Tarault v. Seip
| Decision Date | 13 March 1912 |
| Citation | 74 S.E. 3,158 N.C. 363 |
| Parties | TARAULT v. SEIP et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Currituck County; Cline, Judge.
Action by Joseph Tarault against John Seip and another. From the judgment, plaintiff appeals. Reversed in part, with directions.
The burden is on the party setting up fraud to prove scienter.
Civil action tried at September term, 1911, of the superior court of Currituck county; his honor Judge Cline presiding.
The plaintiff sued to recover on a note for $10,000 given for the purchase money of certain lands. The defendant pleaded counterclaims which are embodied in these issues:
(1) Did the plaintiff covenant to warrant and defend the title to the lands described in the answer? Answer: Yes.
(2) Were the defendants ousted from the lands, or any part thereof, as alleged in answer? Answer: Yes; 17/80 of the Cox lands.
(3) What damage are defendants entitled to recover for 17/80 of Cox land, named by M. B. Mot and others, for value of land and attorney's fees and cost of witnesses? Answer $2,055.35 and interest from January 1, 1908.
(4) What damage are defendants entitled to recover because of the time of their employers in defending the Mott suit? Answer: $150.
(5) What damages are defendants entitled to recover for the 3/80 of the Maj. John Cox lands? Answer: $900.
(6) Did plaintiff represent to defendants that the line of his lands ran to the ditch which is the southern boundary of the A. M. Willey land? Answer: Yes.
(7) Were those representations false and fraudulent? Answer Yes.
(8) Were those representations relied upon by defendant, and were they calculated and did they deceive the defendant Seip? Answer: Yes.
(9) What damage are defendants entitled to recover of plaintiff by reason of said representations? Answer: $10,000, with interest from August 23, 1902, at 6 per cent.
(10) What amount is due the plaintiff on the note of $10.000? Answer: $10,250, with interest at 6 per cent. from July 26 1906, on $10,000.
His honor allowed the counterclaims embodied in the third issue, $2,055.35, with interest from January 1, 1908, and in the ninth issue, $10,000 with interest from August 23, 1902, both aggregating $17,925.56, and rendered judgment, after satisfying and discharging the purchase-money note against the plaintiff for $4,508.89. For some reason not set out his honor set aside the fourth and fifth issues and declined to allow the amounts as a counterclaim to the defendants. From a judgment rendered, the plaintiff appealed.
Pruden & Pruden and S. Brown Shepherd, for appellant.
J. C. B. Ehringhaus and E. F. Aydlett, for appellees.
There are only two matters presented for our consideration upon this appeal, and they relate to the counterclaims passed upon in the third issue and in the sixth, seventh, eighth, and ninth issues.
1. It is contended that the clause in the deed from plaintiff to Seip is not sufficient to create a covenant of warranty of title to the lands described in the deed, and that therefore defendants cannot recover on the third issue. The language of warranty is as follows: "And we, Joseph Tarault and Richard E. Norton, the said grantors, do, for ourselves, and our heirs, executors and administrators, covenant with the said grantee, his heirs and assigns that at and until the ensealing of these presents we were well seised of the above-described premises as a good and indefeasible estate in fee simple, and have good right to bargain and sell the same in manner and form as above written; that the same are free and clear of all incumbrances whatsoever, except taxes thereon; and that we will warrant and defend said premises, with the appurtenances thereunto belonging, to the said grantee, his heirs and assigns, forever, against all lawful claims and demands whatsoever, except taxes."
The learned counsel for plaintiff evidently place but little reliance upon this contention, for they cite us no authority, and give no reason in support of it. They content themselves with simply calling our attention to it in their brief. We presume that the theory upon which the exception was taken is the words "title to" being omitted from the warranty clause renders it insufficient as a covenant of warranty of title. The position is untenable. Covenants are construed most strongly against the grantor, and any language evidencing such an intention is sufficient. 11 Cyc. 1076, 1077; 14 Century Digest, "Covenants,"§ 1.
