Tbe evidence in this ease tends to show these determinative factors: (1) that the defendant, Victor B. Vail, the grantee in the deed, stood in a confidential or fiduciary relation with the grantor, Mrs. Minnie P. Vail; and (2) that she retained possession and control of the lands embraced in the deed during the remainder of her life. These crucial circumstances being made to appear, along with the rest of the evidence offered below, made out a prima facie case entitling the plaintiffs to go to the jury on both the issue of fraud and that of the statute of limitations.
The issue of fraud: Fraud has no all-embracing definition. Because of the multifarious means by which human ingenuity is able to devise means to gain advantages by false suggestions and concealment of the truth, and in order that each case may be determined on its own facts, it has been wisely stated “that fraud is better left undefined,” lest, as
Lord Hardwiche
put it, “the craft of men should find a way of committing fraud which might escape a rule or definition.”
Furst v. Merritt,
These essential facts must appear in order to establish actionable fraud: “(1) a false representation or concealment of a material fact; (2) reasonably calculated to deceive; (3) made with intent to deceive; (4) and which does, in fact, deceive; (5) to the hurt of the injured party.”
Ward v. Heath,
The nature and extent of the proofs required to establish fraud depend to a large extent on the relationship of the parties, and ordinarily, “a greater degree of proof is required to show fraud as between parties dealing at arm’s length than is necessary where the fraud feasor sustains a *114 confidential relation toward bis alleged victim.” 37 C.J.S., Fraud, Section 114, p. 432.
Where a relation of trust and confidence exists between tbe parties, “there is a duty to disclose all material facts, and failure to do so constitutes fraud.” 37 C.J.S., Fraud, Section 16, p. 247.
23 Am. Jur., Fraud and Deceit, Section 14, p. 765, states tbe rule thus: “Where a confidential or fiduciary relationship exists, it is tbe duty of tbe person in whom tbe confidence is reposed to exercise tbe utmost good faith in tbe transaction and to refrain from abusing such confidence by obtaining any advantage to himself at tbe expense of tbe confiding party. Should be obtain such an advantage, be will not be permitted to retain tbe benefit; and tbe transaction will be set aside even though it could not have been impeached bad no such relation existed, whether tbe unconscionable advantage was obtained by misrepresentations, concealment or suppression of material facts, artifice, or undue advantage.”
Tbe rule is amplified in 23 Am. Jur., Fraud and Deceit, Section 81, p. 858, as follows: “It is a well-settled principle of tbe law of fraud, applied particularly by courts of equitable jurisdiction, that it is tbe duty of a person in whom confidence is reposed by virtue of tbe situation of trust arising out of a confidential or fiduciary relationship to make a full disclosure of any and all material facts within bis knowledge relating to a contemplated transaction with tbe other party to such relationship, and any concealment or failure to disclose such facts is a fraud. This principle is universally observed, although tbe transaction cannot be impeached if no such relationship exists.”
For a comprehensive discussion of what constitutes a confidential or fiduciary relation, see
Abbitt v. Gregory,
Tbe defendants, contending that tbe evidence was insufficient to take tbe case to tbe jury on tbe issue of fraud, urge that there is no evidence showing that Victor B. Vail said or did anything at tbe time tbe deed was signed to prevent bis mother from reading it, and that in tbe absence of some proof that she did not read the deed, or was prevented from reading it, she being literate, is presumed to have read it. On this premise,
*115
defendants contend that the evidence does not justify tbe inference that Minnie P. Tail was deceived by anything her son Victor said or did. Defendants say the case is governed by the rule which ordinarily precludes a literate person who signs an instrument from asserting, in the absence of fraud, that he did not read the instrument and was ignorant of its purport. The defendants rely on the decisions in
Ward v. Heath, supra; Colt Co., v. Kimball,
The defendants’ position is untenable and the authorities relied on are distinguishable. In the cases cited, the parties were dealing at arm’s length, and in neither of the eases was the complaining party lulled into security by fraud or artifice of the other party and thereby prevented from reading the instrument. In the instant case the parties stood in a confidential relation, and the evidence tends to show elements of positive fraud and deception, reasonably calculated to dull the mother’s call to vigilance and justify her in not discovering the contents of the deed: It appears in evidence that Mrs. Vail was a widow about seventy-two years of age when she made the deed; that she lived alone; that “Victor was accustomed to looking after his mother, running a great many errands and performing many personal services for her”; that he helped collect her rents. It is also in evidence that two days after his mother’s funeral Victor confessed to some of the plaintiffs that: . . . “I gave the wrong description and had the deed made out to the old home place instead of the little place that mother told me I could have on Vail Alley. I came by this property wrong. ... I got it wrong. I will deed it back to the estate just any time you all say so.”
