This Court has no cognizance of the motion for a new trial, which was addressed entirely to the discretion of the court in which the trial was, and ought not to encumber the bill of exceptions.
The point respecting the damages presented questions on the trial of some novelty and perhaps of not very easy solution. The difficulty would not indeed arise out of a supposed restriction of a purchaser of slaves to the recovery of damages to the amount of the purchase money mentioned in the bill of sale, and interest thereon, in analogy, apparently, to the rule relative to the warranties of land, for the rule as to lands stands on peculiar reasons which were thought to control the usual measure of damages in the personal action of covenant which is held to lie on a warranty. Phillips v. Smith, 4 N.C. 87; Williams v.Beeman, 13 N.C. 483. But as mentioned in the latter case on covenants relating to personal things, the recovery always is for the (258) actual damages or loss to the covenantee from the breach, as, for example, the value of an article at the time it ought to be delivered, or the value of the slaves at the time of eviction. But it might not be so easy to say whether there be any rule of law as to the measure *Page 179 of damages, or if there be, what it is, in a case like this in which the conveyance and covenant are substantially voluntary, and the eviction was by a title paramount in trust for the plaintiff's family and himself, of the existence of which he was aware at the time he took his deed, and from which he then represented to the defendant no harm could come. But whatever may be the rule of law on those points, the case, as it now stands, cannot be affected by it, for it is clear that the instructions on this part of the case had no effect on the verdict, since the jury did not give the plaintiff damages on either basis, but found against him altogether. It is thus reduced to a certainty that the verdict was upon the other parts of the case, and therefore that the instruction as to the measure of damages was perfectly immaterial and could not prejudice the plaintiff.
It was next said for the plaintiff that there is error in the instruction as to the effect on the deed of the alleged fraud and imposition in inducing the defendant to execute the deed by deceitfully representing to him that he could lawfully conceal the prior deed of trust made by him, although the plaintiff knew at the time that the deed of trust was irrevocable and conclusive of the title to the two slaves. The court, it is true, does not approve of that part of the instructions, for although the facts assumed in the hypothesis might in another forum affect the operation of the deed, so as to cause it there, according to circumstances, to be set aside or to be held as a security for money paid or laid out under it, yet at law they do not avoid the deed. In a court of law, the question is a naked one of deed or no deed, for if the deed be an instrument for any purpose, it remains so to all purposes, either as conveying (259) the thing or covenanting for the title. And supposing the defendant to have had capacity to contract, and that no trick or deception was practiced on him as to the terms of the instrument he was executing, but he knew the contents of it and executed it voluntarily, the Court holds that upon non est factum the instrument would not be avoided, but be held to be the defendant's deed notwithstanding any fraud in the consideration of the deed or in any false representation of a collateral fact whereby the defendant was induced to enter into the contract by executing the instrument. Logan v. Simmons, 18 N.C. 13; Reed v. Moore, 25 N.C. 310. But though that be the opinion of the Court, it is not now open to the plaintiff to complain of that error, because he took no exception to it on the trial. For the best reasons, it is entirely settled that the Court can take no notice of any error not apparent in the record — that is, in the pleadings, verdict, or judgment — unless the appellant except to it at the trial. Besides the presumption that everything was done right until the contrary be alleged, there is another — that for purposes of his own, the party assented to or acquiesced in *Page 180 every opinion of the court to which he did not at the time except. In this case the exception is confined to the directions respecting the damages and finds no fault with that as to the fraud and imposition. Indeed, the plaintiff seems to have preferred putting his case before the jury on the question of fact alone, whether he had made the alleged representation, and whether the plaintiff acted on it. He did not raise the question of law below which he urges here, and therefore he cannot now raise it.
PER CURIAM. No error.
Cited: Ramsay v. Morris, 35 N.C. 458; Nichols v. Holmes, 46 N.C. 363;Rogers v. Ratcliff, 48 N.C. 231; Hyman v. Moore, ibid., 419; Gwynnv. Hodge, 49 N.C. 170; McArthur v. Johnson, 61 N.C. 319; Egerton v.Logan, 81 N.C. 179; Thornburg v. Mastin, 93 N.C. 263; S. v. Glisson,id., 509; Phipps v. Pierce, 94 N.C. 515; Thornton v. Brady, 100 N.C. 40;S. v. Ashford, 120 N.C. 589; Cutler v. R. R. 128 N.C. 481.
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