majority"> Broww, J.

Two separate actions were instituted against these defendants, one by plaintiff Miller and one by plaintiff Maryland. It was admitted that both actions arose out of tbe same transaction, and by consent they were consolidated and tried together.

Tbe defendants tendered certain issues and excepted to tbe refusal of tbe court to submit them to the jury. We think tbe material facts controverted in tbe pleadings are clearly presented in tbe issues submitted, and that tbe defendants bad opportunity to present any material and competent evidence. Redmond v. Mullenax, 113 N. C., 505.

It is not alleged in Miller’s complaint or in Maryland’s that tbe execution of tbe deed to tbe lot on Old Town road by tbe latter to tbe defendants for an expressed consideration of $2,500 was obtained by fraud. Maryland sues to recover tbe alleged balance of tbe purchase price claimed by him, and that issue was submitted and found against Maryland.

As be obtained no judgment, and did not appeal, be is eliminated from tbe case. At tbe conclusion of tbe evidence defendants moved to nonsuit. Tbe motion was properly overruled. Tbe action by plaintiff Miller is brought to set aside a deed conveying two lots in Winston-Salem. on Sixth Street and described in bis complaint, alleging that tbe execution of tbe deed was obtained by tbe false and fraudulent representations of tbe defendants.

The evidence, taken in its most favorable light for plaintiff, tends to prove that be owned tbe said lots and was approached by defendant •Mateer (tbe partner of defendant Payne) to exchange the lots for *404 timber land in Stokes County. Mateer told plaintiff that the land cost them $43 per acre, a total of $19,350, and he had been offered $50 per acre for it; that the land had over two million feet of merchantable pine timber on the 450 acres; that they had been offered $9,000 for the timber on the stump, but refused the offer, because it was not enough; that if he bought it, Mateer would put in a sawmill and cut the lumber, and Mateer assured Miller “the lumber there is worth more than the value 'of the land I priced it to you at,” and that the adjoining lands were selling at $50 per acre. Mateer had been in the sawmill business all his life; Miller lived in Winston-Salem, about 30 miles from this land, was a barber, and ran a small livery business and worked in a tobacco factory, and knew nothing of timber or timber lands. He made practically no examination of the tract, but relied on the representations of Mateer, who stated that his partner, Payne, was worth $75,000 and that he was worth half that amount.

The evidence tends further to prove that defendants paid only $3,000 for the Stokes land; that the representation that adjoining land was worth $50 per acre was false; that there was not, over 500,000 feet of timber in the land, instead of 2,000,000. According to the evidence of plaintiff, the net result of these transactions is that the defendants acquired the Sixth Street property of Miller, worth from $8,000 to $12,000, with encumbrances of $1,510.44, and George Maryland’s property on Old Town Street, for which they agreed to pay $2,600 and which Mateer now says he values at $1,600 to $1,800, for $550 cash and a debt of $221.50 due the Building and Loan Association; and in addition to all of this, they have the notes of Miller for $6,934.18, secured by mortgage on the Stokes County land.

It is useless to discuss the evidence further than to say that, taken in its most favorable light for plaintiff, as must be done upon a motion to nonsuit, it abundantly justified the court in overruling the motion.

The jury seems to have given full faith and credit to plaintiff’s evidence, which, if believed to be true, establishes a clear case of fraud upon the part of the defendant Mateer, whereby he obtained the execution of the deed from plaintiff Miller to himself and his partner, Payne.

We have considered the ten assignments of error directed to the evidence, and find them to be without merit. It was competent to introduce the deed of December, 1913, to defendants for the Stokes land, showing that the consideration was $3,000. The recital of the consideration for the purchase of land contained in a deed is not contractual or an estoppel as between the parties, but it is competent evidence as against all parties to the deed, for it is presumed that their deed recites the true consideration. The recital in this deed contradicts the defendant Mateer as to what price defendants paid for the land.

*405 It was competent to admit evidence tending to prove the value of the adjoining lands for the purpose of contradicting Mateer, who, plaintiff testified, represented them to be worth $50 per acre. Such evidence tended to prove that Mateer made a false and fraudulent representation in respect to their value which was material in inducing plaintiffs to make the trade.

The following prayer for instruction was refused: “The doctrine of caveat emptor applies in the sale of real estate as well as in the sale of personalty; and if you find the representations were made as alleged in the complaint, but that the means of knowledge of the true facts were at hand, and equally available to both parties, and the subject-matter open to the inspection and subject to investigation of both parties alike, and there was no warranty of the facts as represented, the plaintiffs must show that they availed themselves of the information existing at the time of the trade before he will be heard to say that he has been deceived by the misrepresentations of the defendants.”

There are cases in which the doctrine of caveat emptor has been applied in the sale of land, but we find no precedent for applying it in a case like this.

The plaintiff lived in Winston-Salem and is a colored barber and liveryman. He had no experience in the purchase of timber lands, and Ihe defendants were experts in that business. The lands were situated at a considerable distance, in another county. The plaintiff had no available means of ascertaining the falsity of the representations, either as to purchase price, quantity of timber, or value of the adjoining lands.. The plaintiff evidently relied upon the representations of defendants and listened with credulity to the glowing eloquence of Mateer. It is true, plaintiff was an easy victim, but he belongs to a class that unfortunately are sometimes the ready prey of sharpers of the superior race. Let it be said to the credit of the jurors of that superior race that they seldom if ever fail to right such wrongs when proven.

