Ramsey v. Wallace

• Citation: 6 S.E. 638,100 N.C. 75
• Parties: RAMSEY et al. v. WALLACE et ux.
• Decision Date: 07 May 1888
• Court: United States State Supreme Court of North Carolina

6 S.E. 638

100 N.C. 75

RAMSEY et al. v. WALLACE et ux.

Supreme Court of North Carolina

May 7, 1888

Appeal from superior court, Iredell county; CONNOR, Judge.

Action by Ramsey & Maxwell against D. Wallace and wife for damages for fraudulent misrepresentations in the sale of real estate. Judgment for defendants. Plaintiffs appealed.

A grantor's wife having only executed the deed to bar her right of dower, and having had no knowledge of what transpired in connection with the sale, the vendees cannot recover, as to her, for fraudulent representations of the grantor, in regard to the boundaries of the land.

R. F Armfield, for appellants.

Batchelor & Devereux, for appellee.

SMITH C.J.

The complaint alleges that the plaintiffs, desiring to purchase a lot in the town of Statesville, on which to erect a factory with the necessary buildings, in which to carry on the business of manufacturing tobacco, and so informing the defendants, entered into a negotiation for the purchase of that hereinafter mentioned, for which the sum of $500 was demanded. To induce the purchase, the defendants falsely and fraudulently represented that the boundary of the lot began at a stake, the middle of the old gate, and so ran as to include a strip of land of the width of eight or ten feet on the top of the hill, on the side next to the Baptist Church most of the balance of said lot being hill-side; when, in fact, as the defendants well knew when they made said representations, the boundary of said lot did not commence at the middle of the old gate, but eight or ten feet further down the hill, and did not include the strip of level land, eight or ten feet wide, on the side next to the Baptist Church. That afterwards, to-wit, on the 10th day of March, 1884, the plaintiffs, relying on said representations of defendants, and believing that the said lot of land embraced in its boundaries the said strip of level land, eight or ten feet wide, on the top of the hill, next to the Baptist Church, and would therefore be suitable for the purpose for which they wanted it, to-wit, the erection of a tobacco factory and appurtenant buildings, purchased the said lot of land from the defendants, and paid them therefor the sum of $500, and took a deed from defendants in fee for said land. After said payment and the taking of said deed, plaintiffs discovered for the first time that the boundaries of said lot of land did not run so as to include the said strip of level land, eight or ten feet wide, on the top of the hill, next to the Baptist Church; but that the said strip, before the making of plaintiffs' deed, had been conveyed by defendants in fee to another person. Plaintiffs have, since their said purchase, erected a tobacco factory and appurtenant buildings on said lot of land; but owing to plaintiffs not getting said strip of land, eight or ten feet wide, on the top of the hill, next to the Baptist Church, said lot was not suitable for the erection of a tobacco factory and appurtenant buildings; by reason of which, plaintiffs have incurred great additional expense in building said tobacco factory and appurtenant buildings, and the same are not nearly so commodious, convenient, or valuable as they would have been had they obtained the said strip of level land, which they failed to get as aforesaid; by reason of which, and by reason of the loss of said strip of land, which is the most valuable part of said lot, plaintiffs have sustained damages to the amount of $1,000. For the alleged damages the plaintiffs demand judgment for the sum of $1,000. The answer, admitting the allegations as to the sale of the lot, denies every imputation of misrepresentation and fraud, and avers that the plaintiffs well knew the beginning point to be at the corner of the lot on Broad street, which was conveyed in 1876 to Rev. J. B. Boone, for the Baptist Church, by a deed duly registered, and whose calls could be ascertained by reference to the registry; and that the plaintiffs were not misled or misinformed as to its location by the defendants in any way. The cause came on for trial at February term, 1888, of the superior court of Iredell county, upon issues submitted by consent to the jury, which, with the responses, are as follows: "(1) Did the defendants, or either of them, if so, which, in order to induce plaintiffs to buy, falsely and fraudulently represent to the plaintiffs that the boundary of the lot in controversy began at a stake in the middle of the old gate, and so ran as to include a strip of land, eight or ten feet wide, on the hill, on the side next to the Baptist Church? Answer. No. (2) Did plaintiffs, relying on said representations, purchase and take a deed from the defendants for said lot? A. No." The deed of the defendants to Boone, made in 1876, describes the land therein conveyed as "beginning at the intersection of Trade and Broad streets, and running along Trade street, N., 24 W., 148 1/2 poles, to Davie avenue; thence, with said avenue, N., 29 1/2 E., 132 feet; thence S., 29 E., 203 feet, to Broad street; thence S., 66 W., 134 feet, to the beginning." A portion of this lot was subsequently sold to the witness John B. Holman. The deed to the plaintiffs defines the lot conveyed to them as follows: "Adjoining the lands of David Wallace and others, and beginning at a stake in the middle of the old gate and corner of Baptist Church lot on Broad street, in the town of Statesville, and runs with said street N., 66 E., 137 feet, to David Wallace's corner; thence N., 24 W., 100 feet; thence S., 66 W., 137 feet, to the said church lot; thence, with the same, 24 E., 100 feet, to the beginning,--containing one-fourth of an acre, more or less." There is evidently an omission in not inserting S. before "24 E." in the last line, as this is necessary to make an inclosure.

It is hardly necessary to recapitulate the testimony in detail in reference to the disputed facts upon which the allegations of fraud and false representations on defendant are based further than to refer to that of G. W. Clegg, a witness for the defendant, whose statements of what occurred when the deed was prepared, and preliminary to its being made, as in some degree explanatory of the misunderstanding between the parties. He says: "I am a surveyor, and run the lines described in the deed from the defendants to plaintiffs. There was some sign of an old gate on Broad street. The center of the gate was the dividing line between the Baptist Church lot and Ramsey & Maxwell. I measured from the corner of Trade street, as it now is, to the center of the old gate. It made 132 or 133 feet. We allowed 56 feet for the width of Trade street. If the street is 66 wide, there would be a difference of ten feet. Trade street was formerly narrower than now. It has broadened in the last fifteen years. If the measurement had been made as the street was at the date of the deed to Boone, the 134 feet on Broad street, the Baptist Church lot on Broad street, including Holman's lot, would not have reached the middle of the old gate. When I went to survey, Mr. Ramsey and Mr. Wallace went with me. I was selected by them to get the boundaries of the lot from said defendants to the plaintiffs. There was something said when we were all there as to where the corner of the Baptist Church lot was. I said that, by calling for the corner of the Baptist Church lot, and by beginning and calling for the corner of the Baptist Church lot, all further difficulty as to the location of the beginning point would be obviated. This, as I understood it, was agreed upon by both parties, and I made out the boundaries accordingly. I gave D. Wallace a copy. He drew the deed." From this testimony it would seem that, by reason of the widening of Trade street, the position of the beginning corner of the lot conveyed to Boone on that street had been rendered uncertain, and, to avoid difficulty, it was concluded to so describe the plaintiff's lot as that it would begin at that corner, wherever its true location might be; and this was agreed on by both parties to the contract. Aside from all this, the verdict negatives the change that the defendants, to induce the...