#### W. W. FOY v. BLADES LUMBER COMPANY.

(Filed 11 May, 1910.)

1. Deeds and Conveyances — Fraud—Cancellation—Plaintiff’s Title— Defendant’s Possession — Procedure—Evidence—Nonsuit.

When defendant lias entered upon and cut timber from plaintiff’s land under plaintiff’s deed to the land, which, by the verdict of the jury and judgment entered accordingly, have been set aside for fraud, it is error for the lower court to nonsuit the plaintiff, upon the question of plaintiff’s damage, on the ground that he has failed to show title in himself, when the defendant has failed to show a title in itself superior to that acquired by the void deeds; for it would be inequitable to permit the defendant to thus take advantage of its own fraud and wrongful act and assail the plaintiff’s title until it had surrendered the possession which it had obtained of plaintiff by fraud. Whether the defendant may show that plaintiff is not the owner of the land in reduction of the damage is not presented in this case.

2. Deeds and Conveyances — Title — Common Source — Timber Rights.

When defendant takes as plaintiff’s grantee a restricted interest in plaintiff’s land under his deed, in this case standing timber of a given dimension, and enters upon the land and cuts the timber accordingly, his motion to nonsuit upon the ground that plaintiff has not shown title thereto will be denied, as defendant will not be heard to deny or question the validity of the title of the plaintiff, having acquired possession under and by virtue of the deed.

Appeal from Cooke, Jat June Term, 1909, of Jones.

The facts are. sufficiently stated in the opinion.

T. D. Warren and Simmons, Ward & Allen for plaintiff.

W. W. Clark and Moore & Dunn for defendant.

Walker, J.

This action was brought by the plaintiff to recover $25,000 as damages for unlawfully and wrongfully cutting and removing from bis land a large quantity of trees, *596wood and lightwood. Tbe plaintiff alleges that on 27 May, 1904, he executed to the defendant a deed for a part of said lands, and on 21 October, 1904, he executed a contract, in the form of a deed, to the defendant, by which, for the nominal consideration of $1 and the further consideration of $1 per 1,000 feet for all timber cut and delivered by the defendant, he sold to the defendant all the timber on the other tract of land described in the pleadings, above the size of 12 inches at the base when cut, arid which was then, or which may be during the next ten years, standing and growing on said land. The timber was to be cut within ten years unless the time was extended. Rights of way over and through said land and all. other lands of the plaintiff were granted, with the right to build any structure, railroad or tramways for the purpose of cutting and removing the timber.

In 1907 the plaintiff brought an action against the defendant, and in his complaint alleged that the said deeds were obtained from him under false and fraudulent representations of the defendant’s agent, to the effect that the lands which the plaintiff claimed to own did not contain the number of acres set forth in said deeds, to wit, 437% acres, but only 125 acres. That the plaintiff was ignorant as to the number of acres in the said tracts of land, and the defendant, by its agent, taking advantage of the plaintiff’s said ignorance, by the said false and fraudulent representations, and by other false and fraudulent representations then and there made, induced the plaintiff to execute the said deeds to the defendant. That the said agent also falsely and fraudulently represented, in the manner aforesaid, that the defendant did not own but 125 acres of the said land, and that, taking advantage of the ignorance of the plaintiff as to the extent of his ownership, and well knowing that the representations made by him as to the ownership and the acreage, and the other representations then and there made, were false, and the plaintiff really owned about 437% acres, unlawfully and wrongfully induced the plaintiff to execute the said deeds to the defendant. The plaintiff, in his said complaint, prayed that the deeds be declared fraudulent and void and that they be adjudged to be canceled. The defendants denied .the material allegations of the complaint, and the issues raised by the pleadings were submitted to the jury, as follows:

1. Was the deed from the plaintiff to the defendant, dated 27 May, 1904, procured by misrepresentation and fraud, as alleged in the complaint?

2. Was the deed from the plaintiff to the defendant, dated 21 October, 1904, procured by misrepresentation and fraud, as alleged in the complaint?

*597Tbe jury, for their verdict, answered tbe first issue Yes, and ■ tbe second issue Yes, and thereupon tbe court adjudged tbe said deeds to be null and void, and tbat tbey be canceled.

There was evidence in tbe ease tending to show tbat tbe said deeds covered tbe land described in tbe complaint in this action, and tbat tbe defendant cut tbe timber on tbe said land and removed tbe same therefrom after tbe said deeds were executed.

At tbe close of tbe plaintiff’s evidence tbe court entered a judgment of nonsuit, on tbe motion of tbe defendant, upon tbe ground tbat tbe plaintiff did not show any title or right of possession to tbe land, or any ownership of tbe timber thereon, by estoppel or otherwise; and this was tbe question presented and argued before us.

"We think tbat there was some evidence upon which tbe plaintiff might have recovered, and tbat be was entitled to have tbe same submitted to tbe jury, in order tbat tbey might find tbe facts.