2. The defendants further contend that they were induced to purchase the land by the willful and false representations of the plaintiff in respect to the boundary, whereby the plaintiff was cheated out of about 1,000 acres of land. This counterclaim is embodied in the sixth, seventh, eighth, and ninth issues. The evidence taken in its most favorable light for defendants tends to prove these facts.
H. C. Hosier, of Ohio, a stockholder of the defendant Carolina Land & Lumber Company, which company the defendant John Seip organized to take over the land purchased by him of the plaintiff Tarault, together with A. B. Lukens and E. S. Skilder of Norfolk, and O. D. Jackson, the real estate broker negotiating the sale, went to look over the land before the purchase. The plaintiff Tarault was at home sick, suffering from asthma, and showed the parties only the cultivated land, but was unable to show them the boundaries of all the land. He also stated to the purchasers that he did not know the boundaries of the land and had never been around it, which testimony is uncontradicted. He got a colored man to go with the party to show the lines. When they came to a ditch six feet wide, Jackson and the colored man both said, "We are now on the Tarault property," and that, "This ditch marks the line." The party remained in the vicinity for several days, investigating the land, and later Mr. Seip came from Ohio and closed the transaction. The lands sold to Seip covered some 9,192 acres in all, and the purchase price was $71,000. Four or five years afterwards it was found that this ditch did not mark the boundary of the property, and that there was between the ditch and the true Tarault line something like 1,000 acres, which belonged to one Willey, and was later recovered by Willey in a suit. In surveying this boundary it was found that the ditch was right at the boundary in one place, and it was further established that the line between Willey and Tarault was well defined and marked; Willey having cut it out every few years. This testimony is corroborated by A. B. Lukens and O. D. Jackson. Jackson was not sure whether he and the colored man stated the line was at the ditch or near it, but said that they all took it for granted that the ditch was the line. It is further in evidence that this Willey land was well timbered. Upon this testimony of defendants the plaintiff moved for a nonsuit on the defendant's counterclaim as to fraud, which motion was refused. The plaintiff then introduced one Sears, who testified that he was present when Tarault told Jackson, Hosier, and Lukens that he had been only a half a mile in the swamp and did not know where the lines were. Deposition of Tarault was introduced, further stating that he had told the defendants that he had not been over the property, and did not know where the lines were, and did not know anybody who did, and that he told them to take their time and look at the lines and the records, and if they did not want it it was all right; he had just as lieve keep it. Witness Lukens was recalled, and stated that he did not remember Tarault's saying that he did not know where the lines were. Upon the close of the testimony the plaintiff renewed his motion as to nonsuit, which motion was refused. The plaintiff then asked the court to charge that upon all the evidence they should answer the sixth, seventh, and eighth issues, "No," and the ninth issue, "Nothing."
It is admitted that the boundaries of the deed do not cover the Willey land, and therefore the defendants cannot recover upon the warranty as to that. The cause of action the defendants seek to establish is based upon the allegation that the plaintiff represented to defendants that the Willey land was included in his own boundaries, that such representation was knowingly false and was made by plaintiff with the false and fraudulent purpose of inducing defendants to purchase, and that they made the purchase in consequence of such representations, relying upon them.
Accepting the doctrine that the principle that false representations as to material facts knowingly and willfully made as an inducement to a contract applies to contracts and sales of land as well as personalty, we are unable to find in the record any evidence of those necessary elements which are essential to constitute actionable fraud.
In order to constitute such, there must be false representations as to material facts, knowingly and willfully made as an inducement to the contract. Such representations must be shown to have been the reason for making the contract, and that they were reasonably relied upon by the other party. May v. Loomis, 140 N.C. 352, 52 S.E. 728. In this often-cited case Mr. Justice Hoke lays down these principles and quotes abundant authority sustaining them. Applying them in this case, we find no evidence at all sufficient to sustain the allegations of the answer or the findings of the jury.
The plaintiff told the purchasers that he did not know the boundaries. He told them that Sam Jones, the negro, was familiar with the lines. There is not a scintilla of evidence that this statement was made to deceive. All the evidence shows that plaintiff was sick, and in sending the negro with the purchasers he acted in good faith. The ditch did constitute...
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