Furct-ies, 0. J.
Tbis is an action to recover damages for trespass by defendant on the land of tlie plaintiff, for timber cu'fc and removed from siaid land and to vacate a deed dated tbe 17th of March, 1899, or to have it corrected.
It appeared on tbe trial and Was admitted by ail parties, that the plaintiff bad conveyed all tire timber on tbe land embraced in tbe deed of ‘the 17th of March, 1899, to tbe defendant, by deed dated 28th February, 1887, of a size above 13 inches diameter at the stump; iamd that the time in which defendant was to cut and remove said timber bad not expired by some months. Tbe •allegation of the plaintiff is that on the 17th of March, 1899, one Freeman, agent of the defendant came to Mm in the store of one Bowen, and stated to him that since the date of the first deed, 28th February, 1887, other timber on tbe land bad grown to thirteen inches and proposed to buy that growth; or, in other words, toi buy all the timber on said land above 13 inches'; that defendant did not want any further time in which to get said timber off tbe land ■ — said that it would all be taken off by June,which was within the time named in the original deed. Tbe original deed of February, 1887, authorized tire defendant to put such tram-roads on said land as might be necessary to remove the timber therefrom.
The plaintiff alleges that the contrae was to sell defendant the growth of the timber since the date of tbe first deed, to 13 inches, for $25.00, and that- tbis was 'the only contract that was made. Tbe case rests on the plaintiff’s testimony, which is as follows:
“The bargain between me and Mr. Freeman, the defendant’s agent, for tbe sale of ‘the timber under the deed of March 17, 1899, was made at Horace Bowen’s store. Free[479]*479man said that- tbe company would out tbe timber I bad sold to it by deed oí June 13, 1887 (wbicb was same sold in last deed before tbe time went out on June 13, 1899), and that tbe company didn’t want any more time, but that there was a lot of timber on tbe land that bad grown up over thirteen inches at stump since that deed was executed, that they could not cut under that deed, and that- the company wanted to buy tbe growth that had grown up- slinlce June 13, 1887. I thought they Would break it to pieces in cutting the other, so I agreed to sell it. I told him I Would not sell him any more ■time on the other’ timber because be wouldn’t offer me as much as he Was offering others in -the neighborhood. He said all right be didn’t want anything but the growth, as be already bad tiie balance. When we bargained, I went home to get my wife to sign the deed. It was about one-balf or three-fourths of a mile. He went along with me to where the log was across the path, where he could not pass. He was in a buggy. I walked. I left him at the log hoi write the deed while I went to tbe house for my wife. When I got back he had the deed written. It was late in the evening, tbe sun was about an hour high. Hi's horse was so- restless be Wouldn’t be still a. minute. He said to me, ‘Make baste and sign it; it is late and I am in a great burry. I’ve got to go to Washington to-night. This h'orse hasn’t got sense enough to stand still.’ My son was off some distance cutting wood. He handed me the deed to sign, and asked me if I wanted to read it. I told Mm that if it was like the bargain be made it was all right. He said it was just as the bargain was. That be would have all tbe 'timber cut off by June and before. I thought he was telling me the truth, and I trusted to Ms honesty. He paid me only $25.00 for the timber passed in this deed and didn’t read it. I can not read good. I didn’t have my glasses and when I tried to read without 'them tibe lines ran together. I can read print better than writing. Tbe [480]*480timber is described in tbe printed part of tbe deed. I can read tbe words of tbe printed part, of tbe deed as tbe counsel mwes bis pencil to them, bait tbe lines, aA ornee run together when lie stops (council here took the deed, pointing’ with his pencil to portion of it and witness’s statements were in reference to tbe principal portions of the paper). Freeman was Notary and took my acknowledgment and exiamination of wife.
“I thought when I signed the deed it did not convey all my timber, and was misled and induced to sign it by tbe statement of Freeman that it was as we bargained.”
Tbe Court thought 'this testimony sufficient evidence of fraud to submit tbe question to. the jury, and this is tbe question presented by the appeal.
