#### H. A. GRAY v. J. R. JENKINS, J. I. JAMES and Wife, Lucy, et al.

(Filed 29 September, 1909.)

1. Deeds and Conveyances — Reformation — Evidence Sufficient — Questions for Jury.

Tbe evidence to reform a written deed must be clear, strong and convincing, but when the testimony is sufficient to carry the ease to the jury, as on an ordinary issue, the-judge can only lay this down as a proper rule to guide the jury in their deliberations and it is for them to determine whether in a given case the testimony meets the requirements of this rule as to the degree of proof.

*812. Same — Positive Fraud.

A grantor who can read and write, by' merely signing a deed, is not necessarily, concluded from showing that, as between the original parties, it was induced by a positive act of fraud on the part of the grantee, and that he was deceived and thrown off his guard by the grantee’s false statements and assurances designedly made at the time, and reasonably relied on by him.

3. Same.

Evidence is sufficient to go to the jury, in an action to reform a deed alleged to have been procured by fraud, tending to show that grantee and others went, about dark, to the house where grantor was and requested him to sign it, which he did without reading upon their representation that the description only covered a certain part of his lands, that it was a plain deed and such as they had previously agreed upon; that they urged his signature at once, stating they were in a hurry to leave; that he then signed it upon the assurance of one of them, in whom he had confidence, that the deed was as represented; and that in fact the deed conveyed more land than agreed upon.

Appeal from Coolc, J., April Term, 1909, of Pitt.

This action was originally tried before Lyon, J., at the November Term, 1907.

Tbe action was instituted by plaintiff, a subsequent purchaser of the land now in controversy, against J. E. Jenkins, mortgagee of this and other lands, and J. I. James, mortgagor and owner, and his wife, Lucy, et al., to enforce a sale of the mortgaged land in a certain order, as required by the rights and equities of plaintiff as subsequent purchaser.

The mortgagee answered, setting up his indebtedness and the mortgage given to secure the same on all the land in controversy and other lands not embraced in plaintiff’s deed. The mortgagor answered, and, among other things, alleged that the plaintiff’s deed included more land than the agreement and contract between them authorized, and that the excess, to-wit, all that portion lying outside of the town of Oakley, was inserted in the instrument by reason of deceit and fraudulent ’ representations . on the part of plaintiff.

On issues submitted, the jury rendered-the following verdict:

1. “Did defendants agree to sell and convey to pla.i-nt.i-ff only that portion of their land which is located within the boundary lines of the town of Oakley ?” Answer: “Yes.”

2. “Were defendants induced to execute the deed of 16 November, 1905, containing that portion of their land lying outside’ the boundary lines of the town of Oakley, by the deceit and false and fraudulent misrepresentations of the plaintiff?” Answer-“Yes.”

*823. “Is the plaintiff the owner and entitled to the possession of tbe land described in tbe complaint ?” Answer: “All that part in tbe town of Oakley.”

4. “Does tbe defendant J. I. James unlawfully withhold tbe possession of said land from tbe plaintiff?” Answer: “Yes.”

5. “What is tbe annual rental value of said land ?” Answer: “Thirty-six dollars.”

On such verdict judgment was rendered reforming plaintiff’s deed according to the facts established, and directing a sale in a given order, and- from that judgment plaintiff appealed. Tbe appeal was dismissed as having been prematurely taken, on tbe ground that in a sale bad pursuant to tbe decree it might turn out that tbe question at issue between plaintiff and tbe mortgagor would be 'immaterial and irrelevant. 149 N. 0., 139. This opinion having been certified down, further proceedings were bad, in which it was disclosed that all claims of tbe senior mortgagee were fully satisfied out of that portion of tbe lands not contained in plaintiff’s deed, and thereupon it became necessary to determine tbe questions involved between plaintiff and defendant, tbe mortgagor, and presented in tbe pleadings, issues and verdict bad in tbe original trial. This result having been ascertained by formal judgment, tbe plaintiff again appealed.

Jarvis & Blow and Moore & Long for plaintiff.

Moore & Dunn and Shinner & Whedb.ee for defendant.

Hoke, J.,

after stating tbe case: Tbe objection chiefly urged for error is tbe refusal of tbe court below to charge tbe jury “That tbe evidence in tbe case does not tend to prove facts sufficient to constitute fraud and deceit, and tbe jury is instructed, upon tbe whole evidence, if they believe it, to find tbe first and second issues ‘No,’ ” but tbe objection, in our opinion, cannot be sustained. While it is well established that in an action to reform a written deed the proof must be clear, strong and convincing, our decisions are to tbe effect that when tbe testimony is sufficient to carry tbe case to tbe jury, as on an ordinary issue, tbe judge can only lay this down as a proper rule to guide tbe jury in their deliberations, and it is for them to determine whether in a given case tbe testimony meets tbe requirements of this rule as to tbe degree of proof. Lehew v. Hewett, 138 N. C., 6; Cuthberson v. Morgan, 149 N. C., 72. This being tbe established principle, we think it clear that tbe prayer of plaintiff, above noted, was properly refused by tbe judge below.

