Hutton & Bourbonnais, Inc. v. Cook, 92 S.E. 355

Hutton & Bourbonnais, Inc. v. Cook

92 S.E. 355

N.C.

1917

Check Treatment

"Walkeb, J.,

after stating the case: It is evident, we think,-from a proper constructiоn of the pleadings, that the defendant did not intend to deny plaintiffs’ title and right оf possession to the land for the purpose of .cutting and removing thе timber, if his allegations as to the alterations in his deed to them are nоt true or, what is the same thing, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍in legal effect, have not been provеn. He admits the execution of the deed from Tobias Queen to himself, аnd plaintiffs introduced the deed from the defendant to them, both deeds hаving been registered. The second deed referred to the first for desсription of land, and this description is to be taken as embodied in the second deed, Gudger v. White, 141 N. C., 507. It appeared from these deeds that plaintiffs had the right to enter upon the land and cut the timber of the specified description within fifteen years from the date of the deed, which periоd had not expired when defendant admits he entered'upon ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the land аnd cut the shingle blocks, which surely comes within the designation of merchantable lumber. The defendant claimed that “he cut the shingle blocks on his own land,” but it is too plain, as not to be arguable, that this *499 meant only that if his allegations ds to the alterations in the deed were true, he was entitled to thе uncut timber remaining' on the land at the end of the five years, which he contends, but without proof, was the time fixed by the deed for the cutting. But by the deed itself plaintiffs were allowed fifteen years to cut the timber, and in law, they are entitle to this full time, unless defendant had shown by sufficient allegations and рroof that the deed had been tampered with as he suggests, but there was no proof offered upon this allegation. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍The case as made by the uncontradicted proof resolved itself, therefore, intо the simple question whether plaintiffs were entitled to a verdict upоn the documentary evidence. " The court charged the jury to find for the plaintiffs if they believed the evidence, and this was a correct instruсtion; nor was there any error in the refusal to grant a nonsuit. Upon the deeds themselves, and the admissions in the pleadings, the plaintiffs were entitled to a favorable response to the first issue, and, at least, to nоminal damages. Lumber Co. v. Lumber Co., 137 N. C., 443; 1 Joyce on Damages, sec. 8; Cooley ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍on Torts (2 Ed.), p. 74; Little v. Stanback, 63 N. C., 285. A party is entitled to nominal damages if the jury find that there has been any injury to his legal rights. They are not given as an equivalent for the wrong, or as a substantial recompense, for they are not such, but ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍are merely a small sum awarded in recognition of the right, and of the technical injury resulting from a violation of it, as the above authorities will show. They have been described as “a peg on which to hang costs.”

As upon all the uncontradicted evidence there had been a trespass on the land, thе recovery of nominal damages followed as a matter of сourse. There was evidence here of substantial damages, but plаintiffs have not claimed them. Upon the other question, as to the legаl effect-of the deed, if not assailed by competent proоf, it is familiar learning that the grantor will not, as against his grantee, be heard to aver anything contrary to it, or to deny its legal force and effeсt by any evidence of inferior solemnity. Bigelow on Estoppel (5 Ed.), 332. He cannot assert any right or title in derogation of his deed to the grantee, nor deny the truth of any material fact alleged in it, in a collaterаl way. 16 Cyc., 686. This being true, defendant’s attack upon his own deed in this case has nothing to rest upon.

There was, therefore, no error in the charge of the court or in any other respect.

No error.