Holland v. Whittington
| Decision Date | 22 March 1939 |
| Docket Number | 237. |
| Citation | 1 S.E.2d 813,215 N.C. 330 |
| Parties | HOLLAND et al. v. WHITTINGTON et al. |
| Court | North Carolina Supreme Court |
Two causes of action are alleged in the amended complaint, the first to recover the possession of land wrongfully withheld by defendants, and second to set aside an arbitration agreement and award on the ground of fraud. The defendants Whittington and the defendant J. L. Holland, separately demurred to the second cause of action. The demurrers were sustained and plaintiffs appealed.
R L. Godwin, of Dunn, for appellants.
Dupree & Strickland, of Angier, for appellees.
The demurrers to the second cause of action alleged in the complaint were sustained by the court below upon two grounds (1) That facts sufficient to constitute a cause of action on account of fraud were not alleged, and (2) that there was a misjoinder of parties and causes of action. The plaintiffs assign error in the ruling of the court, and bring the question here for review. This requires an examination of the allegations of the amended complaint challenged by the demurrers.
The plaintiffs are W. P. Holland and wife, Annie Holland, and Martha Holland. In the first cause of action they allege title in the plaintiff W. P. Holland in and to a tract of land therein described, containing 35 acres, and allege that the defendants Whittington and J. L. Holland are in wrongful possession of separate portions of the eastern edge thereof and plaintiffs allege title in W. P. Holland and Martha Holland in and to a second tract of land containing 18 acres, and that J. L. Holland is in the wrongful possession of a portion of the eastern edge of the second tract.
In the second cause of action the plaintiffs allege in substance that the defendants Whittington fraudulently induced plaintiffs W. P. Holland and wife to sign an agreement to submit to arbitration the question of the location of the eastern boundary of plaintiffs' land, which was the line between the lands of plaintiff W. P. Holland and those of defendants Whittington; that said plaintiffs agreed to sign provided a good surveyor be employed, "and that the disputed line be run according to all the old deeds, papers, plats, and titles, and that they run by the old white oak corner as described in this complaint;" that it was agreed by the defendants Whittington "that the survey should be made as contended by" the said plaintiffs; that the plaintiffs were induced to sign the arbitration agreement by the false and fraudulent representations of the defendants Whittington, made with intent to defraud, and relied on by plaintiffs.
It was also alleged in substance, as we gather from the pleading, that the attempted submission of the controversy to arbitration and the purported award thereunder were void, that the arbitrators violated the terms of the agreement between the parties, and, in disregard of its provisions and conditions, attempted to establish a new and different line, in the absence of plaintiffs and their evidence, with intent to defraud plaintiffs, and "that these acts of flagrant and gross violation of said void and fraudulent paper make the whole transaction for the establishment of said line null and void."
While the paper writings purporting to be an arbitration agreement and an award, which are attacked by the plaintiffs in the second cause, are not attached to or set out in the complaint, and therefore are not before the court for the consideration of the demurrers, it is apparent that the court below has correctly held that the allegations of fraudulent misrepresentation upon the part of defendants Whittington as an inducement to the plaintiffs W. P. Holland and wife to sign an arbitration agreement, are insufficient, under the rule laid down in Colt Co. v. Kimball, 190 N.C. 169 129 S.E. 406; Dunbar v. Tobacco Growers' Co-op. Ass'n, 190 N.C. 608, 130...
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