Parker v. White, 450

Docket NºNo. 450
Citation235 N.C. 680, 71 S.E.2d 122
Case DateJune 11, 1952
CourtUnited States State Supreme Court of North Carolina

Page 122

71 S.E.2d 122
235 N.C. 680
WHITE et al.
No. 450
Supreme Court of North Carolina.
June 11, 1952

Simms & Simms, John M. Simms, Raleigh, for plaintiff appellant.

Smith, Leach & Anderson, Raleigh, for defendants appellees.

WINBORNE, Justice.

Does this action affect the title to real property? If it does, the judgment from which this appeal is taken would be in error. But if it does not, then the judgment is correct and should be affirmed. For the filing of the notice of the action, that is, lis pendens, is authorized only in actions affecting the title to real property. G.S. § 1-116. From a careful consideration and analysis of the various phases of the complaint, in the light of applicable principles of law, it seems apparent that the purpose of this action is to recover damages caused by fraud. Hence, error in the judgment is not made to appear.

'The essential elements of actionable fraud or deceit are the representation, its falsity, scienter, deception, and injury. The representation must be definite and specific; it must be materially false; it must be made with knowledge of its falsity or in culpable ignorance of its truth; it must [235 N.C. 688] be made with fraudulent intent; it must be reasonably relied on by the other party; and he must be deceived and caused to suffer loss,' Adams, J., in Leggett Electric Co. v. Morrison, 194 N.C. 316, 139 S.E. 455; see also Berwer v. Union Central Life Ins. Co., 214 N.C. 554, 200 S.E. 1, and cases there cited, and also Hill v. Snider, 217 N.C. 437, 8 S.E.2d 202.

This principle applies to contracts and sales of both real and personal property. May v. Loomis, 140 N.C. 350, 52 S.E. 728; Tarault v. Seip, 158 N.C. 363, 74 S.E. 3; Evans v. Davis, 186 N.C. 41, 118 S.E. 845; Berwer v. Union Central Life Ins. Co., supra.

And a party who has been fraudulently induced to enter into a contract or sale has a choice of remedies. He may repudiate the contract, and, tendering back what he has received under it, may recover what he has parted with or its value; or he may affirm the contract, keeping whatever property or advantage he has derived under it, and may recover in an action for deceit the damages caused by the fraud. And, in a proper case, the defrauded party may be entitled to the equitable remedies of rescission and cancellation or reformation. But, as a general rule, the defrauded party cannot both rescind and maintain an action for deceit. If he elects to rescind the contract,...

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19 cases
  • Strickland v. Flue-Cured Tobacco Co-op., Civ. A. No. 86-311-3.
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • 27 de agosto de 1986
    .......         Daniel O. Neil, Paul Pennoyer, Chadbourne & Parker, New York City, H. Simmons Tate, Jr., Boyd, Knowlton, Tate & Finlay, Columbia, S.C., for American ...Taylor Co., Inc. and Universal Leaf Tobacco Co., Inc. .         David H. White, Dept. of Justice, Washington, D.C., John B. Grimball, Asst. U.S. Atty., Columbia, S.C., Paul ...26, 38, 96 S.Ct. 1917, 1924, 48 L.Ed.2d 450 (1976)). Specifically, the plaintiffs' complaint must contain allegations demonstrating that the ......
  • Daniel Boone Complex, Inc. v. Furst, 7815SC847
    • United States
    • Court of Appeal of North Carolina (US)
    • 2 de outubro de 1979
    ...... Parker v. White, 235 N.C. 680, 71 S.E.2d 122 (1952). In the instant case, appellants have chosen to ......
  • Collier v. Bryant (In re Collier), COA10–1579.
    • United States
    • Court of Appeal of North Carolina (US)
    • 1 de novembro de 2011
    ...a sale, the remedies are either to repudiate the contract or affirm the contract and recover damages caused by the fraud. Parker v. White, 235 N.C. 680, 688, 71 S.E.2d 122, 128 (1952). The plaintiff may elect one or the other but may not seek rescission and maintain an action for fraud. Id.......
  • Keith v. Wilder, 242
    • United States
    • United States State Supreme Court of North Carolina
    • 23 de março de 1955
    ...... Parker v. White, 235 N.C. 680, 71 S.E.2d 122; Foster v. Snead, 235 N.C. 338, 69 S.E.2d 604; Vail v. Vail, ......
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