Powell v. Heptinstall

• Decision Date: 30 June 1878
• Citation: 79 N.C. 207
• Parties: B. F. POWELL v. J. W. HEPTINSTALL.
• Court: North Carolina Supreme Court

79 N.C. 207

B. F. POWELL

v.J. W. HEPTINSTALL.

Supreme Court of North Carolina.

June Term, 1878.

OPINION TEXT STARTS HEREDeed--Recital--Fraud.

1. The rule, that the recital in a deed, that the purchase money for the land conveyed has been received, is conclusive and can not be contradicted by parol?? evidence, has no application to cases of fraud.

2. Where plaintiff and defendant compromised certain disputed matters for a definite sum to be paid by plaintiff in land at a fixed price per acre; and plaintiff's brother and the defendant fixed up the papers, including the deed, in plaintiff's absence, who signed the deed when presented to him, the receipt of the purchase money being therein acknowledged; and afterwards plaintiff ascertained that his brother and defendant had fraudulently included in the deed land worth fifty dollars more than the compromised debt; It was held, that plaintiff was entitled to recover of the defendant the amount overpaid.

CIVIL ACTION, commenced before a Justice of the Peace and tried on appeal at January Special Term, 1878, of HALIFAX Superior Court, before Schenck, J.

The plaintiff demanded payment of a balance alleged to be due on the purchase of a tract of land, and for money overpaid in settlement of an action which was compromised between plaintiff and defendant, the facts relating to which are sufficiently stated in the opinion. Judgment for plaintiff. Appeal by defendant.

Messrs T. N. Hill, J. B. Batchelor and Walter Clark, for plaintiff .

Mr. R. O. Burton, Jr., for defendant .

FAIRCLOTH, J.

The plaintiff and defendant compromised certain matters in dispute for a definite sum, and it was agreed that plaintiff should pay the amount in land at five dollars per acre. The plaintiff's brother, J. M. Powell, and the defendant fixed up the papers, including the deed, and arranged the details of the matter in plaintiff's absence, who signed the deed as presented to him, in which deed the receipt of the purchase money by the bargainor was acknowledged. Afterwards it was ascertained by plaintiff that his brother and defendant had by agreement included in the deed, land worth fifty dollars more than the compromised debt, discharged to the plaintiff. It was agreed by these parties to do this, and keep it a secret from the bargainor, and divide the fifty dollars between themselves, which was paid to J. M. Powell by the defendant. This discovery was made after J. M. Powell, and the defendant “fell out,” and this case verifies the common...