Opinion
(August Term, 1851.)
1. A deed is valid in a court of law, notwithstanding any fraud in the consideration of the deed or in any false representation of a collateral fact whereby the party was induced to enter into the contract by executing the instrument.
2. A party who does not except to an opinion in the court below in a point of law is precluded from making the exception in the Supreme Court when the case comes on there.
APPEAL from Battle, J., at GASTON Spring Term, 1851.
Covenant on a general warranty of title, contained in a bill of sale made by the defendant to the plaintiff on 21 September, 1847, for two slaves, and expressed to be for the consideration of one dollar. The pleas are non est factum, no breach, and a special plea that the deed was obtained from the defendant without consideration and by the fraud of the plaintiff.
On the trial, the signing, sealing, and delivery of the deed to the plaintiff were not disputed. The plaintiff then gave in evidence a deed from the defendant to John Hunsucker, dated 30 August, 1847, whereby he conveyed the same two slaves and other chattels in trust for the sole and separate use of Polly Gant, the wife of the plaintiff and a daughter of the defendant, during her life, and after her death upon a further trust for Sarah Gant, a daughter of the plaintiff and his wife, and for such other child or children, if any, as the said Polly might thereafter have; and in case the said Sarah and such other child or children should die without leaving issue, then in trust for the plaintiff as to a certain share of the slaves, and as to the residue thereof in trust for (255) certain other persons. And the plaintiff gave further evidence that he took the two slaves into possession when the deed was made to him, and that afterwards John Hunsucker, claiming the slaves under the said deed made to him by the defendant, brought an action of detinue against the plaintiff for them, and recovered therein and took the slaves from the plaintiff before the present action was commenced, and that the slaves were of the value of $1,400. The plaintiff then produced one Cline, who deposed that he was the plaintiff's brother-in-law, and that on 21 September, 1847, the plaintiff came to his house and requested him to go to the defendant's and write the bill of sale, and that he went with the plaintiff and wrote the deed, and after the defendant had executed it, he and a son of the defendant attested it; and that on that occasion the plaintiff told the defendant that the defendant could take up the deed of trust he had made to John Hunsucker, and that it would be no harm to the defendant to execute the deed to the plaintiff, which the witness was then preparing. He further deposed that nothing was paid by the plaintiff for the negroes, as far as he understood, and that the defendant was at the time nearly eighty years of age, but, in the opinion of the witness, he understood what he was doing.
In support of the issues on the part of the defendant he called several witnesses. One of them was the sheriff of Catawba, who deposed that the defendant lived in that county, and was very aged, and an ignorant Dutchman of weak mind. Another was an unmarried daughter of the defendant who lived with him. She deposed that the defendant was very old and infirm, and was a drinking man, and that he had been sick with chills and fevers for three weeks before he made the deed to the plaintiff, and was of very weak mind and easily persuaded to almost anything; and that during that period the plaintiff was often at the defendant's to get him to make the plaintiff a bill of sale for the (256) negroes, and that he was there in the early part of the day on which the instrument was executed, and went for Cline to write it, and they came together just before night and did the business. The defendant also called one of his sons, who was the other witness to the deed, and he deposed that, before it was executed, the deed of trust to John Hunsucker was talked about by his father and the plaintiff and the other persons present, and that they all expressed the opinion that it might be taken up and destroyed. Evidence was also given that on the next day the plaintiff applied to John Hunsucker to get the deed of trust, but the latter declined giving it up until he could consult counsel.
For the plaintiff, it was contended before the jury that the defendant had mental capacity to execute the bill of sale, and that there was no fraud or imposition practiced on him by the plaintiff in procuring it, and that the plaintiff was entitled to damages to the value of the slaves. The counsel for the defendant also argued before the jury the question of fact as to the capacity of the defendant and as to the fraud and imposition on him to induce him to execute the deed, and contended further that if the jury should be of opinion against the defendant on these points, yet the plaintiff could only recover as damages one dollar — that being the purchase money mentioned in the deed.
The court instructed the jury that to render the instrument valid, it was not necessary the defendant should have a mind equal to the most intelligent and best-informed men, nor that his mind should at the time of executing it have been equal to what it had been, but it was sufficient if he had mind and memory enough to know what he was doing and understood its effects. The court further instructed the jury with regard to the alleged fraud and imposition, that if the plaintiff knew that the deed of trust could not be taken up, and yet represented to the (257) defendant that it could, so that he signed the bill of sale under that belief, induced by such fraudulent misrepresentation of the plaintiff, it would invalidate the bill of sale; but that if both parties were mistaken as to the right to take up the deed of trust, then it would not have that effect. As to the damages, the court instructed the jury that if upon other points they should think the plaintiff entitled to recover, he was entitled to one dollar only, being the consideration mentioned in the deed, with interest thereon. The jury found for the defendant on all the issues, and the plaintiff moved for a new trial because the verdict was against the weight of evidence. That was refused, and he then moved for a venire de novo because the court erred in the instruction upon the question of damages, which being also refused, the plaintiff appealed.
