#### WHITTED v. FUQUAY.

(October 23, 1900.)

1. Verdict — Setting Aside — Weight of Evidence — Superior Gourt — Supreme Gourt — Trial.

Tbe trial judge lias the right to set aside a verdict as against the weight of evidence. The Supreme Court has no such power.

2. Verdict — Evidence—Sufficiency.'

The Supreme Court can go no farther than to say whether there is any evidence upon which the jury might reasonably have found the verdict.

3. Specific Performance — Defenses—Contract.

The fact that a party had made a had trade does not relieve him from the specific performance of his contract.

4. Specific Performance — Contracts—Questions for Jury — • Questions for Court.

In a suit to compel specific performance, whether a contract is inequitable is not a question for jury but for the Court, and the jury can only find the facts.

5. Notice — Fraud—Specific Performance.

When a party is put upon inquiry, he is presumed to have notice of every fact which a proper examination would enable him to find out.

Civil ActioN by W. A. Wliitted. and W. W. Wliitted against A. P. Euquay and T. B. Crowder, beard by Judge W. A. PLolce and a jury, at Spring Term, 1900, of Wake Superior Court. Erom judgment for plaintiffs, defendants appealed.

Winston & Fjdler and H. E. Norris, for plaintiffs.

Argo & Snow and Shepherd & Shepherd, for defendants.

*69Eurches, J.

This is an action upon an alleged contract for the sale of land in which a specific performance is der manded. The relief prayed for was refused, and plaintiffs appealed to this Court. There were two issues submitted to the jury, upon which they passed: (1) Did the defend; ant, A. P. Euquay, contract and agree in writing to convey to plaintiffs the lands described in complaint at tile 'price of $1,000, as of date 19th November, 1898, reserving one acre near spring?. Ans. Yes. (2) Would the specific enforcement of such contract be oppressive and inequitable’?''- Ans. Yes.” There were other issues submitted, but they Wéíe not passed upon by the jury."

Upon the argument before this Court, the defendant insisted that the evidence submitted did not constitute a contract for the sale of land, as contended by the plaintiffs; and, while this issue was found against the defendant, the judgment was in his favor, and he did not appeal. We mention these facts for the purpose of stating that the ruling of the Court on this issue is not before us on this appeal, and therefore is not considered.

The only matter before us is upon the evidence, ruling and judgment of the Court upon the second issue. The specific performance of a contract for the sale of land is an equitable relief, not demand able as a matter of absolute right, but a right that rests in the sound judicial discretion of the Court. Lloyd v. Wheatley, 55 N. C., 269; Ramsay v. Gheen, 99 N. C., 215. But where a valid legal contract is established, which possesses no objectionable features to prevent its specific execution, and no fraud appears as an inducement to making the same, the Court will, as a matter of course, decree a specific performance. 3 Pom. Eq. Jur., sec. 1402; Stamper v. Stamper, 121 N. C., 251; Bryson v. Peak, 43 N. C., 310; Kitchen v. Herring, 42 N. C., 190. The doc*70trine is well understood by the profession, and more easily stated than applied. The doctrine of specific performance is the same now as before The Code practice was adopted. It is still equitable in its nature, but administered in a Court having jurisdiction of both legal and equitable demands. But while the principle governing in actions for specific performance is the same, the mode of trial is changed, to' some extent at least. Under the old equity practice, the Court found the facts shown by the evidence, and in this way enlightened its conscience and enabled it to pronounce its judgment. It might, ex mero moiu, formulate issues, and send them to a Court of Law to be tried by a jury, and certified back to the Court of Equity. But the Court of Equity had the right to disregard the findings of the jury if it saw proper to do so, and proceed to find the facts. But, under the Constitution of 1868 and The Code, either party has the right to have the issues of fact arising upon the pleadings found by the jury, unless they expressly waive this right. And, as this is now a constitutional right the parties have, we do not suppose the Court, though passing upon an equitable demand, would be at liberty to disregard the findings of the jury, as it might have done under the old practice. But the Court would have the right to set aside the verdict, if it thought it contrary to the weight of evidence, and tO' order a new trial. And, while the trial judge has the right to set aside the verdict as against the weight of evidence, this Court has no such right. The furthest it can go is to say whether there is any evidence upon which the jury might have reasonably found the verdict it did. It is contended by the plaintiffs that there was no such evidence in this case that authorized the finding of the jury upon the second issue, and this is one of the questions by this appeal for our consideration. Another is as to whether the facts found by the jury *71are sufficient to justify tbe judgment of tbe Court in refusing ■ tbe demand of tbe plaintiffs for a specific performance of tbe contract.