It is true that in an action of this character tbe false statements must be such that they are reasonably relied upon by tbe *83complaining party. It is also true that when an adult of sound mind and memory, and wbo can read and write, signs, or accepts a formal written contract, be is ordinarily bound by its terms. Floars v. Ins. Co., 144 N. C., 232. In such case it is very generally held that a man should not be allowed to close his mind to facts readily observable and invoke the aid of courts to upset solemn instruments and disturb and disarrange adjustments so evidenced, when the injury complained of is largely attributable to his own negligent inattention.

Older eases have gone very far in upholding defenses resting upon this general principle, and, as pointed out in May v. Loomis, 140 N. C., 357-358, some of them have been since disapproved and are no longer regarded as authoritative; and the more recent decisions, on the facts presented here, are to the effect that the mere signing or acceptance of a deed by one who can read and write shall not necessarily conclude as to its execution or its contents, when there is evidence tending to show positive fraud, and that the injured party was deceived and thrown off his guard by false statements designedly made at the time and reasonably relied upon by him. Some of these decisions, here and elsewhere, directly; hold that false assurances and statements of the other party may of themselves be sufficient to carry the issue to the jury when there has been, nothing to arrest attention or arouse suspicion concerning them. Walsh v. Hall, 66 N. C., 233; Hill v. Brower, 76 N. C., 124; May v. Loomis, 140 N. C., 350; Griffin v. Lumber Co., 140 N. C., 514.

In Walsh v. Hall, one of the cases just cited, Dich, J., delivering the opinion of the Court, said: “If the purchaser has received no covenants, and there is no fraud vitiating the transaction, he has no relief for defects or encumbrances against his-vendor, for it was his own folly to accept such a deed, when he had it in his power to protect himself by proper covenants. But in cases of positive fraud a different rule applies. The law presumes that men will act honestly in their business transactions, and the maxim of Vigilantibus non dormientibus jura subveniunt only requires persons to use reasonable diligence to guard against fraud — such diligence as prudent men usually exercise under similar circumstances. In contracts for the sale of land purchasers usually guard themselves against defects of title, quantity, encumbrances and disturbance of possession by proper covenants; and if they do not use these reasonable precautions the law will not afford them a remedy for damages sustained, which were the consequences of their own negligence and indiscretion. But the law does not require a prudent man to deal with every one as a rascal and demand covenants to guard *84against the falsehood of every representation which may be made as to facts which constitute material inducements to a contract. There must be a reasonable reliance upon the integrity of men, or the transactions of business, trade and commerce could not be conducted with that facility and confidence which are essential to successful enterprise and the advancement of individual and national wealth and prosperity. The rules of law are founded on natural reason and justice, and are shaped by the wisdom of human experience, and upon subjects like the one which we are considering they are well defined and settled.”

In Griffin v. Lumber Co., supra, the Court held as follows: “3. Before signing a deed, the grantor should read it, or, if unable to do so, should require it to be read to him, -and his failure to do so, in the absence of any fraud or false representation as to its contents, is negligence, for the result of which the law affords no redress; but when fraud or any devise is resorted to by the grantee which prevents the reading or having read the deed, the rule is different.” And like decision was made in May v. Loomis, supra.

Under these authorities, the judge below correctly ruled that the questions at issue should be submitted to the jury, the evidence bringing the case clearly within the principle stated. Among other things, the defendant (the plaintiff in the issue) testified that he had bargained with the plaintiff Gray concerning the land, and had agreed to sell and convey to him all that portion of the tract of land which lay within the boundaries of the town of Oakley for $600 and a store account amounting to about $20; that some time after that, when the defendant and his wife were at the house of one Williams, some time between sundown and dark, plaintiff came to them with a deed already prepared, and a justice of the peace with him, and in conversation defendant told him he was only selling the land in town, and plaintiff replied the deed only covered the land in town; “said it was only a plain deed, like we had agreed upon. There was no reading done. Gray (the plaintiff) handed me the deed; I read the deed to where it mentioned E. R. Mizell’s corner, and I said to Gray, ‘You have his initials wrong,’ and he said, ‘It makes no difference; it is nothing but a plain deed; I am in a hurry to get back to the store; there is no-one there but Mr. Rogers.’ I handed the deed to Mr. Whichard. I had confidence in him. I thought he would tell me the truth, or I would not have signed it. Whichard was looking over the deed, and the plaintiff said the same thing to him — that he was in a hurry.” No one read the deed to witness. He further testified that he did not know the deed embraced any land outside of the town, or he would not have signed the deed.

*85Mrs. James, wife of defendant, gave similar testimony as to wbat took place about reading tbe deed at tbe bouse, of tbe execution, and further tbat sbe bad agreed to sign a deed for tbe land witbin tbe town, and said so at tbe time,'and sbe would not bave agreed to tbe execution otherwise.

Mrs. Williams, sister of tbe defendant, testified tbat plaintiff Gray said it was not worth while to read tbe deed; tbat it was just a plain deed, containing what be bought.

Plaintiff further testified tbat, some time after executing tbe deed, be discovered tbat it was not restricted to tbe land witbin tbe town, but conveyed tbe entire tract to plaintiff, and same was worth $1,000 to $1,200. There was testimony on tbe part of plaintiff in denial of defendant’s claim; but, for tbe purpose of tbe exception, tbe evidence of defendant must be taken as true, and, as stated, presents a case for tbe consideration of tbe jury.

Tbe exceptions to tbe ruling of tbe courts in questions of evidence are without merit, and tbe judgment for defendant is affirmed.

No error.