The evidence here, standing as it does undenied and unexplained, is sufficient to support these findings and inferences: that Mrs. Vail, reposing confidence in her son, Victor, directed him, as her agent, to have the small Vail Alley lot run off and deed thereto prepared so she might convey it to him as a gift; that he, in breach of his trust, surreptitiously substituted the description of the larger, more valuable Vail home place on South Main Street; that by fraudulently suppressing the true state of facts while silently pretending that the deed contained the Vail Alley property, he thereby procured from his mother lands not intended by her to be conveyed, and that she, under the circumstances of the confidential relation with her son, was lulled into security by his fraud and signed the deed without discovering, in the exercise of due diligence, the true state of facts. In short, we conclude that the evidence, measured by the applicable rules of law, is sufficient to sustain, though not necessary to impel, a finding of all the essential elements of fraud. That makes it a prima facie case for the jury.
*116
The issue of the statute of limitations: The defendants having set up the three-year statute of limitations, G.S. 1-52, subsection 9, in bar of plaintiffs’ right to recover, the burden of proof devolved upon the plaintiffs to show that their cause of action was not barred,
i.e.,
the burden was upon the plaintiffs to show that their cause of action did not accrue until sometime within, the period of three years next before the commencement of the action.
Taylor v. Edmunds,
Under the statute pleaded here, a cause of action, like this one, to set aside an instrument for fraud, accrues, and limitations begin running, when the aggrieved party discovers the facts constituting the fraud, or when, in the exercise of reasonable diligence, such facts should have been discovered.
Blankenship v. English,
And it is the accepted rule that “knowledge by the defrauded person of facts which in the exercise of proper diligence would enable him to learn of the fraud ordinarily is equivalent to discovery of fraud.” 54 C.J.S., Limitations of Actions, Section 189, p. 188. The rule is concisely stated by
Stacy, C. J.,
in
Blankenship v. English, supra:
“A party having notice must exercise ordinary care to ascertain the facts, and if he fails to investigate when put upon inquiry, he is chargeable with all the knowledge he would have acquired, had he made the necessary effort to learn the truth of the matters affecting his interests.” In this respect the law regards the means of knowledge as knowledge itself.
Hargett v. Lee,
In
Small v. Dorsett,
. . . Similarly, an agent, sued for fraud, cannot set up that the principal should have suspected him.”
Our decisions hold that the mere registration of a deed, containing an accurate description of the
locus in quo
and indicating on the face of the record facts disclosing the alleged fraud, will not, standing alone, be imputed for constructive notice of the facts constituting the alleged fraud, so as to set in motion the statute of limitations. In addition to the record, there must be facts and circumstances sufficient to put the defrauded person on inquiry which, if pursued, would lead to the discovery of the facts constituting the fraud.
Tuttle v. Tuttle,
It appears in evidence that Minnie P. Yail lived only three years, seven months, and eight days after the deed was executed. The action was instituted by the plaintiffs seven months and five days after her death. The deed shows on its face that the “use, control and ownership” of the property was reserved for Mrs. Vail during the rest of her life. This reservation, nothing else appearing, supports the inference that she retained possession of the property until her death. And such evidence of possession becomes a relevant circumstance bearing heavily on the issue of the statute of limitations. It, when considered in connection with the confidential relation of the parties, is sufficient on this record to sustain the inference and conclusion that after the deed was made by Mrs. Vail nothing occurred during the rest of her life to excite her suspicion or put her on such inquiry as should have led, in the exercise of due diligence, to a discovery of the fraud, and that therefore the plaintiffs’ action is not barred by the statute of limitations.
The defendants contend that the nonsuit below should be affirmed on authority of the decisions in
Massengill v. Oliver,
The defendants stress the evidence tending to show that one of the plaintiffs, W. C. Yail, knew his brother Yictor had a deed for the home place before his mother’s death. However, it is not made to appear when W. 0. Yail received notice, nor does it appear that he ever passed on to his mother his information about the deed. Be that as it may, the wrong here complained of was solely against Minnie P. Yail. She alone had the right to maintain an action for redress in her lifetime; as long as she lived, limitations could run only against her. No right of action accrued to the plaintiffs until her death, and therefore until then limitations did not run against them.
Holt v. Holt,
With the case going back for a new trial, we refrain from further comment or discussion, since the defendants’ evidence, as indicated in aspects of the cross-examinations, may develop a different state of facts surrounding the execution of the deed and subsequent events from what now appears on the prima facie level.
The judgment of the court below is
Reversed.