Dixon v. Wilmington Saving & Trust Co

• Decision Date: 27 November 1894
• Parties: DIXON. v. WILMINGTON SAVING & TRUST CO. et al.
• Court: North Carolina Supreme Court

20 S.E. 464

115 N.C. 274

DIXON.

v.WILMINGTON SAVING & TRUST CO. et al.

Supreme Court of North Carolina.

Nov. 27, 1894.

Cancellation of Mortgage —Fraud— Bona Fide Purchaser.

The fact that a mortgagor is induced by fraudulent representations to sign a mortgage without reading it renders it voidable merely, and therefore cannot be avoided in the hands of a person who in good faith advances money thereon.

Appeal from superior court, New Hanover county; Boykin, Judge.

Action by Nancy Dixon against the Wilmington Saving & Trust Company and others to cancel a mortgage. From a judgment for defendant, plaintiff appeals. Affirmed.

T. W. Strange, for appellant.

Geo. Rountree, for appellees.

SHEPHERD, C. J. However much we may sympathize with the plaintiff, who, like the defendants in the case of Medlin v. Buford (decided at this term) 20 S. E. 463, has been cheated and defrauded by reason of her perfect confidence in the rectitude and piety of John C. Davis, we are unable to see how we can grant her the relief prayed for. To do so would amount to the abrogation of some of the plainest principles of jurisprudence, and so unsettle the law that but little confidence could hereafter be placed in those solemn assurances of title so necessary to the welfare and repose of society. The grave results of holding a deed, executed under the present circumstances, to be void, and not voidable merely, are mentioned In the case of Medlin v. Buford, supra, in which will also be found an enunciation of the principles which apply to this appeal. There is no pretense here that the plaintiff did not intend to sign and deliver the instrument in question. She alleges that she consented to do so, and executed the same without reading or having it read to her. In addition to the authorities cited in Medlin's Case, supra, we will add the case of Commissioners v. Kesler, 67 N. C. 448, in which it was held that if a grantor, although an illiterate man, executes a deed without demanding that it be read, or elects to waive a demand for the reading, the deed will take effect. See, also, 1 Devi. Deeds, 225, where it is said: "It is at the peril of the party to whom the deed is made that the true effect and purport of the writing be declared if required; but, if the party who should deliver the deed doth not require it, he should be bound by the deed, although it be penned against his meaning." It being very clear, then, that the deed is not void by reason of fraud in the factum, it must follow...