Let it be conceded, for tbe sake of argument and for tbe present, .that tbe defendant was not estopped by merely receiving tbe deeds from tbe plaintiff. Averitt v. Wilson, 4 Barbour, 180. It sufficiently appears in tbe case, we think, tbat it obtained tbe possession, or cut tbe trees from tbe land, by virtue of tbe deeds which it bad fraudulently procured from tbe plaintiff, -and good faith requires tbat tbe defendant should surrender tbe possession of tbe land to tbe plaintiff and not be permitted to contest bis title until be has done so, as tbe deeds through which be obtained possession of tbe land have been set aside and canceled, because of tbe false and fraudulent representations of defendant’s agent tbat tbe plaintiff was not tbe owner of tbe land claimed by him, and tbe jury found, and tbe court has adjudged in tbe former suit between tbe same parties, tbat tbe said representations were false and fraudulent, and tbat tbe plaintiff was, in fact, as between him and tbe defendant, tbe owner of tbe land described in bis complaint. It would be inequitable for tbe. defendant to obtain possession of land or tbe permission or right to cut trees thereon and remove tbe same for tbe purpose of profit, upon tbe false and fraudulent representation of its agent, and then be allowed to contest tbe title of tbe plaintiff to tbe land or tbe trees, and continue to bold tbe possession or right thus fraudulently acquired. Assuming even tbat’no estoppel is created, as against the grantee, by tbe mere execution of the deeds, even if thereunder tbe defendant entered upon tbe land and cut tbe trees, it appears tbat tbe deeds were procured by a false and fraudulent representation. Tbe question of tbe plaintiff’s ownership of tbe trees cut *598by the defendant was directly involved in the issues submitted to the jury in the former suit in this way. If the plaintiff was not the owner, then the representation was not false and fraudulent, but true; but if he was the owner, then the verdict was right and the representation was false and fraudulent. As the deeds have been canceled, it would be permitting the defendant to take advantage of its own fraud and wrongful act to permit it to assail the plaintiff’s title until it had surrendered the possession which it had obtained by the same fraud of its agent, for which it is responsible. .

Whether the verdict and judgment in the former suit constitute an estoppel of record as to the ownership of the land, we need not decide, but we think there' was some evidence in this case that the possession of the land was wrongfully obtained by the defendant through its agent’s acts, and that it is under a duty to surrender the possession to the plaintiff, and is liable for any damages which the plaintiff may show he sustained by the cutting of the timber.

Whether the defendant may show, in reduction of the damages, that the plaintiff is not the owner of the land or the trees, is a question which may arise at the next trial, but it is not presented now. It will depend somewhat Upon the nature of the findings in the other suit and the conclusiveness of the verdict and judgment therein upon the plaintiff.

• There is some evidence in this case, fit to be considered by the jury, that the plaintiff was induced by the representations of the defendant’s agent to execute the deeds, surrender the possession of the land and permit the defehdant to cut the timber. To allow the defendant now to dispute the plaintiff’s right to the possession and to damages, when he gained possession in such a way, would be as inequitable as to permit a tenant to deny his landlord’s title. Dills v. Hampton, 92 N. C., 566. It may be true that the two cases are not strictly analogous in law, as, in the case of landlord and tenant, there is the relation of tenure,- and the tenant owes fealty to his landlord, but he acquires his possession by means of the lease, and the same principle of morality is common to both cases.

As we. are reviewing a judgment of nonsuit, we leave open and undecided the question whether the defendant can show in diminution of damages, or for any other purpose, that the plaintiff did not have the title, either by showing title in another or in itself. We do not think the defendant has succeeded in its attempt to show .title in itself. ' The evidence is too vague and uncertain and lacks the probative force which entitles it to be considered by the jury. Byrd v. Express Co., 139 N. C., 273. *599It bas not shown an adverse and continuous possession of seven years by Rebecca Oldfield under color of title.

It may be tbat tbe jury will find, upon tbe evidence introduced at tbe next trial, tbat tbe defendant did not acquire possession by fraudulently obtaining tbe deeds from tbe plaintiff. As tbe case now stands, there is some evidence of tbat fact.

As to tbe second tract of land, we do not see why tbe principle stated in Sample v. Lumber Co., 150 N. C., at p. 164, does not apply. Tbe Court there says: "In McCoy v. Lumber Co., 149 N. C., 1, this Court held, in effect, tbat where one having a deed for real property, or being in possession, claiming to own tbe same in fee, conveys or grants to another a lesser estate in tbe property or a restricted interest therein, and there is evidence tending to show tbat tbe grantee took in recognition of tbe grantor’s right as tbe true owner, tbe parties to such a transaction, in any litigation between them involving tbe title, come within tbe principle very generally recognized, tbat when it appears tbat both parties to a suit claim under tbe same title, neither, as a general rule, shall be beard to deny or question tbe validity of tbe common source of their respective claims. In tbe present case there is, on tbe face of tbe instrument, evidence which tends to show tbat tbe plaintiff, claiming to be tbe owner of tbe property, sold to tbe defendant a restricted interest therein, to wit, tbe standing timber of a given dimension, and tbat defendant bought tbe timber in recognition at tbe time of plaintiff’s claim as owner of tbe land, and there was no error, therefore, in denying tbe motion for nonsuit, made by defendant on the ground tbat there was no evidence tending to sustain plaintiff’s claim of title.”

In any view of tbe case, tbe court erred in adjudging, at tbe close of tbe evidence, tbat a nonsuit be entered against tbe plaintiff.

Error.