Dixon v. Wilmington Savings & Trust Co., 20 S.E. 464

Dixon v. Wilmington Savings & Trust Co.

20 S.E. 464 | N.C. | 1894

However much we may sympathize with the plaintiff, who, like the defendants in the case of Medlin v. Buford, ante, 260, *193 has been cheated and defrauded by reason of her perfect confidence in the rectitude and piety of John C. Davis, we are unable to see how we can grant her the relief prayed for. To do so would amount to the abrogation of some of the plainest principles of jurisprudence and so unsettle the law that but little confidence could hereafter be placed in those solemn assurances of title so necessary to the welfare and repose of society. The grave results of holding a deed, executed under the present circumstances, to be void and not voidable merely, are mentioned in the case of Medlin v. Buford, supra, in which will also be found an enunciation of the principles which apply to this appeal. There is no pretense here that the plaintiff did not intend to sign and deliver the instrument in question. She alleges that she consented to do so, and executed the same without reading or having it read to her. In addition to the authorities cited in Medlin's case, supra, we will add the case of School Com. v. Kesler, 67 N.C. 448, in which it was held that if a grantor, although an illiterate man, executes a deed without demanding that it be read, or elects to waive a demand for the reading, the deed will take effect. See, also, 1 Devin Deeds, 225 (280) where it is said: "It is at the peril of the party to whom the deed is made that the true effect and purport of the writing be declared, if required; but if the party who should deliver the deed doth not require it, he should be bound by the deed, although it be penned against his meaning." It being very clear, then, that the deed is not void by reason of fraud in the factum, it must follow that it can only be avoided in equity, and for the reasons given in Medlin's case, that Court will never grant relief against an innocent party who has been induced to part with his money on the faith of a mortgage duly executed according to law. By the gross negligence of the plaintiff she allowed herself to be imposed upon by the fraudulent representations of Davis, and executed a mortgage directly to the defendant trust company. She delivered this mortgage to Davis, and upon the faith of this deed, acting presumably as her agent, he obtained the money. This is one of those "hard cases" that are sometimes called "quicksands" of the law, but the improvidence of the few should not tempt the courts to depart from those well-settled principles upon which depend the safety and security of the many. The judgment sustaining the demurrer is

Affirmed. *194

(281)