud in the faetmn.

But leaving out of the case these suspicious circumstances we have just stated, it seems to ns to be a dase thait should have gone to the jury upon the evidence of fraud iu the treaty. In the dase of McArthur v. Johnson, 61 N. C., 317, the Court held that plaintiff could not recover, and thait was a case very much like this, except there wlas no question in that case but what the plaintiff could read. In this case the evidence leaves the question whether plaintiff could read in doubt. And if this was a material question in the ease it should have been left to the jury. The case of McArthur v. Johnson was brought in the Superior Court of law before it had equitable jurisdiction, and 'the Court held that it was n'ot a case of fraud in the factum, and the plaintiff could not recover. But in the discussion of the case the Court lays down the distinction between fraud in the factum and fraud in the treaty; and while the Court did not. decide that that case was a case of fraud in the treaty it seems to us that tire definition given in the discussion of the case shows thait. it was. And the same doctrine is held in Gant v. Hunsucker, 34 N. C., 254; 55 Am. Dec., 408, while the more recent case of Medlin v. Buford, 115 N. C., 260, which seems to he putt largely on Mc- Arthur v. Johnson, clearly shows that this. Casé is one of fraud in. the treaty, if plaintiff’s evidence is to be believed; and we have nothing' to do with that, as it is purely a question for the jury.

In Medlin v. Buford, the plaintiff signed a paper upon the representation of Davis that it was a power of attorney authorizing him to raise $1,000, to invest for her benefit, at a profit of $2o per month. The plaintiff in that case could read, but did not read the deed; was imposed upon by the false representation of Davis as to the contents of the deed, and the Court held thlat this was not a fraud in the factum, and as third parties Who were innocent of the fraud had become interested, the plaintiff could not recover. But it is distinctly held that it was a fraud in the treaty, and would be declared void as to Davis, and also as to Mrs. Buford, if she or her-attorney (Mr. Cuitler) had knowledge of the fraud.

The distinction between fraud in the factum and fraud in the 'treaty seems to be very narrow, but still it exists and it seems still important thalt it should be observed as in the case of Medlin v. Buford.

While it is important to- observe tírese ancienlfc landmlarks and to give force and validity to the doctrine of fraud as applied to executed contracts — to deads — it should not be lightly done. Misrepresentations in the treaty as to location, boundaries, quality, value, etc., of which the other party had notice, or might have had knowledge by reasonable diligence, will noit be heard by courts of law or equity to invalidate deeds. If this were so, it would seem that no man’s title would be safe. Parties entering into solemn contracts, such as deeds, must use ordinary prudence — must examine matters open to them at tire time of executing their deeds, or they will not be heard to complain. Lytle v. Bird, 48 N. C., 222; Saunders v. Hatterman, 24 N. C., 32; 37 Am. Dec.,404.

In this case it appears from the deed of the 28th of Pebru-ary, 1887, that plaintiff sold and conveyed to defendant all the timber on a certain tracit of land containing ninety acres, above 13 inches at the stump, with, the privilege of establishing tram-road across said land to be used in removing said timber. In the deed of '.the 17th of March, 1899, he conveys all the timber above 12 inches at the stump and conveys the fee-simple in all ¡the land covered by these roads'. And extends the time to remove the timber to one year from the 17-th of March, -which would have been out at an earlier period.

If the plaintiff’» statement of the contract of the 17th of March, 1899, be true, the changes contained in the deed as drawn by Freeman and signed by plaintiff are materially different; and as this deed was not read by plaintiff (as he says) because -he could not read it without his spectacles, which he did not have, but -was signed by him, relying on the statements- of Freeman “that it wiais drawn just as the contract was,” was a fraud in the treaty upon -the plaintiff and should have been submitted to the jury.

If the plaintiff had required iifc to be read and Freeman had read it falsely iit would have been a fraud in the factum. McArthur v. Johnson, Medlin v. Buford, supra.

There were objections to the plaintiff’s evidence as to the terms of the contract, upon the ground -that 'they tended to vary and contradict the deed. This would -have been so if the deed had been established as- the- deed of the plaintiff But when that was the very question at issue, and When it was necessary to do so to establish tire alleged fraud, it was- competent for that purpose. And after a careful examination, we find no substantial error, and the judgment is

Affirmed.

Douglas, J.,

concurring.

