Opinion
December Term, 1856.
A party made a bill of sale of personal chattels in the ordinary form, and there was a parol agreement made at the same time, that the articles should be delivered on a given day, which was not done; Held that the title to the property passed from the date of the conveyance, notwithstanding the parol agreement.
The owner of a bond on an individual, with a surety to it, endorsed it without recourse upon the endorser, as the consideration for property bought of the endorsee, having first cut the surety's name from the bond; it was Held, that the endorsement amounted to a valid consideration in the contract of purchase.
A deed is good in a Court of law, notwithstanding any fraud in the consideration of it, or in the false representation of a collateral fact which induced the party to enter into it. It is only fraud in the factum, which will amount to a defense in a Court of law.
ACTION of TROVER, tried before DICK, Judge, at the Spring Term, 1856, of Caswell Superior Court.
The plaintiff claimed title to the property in question, which consisted of a carriage and horses, with some other articles of personal property, by virtue of a written transfer, which was lost. It was proved to have been in the ordinary form of a bill of sale, and the consideration of it was the endorsement, to the defendant, of a bond payable to George W. Swepston by one Russell, to which the name of plaintiff's wife had been signed as surety while a feme sole, but which was then and there cut off by consent of the parties. This endorsement was made without recourse to the endorser. As a further consideration to the bill of sale, Swepston, as agent for plaintiff, made a release to the bargain or of all claim which he (plaintiff) might have against defendant, for having fraudulently removed said Russell out of the county. The property was not delivered when the bill of sale was executed, but by a parol agreement, made at that time, it was to be delivered on a given day, which, on demand, was refused.
The plaintiff employed Swepston to manage and negotiate with Mrs. Hodge for his indemnity against the bond. Evidence was introduced, tending to show, that Swepston alarmed the defendant, by falsely representing to her the extent of her liability for Russell's debts, and by other false statements, and by threatening to levy an attachment on her property; and had thus induced her to sign the bill of sale above referred to.
The defendant contended, first, that no such right passed by the written transfer, accompanied with the parol agreement, as would enable the plaintiff to sustain this action.
Secondly. That there was no consideration.
Thirdly. That there was such a fraud practiced by plaintiff's agent, on the defendant, as to render the conveyance void.
His Honor was requested to instruct the jury according to these several positions, but declined to do so, and the defendant excepted.
Verdict and judgment for plaintiff. Appeal by the defendant.
Hill and Moore, for plaintiff.
Morehead, for defendant.
We cannot discover any error among those assigned in her bill of exceptions, which entitles the defendant to have the judgment reversed, and a venire de novo awarded. Divested of its complications, the case made for the defendant is simply this, that she was prevailed upon by what she alleges was the fraudulent representations of the plaintiff's agent, to execute a bill of sale for the carriage, horses and other personal chattels in question, and that she afterwards refused, upon demand, to give them up. The bill of sale is lost, and is therefore, not before us; but the parties admit that it was in the ordinary form, and as such, it operated to pass the title from the time when it was given. Blackburn on Sales, 150 et seq., 57 Law Lib. 80. The transfer of the bond, to say nothing of the release, was undoubtedly a sufficient consideration for it, whether the cutting off the name of the surety to the bond made that void or not; for if it were of no value to the defendant, it was at least a prejudice to the plaintiff, to be deprived of it.
The objection, that the bill of sale was obtained by means of the fraudulent representations of the plaintiff's agent, cannot avail in a Court of law. It is well settled, that a deed is valid in that Court, notwithstanding any fraud in the consideration of it, or in any false representation of a collateral fact, whereby the party was induced to enter into the contract by executing the instrument. Gant v. Hunsucker, 12 Ire. Rep. 254; Reed v. Moore, 3 Ire. Rep. 310. It is only fraud in the factum, which can be relied on as a defense at law; while fraud, in the consideration, is left to be enquired of, and relieved against, in Equity. Logan v. Simmons, 1 Dev. and Bat. Rep. 13. As we do not find any error in the record, the judgment is affirmed.
PER CURIAM. Judgment affirmed.