#### GEORGE LYTLE vs. NELSON BIRD*

An action for a deceit will not lie for a fraudulent misrepresentation upon the sale of a tract of land, as to where certain lines ran, and as to particular lands being included in the deed.

*223Tins was an action on the case for a deceit in the sale of a tract of land, tried before his Honor, Judge Person, at the Fall Term, 1854, of McDowell Superior Court.

By a deed, dated 3rd of November, 1852, the defendant conveyed to the plaintiff, in consideration of $800, a tract of land in the County of McDowell, on Crooked creek, thus described: viz, “bounded as follows, W. D. Reed on the North and East, A. J. Bird on the East, and William Maffet on the West, and the ‘Speculation line’ on the South; beginning at a beach on the South, bank of the creek, and runs North, &c.,” calling for distinctive lines and points all round the tract tp the beginning. These boundaries have since been clearly traced, and it is found that none of them reach the “ Speculation line,” which is an old and well known line in that country. It was proved that there are one hundred and thirty-six acres of land between the nearest line of the above described tract and the speculation tract.

It was in evidence, that while the plaintiff and defendant were trading about this land, they went together on the premises, and the defendant pointed out the one hundred and thirty-six acres, between the land included in the particular boundaries and the speculation land, as a part of tire land he was selling, and asserted that these particular boundaries included it. It was further in evidence, that, when they were preparing the deed for execution, the defendant again asserted that he was selling the one hundred and thirty-six acres above mentioned. There was also evidence tending to show .that at the time of executing this deed, and before that time, the defendant knew that its courses did not embrace the land up to tiie speculation line.

The defendant resisted a recovery, 1st, upon the ground that-this action would not lie at all upon the facts disclosed, and-2ndly, upon the ground that, by the exercise of reasonable diligence, the plaintiff might have ascertained the-identity of the land he was buying.

The court instructed the jury that, “if they believed the evidence, the action was well brought; and that the plain*224tiff’s right to recover, depended upon the fact -whether the evidence satisfies them that the defendant falsely represented, when he executed the deed, that it included land which he knew, at the time, it did not include. To these instructions, defendant excepted.

Yerdict for. the plaintiff. Judgment and appeal.

Gaither* and Bynum, for plaintiff.

J. TP". Woodjm and Baxter, for defendant. •

*

Transmitted from Morganton, by order of the Court.

Nash, C. J.

The case presents the question, whether an action of deceit can be brought for a fraud perpetrated by a vendor, in showing to the vendee, what he knew was not his, as being his, in order to induce him to make the purchase. The plaintiff alleges, that when he made the contract with the defendant, he showed him land that did not belong to him, and asserted to him, that his land extended up to a line which is called the “ speculation line that when the conveyance was made, he renewed the assurance. The conveyance was made by metes and bounds which did not extend to that line, and there were one hundred and thirty-six acres between the defendant’s land and the “speculation line.” This land had been shown by the defendant, before the conveyance was executed, as part of his tract.

This is not a new question in this State. In Fagan v. Newsom, 1 Dev. Rep. 20, the doctrine is asserted that a purchaser is not entitled to an action of deceit, if ho may readily inform himself as to the truth of the facts. The defendant, to induce the plaintiff to buy the land, showed him two acres of bottom land, which he represented as a part of the land he was selling. The defendant tendered a deed which did not include the bottom, and plaintiff refused to receive it. There the plaintiff could have informed himself whether the bottom did belong to the defendant or not. A stronger case is that of Saunders v. Hatterman, 2 Ire. 32. The land was represented by the defendant as worth three dollars per acre ; that it had sold for five or six hundred dollars. These representations *225were false. As in this ease, the contract was completed by a conveyance, and the action was for the fraud. The contract was made, and the conveyance executed, in the county of Cabarrus, and the land lay in Davie. The Court say, if the plaintiff, by using reasonable diligence, could have ascertained the truth, it was his own folly to trust to the representations of the vendor. In this case, the defendant alleged his land extended to the “Speculation” line. The plaintiff accepted a conveyance, by metes and bounds which did not extend to that line. The mode and facility of ascertaining that fact was ojien to him, equally with the defendant, by a survey which he ought to have insisted upon before receiving the conveyance ; it was his own folly not to have done so. If this were not so, -it would create endless confusion and litigation, and we should be called on continually to investigate frauds in contracts of land, whore there is a conveyance, under parol evidencé. Viyilantibus non dormieniibus servit lex.

Ilis Honor instructed the jury, if they believed the evidence, the plaintiff was entitled to their verdict. In this there is error.

Per Curiam.

The judgment is reversed, and a venire de now awarded.