I can not concur in the contention of the: defendant, that because two men are at ami’s length, as all men generally ara, unless they occupy some fiduciary relation to' each other, one can safely perpetrate a fraud upon the other. This rather novel doctrine seems to be based upon the idea of contributory negligence on the part of the plaintiff, which, concurring with that of the defendant, becomes tire procsimate cause of the fraudulent result. This -application of tire doctrine of contributory negligence is new to me; but even if it were admissible, it could not be a defence in tire present action, because actual .fraud is always wilful. Even in actions sounding in damages tire defense of contributory negligence is never available against wilful injury. Then why should it be a defence against wilful fraud ? I will readily admit that if tire negligence of tire plaintiff hiad enabled tire defendant to perpetrate a fraud upon a third party who was himself innocent of fraud or negligence, he could not recover from such innocent party. Such a case is far different from tire one presented to us in the opinion of tire Court.

A man might be negligent in walking in the middle- of the street on a -dark night, 'and such negligence might excuse the driver of a wagon for unintentionally running into him, but it wiould be no excuse- for robbery. The doctrine that mere negligence puts a man beyond tire pale of tire law, can never receive nry assent.

The- defendant relies upon the case- of Dellinger v. Gillespie, 118 N. C., 737, tire essential point in which was- the fact that tire defendant discovered, the alleged fraud before the work was commenced, and yet permitted tire plaintiff to proceed and put up the lightning rods without objection. The Court said that such conduct wias a waiver of tire alleged fraud if it ever' existed; and that equity would not permit a man to accept work performed after he lrlad full knowledge of -all 'the facts, and then refuse to- pay for it.

It is true in that case tire Court also said that the defendant was guilty of negligence, ancl cited Boyden v. Clark, 109 N. C. 664, 669, a case which, I respectfully submit, furnishes no foundation whatever for Ih© contention of the defendant in 'the case ait bar. Some- isolated sentences in the opinion, considered without regard to the ess-e-nitiial facts of tli© ciase, might offer some show of authority; but the case itself, taken as a whole, fails to do so-. The defendant, Clarke, bought the equitable interest- of one Sherrill, who- held a bond for title from Janies Harper. Olarke subsequently paid Harper the remainder of the- purchase-money, and took a deed from him. The plaintiff, Boyden, who- had bought an adjoining tract, sought to hold Clarke- responsible for alleged representations of Sherrill, although C'l-arke was an innocent purchaser, for a valuable cionsider-altion, without notice, and held title- under Harp-e-r, and not under Sherrill. The Court says (109 N. O., page 667) : “It w-ould be giving very great latitude- to the doctrine of estoppel in pais if the .mistaken or fraudulent statements of a vendee, occupying land under a contract of sale, were allowed to- have the effect of establishing -title by estoppel, as against .the original vendor and the assignee of the original vendee, after the vendor had performed his contract b-y conveying to 'the assignee, both grantor and grantee being ignorant of the fact that any misrepresentation had been made."

That case as- thus stated in the opinion itself furnishes no authority for the doctrine- now contended for by the- defendant, that, as between the- original parties, mere neg’li-genc is a defense for wilful fraud.

To tlile- contrary may be cited a practically unbroken line of authorities. Eetter on Equity, s-ele. 87, page 136, says: “But no obligation rests on him to investigate- or- verify the representations, to the truth of which the other party to the- contract, with full means of knowledge, has deliberately pledged Ms faith. In a Court of Equity no- miau can complain that another ha» too implicitly relied on the truth of what he himself has stated.”

Beach on Mod. Eq. Jur., sec. 95, says: “A false representation of one of the parties to a contract does not put the other on inquiry as to ite truth. Every contracting party has an absolute right to rely on the express statement of an existing fact, the tiruJth of which is known to the opposite party and unknown to Mm, as the basis of a mutual agreement ; and he is under no obligation to investigate and verify statements to the trulth of which the other party to the contract, with full metas of knowledge, has deliberately pledged his faith.”

Story’s Eq. Jur., sec. 154, says: “The danger of setting aside the solemn engagements of parties when reduced to writing, by the introduction of parol evidence, substituting other material terms 'and stipulations, is sufficiently obvious. But what shall be said where those terms and stipulations are suppressed or Omitted by fraud or imposition ? Shall the guilty party be allowed to avail himself of such a triumph over innocence and credulity to' accomplish his own base designs? That would be to' allow a rule introduced to suppress fraud to be the most effectual promotion and encouragement of it. Anid hence courts of equity blave niot hesitated to entertain jurisdiction to reform. all contracts where a fraudulent suppression, omission, or insertion of a material stipulation exis'te, notwithstanding to' some extent it breaks in upon the uniformity of the rule as to the exclusion of parol evidence to vary or control contracts; wisely deeming such cases to he a proper exception to the rule, and proving ite general soundness.”

