Hargett v. Lee, s. 419, 420.

• Decision Date: 23 May 1934
• Docket Number: Nos. 419, 420.,s. 419, 420.
• Citation: 206 N. C. 538,174 S.E. 498
• Court: North Carolina Supreme Court
• Parties: HARGETT . v. LEE et al.

174 S.E. 498

206 N. C. 538

HARGETT .

v.LEE et al.

Nos. 419, 420.

Supreme Court of North Carolina.

May 23, 1934.

Appeal from Superior Court, Mecklenburg County; Harding, Judge.

Suit by B. F. Hargett against George S. Lee, Jr., and others. From the judgment, plaintiff and defendants North Carolina Joint Stock Land Bank of Durham and another appeal.

Affirmed on plaintiff's appeal, error on defendants' appeal.

Civil action to set aside contract and lease and deed for fraud, and to remove cloud upon plaintiff's title.

The record discloses:

1. That on May 16, 1924, a contract to purchase or option to buy and lease land in Mecklenburg county appears to have been executed by plaintiff to defendants L. S. Fowler and George S. Lee, Jr. It is alleged that this paper writing, as it appears of record, is a forgery, or was secured by fraud, and is therefore void, one paper having been surreptitiously substituted for another.

2. It is further alleged that on October 7, 1924, the said Fowler and Lee registered what purports to be a deed from plaintiff to the two defendants for the 414 acres of land in question.

3. Thereafter, the two defendants conveyed to A. R. Deese 190 acres of said land, which was later encumbered by two deeds of trust, executed by Deese and wife, one of which was to the First National Bank of Durham, trustee for the North Carolina Joint Stock Land Bank of Durham.

4. That the balance of said tract has been encumbered by two deeds of trust executed by Fowler and Lee and their wives.

5. That a judgment was taken against A. R. Deese by the Bank of Union, which purports to be a lien against the 190 acres of said land.

6. That Fowler has conveyed by deed all his alleged interest in the remaining land to Lee.

7. This action was instituted April 2, 1930, to remove all these instruments as cloud upon plaintiff's title, ' it being alleged that the original contract and deed signed by plaintiff were procured by fraud.

8. Upon denial of the allegations in the complaint and pleas of the three-year statute of limitations, there was a judgment of nonsuit entered at the close of plaintiff's evidence as to all the defendants except L. S. Fowler, who did not plead the statute of limitations. Formal judgment of nonsuit appears in the record.

9. Issues were thereupon submitted to the jury and answered in favor of the plaintiff.

10. The plaintiff, after verdict, moved to amend the complaint to conform to the evidence by adding at the end of paragraph 2, the following:

"And defendants, Geo. S. Lee, Jr., and L. S. Fowler, in transacting with plaintiff the business matters mentioned in the complaint were acting as partners and trading under the firm name of L. S. Fowler & Company."

Motion allowed by the court in its discretion.

11. Before signing judgment, the court requested defendants in whose favor judgment of nonsuit had been entered to appear in court, which they did and objected to the judgment tendered by plaintiff, as it injuriously affects their interests.

12. Upon motion of plaintiff for judgment on the verdict, the court found that the judgment of nonsuit previously signed in the case was improvidently entered in part, in that, A. R. Deese and Arpie Deese were included therein when they had made no motion to nonsuit, not being represented by counsel who lodged the motion. The judgment of nonsuit was accordingly reformed to exclude A. R. Deese and Arpie Deese from its operation.

13. Judgment was thereupon entered declaring the plaintiff to be the owner in fee of the land in question, and ordering that an accounting be had between the plaintiff and L. S. Fowler, surviving partner of L. S. Fowler & Co., and taxing L. S. Fowler individually and as surviving partner of the firm of L. S. Fowler. & Co. and A. R. Deese and Arpie Deese with the costs of the action.

The North Carolina Joint Stock Land Bank of Durham and the receiver of The First National Bank of Durham, trustee, objected to the judgment tendered by plaintiff, and gave notice of appeal therefrom to the Supreme Court.

The plaintiff appeals from the judgment of nonsuit entered at the close of his evidence.

H. L. Taylor, J. C Newell, and Marvin L. Ritch, all of Charlotte, for appellant.

Vann & Milliken, of Monroe, for appellees North Carolina Joint Stock Land Bank of Durham and receiver of First National Bank of Durham, trustee.

STACY, Chief Justice.

The argument submitted by plaintiff on his appeal from the judgment of nonsuit treats the case as one in ejectment, but this is not the theory upon which it was tried in the court below. An appeal ex necessitate follows the theory of the trial. Walker v. Burt, 182 N. C. 325, 109 S. E. 43; Holland v. Dulin, 206 N. C. 211, 173 S. E. 310; Shipp v. Stage Lines, 192 N. C. 475, 135 S. E. 339.

In an action to avoid an instrument on the ground of fraud, non est factum, it is provided by C. S. § 441, subsec. 9, that suit shall be commenced within three years after the cause of action accrues; that is within three years after the discovery by the aggrieved party of the facts constituting the fraud, or when such facts, in the exercise of proper diligence, should have been discovered. Taylor v. Edmunds, 176 N. C. 325, 97 S. E. 42; Little v. Bank, 187 N. C. 1,...