Security Finance Co. v. Mills

142 S.E. 26, 195 N.C. 337, 1928 N.C. LEXIS 84

• Court: Supreme Court of North Carolina
• Decided: March 21, 1928
• Status: Published

Opinion

Stacy, O. J.

Tbe validity of the trial is called in question by numerous exceptions and assignments of error, but we shall not consider them seriatim, as it is necessary to award a new trial for failure of the court to instruct the jury as requested by the plaintiff in one of its special prayers, that if they found the facts according to' the evidence or as it tends to show, the first issue should be answered in favor of the plaintiff.

Notwithstanding the defendant’s plea of fraud in the treaty, and evidence tending to support it (Furst v. Merritt, 190 N. C., 397, 130 S. E., 40), we find no competent evidence on the record of notice to the plaintiff of such fraud prior to the purchase of the notes in suit. Bank v. Burgwyn, 108 N. C., 62, 12 S. E., 952. However, as the case goes back for another bearing, the defendant may yet show, if be can, such notice. Bank v. Burgwyn, 110 N. C., 267, 14 S. E., 623.

There is this important distinction between fraud in the treaty and fraud in the factum: Instruments procured by means of the former are voidable as between the original parties and binding in the bands of innocent third) persons, while those induced by means of the latter are void. Medlin v. Buford, 115 N. C., 260, 20 S. E., 463. Nothing can be founded on an instrument that is absolutely void, whereas from those which are only voidable, fair titles may flow. Furst v. Merritt, supra.

New trial.