Bisphlam Prin. Eq., sec. 202, says: “There is, indeed, a distinction between deeds and oitber instruments which a man intends to execute, though his intention may be brought about by fraudulent means, and those which he 'has no intent ton to execute, but executes under the impression tfoalt tOue instrument is of a different character from what it actually is, or, in other words, executes the wrong paper. In the latter case the instrument is absolutely void, and the law above stated in relation -to voidable instrumente would, in general, not apply.”

Again the learned author says, in section 207: “A man who is dealing with another has a right to. rest upon an assertion of a fad made by the latter; but he has no right to rely upon the latter’s opinion, unless, indeed, he is an expert, in which case the parties do- not deal upon equal terms, an'd the ordinary rule does not apply.”

Neither space nOr time will permit an examination of the numerous authorities cited by these different authors. I will quote but two:

In Redgrave v. Hurd, 20 Ch. Div. 1, the celebrated Sir George Jessel, Master of the Rollsj says: “Nothing ciato be plainer, I take it, on 'the authorities in equity, thlan that the effect of false representation is not got rid of on the ground that the person bo whom, it was mad© was guilty of negligence.”

In Sutton v. Morgan, 158 Pa. St., 204, 218; 38 Am. St. Rep., 841, 844, tire Court says: “It is said, that Williams should have inquired for ‘himself, and that his opportunities of obtaining information were just as good as those of Morgan. This may he. Prudence should have led him and hi’s 'financial mían’ -Sutton bo ¡test the truth of the glowing statements made by Morgan 'and Gloss, but it did not. They fell easily into the- trap which was set., with some skill and some effrontery, for them; but their neglect, or w!ant of prudence, cam. not justify the falsehood or fraud of those who practiced upon their credulity. The doctrine of contributory negligence can molt be invoked by the defendants- to save them from liability for misleading their victim. They must stand or fall on 'title truth, and good faith, of the representations that led to tlie sale.” This opinion is particularly striking' on account of its conclusion. While granting the prayer of the plaintiff for the rescission of the contract, the return of the money paid amd the cancellation of the mortgage, if concludes as follows: “For his gross carelessness the plaintiff ought to lose his costs. No bill of costs will be taxed for the plaintiff.”

There is an essential difference between aottíal misrepresentation and the mere concealment of material facts of which both parties had equal opportunities of information; but the latter principle I am not now discussing. A common instance of correcting a written instrument which bcth parties might have read, is where a deed absolute in form is construed to be a mortgage.

It seems to me that every principle of equity that would grant relief from fraud in the treaty, would apply with even greater force tot fraud the factum.

Whether there was sufficient evidence of fraud, in the case at bar to go- to the jury, is an entirely different question; but even on that I concur with the Court.

Clark, <T.,

concurring in result.

The charge here is fraud in tire factum, in the execution of the deed after grantor consented to* sign it, and not in 'the preliminary representations or treaty. The complaint 'alleges that the plaintiff agreed with one Freeman, agent of the defendant, to sell a part of the-timber, whereupon the said agent of tbe defendant company drew the deed while plaintiff went off to get his wife; that on his return the deed was already drawn up, but plaintiff having left his spectacles, was unable- to read it; that he asked Freeman the contents of it, and was assured -that it was a conveyance only of the specified timber, -and plaintiff, relying upon the truth of such, signed and delivered the deed, whereas, the timber actually conveyed was all the timber on the land, and the price paid ($25.00) was not omediwentieth in value oí the timber conveyed; wherefore, plaintiff charges that 'the execution oí the deed was procured by fraud, and asks that the deed be reformed so as to convey only the timber agreed to be sold, and for recovery of $400, the value of timber already cut, outside of the kind it was agreed the plaintiff was to convey.

The plaintiff introduced evidence in full support of above contention, and, as a further circumstance in corroboration of the charge of fraud, evidence, which was admitted without objection; that when he got back, not having his spectacles, Freeman said to him, “Make haste and sign it; it is late and I am in a great burry. Iv’e goit to gat to Washington tonight. This horse hasn’t got sense enough to stand still.” The plaintiff contends that this, together with the gross inadequacy of price, $500, for $25.00, and the difference between the deed as written, and as it was agreed to be written, and the fact tihialt Freeman told plaintiff that the deed Was written as agreed, and knew that plaintiff could not read without his glasses, was evidence to' go to the jury to show imposition and fraud by brick and device. As 'the defendant’s exception is for refusal to tell the jury that there was no evidence, this evidence of the plaintiff must he taken as true and in tire most favorable aspect for the plaintiff.

