McArthur v. Johnson

• Decision Date: 30 June 1867
• Citation: 93 Am.Dec. 593,61 N.C. 317
• Court: North Carolina Supreme Court
• Parties: DANIEL McARTHUR v. HUGH JOHNSON.

61 N.C. 317

93 Am.Dec. 593

DANIEL McARTHUR

v.HUGH JOHNSON.

Supreme Court of North Carolina.

June Term, 1867.

*1 Where one proposed to convey a tract of land in trust, and his brother undertook to have the deed drawn, but, without the knowledge of the vendor, inserted therein a conveyance also of another tract in trust for himself, and, upon presenting the deed for execution, in reply to a question by the vendor, said that it was “all right,” whereupon the latter executed it without reading it, or hearing it read; Held, that the conveyance of the second tract was valid at law.

Distinction between fraud in the factum, and other fraud attending the execution of deeds, stated and applied.

( Logan v. Simmons, 1 Dev. & Bat., 13; Reed v. Moore, 3 Ire., 310; Canoy v. Troutman, 7 Ire., 155; Gant v. Hunsucker, 12 Ire., 254; Nichols v. Holmes, 1 Jon., 360; Guynn v. Hodge, 4 Jon., 168, cited and approved. McKerall v. Cheek, 2 Hawks, 343, overruled.)

TRESPASS, Q. C. F., tried before Fowle, J., at Spring Term, 1867, of the Superior Court of ROBESON.

Both parties claimed under one John L. McArthur. As part of his title the plaintiff introduced a deed executed under the following circumstances:

In March, 1853, John L. McArthur, then about twenty-two years of age, contracted to sell a tract of fifty acres of land to the defendant. On the day after, being upon his way to visit the South-west, after some discussion as to the best mode of making the conveyance, one Angus L. McArthur, an older brother of John, suggested that one McCallum, who lived upon the road they were traveling, should write a power of attorney authorizing one Daniel McLean to make the necessary deed in John's absence. On reaching McCallum's, John remained in the buggy, and Angus went into the house. After some time he returned in company with McCallum, bringing a deed, which, in reply to a question by John, he said was “all right.” Thereupon John, (still sitting in the buggy,) without reading it or having it read to him, executed the deed, and then, in company with Angus, continued his journey.

The deed included not only the fifty acre tract, but also one of twenty acres, (that in controversy,) and authorized McLean to convey the latter to Angus. This was done without the knowledge or consent of John. By various subsequent conveyances this title to the twenty acre tract vested in the plaintiff.

His Honor charged the jury that if they believed that the execution of the power of attorney was obtained by the fraudulent representation that it authorized a conveyance of only fifty acres of land, whilst, in fact, it also embraced the twenty acre tract, it was void: at least so far as the latter tract was concerned; and that, in such case, no title passed to Angus L. McArthur under the subsequent conveyance by McLean to him.

Verdict, Not guilty; Rule for a new trial; rule discharged, and appeal by the plaintiff.

Leitch, for the appellant , cited Logan v. Simmons, 1 Dev. & Bat., 13; Reed v. Moore, 3 Ire., 310; Canoy v. Troutman, 7 Ire., 155; Gant v. Hunsucker, 12 Ire., 254; Devereux v. Burgwyn, 11 Ire., 490; Nichols v. Holmes, 1 Jon. 360; Gwynn v. Hodge, 4 Jon., 168; also 2 Bl., 295, ibid, 309, n. 30, and distinguished from the present case that of McKerall v. Cheek, 2 Hawks, 343.

No counsel, contra.

BATTLE, J.

*2 The decision of this case depends upon the question whether the fraud alleged to have been practiced upon John L. McArthur, in the execution of the power of attorney to Daniel McLean, under whom the plaintiff claims, was a fraud in the factum of the deed, or a fraud in the consideration of it, or in some matter collateral to it. It is a well established distinction that, for a fraud of the first kind, the deed may be avoided at law, while for a fraud of either of the two last kinds relief can be had only in a Court of Equity; Reed v. Moore, 3 Ire., 310; Canoy v. Troutman, 7 Ire., 155; Gant v. Hunsucker, 12 Ire., 254; Nichols v. Holmes, 1 Jon., 360; Gwynn v. Hodge, 4 Jon., 168; Logan v. Simmons, 1 Dev. & Bat., 13.

An instance of fraud in the factum is when the grantor intends to execute a certain deed, and another is surreptitiously substituted in the place of it. See Gant v. Hunsucker and Nichols v. Holmes, ubi supra. Another instance is afforded by the case of a deed executed by a blind or illiterate person, when it has been read falsely to him upon his request to have it read; 2 Black Com., 304; Manser's case, 2 Coke's Rep., 3. These authorities show that the party was fraudulently made to sign, seal and deliver a different instrument from that which he intended, so that it could not be said to be his deed. Several of the cases in our Reports referred to above furnish examples of what is meant by fraud in the consideration of the deed, or in the false representation of some matter or thing collateral to it. In all of them it will be seen that the party knowingly executes the very instrument which he intended, but is induced to do so by means of some fraud in the treaty, or some fraudulent representation or pretence. In this category is included the case of a man who can read the instrument which he signs, seals and...