Frauds affecting’ the validity of deeds are of tiwoi kinds'— fraud in the facitium, and fraud in tbe treaty. This distinction, though not as material nioiw as formerly, is still material in some ciases. Medlin v. Buford, 115 N. C., 260. Besides the importance of the distinction pointed out in Medlin v. Buford; it was important before the junction of legal and equitable jurisdiction in tire sianie Court, to. determine the jurisdiction, as courts of law -had jurisdiction of frauds in the factum., but not of frauds in the treaty which were cognizable alone in courts of equity. This made it important to- determine, before commencing the action, whether it was fraud in the fadtimi or fraud in the treaty, 'as 'the proper Court in which to bring the action depended on this distinction. And while the distinction is important, it is not of that importance that it formerly was^ as one is sure now to get into the right Court, if there is fraud whether in the factum or in 'the 'treaty. In this, case, while there- may he some slight evidence of fraud in -the fiacbum — such as the unsuitable place where the deed was executed, the apparent haste with which it was done, the remarks of defendant’s [481]*481agent to burry and sign the deed — that bis horse did not have sense enough to stand; thait. it was then l'ate and he had to go to Washing-ton that night, a distance of 18 miles. Besides, it see-ms to us that Freeman was doing a little too much. He was agent of the defendant company and an officer of the law. When 'the deed was signd he moved “the previous question” and by taking the acknowledgment and privy examination, undertook to “lay the matter on the table.” We do not say 'that lie could not in llarw take this acknowledgment and privy examination, but these things, taken in connection with the fact that 'the- deed was not read to the parties making it-, is some evidence we think of fraud in the faetmn.
But leaving out of the case these suspicious circumstances we have just stated, it seems to ns to be a dase thait should have gone to the jury upon the evidence of fraud iu the treaty. In the dase of McArthur v. Johnson, 61 N. C., 317, the Court held that plaintiff could not recover, and thait was a case very much like this, except there wlas no question in that case but what the plaintiff could read. In this case the evidence leaves the question whether plaintiff could read in doubt. And if this was a material question in the ease it should have been left to the jury. The case of McArthur v. Johnson was brought in the Superior Court of law before it had equitable jurisdiction, and 'the Court held that it was n'ot a case of fraud in the factum, and the plaintiff could not recover. But in the discussion of the case the Court lays down the distinction between fraud in the factum and fraud in the treaty; and while the Court did not. decide that that case was a case of fraud in the treaty it seems to us that tire definition given in the discussion of the case shows thait. it was. And the same doctrine is held in Gant v. Hunsucker, 34 N.
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Furct-ies, 0. J.
Tbis is an action to recover damages for trespass by defendant on the land of tlie plaintiff, for timber cu'fc and removed from siaid land and to vacate a deed dated tbe 17th of March, 1899, or to have it corrected.
It appeared on tbe trial and Was admitted by ail parties, that the plaintiff bad conveyed all tire timber on tbe land embraced in tbe deed of ‘the 17th of March, 1899, to tbe defendant, by deed dated 28th February, 1887, of a size above 13 inches diameter at the stump; iamd that the time in which defendant was to cut and remove said timber bad not expired by some months. Tbe •allegation of the plaintiff is that on the 17th of March, 1899, one Freeman, agent of the defendant came to Mm in the store of one Bowen, and stated to him that since the date of the first deed, 28th February, 1887, other timber on tbe land bad grown to thirteen inches and proposed to buy that growth; or, in other words, toi buy all the timber on said land above 13 inches'; that defendant did not want any further time in which to get said timber off tbe land ■ — said that it would all be taken off by June,which was within the time named in the original deed. Tbe original deed of February, 1887, authorized tire defendant to put such tram-roads on said land as might be necessary to remove the timber therefrom.