Taken as true, no court of equity could refuse the relief asked. The jury found that it was 'time. The following issues were submitted without objection:

1. Was the deed from <T. M. Outler and wife to the defendant, dated 17th March, 1899, obtained by fraud? Ans. Yes.

2. If so, what was the vlalue of the timber ? Ans. $243. The latter evidently meaning from the complaint and judgment, the value of timber cut in excess o>f what was agreed to be paid.

The defendant aisfced the following special instructions, which were given with the modification below recited:

1. That if the jury find from the testimony that the plaintiff, J. M. Cutler, when he executed the deed to defendant, on March 17, 1899, could have read it, if he had so desired, and failed to do SO, then he is bound by it and can not be heard to say thlaJfc a fraud was practiced upon him by defendant’s agent, S. E. Ereemlan, by inserting in said deed more timber than said Outier thought was therein, and more than said Freeman told him was conveyed by iit. And if he could by reasonable diligence have ascertained the contents of said deed, it was his duty to' do so.; 'and if yon find that he failed to do so, by not refeuding it, you will answer the first issue “No.”

2. That from all 'the evidence-, if believed, the plaintiff, J. M. Cutler, could 'have read 'the deed of March 17, 1899, before signing it, and could have ascertained thereby what timber it conveyed and his failure- to do so, if he did fail, does not relieve him from the operation of said deed, and you will answer the first issue “No.”

3. That the deed of June 13, 1887, conveyed all the timber on the land -described in the complaint down to 13 inches o-n tire stomp to the defendant in fee^simpie, and the deed of March 17, 1899, by the plaintiffs admission, conveys the timber on said 'land down to- 12 inches-, which h'ad grown to that size since June 13, 1887, and the legal effect of these deeds is to convey all the timber on siaid land toi defendant, and to give defendant the right to- enter -and cut and remove the sarnie, and you will answer the second issue “Nothing.”

These charges were given with this modification to each:

With this modification: “Unless- you shall find from the evidence that the company, by its agents, m-ade a false representation as to 'the contents of the deed, and in reliance on this statement or representation, the agent knowing it to be false, be (plaintiff) signed, 'tbe deed, and was defrauded thereby in tibe respect complained of.”

(To this modification 'tire defendant excepts.)

Those instructions were asked by defendant and were the strangest passible presentation of defendant’s ease. The modification was eminently proper to be submitted to the jury in view of the uncontradicted evidence that plaintiff could not re’ad without his glasses; that Freeman was urging to hurry him up and sign, that Ms horse would not stand, etc., 'the evidence tending tie show gross inadequacy in price, and that the deed was written differently from agreement, and Freeman’s misrepresentation that it was written as agreed. Without holding iit illegal, it is proper to say that for the defendant’s agent Who* procured the execution of the deed to take the acknowledgment of the grantor, and the privy examination of 'his wife, is a practice to be avoided, not followed.

Dellinger v. Gillespie, 118 N. C., 737, was correctly decided. It holds 'thlat where a grantor negligently fails to read a deed, no fraud or deceit being shown, he can not he allowed to contradict its terms by parol evidence by showing that he intended something else.

Bnt here tbe very gravamen of tbe complaint is fraud in tbe factum, tbe taking advantage of plaintiff’s inability to re'ad, the writing it differently from the wlay iit was agreed to he written, the urging plaintiff to’ hurry up and sign it, knowing he could not read it without, going to his house a half-mile off on foot to get his spectacles.

While every presumption is in favor of the “written word,” no deed is prolof against frlandL Whether this evidence proved fraud was a matter which only a, jnry could piass upon. In submitting it to that tribunal, which the Cbnstitution says is “one of the best securities of tbe rights of the people and ought to remain sacred and inviolable ” his Honor did only bis duty. There being disputed matters of fact, tibe plaintiff bad an inalienable rigb't to have the truth of the evidence passed upon by a jury of his peers. The misrepresentations here axe not as 'to mlatiters in the treaty, as to which both parties had equal opportunity for examination, but as to the contents of a deed drawn by one of them, which the other could not read without Ms glasses, and who at the. same time was ■urged to sign ait once without going for his glasses. I't was exactly as if the same advantage had been taken of a blind man, if plaintiffs evidence is- to be believed, and whether it was to be believed or not, no one could decide- save a jury, to whom therefore the Court properly submitted it.