Tbe evidence in tbe case must be considered by us witb reference to its bearing upon tbe second issue, wbicb is in tbe following language: “Would the specific enforcement of such a contract be oppressive and inequitable?” It will be seen that this issue submits but one question of fact to tbe jury; that is, would it be “oppressive” to specifically enforce tbe contract? Tbe other part of the issue only contains tbe question, except the last word; “inequitable,” and this was purely a matter for the consideration of tbe Court upon tbe facts found by tbe jury. , They were not competent to say whether it was equitable or inequitable any more than it was lawful or unlawful. They could only find tbe facts, and then it was for tlie Court to say that tbe facts found made it inequitable — that is, against equity, against tbe law as administered in Courts of Equity — specifically to enforce tbe contract.

Then, does tbe evidence show that it would oppress, or would be oppressive, on the defendant to require him to perform this contract, — that is, to convey land recently worth $300 for $1,000 ? And does this justify him in withholding from tbe plaintiff the right he bad to have tbe contract specifically performed, because the jury found that it would be oppressive for him to do so, without its being found that the plaintiff practiced a fraud on tbe defendant, or that be in some way dealt unfairly witb tbe defendant, or that be took some unfair advantage of him- in tbe transaction, or that plaintiff suppressed some fact from tbe defendant of which be bad knowledge and the defendant did not have, and by reasonable diligence could not have. Without, at least, some of these elements, we are unable to see why a specific performance should not have been granted. *72There must be something more than the fact that a party had made a bad trade to relieve him from his obligation to perform it. The simple fact that the defendant sold a tract of land worth $1,500 for $1,000 will not do so-, and this is all the defendant can complain of, as he sold it to another for $1,500, after coming to this county, seeing the land, and knowing all about the railroads. The defendant was raised on this land, and knew every foot of it. There had been no minerals found upon it to change its intrinsic value, of which the plaintiffs knew and the defendant did not. Nothing had happened to the land but what the defendant knew. The only thing alleged by the defendant is that two railroads had been built, one from Raleigh to the land, and another from Apes to a point near the land, and saw-mills had been erected near the land, that enhanced its value. These roads are public enterprises, open and notorious, and of equal knowledge to all persons. The saw-mills were the result of the construction of the roads, and it would hardly seem probable that the defendant, Avho owned the tract of land only worth $3 per acre a few years ago, would not have been quickened to find out something of the cause, when he had a dozen applications from different parties to buy it at a price above $10 per acre. But defendant testified that he “had heard rumors of a railroad contemplated to the property. * * * Had heard rumors that railroad was completed, but gave it no credence. These rumors came in a letter from the locality; letter written by either one of my brothers or Mr. Blanchard. * * * Forty or fifty, or sixty, or, perhaps, ninety days, before the 37th of November a brother of witness, who lived in one and one-half miles of spring, wrote that he believed there was to be a railroad, because Mr. Angier got some hands in part off his land, grading the road.” It is a well-settled rule that any knowledge of a fact, the truth of which may be ascertained *73by proper inquiry, puts tbe party' on notice, and deprives bim of bis equity. James v. Gaither, 93 N. C., 358. But, upon a thorough examination of tbe evidence (consisting principally of tbe correspondence), we see nothing concealed from tbe defendant, or unfair in tbe transaction, on tbe part of plaintiffs, — nothing that appeals to tbe Court to cause it to withhold from tbe plaintiffs a specific performance of tbe contract, taking it that there was a contract to sell. Bryson v. Peck, supra. We are therefore of tbe opinion that plaintiffs’ sixth prayer for instruction, “that there is no sufficient evidence in tbe case to authorize tbe jury to answer tbe second issue, ‘Tes,’ and, if tbe jury believe the evidence, they will answer -said issue, ‘No,’ ” should have been given.

Error. New trial.

Eaiecloth, C. J. I agree to a new trial, but not with tbe opinion on tbe merits.