Gaskins v. Sidbury

• Decision Date: 21 May 1947
• Docket Number: 595.
• Citation: 42 S.E.2d 513,227 N.C. 468
• Parties: GASKINS et al v. SIDBURY.
• Court: North Carolina Supreme Court

42 S.E.2d 513

227 N.C. 468

GASKINS et al v. SIDBURY.

No. 595.

Supreme Court of North Carolina

May 21, 1947

Civil action to recover damages for fraudulent alteration of deed.

The feme plaintiff alleges that for a number of years she owned a lot of land in New Hanover County, with a frontage of 70 feet on Highway No. 17; that on 8 April, 1943, she sold one-half of this tract, with a frontage of 35 feet on the highway, to the defendant and duly executed and delivered to him deed therefor; that after delivery of said deed, and before its registration, the defendant fraudulently changed the description therein so as to take in all of her property and more--the call for 35 feet on the highway being changed to 80 feet and a corresponding change being made in the call at the other end of the lot--and that as a consequence, the feme plaintiff has lost the balance of her land and otherwise suffered injury. Wherefore, she demands actual and punitive damages.

Upon denial of the allegations of the complaint and issues joined, the jury awarded the plaintiff $300 actual damages--the value of the balance of her land--and $1000 punitive damages.

From judgment on the verdict, with provision incorporated therein adjudging the defendant to be the owner of all the land originally owned by the feme plaintiff in New Hanover County the defendant appeals, assigning errors.

Addison Hewlett, Jr., and Solomon B. Sternberger, both of Wilmington for plaintiffs, appellees.

Clayton C. Holmes, of Wilmington, for defendant, appellant.

STACY Chief Justice.

It appears that the plaintiffs have misconceived their rights and remedies.

It will not do to say the feme plaintiff may waive the fraud and recover the value of the land which the defendant sought by alteration to include in the deed, and at the same time recover damages for the fraud. No deed has been executed by her for the balance of her land and she still has title thereto. Perry v. Hackney, 142 N.C. 368, 55 S.E 289, 115 Am.St.Rep. 741, 9 Ann.Cas. 244; 16 Am.Jur. 643. Indeed, she may have seizin and legal title to all the land described in the paper-writing. Respass v. Jones, 102 N.C. 5, 8 S.E. 770.

What the feme plaintiff needs is to reform her complaint with a view of removing the cloud from the title to that part of the land not covered by her deed, and demanding damages for the consequent injuries. Waldron v. Waller, 65 W.Va 605, 64 S.E. 964, 32 L.R.A., N.S., 284. The only actual damages awarded by the jury was the value of the balance of her land. She is not entitled to such a recovery on the instant record. Nor can the verdict on the issue of punitive damages presently be sustained. Worthy v. Knight, 210 N.C. 498, 187...