79 N.C. 206 | N.C. | 1878
The plaintiff and defendant compromised certain matters in dispute for a definite sum, and it was agreed that plaintiff should pay the amount in land at five dollars per acre. The plaintiff’s brother, J. M. Powell, and the defendant fixed up the papers, including the deed, and arranged the details of the matter in plaintiff’s absence, who signed the deed as presented to him, in which deed the receipt of the purchase money by the bargainor was acknowledged. Afterwards it was ascertained by plaintiff that his brother and defendant had by agreement included in the deed, land worth fifty dollars more than the compromised
The defence is that the recital in the deed, that the purchase money’ for the land therein conveyed has been received, is conclusive, and can not be controverted or contradicted by pai’ol evidence. This is a technical, and often an inequitable defence, as it is in this case ;,but it has no application to cases of fraud, and the evidence offered and received to show the real transaction was competent. Parol evidence is admissible in a case of mistake, accident or fraud .to correct any written instrument executed thereby, and to .show the truth of the transaction.
The plaintiff had his election to have the deed corrected in a Court of Equity, orto ratify it'and sue for the purchase price in a Court of Law. He preferred the latter course, and as the jury have expressly found that J. M. Powell was not his agent to receive the money, he, the plaintiff, is entitled to recover. Let judgment be entered in this Court for the plaintiff’.
No error.
Per Cueiam. Judgment affirmed.