Juries may sometimes be prejudiced, but knowing that Judges are “men of like passions,” the wisdom of the ages lias properly provided that disputed facts shall be passed upon by twelve impartial men drawn from the body of the people, and at once returning to- them, with unlimited challenge for favor and a reasonable number' of challenges without cause assigned. Besides, if the verdict shows bias, or mistake, or is upon insufficient evidence, the Judge can set it aside without- assigning cause. Hardy v. Hardy, at this term. There is thus every protection. But if the Judges take to deciding the facts, there is no- protection against bias, or negligence, or incompetence, -and no power to set aside tfa-edr verdict. Every consideration therefore demands that the evidence should be submitted to the jury, unless it is clear ’that there is not a scintilla in favor of him upon whom rests the burden, and that upon the evidence only one conclusion (amid 'that adverse to "the plaintiff) can be drawn. The Judge below bad power to set the verdict aside if be doubted the sufficiency of the evidence, and submit the issue to another jury. Thlait is the proper remedy. It is not for this C’ourt upon this evidence, to adjudge that the evidence was not sufficient to prove fraud, and thus deprive the plaintiff altogether of a right to trial by jury.

MONTGOMERY, J.,

dissenting.

The plaintiff and his wife in. 1899 executed to the -defendant a deed, on the fane of which there is conveyed aill the timber on the land described in the deed. This action is brought to have the deed set aside and declared Void, except as to' the growth of timber to a certain size since 1887, on the ground of fraud; and also for the recovery of $400, the alleged value of timber, which the defendant is 'alleged 'to have wrongfully euit and removed from the land by virtue of the provisions of the deed. The fraud alleged is set out in allegation 3 of the complaint, and is as follows:

“3. Thait the defendant company, as this plaintiff is informed and believes and avers, claimed the right to go upon said land and remove said timber, by virtue of a deed executed to the said defendant by J. M. Cutler, registered in Book 41, page 236, which deed the plaintiff alleges was obtained by the defendant company by fraud, in tbe manner and method as follows: Tbe said company, through its agent, S. F. Freeman, on the 17-th day of March, 1899, proposed to the said J. M. Quitter to' buy the timber on said land which had grown to merchantable size since Tune, 1887, and expressly stated that be did not want to' buy any other, and for said timber offered to s'aid J. M. Cutler the sum of $25, which offer said Cutler accepted and authorized said Freeman to draw deed for said timber, which had grown up- since 1887, as aforesaid, and no other, and left the said Freeman alone to write said deed, and on Ms return found the deed filled out and ready for signing.' That, the said J. M. Cutler was unable to read the said deed ait that, time anti did not read it, but asked the said Freeman a© to the contents, of it, and he, the said Freeman, expressly stated that 'the deed conveyed only tire timber that had grown up since 1887, and did not convey any other, nor any rights to any other, and the said Freeman so read the deed to said Cutler, from which it appeared that no interest passed except as above stated, and relying upon that representation and reading and statement of said Freeman, said Cutler signed and delivered said deed.”

Tbe allegation of fraud is bath in tbe factum and in tbe inducement or treaty. In McArthur v. Johnson, 61 N. C., 317, it was said by ¡tbe Count: “Another instance (fraud in the factum) is 'afforded by tire case of a deed executed by a blind or illiterate person, where it has been read falsely to him upon hiis request to lrave it read.” Upon tbe trial, however, the plaintiff’s own testimony disproved the allegation of fraud in the factum■, and in the argument before this Court tibe plaintiff’s, counsel abandoned that view of the case and relied entirely upon fraud in ¡the treaty.

I will now consider that aspect of tire case. The evidence of tbe plaintiff consisted of bis own testimony alone, which was as follows:

