Case in the nature of an action of deceit for a fraud in the sale of a mare. It was proved on the trial that in November, 1839, the defendant Marvill Edney, being much indebted, executed to the defendant Rufus Edney a deed of trust, which was duly proved and registered, for his real and personal estate, including several tracts of land and many articles of personal property, among others the mare in question, in trust to sell and apply the proceeds to the payment of the debts specified; that in December, 1839, the said Rufus, the trustee, sold all the property at public sale; that the plaintiff attended and bought the mare at $75, for which he gave his note and surety to the trustee according to the terms of the sale; that Marvill Edney was present at the sale, but took no part in it and said nothing one way or the other to the property. It was also in evidence that in the spring of 1839 the mare had a colt, and soon afterwards was discovered to be very lame in her left foreleg; that she continued lame during the summer, but early in the fall, after the colt was taken from her, she got in good order and was to all appearance well. One of the witnesses said that although when standing or walking nothing seemed to be wrong, yet when put to a trot he could perceive she was a little stiff. As to this the evidence was contradictory. On the day of sale she appeared to be well, and some weeks after (94) the sale the plaintiff, although he had been told soon after he purchased her that the mare had been lame the spring before, said he was well pleased with her. About 1 February, 1840, the mare became very *Page 76 stiff in all her joints and died soon afterwards. There was other evidence which it is not material to state.
The court charged the jury that there was no evidence that the defendant Marvill had sold the mare to the plaintiff, or had made any misrepresentation, or done any act to assist the defendant in practicing a fraud, supposing the latter to have been guilty of a fraud; and inasmuch as the legal title had passed out of Marvill and was vested in Rufus, he was not accountable as an owner would be who procured an auctioneer to cry his property merely as his agent, and stood by in silence. As to the defendant Rufus, the court charged that although he acted as trustee in making the sale, yet, like all other persons who sold, he was bound to act honestly and to disclose defects if he believed them to exist. It was then left to the jury whether the mare was unsound at the time of the sale, and whether the defendant Rufus knew or had reason to believe that she was unsound; if so, as he failed to state the circumstances, he was liable in damages. The jury found a verdict in favor of the defendants. A new trial was moved for on the ground of error in the charge of the court as to the defendant Marvill and refused, and judgment being rendered pursuant to the verdict, the plaintiff appealed. The court said to the jury that inasmuch as the legal title to the mare had passed out of Marvill Edney and vested by the deed of trust in Rufus Edney, the trustee, he was not accountable as one would be who procured an auctioneer to cry his property merely as his agent, and he stood by in silence. Was this part of the charge correct? (95) If the seller of an article is aware that there is any defect in it, and he fraudulently conceals it, and it be such a defect as the buyer hath not the means of discovering by the exercise of ordinary diligence, the purchaser may maintain an action of deceit in the sale. If the owner had procured an auctioneer to sell, it is admitted that if the thing so sold had been defective, and the owner, knowing of the defect, stood by and failed to disclose it he would be liable. Babbington on Auctions, 164; Jones v. Borden, 4 Taunt., 847. The legal title in the mare was transferred by the deed to Rufus Edney to sell her, and the stipulation in the deed was that he should apply the proceeds of the sale to satisfy certain creditors of Marvill Edney. There is nothing in the case to show us that the creditors had released the debtor in consideration of the assignment of this property for their benefit, nor that they in fact had ever agreed to accept of the said property for their benefit. If, therefore, the creditors were not to release, Marvill Edney had an *Page 77 interest in the price the mare might bring, either as constituting a fund for the payment of his debts or as resulting to his use. Although a court of law may not be able to enforce such rights, yet it is obliged to take notice of them as valuable interests. They affect the competence of witnesses, and in some instances may be sold under execution. It seems to us, therefore, that the maker of the deed was materially concerned in raising up the fund by the said sale to the highest amount; and it also appears to us that Rufus, in the receipt and application of the money, is to be looked upon as the agent of Marvill Edney. We, therefore, are of opinion that the aforesaid part of his Honor's charge was erroneous, and that there must be a new trial as to Marvill Edney; but the verdict and judgment in favor of Rufus Edney are not disturbed.
It will not be understood from this that we think mere silence of the debtor as to defects in his property, when he is present at a sale under execution, would amount to a fraud, for that is a proceeding in invitum in which the sale is exclusively the act of the law, and the rule of caveatemptor applies.
PER CURIAM. New trial.
Cited: Brown v. Gray, 51 N.C. 104.
(96)