Ramsey v. Wallace Et Ux

• Citation: 6 S.E. 638, 100 N.C. 75
• Case Date: May 07, 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.

1. Deceit—Boundaries—Vendor and Vendee—Instructions.

In an action for damages for false representations as to the boundaries of real estate sold by defendants to plaintiffs, where it appeared that there was uncertainty as to the true location of the beginning corner of the land, as described in the deed from defendants to plaintiff, owing to a change in the width of a street, the court properly refused to charge that if the jury found that the defendants, at and before the purchase, represented to plaintiffs that the middle of the old gate was the beginning corner of the lot purchased, and plaintiffs believed such representation, and relied upon it, and were induced thereby to make the purchase, and the jury find that said representation was false in fact, and that by reason of its falsity plaintiffs have suffered damage, plaintiffs are entitled to recover, though defendant did not know when he so made such representation that it was false.

2. Same.

The plaintiff also tendered the following instruction: "That if the jury find that, when defendants conveyed away the land adjoining the land sold to plaintiffs, he

[6 S.E. 639]

was present, and directed the line to be run between the land so conveyed to Boone and the land sold to plaintiffs so as to strike Broad street below the middle of the old gate, seven or eight feet further down on the lot purchased by plaintiffs than the middle of the said gate; and they further find that the defendant said the line so ran, and directed a deed from him to Boone to be made in accordance with this line, and the deed to Boone was so made, —that this fixes the defendant with actual notice—knowledge—of the location of the line between the lot sold to Boone and the lot sold to plaintiffs; and although the jury should believe that, at the time he made the representation to plaintiff, if he did make it, and it was in fact false, he had forgotten these facts, and forgotten where the line was, such forgetfulness of the defendant would not prevent plaintiff's right to recover in this action, and the jury should find the first issue for the plaintiffs, "—which instruction the court refused to give as prayed, but modified it so as to instruct the jury that, upon the supposition made, " the burden would be cast upon the defendant to reconcile such facts with such representation; and if he made the same recklessly, and without consideration, it would be fraudulent." Held, that the court properly refused to give the instruction as prayed, and that as so modified it correctly stated the law.¹

8. Same.

In such case the following instruction is proper: " If, upon the consideration of the whole evidence, the plaintiffs have, by a preponderance thereof satisfied you that the defendant David Wallace, at the time of the sale, or before or during and as a part of the negotiations which resulted in the sale, and as an inducement thereto, represented to the plaintiffs that ' the boundary of the lot 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 north side, next to the Baptist Church, ' and that said representations were false, and that the defendant knew it to be so, or had no knowledge whether it was true or false, nor any reasonable ground to believe it to be true, or had no honest or well-grounded belief that it was true, that they should find the first issue in the affirmative. But if, upon such consideration, you believe the statement was not made, or, if made, that it was true, or, if untrue, the defendant honestly believed it to be true, and had reasonable ground to so believe, then you should find the first in the negative."

4. Same.

There having been evidence before the jury tending to prove that it had been agreed by plaintiffs and defendant, for one Clegg, to settle the boundaries of said lot, and that the same was so done, and an issue having been submitted to the jury as to whether or not such was the case, the court gave the jury the following instruction: "That if they found, from the evidence, that plaintiffs and defendant agreed, for Clegg, to settle the boundaries of the lot, and in pursuance thereof Clegg did make out the boundaries now in the deed, and settle them, the jury should answer the second issue in the negative." Held, the instruction was proper.

5. Same—Husband and Wife.

The 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 court properly instructed the jury that, as to her, the plaintiffs could not recover.

6. Appeal—Review—Instructions.,

It is not reversible error to refuse an instruction, when one covering the same points, and as favorable to the party tendering the instruction as the law will admit, has already been given.

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

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

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

[6 S.E. 640]

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...