The bill states that about 1842 or '43 the plaintiff purchased of William Lanier and Jackey, his wife, their right and title to a tract of land containing 160 acres, in the State of Arkansas; that Lanier and wife held under a patent issued to her as the sole heir of William Church, deceased, who served in the army of the United States; that in the spring of 1853 the defendant Smith, who was a general pension agent, applied to him to purchase this land; that plaintiff informed him that he had never seen the land and did not know its value, nor did he know whether or not his title was good; that defendant, having examined his (205) title deeds, offered plaintiff $50 for his title just as it was; that a contract was entered into on these terms, and plaintiff executed a bond in the sum of $500 to make title in the manner above set forth; that defendant paid him the purchase money ($50) and prepared a deed containing a covenant of seizin, and reciting the consideration to be the sum of $500, instead of $50, the true sum; that he procured the plaintiff to sign this deed without having read it or without having heard it read; that the plaintiff is a poor scholar, being barely able to write, and can scarcely read writing at all, and he relied implicitly upon the defendant in the preparation of the deed, and knew nothing of the covenant for seizin nor the misrecital of the price contained in the deed until the defendant commenced an action at law against him for a breach of warranty; that said action at law was tried at Fall Term, 1858, of Davidson, and the defendant in the present suit recovered a judgment against the present plaintiff for the consideration of said deed and interest thereon for five years and a half, amounting together to the sum of $665, having proved on the trial that the land had been sold for taxes many years before and a good title acquired by the purchasers. Upon these facts alleged, the bill prayed an injunction to restrain the defendant from proceeding further on this judgment.
The answer denies that the defendant sought the plaintiff with the view to purchase the land, but avers that he did so at the earnest request of the plaintiff, who informed him that he had a good fee-simple title to the land; would make the defendant a good right and title to the same, and that the land had not been sold for taxes; that upon these *Page 170 representations and assurances, the bargain was closed at the price of $110, instead of $50, as stated in the bill, and the answer utterly denies that the defendant was to take the title at his own risk; that defendant wrote a bond in the presence of plaintiff agreeable to his assurances, covenanting that he (plaintiff) had a good title, and that he would convey the same to the defendant on the payment of the rest of the (206) purchase money, and the sum of $500 was agreed upon and inserted in the bond as the penalty of a failure to make defendant a good title; that the bond was then read over to the plaintiff, or read by him, and he signed it. The defendant further denies that the plaintiff is a poor scholar, but avers that he writes a good hand and reads writing well; that he has transacted a good deal of business and is a shrewd business man.
The defendant further avers that in April, 1853, he met plaintiff, paid off the residue of the purchase money, and prepared a deed in accordance with the title bond, and containing the same covenants of seizin; that the sum of $500 was inserted in the deed as the consideration, it being the sum which, according to the bond, the plaintiff was to forfeit if he failed to make a good title to the land; that it was not true that this consideration was inserted in the deed without the knowledge or consent of the plaintiff, but in addition to the purpose above stated was inserted to improve the sale of the land by making it appear upon the face of the deed to be valuable; that this deed was handed to the plaintiff and read by him, and that plaintiff and defendant talked over its contents before the former signed it. The defendant entirely disclaims any intention to defraud the plaintiff.
Upon the coming in of the answer a motion was made to dissolve the injunction, which motion was refused, and defendant appealed. The plaintiff puts his equity on the ground that he contracted to sell only his interest in the land, and the defendant was to take his title, "such as it was," without warranty and at his (the defendant's) risk, and that the defendant fraudulently prepared a deed containing a warranty and induced him to execute it without reading it or having it read to him. He further alleges that for the purpose (207) of making the fraud more oppressive the defendant inserted as the consideration the sum of $500, instead of $50, which was the price paid. The prayer is for an injunction as to the whole amount of the judgment recovered on the warranty, and the fiat is accordingly made to cover the whole judgment on the ground that the warranty was fraudulently inserted in the deed. *Page 171
The defendant avers that by the contract, the plaintiff was to execute a deed with warranty, and that the deed containing a warranty was read over to him and then handed to him, and he read it over and executed it with a perfect knowledge of its contents. As respects the consideration, the defendant avers that, although the price paid was $110, and not $50 as alleged by the plaintiff, yet the bond which the plaintiff had previously executed was in the sum of $500 to make a good title in fee simple, and in preparing the deed that sum was inserted as the consideration, being the amount in which the plaintiff had bound himself for the title and for the additional purpose of enabling the defendant to resell to better advantage; but he says this was done with the knowledge and consent of the plaintiff, and that "the contents of the deed was talked over between them" and compared with the terms of the title bond before the deed was executed.
If the bill had been framed with a view of setting up a limited equity because of a misconception under which the parties mutually labored in respect to the effect of the consideration inserted in the deed, and if the warranty was to have been a "covenant of quiet enjoyment," and not "a covenant of seizin" (for in the latter the question of damages is an open one, the rule that the price paid is the measure of damage only applying to the former in analogy to the old "covenant real" in which other land of equal value was recovered on voucher, Williams v. Beaman, 13 N.C. 483), it is probable the plaintiff could have made out an equity to enjoin the judgment, except as to the amount of the price paid and interest. But as the bill is framed on the ground that there was to be no warranty, and that its insertion was a "foul fraud" practiced by the defendant, the plaintiff must stand or fall on that ground, (208) what is alleged in regard to the consideration being only matter of inducement, for if there was to have been no warranty, the amount inserted as the consideration was wholly immaterial so far as liability of the plaintiff was concerned.
Taking the plaintiff's equity on the broad ground upon which he has put it, the answer is fully responsive and directly denies the allegations on which it rests, and the injunction ought to have been dissolved.
PER CURIAM. Decretal order reversed. *Page 172