Upon this point the case of Stewart v. Realty Co. is very apposite; 159 N. C., 230. In that case it is held: “While in proper instances the doctrine of caveat emptor applies to transactions in land, relief will be afforded when it is shown by the buyer of real estate in a town where he was unacquainted with such values that he reasonably relied upon a false representation of an expert therein, in a sale made by him, that the owner had recently bought the property at $3,500, when in point of fact he had only paid .$2,750 for it, apd it is fairly to be inferred that the false representation was made with the intent to deceive the purchaser and induce him to believe he was making a good trade.”

*406 It is well settled that a person cannot escape responsibility for false representations on the ground that the other party was negligent in relying on them, if, in making the representations, he resorted to conduct which was reasonably calculated to induce the other party to forego making inquiry. 14 A. and E. Enc., 123; May v. Loomis, 140 N. C., 351; Walsh v. Hall, 66 N. C., 233; Hill v. Brower, 76 N. C., 124.

There are several assignments of error to the judgment as rendered by the Superior Court. The defendants except because the court “adjudged that the plaintiff recover of the defendants the sum of $1,828.50, balance due on the purchase money for said plaintiff’s interest in the George Maryland lot, with interest thereon from 14 May, 1914; subject, however, to a credit of $270.44 as of this date, for taxes and interest advanced.”

It is true that there has been no specific finding by the jury that the Maryland deed was obtained by the fraud of the defendants, but the plaintiff does not seek to recover that lot on the Old Town road, and there is no necessity for such finding. There is evidence tending to prove that the lot really belonged to Miller, subject to Maryland’s interest of $550 and the building and loan mortgage of $221.50; that the lot was taken by defendants as part payment for the Stokes land at a valuation of $2,600; that, deducting those amounts, plaintiff’s interest amounted to $1,828.50.

The jury found the issue against Maryland, and that he is not entitled to the $1,828.50. The testimony of defendants tends to prove that the. lot is worth $1,600 to $1,800, while plaintiff values it higher. The defendant objects to the judgment because no finding has been made establishing the fact that the Old Town or Maryland lot was taken by defendants in part payment of the Stokes land at a valuation of $2,600. As this is admitted by the evidence of the defendants themselves, in adjusting the equities of the case the judge had a right to assume it to be a fact. Mateer testified to it, and so did Payne. The latter gives all the figures specifically, as follows: “I brought the money, $550, down to pay Maryland, and left it with Mr. Johnson. The final settlement was made in Johnson’s office, final closing up of the trade and final settlement and everything paid and final balance sheet made up by Mr. Johnson of the whole transaction. We took their Sixth Street property at $13,000 and the Old Town road property at $2,600; that made a total of $15,600. We took two deeds of trust, aggregating $6,934.18, which made a total of $22,534.18. The Stokes County land was $20,250, and cash' paid Maryland $550. The $550 went to Maryland in full of his interest in the transfer — transfer of his Old Town road property to us. We paid off judgment for $96.44 *407 against J. R. Miller and assumed $221.50 on tbe Maryland property, and deed of trust on Sixth Street property of $1,414, and some record expense, $2.24; that totals $22,534.18 and balances the transaction. This statement I have given out, according to my understanding with Miller, was the final settlement of this whole transaction, and figures I have given were final, complete, and satisfactory settlement of the whole transaction as affecting George Maryland’s property and J. R. Miller’s — both of them.”

The plaintiff offered in open court to pay to defendants the money they have paid out on the Old Town lot and take it back, but defendants refused. Without the finding of an issue of fraud in obtaining that deed, the court cannot compel defendants to make the conveyance, but it can charge them with the $1,828.50 that went to pay for the Stokes land. It would be against good conscience, in view of the admissions of defendants in their evidence, to permit them to retain the property and pay only $771.50 for it. The court very properly rendered judgment against them for the difference between that sum and the agreed price, $2,600, less a certain credit. The court should have charged the sum upon the Stokes laud. That can be done now by motion in the Superior Court, upon notice.

The defendants further assign error that “the court, arbitrarily and • without any evidence -whatsoever, fixed a credit for interest and taxe3 at $270.91 upon the said judgment of $1,828.50 in favor of the defendants, and the defendants contended then, and contend now, that the interest, taxes, and other amounts expended by them upon the Sixth Street and Old Town road lots were largely in excess of the sum of $270.91 fixed by the court.”

The court does not seem to have made a- specific finding of the facts as to this credit claimed by defendants upon the $1,828.50, and we are unable to find in the record any admissions of defendants fixing the credit for taxes and interest paid out on the Sixth Street and Old Town lots at the exact sum of $270.91, the credit allowed in the, judgment. If defendants contend there is error in the sum, and that it amounts to more than $270.91, they have leave to give notice and apply to the Superior Court to take evidence as to the credit claimed by them for taxes and interest on said lots, and have the true sum ascertained and the said judgment for $1,828.50 credited therewith.

The j udgment of the Superior Court is

Affirmed-

Citation profile

How this case has been treated — in progress