The plaintiff alleges that the contrae was to sell defendant the growth of the timber since the date of tbe first deed, to 13 inches, for $25.00, and that- tbis was 'the only contract that was made. Tbe case rests on the plaintiff’s testimony, which is as follows:
“The bargain between me and Mr. Freeman, the defendant’s agent, for tbe sale of ‘the timber under the deed of March 17, 1899, was made at Horace Bowen’s store. Free[479]*479man said that- tbe company would out tbe timber I bad sold to it by deed oí June 13, 1887 (wbicb was same sold in last deed before tbe time went out on June 13, 1899), and that tbe company didn’t want any more time, but that there was a lot of timber on tbe land that bad grown up over thirteen inches at stump since that deed was executed, that they could not cut under that deed, and that- the company wanted to buy tbe growth that had grown up- slinlce June 13, 1887. I thought they Would break it to pieces in cutting the other, so I agreed to sell it. I told him I Would not sell him any more ■time on the other’ timber because be wouldn’t offer me as much as he Was offering others in -the neighborhood. He said all right be didn’t want anything but the growth, as be already bad tiie balance. When we bargained, I went home to get my wife to sign the deed. It was about one-balf or three-fourths of a mile. He went along with me to where the log was across the path, where he could not pass. He was in a buggy. I walked. I left him at the log hoi write the deed while I went to tbe house for my wife. When I got back he had the deed written. It was late in the evening, tbe sun was about an hour high. Hi's horse was so- restless be Wouldn’t be still a. minute. He said to me, ‘Make baste and sign it; it is late and I am in a great burry. I’ve got to go to Washington to-night. This h'orse hasn’t got sense enough to stand still.’ My son was off some distance cutting wood. He handed me the deed to sign, and asked me if I wanted to read it. I told Mm that if it was like the bargain be made it was all right. He said it was just as the bargain was. That be would have all tbe 'timber cut off by June and before. I thought he was telling me the truth, and I trusted to Ms honesty. He paid me only $25.00 for the timber passed in this deed and didn’t read it. I can not read good. I didn’t have my glasses and when I tried to read without 'them tibe lines ran together. I can read print better than writing. Tbe [480]*480timber is described in tbe printed part of tbe deed. I can read tbe words of tbe printed part, of tbe deed as tbe counsel mwes bis pencil to them, bait tbe lines, aA ornee run together when lie stops (council here took the deed, pointing’ with his pencil to portion of it and witness’s statements were in reference to tbe principal portions of the paper). Freeman was Notary and took my acknowledgment and exiamination of wife.
“I thought when I signed the deed it did not convey all my timber, and was misled and induced to sign it by tbe statement of Freeman that it was as we bargained.”
Tbe Court thought 'this testimony sufficient evidence of fraud to submit tbe question to. the jury, and this is tbe question presented by the appeal.
Frauds affecting’ the validity of deeds are of tiwoi kinds'— fraud in the facitium, and fraud in tbe treaty. This distinction, though not as material nioiw as formerly, is still material in some ciases. Medlin v. Buford, 115 N. C., 260. Besides the importance of the distinction pointed out in Medlin v. Buford; it was important before the junction of legal and equitable jurisdiction in tire sianie Court, to. determine the jurisdiction, as courts of law -had jurisdiction of frauds in the factum., but not of frauds in the treaty which were cognizable alone in courts of equity. This made it important to- determine, before commencing the action, whether it was fraud in the fadtimi or fraud in the treaty, 'as 'the proper Court in which to bring the action depended on this distinction. And while the distinction is important, it is not of that importance that it formerly was^ as one is sure now to get into the right Court, if there is fraud whether in the factum or in 'the 'treaty. In this, case, while there- may he some slight evidence of fraud in -the fiacbum — such as the unsuitable place where the deed was executed, the apparent haste with which it was done, the remarks of defendant’s [481]*481agent to burry and sign the deed — that bis horse did not have sense enough to stand; thait. it was then l'ate and he had to go to Washing-ton that night, a distance of 18 miles. Besides, it see-ms to us that Freeman was doing a little too much. He was agent of the defendant company and an officer of the law. When 'the deed was signd he moved “the previous question” and by taking the acknowledgment and privy examination, undertook to “lay the matter on the table.” We do not say 'that lie could not in llarw take this acknowledgment and privy examination, but these things, taken in connection with the fact that 'the- deed was not read to the parties making it-, is some evidence we think of fraud in the faetmn.
