Evans v. Davis

• Decision Date: 12 September 1923
• Docket Number: 641.
• Citation: 118 S.E. 845,186 N.C. 41
• Parties: EVANS ET AL. v. DAVIS ET AL.
• Court: North Carolina Supreme Court

118 S.E. 845

186 N.C. 41

EVANS ET AL. v. DAVIS ET AL.

No. 641.

Supreme Court of North Carolina

September 12, 1923

Appeal from Superior Court, Nash County; Kerr, Judge.

Civil action by W. E. Evans and another against C. C. Davis and another. Demurrer interposed by defendant named was overruled, and plaintiffs were allowed to file an amended complaint, and defendant named excepts and appeals. Affirmed in part and reversed in part and remanded, costs to be taxed against plaintiffs.

In an action for damages for fraud in conveying only 12 acres instead of 22 1/2 acres as represented, complaint held demurrable, where it did not allege that defect in quantity of land in defendant's deed was known to the latter at the time he executed his conveyance, or at any other time, or that defendant was guilty of any fraud in his representations as to quantity.

The action is to recover damages of the defendants, growing out of certain sales of a piece of real estate in said county, in the years 1919 and 1920. The defendants filed separate demurrers on the ground that the complaint failed to state a cause of action against either. The court entered judgment as follows:

"This cause coming on to be heard upon demurrer by Rocky Mount Insurance & Realty Co., defendant, and it appearing to the court that the complaint does not state a cause of action against said Rocky Mount Insurance & Realty Co., it is ordered that the action be dismissed as to the Rocky Mount Insurance & Realty Co., and that said defendant go hence without day and recover its costs of plaintiff. Upon demurrer filed by defendant, C. C. Davis, the demurrer is overruled and the plaintiff allowed to file an amended complaint and defendant Davis to answer over."

Defendant Davis excepted and appealed.

E. B Grantham, of Rocky Mount, and Finch & Vaughan, of Nashville for appellant.

Thorne & Thorne, of Rocky Mount, for appellees.

HOKE J.

The complaint filed against both of defendants contained averment among other things:

"That in January, 1919, the defendant, the Rocky Mount Insurance & Realty Co. sold and conveyed to the codefendant, C. C. Davis, a piece of land in Rocky Mount, N. C., definitely describing the same by metes and bounds and represented in the deed as 'containing 22 1/2 acres more or less,' and the conveyance having also the usual covenants of warranty, seizin, etc. That at the time of this sale and conveyance, the Insurance & Realty Co. expressly represented to said C. C. Davis that the lands described in the deed contained 22 1/2 acres, whereas in fact and in truth said representations were false and fraudulent, said lands containing only 12 acres; second, that thereafter, on the 20th of January, 1920, C. C. Davis and wife, Lizzie Davis, sold and conveyed said land to Mamie Evans, wife of W. E. Evans, set out and described as in the other deed and represented as 'containing 22 1/2 acres more or less.' That plaintiffs paid to C. C. Davis $6,500 as purchase money for said land, on the assurance of said C. C. Davis that the tract of land contained 22 1/2 acres. That this deed also contained the usual covenants of warranty, seizin, etc. That present plaintiffs had no knowledge of the boundary of the land at the time of the purchase from C. C. Davis, and would not have purchased this land or paid the price, but for the representations of C. C. Davis that there were 22 1/2 acres in the tract. That some time after taking the deed, in June or July, 1921, plaintiff had the boundary pointed out to him, and ascertained that there were only 12 acres in the boundaries of the deed."

In section 10, the complaint closes with the following averment:

"These plaintiffs aver that there has been a breach of the covenants of seizin and warranty contained in the two deeds hereinbefore referred to, such covenants of seizin and warranty are fully set out in this complaint, and furthermore, that deceit and fraud have been practised on these plaintiffs or on their grantor, C. C. Davis. In consequence of the breach of said covenants of seizin, and deceit and fraud, these plaintiffs have been damaged in the sum of $1,380, and thereupon demand damages of defendants for $1,380."

It is fully recognized in this state that the principle affording relief for fraud and deceit applies in proper instances to deeds and contracts concerning both real and personal property. May v. Loomis, 140 N.C. 350, 52 S.E. 728; Walsh v. Hall, 66 N.C. 233. The essential features of such an action ordinarily being that there should have been false representations of some material fact or facts, false within the knowledge of the party making them, and reasonably relied upon by the other, whereby he was induced to enter into the contract to his pecuniary injury. This requirement as to a knowledge of the falsity by the party charged has been extended, under certain circumstances, to cases where one who should be expected to know, gives positive assurance as to the existence of a material fact as an inducement to the bargain, when he is consciously ignorant whether the same be true or false. Helpful cases in illustration of these positions being found in Bell v. Harrison, 179 N.C. 190, 102 S.E. 200; Modlin v. R. R., 145 N.C. 218, 58 S.E. 1075; Whitehurst v. Insurance Co., 149 N.C. 273, 62 S.E. 1067.

In Bell v. Harrison, the principle is stated as follows:

"Fraudulent representations made in the procurement of a deed sufficient to set it aside must be untrue in fact, made by the party inducing it with a knowledge of its being false or consciously ignorant thereof, with intent that the other party should act thereon, or calculated to induce him to do so, and upon which he acted to his damage."

And in the Whitehurst Case, the same position is given:

"When an agent of an insurance company has induced the insured to take a policy of insurance in his company by making misrepresentation of a material fact concerning which, as such agent, he should have known the truth, or makes it recklessly, or affirms its existence positively, when he is consciously...