Turner v. Weber

16 N.C. App. 574 | N.C. Ct. App. | 1972

VAUGHN, Judge.

We first consider plaintiff’s challenges to the overruling of his motions for summary judgment and judgment on the pleadings under Rule 12(c) as raised by his second, third and twenty-third assignments of error. Plaintiff contends1 that defendant Weber should not have been allowed to plead because of an alleged failure to comply with the requirements of G.S. 1-111 and that Weber was estopped to plead fraud because of the relationship of landlord and tenant existing between plaintiff and Weber. G.S. 1-111 provides that in all actions for the recovery or possession of real property, the defendant, before being permitted to plead, must execute and file a security bond in an amount fixed by the court, but not less than $200.00. G.S. 1-112 provides that the undertaking prescribed in G.S. 1-111 is not necessary if an authorized attorney certifies in writing that he has examined defendant’s case and is of the opinion that the plaintiff is not entitled to recover and if defendant files an affidavit stating he is unable to give and is not worth the amount of the undertaking. Here, defendant Weber filed answer on 28 January 1972, plaintiff called the court’s attention to noncompliance with G.S. 1-111 on 2 February 1972 and the affidavits permitted by G.S. 1-112 were filed on 7 February 1972. There was no prejudicial error in this procedure. Cooper v. Warlick, 109 N.C. 672, 14 S.E. 106; McMillan v. Baker, 92 N.C. 111.

The general rule denies a tenant in possession any right to challenge his landlord’s title to the property. King v. Murray, 28 N.C. 62. Even if it could be assumed that the sales agreement and deed to the tract of 9.5 acres did create a relationship of landlord and tenant between plaintiff and defendant Weber, an exception to the general rule permits a tenant in possession to challenge his landlord’s title when that title was allegedly obtained by fraud from the tenant in possession. Lawrence v. Eller, 169 N.C. 211, 85 S.E. 291; Insurance Co. v. Totten, 203 N.C. 431, 166 S.E. 316. The estoppel created by application of the general rule extends only to prohibit the denial of what has already been admitted, usually the original landlord’s title. Hargrove v. Cox, 180 N.C. 360, 104 S.E. 757. Here, however, the title of plaintiff was never admitted by defendant Weber and the relationship of landlord and tenant, if it exisited at all, was created under conditions indicating the possible presence of fraud and misrepresentation. Plaintiff’s second, third and twenty-third assignments of error are without merit.

In his fifth and sixth assignments of error respectively, plaintiff contends that it was prejudicial error to allow, over his general objection, the introduction of defendant’s exhibit five, an unsigned paper writing purporting to authorize, among other things, plaintiff to rent and redecorate the house on the land in question, and defendant’s exhibit seven, a copy of a cashier’s check in the amount of $620.00 payable to plaintiff. Defendant neither cites authority nor advances argument to support his contention. We hold that no prejudicial error appears from the admission of the exhibits.

Plaintiff makes numerous assignments of error (numbered 7, 9, 10, 11, 12, 13, 18, 19, 20, 21, 22) which all speak to the evidentiary findings and conclusions as to fraudulent representations made by plaintiff and defendant’s reliance on those representations to his detriment. Plaintiff correctly argues that the general rule requires a person who can do so to read a paper before signing it and holds that his failure to do so is negligence for which the law affords no remedy. However, just as firmly established in North Carolina is the exception which is that in no case can a person escape responsibility for representations on the ground that the other party was negligent in relying on them if, in addition to making the representations, he resorted to artifice which was reasonably calculated to induce the other party to forego making inquiry. May v. Loomis, 140 N.C. 350, 52 S.E. 728. More specifically, it has been held that the mere fact that a grantor who can read and write, as can defendant Weber, signs a deed does not necessarily conclude him from showing, as between himself and the grantee, that he was induced to sign by fraud on the part of the grantee, or that he was deceived and thrown off his guard by the grantee’s false statements and assurances designedly made at the time and reasonably relied on by him. Taylor v. Edmunds, 176 N.C. 325, 97 S.E. 42. See also, Cromwell v. Logan and Logan v. Mercantile Co., 196 N.C. 588, 146 S.E. 233.

All of plaintiff’s assignments of error have been considered and are overruled. The court’s findings of fact are supported by competent evidence. The findings support the judgment. In the trial we find no error.

No error.

Judges Hedrick and Graham concur.