But leaving out of the case these suspicious circumstances we have just stated, it seems to ns to be a dase thait should have gone to the jury upon the evidence of fraud iu the treaty. In the dase of McArthur v. Johnson, 61 N. C., 317, the Court held that plaintiff could not recover, and thait was a case very much like this, except there wlas no question in that case but what the plaintiff could read. In this case the evidence leaves the question whether plaintiff could read in doubt. And if this was a material question in the ease it should have been left to the jury. The case of McArthur v. Johnson was brought in the Superior Court of law before it had equitable jurisdiction, and 'the Court held that it was n'ot a case of fraud in the factum, and the plaintiff could not recover. But in the discussion of the case the Court lays down the distinction between fraud in the factum and fraud in the treaty; and while the Court did not. decide that that case was a case of fraud in the treaty it seems to us that tire definition given in the discussion of the case shows thait. it was. And the same doctrine is held in Gant v. Hunsucker, 34 N. C., 254; 55 Am. Dec., 408, while the more recent case of Medlin v. Buford, 115 N. C., 260, which seems to he putt largely on Mc-[482]*482Arthur v. Johnson, clearly shows that this. Casé is one of fraud in. the treaty, if plaintiff’s evidence is to be believed; and we have nothing' to do with that, as it is purely a question for the jury.
In Medlin v. Buford, the plaintiff signed a paper upon the representation of Davis that it was a power of attorney authorizing him to raise $1,000, to invest for her benefit, at a profit of $2o per month. The plaintiff in that case could read, but did not read the deed; was imposed upon by the false representation of Davis as to the contents of the deed, and the Court held thlat this was not a fraud in the factum, and as third parties Who were innocent of the fraud had become interested, the plaintiff could not recover. But it is distinctly held that it was a fraud in the treaty, and would be declared void as to Davis, and also as to Mrs. Buford, if she or her-attorney (Mr. Cuitler) had knowledge of the fraud.
The distinction between fraud in the factum and fraud in the 'treaty seems to be very narrow, but still it exists and it seems still important thalt it should be observed as in the case of Medlin v. Buford.
While it is important to- observe tírese ancienlfc landmlarks and to give force and validity to the doctrine of fraud as applied to executed contracts — to deads — it should not be lightly done. Misrepresentations in the treaty as to location, boundaries, quality, value, etc., of which the other party had notice, or might have had knowledge by reasonable diligence, will noit be heard by courts of law or equity to invalidate deeds. If this were so, it would seem that no man’s title would be safe. Parties entering into solemn contracts, such as deeds, must use ordinary prudence — must examine matters open to them at tire time of executing their deeds, or they will not be heard to complain. Lytle v. Bird, 48 N. C., 222; Saunders v. Hatterman, 24 N. C., 32; 37 Am. Dec.,404.
In this case it appears from the deed of the 28th of Pebru-[483]*483ary, 1887, that plaintiff sold and conveyed to defendant all the timber on a certain tracit of land containing ninety acres, above 13 inches at the stump, with, the privilege of establishing tram-road across said land to be used in removing said timber. In the deed of '.the 17th of March, 1899, he conveys all the timber above 12 inches at the stump and conveys the fee-simple in all ¡the land covered by these roads'. And extends the time to remove the timber to one year from the 17-th of March, -which would have been out at an earlier period.
If the plaintiff’» statement of the contract of the 17th of March, 1899, be true, the changes contained in the deed as drawn by Freeman and signed by plaintiff are materially different; and as this deed was not read by plaintiff (as he says) because -he could not read it without his spectacles, which he did not have, but -was signed by him, relying on the statements- of Freeman “that it wiais drawn just as the contract was,” was a fraud in the treaty upon -the plaintiff and should have been submitted to the jury.
If the plaintiff had required iifc to be read and Freeman had read it falsely iit would have been a fraud in the factum. McArthur v. Johnson, Medlin v. Buford, supra.
There were objections to the plaintiff’s evidence as to the terms of the contract, upon the ground -that 'they tended to vary and contradict the deed. This would -have been so if the deed had been established as- the- deed of the plaintiff But when that was the very question at issue, and When it was necessary to do so to establish tire alleged fraud, it was- competent for that purpose. And after a careful examination, we find no substantial error, and the judgment is
Affirmed.