Avery, Landers, and Alexander for plaintiff.
Craig for defendant.
This Court has no cognizance of the motion for a new trial, which was addressed entirely to the discretion of the court in which the trial was, and ought not to encumber the bill of exceptions.
The point respecting the damages presented questions on the trial of some novelty and perhaps of not very easy solution. The difficulty would not indeed arise out of a supposed restriction of a purchaser of slaves to the recovery of damages to the amount of the purchase money mentioned in the bill of sale, and interest thereon, in analogy, apparently, to the rule relative to the warranties of land, for the rule as to lands stands on peculiar reasons which were thought to control the usual measure of damages in the personal action of covenant which is held to lie on a warranty. Phillips v. Smith, 4 N.C. 87; Williams v. Beeman, 13 N.C. 483. But as mentioned in the latter case on covenants relating to personal things, the recovery always is for the (258) actual damages or loss to the covenantee from the breach, as, for example, the value of an article at the time it ought to be delivered, or the value of the slaves at the time of eviction. But it might not be so easy to say whether there be any rule of law as to the measure of damages, or if there be, what it is, in a case like this in which the conveyance and covenant are substantially voluntary, and the eviction was by a title paramount in trust for the plaintiff's family and himself, of the existence of which he was aware at the time he took his deed, and from which he then represented to the defendant no harm could come. But whatever may be the rule of law on those points, the case, as it now stands, cannot be affected by it, for it is clear that the instructions on this part of the case had no effect on the verdict, since the jury did not give the plaintiff damages on either basis, but found against him altogether. It is thus reduced to a certainty that the verdict was upon the other parts of the case, and therefore that the instruction as to the measure of damages was perfectly immaterial and could not prejudice the plaintiff.
It was next said for the plaintiff that there is error in the instruction as to the effect on the deed of the alleged fraud and imposition in inducing the defendant to execute the deed by deceitfully representing to him that he could lawfully conceal the prior deed of trust made by him, although the plaintiff knew at the time that the deed of trust was irrevocable and conclusive of the title to the two slaves. The court, it is true, does not approve of that part of the instructions, for although the facts assumed in the hypothesis might in another forum affect the operation of the deed, so as to cause it there, according to circumstances, to be set aside or to be held as a security for money paid or laid out under it, yet at law they do not avoid the deed. In a court of law, the question is a naked one of deed or no deed, for if the deed be an instrument for any purpose, it remains so to all purposes, either as conveying (259) the thing or covenanting for the title. And supposing the defendant to have had capacity to contract, and that no trick or deception was practiced on him as to the terms of the instrument he was executing, but he knew the contents of it and executed it voluntarily, the Court holds that upon non est factum the instrument would not be avoided, but be held to be the defendant's deed notwithstanding any fraud in the consideration of the deed or in any false representation of a collateral fact whereby the defendant was induced to enter into the contract by executing the instrument. Logan v. Simmons, 18 N.C. 13; Reed v. Moore, 25 N.C. 310. But though that be the opinion of the Court, it is not now open to the plaintiff to complain of that error, because he took no exception to it on the trial. For the best reasons, it is entirely settled that the Court can take no notice of any error not apparent in the record — that is, in the pleadings, verdict, or judgment — unless the appellant except to it at the trial. Besides the presumption that everything was done right until the contrary be alleged, there is another — that for purposes of his own, the party assented to or acquiesced in every opinion of the court to which he did not at the time except. In this case the exception is confined to the directions respecting the damages and finds no fault with that as to the fraud and imposition. Indeed, the plaintiff seems to have preferred putting his case before the jury on the question of fact alone, whether he had made the alleged representation, and whether the plaintiff acted on it. He did not raise the question of law below which he urges here, and therefore he cannot now raise it.
PER CURIAM. No error.
Cited: Ramsay v. Morris, 35 N.C. 458; Nichols v. Holmes, 46 N.C. 363; Rogers v. Ratcliff, 48 N.C. 231; Hyman v. Moore, ibid., 419; Gwynn v. Hodge, 49 N.C. 170; McArthur v. Johnson, 61 N.C. 319; Egerton v. Logan, 81 N.C. 179; Thornburg v. Mastin, 93 N.C. 263; S. v. Glisson, id., 509; Phipps v. Pierce, 94 N.C. 515; Thornton v. Brady, 100 N.C. 40; S. v. Ashford, 120 N.C. 589; Cutler v. R. R. 128 N.C. 481.
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