“The bargain between me and Mr. Freeman, 'tire defendant’s agent, for 'the sale of tbe timbea* under tbe deed of March 17, 1899, was made at Horace Bowen’s store. Mr. Freeman said that tire company would cut the timber I had sold to it by tbe deed of June 13, 1887 (which was same sold in last deed before the ¡time went out on June 13, 1899), and that ¡the company didn’t want any more time, but that there was a lot of timber on tbe land that bad grown np over 13 inches at stumpi since ¡that deed was executed; that they could not cut under that deed, and th'at the company wanted to buy the growth that had grown up si-ee June 13, 1887. I ¡thought they would break it to pieces in cutting tire other, so I agreed to sell it. I told him I would not sell him any more time on tire other timber, because 'he wouil'dn’t offer* me as much as he was offering others in the neighborhood. He said all right, he didn’t want anything but the growth, as he already had the balance. "When we bargained, I went home ■to get my wife to sign ¡the deed. It Was about one-half or three-fourths of a mile. He went along with me to where a log was across 'the path, where he could not pass. He was on buggy. I walked. I left him at log to write the deed while I went to 'house for my wife. When I goit back he had the deed written. It was late in the evening, sun about an hour high. His horse was so restless he wouldn’t be still a minute. He said to nue, “Maike haste and sign, it; it is late and I ’am in a great hurry. I’ve got to go to Washington tonight. This horse hasn’t got sense enough to stand still.” My son was off some distance cutting wood. He handed me the deed to sign and asked me if I wanted to read it .1 told him that if it was like the bargain we made, it was all right. He said it is just as the bargain was. I will have all the timber out off by June and before. I thought he was telliug me 'the truth, amid I trusted to his honesty. He paid me only $25 for the timber, passed in this deed and didn’t read it. I can not read good. I didn’t have mry glasses, and when I tried to read without them the lines, run together. I can read print better 'than writing. The timber is described in the printed part of the deed. I clan read 'the words of the printed part of ithe deed as the counsel moves his pencil to them, but tbe lines at onces run together when he stops. (Counsel here took the deed, pointing with Ms pencil to portions of it and witness-’ statements were in i*eference bo the principal portions of 'the paper.) Freeman was Notary, and took my acknowledgment and examination of wife.

“I thought when I signed deed it did not convey all'my timber, ’and was misled 'and induced to sign it by the statement, of Freeman that it was as we bargained.”

Freeman, as a witness for the defendant, testified, that the deed was drawn 'according to 'the agreement; and Jordan, another witness for the defendant, said that the plaintiff told bim that “Freeman offered to read the deed, or to let him (plaintiff) read it; that he did neither’, and did not know its contents.” But tibe evidence of the defendant is of no consequence in Ubis appeal, 'and is only referred to in fairness to the defendant. The admission of the plaintiff’s' evidence in reference to the ti*ea¡try leading* up to die sale, in plain contradiction of the term's of tibe deed, and lihei further admission of the plaintiff’s evidence that he was induced to sign the deed upon the statement and representation of Ereennan, that only the growth of timber since 18 87 was conveyed in the deed, and the charge of his Honor upon that evidence, are before us for consideration.

The 'transaction wiais between, parties who were dealing as strangers, there being no relation of confidence between tliem. The deed was drawn by the grantee’s agent, and handed to the grantor for Ms signature and that of his wife. The grantor, the plaintiff and his wife could both read and write, and they signed the deed without reading it, or without ashing that it he read to them. If a fraud was perpetrated by Ereenran, the agent of the defendant, as is alleged in the complaint, the plaintiff can not have relief because bis execution of the deed under the facts of this case was negligence on his part. Dellinger v. Gillespie, 118 N. C., 737. He should have read the deed, or have had Ereemian to do so. The deed was before him; he had every opportunity to read it, and Riere w'as not only no trick or device practiced on him to, procure his signature, but Riere was none charged in the complaint. The plaintiff himself testified: “I thought when I signed Rue deed it did not convey all my timber, and was misled and induced to, sign it by the statement of Eree-nran thait it Was, as we bargained.” By his own evidence, the plaintiff executed this deed, relying as to its, contents upon the statement made by one with whom he was dealing as a stranger, and not as with, one in whose statements he- had in law the right to confide. If the plaintiff ha's been cheated it was bis own fault, and the fraud, if there has been fraud, w'as perpetrated successfully through tíre plaintiff’s own negligence in failing to read the deed.

It was argued here by the plaintiff’s counsel that the request made by Freeman to the plaintiff when he handed him the deed — “make haste and sign it; it is late and I am in a great hurry; I have got to go to "Washington to-night; this hors© has not got sense enough to' stand still” — was some evidence tending to prove a trick or contrivance on the part of Freeman to procure the plaintiff’s signature to the deed without reading it. In my opinion, it, was not sufficient to be submitted to- the jury as evidence; and certainly from the plaintiff’s own testimony it made no impression upon him, for in his complaint he does not set up that matter as a trick or device to get his signature to the deed, or any other trick •or device as we have already seen.

I think there was error.