The Court is of opinion that there ought to have been judgment for the plaintiff on the verdict in his favor. On the first point made, this Court concurs with his Honor. A fraud in the consideration or treaty on which a deed is obtained is a ground for impeaching it in equity; but it does not avoid it at law. To have that effect, it is necessary the execution of the deed should be obtained by fraud, so (158) as to make a case for the defendant on non est factum. Logan v. Simmons, 18 N.C. 13; Reed v. Moore, 25 N.C. 310.
Upon the other point, the Superior Court treated the deed as if it created only a power in Jacob Troutman to make a sale in certain events, which events, it is very clear, did not occur. But that is not the true construction of the instrument. It neither confers a contingent power merely, nor even an estate on condition. But it is a deed of bargain and sale in fee, and carries with that estate every legal incident to it, including that of alienation. The estate is absolute at law, without any limitation or restriction. It is true, the legal estate is conveyed and accepted upon a trust, and on it are engrafted certain conditions and restrictions; but with the construction and enforcing of trusts, or giving redress for the breach of them, a court of law has no concern. That jurisdiction belongs to another tribunal, which may, and probably will, hold the present lessor of the plaintiff to hold the legal title precisely upon the same trusts on which his bargainor did. Yet he is not the less tenant in fee by virtue of the conveyances from the defendant to Jacob Troutman, and from the latter to him; and as tenant in fee he must *Page 117 recover in an action of ejectment against even his own cestui que trust, because a court of law cannot take notice of a trust except so far as it is in some instances made the subject of cognizance at law by certain statutes. Not only does this deed convey the estate, and not simply create a power in Troutman to sell, but it does not convey the estate as a mortgage does, upon a condition, by the performance of which the estate of the mortgage determines and the title revests in the mortgagor without a reconveyance. Thus, in the case of a proper mortgage, if the mortgagor pay or tender the money at the day, he saves the forfeiture of the estate, and it is immediately in him, by force of the terms of the deed, as a legal interest. But deeds of trust like the present are entirely different, and convey the whole title at law to the (159) trustee, and he is accountable in equity only. It is in vain to say that he ought not, according to the trusts on which he took the legal title, to have sold; for still he had the legal title and conveyed it; and the legal title ought always to carry a person through a court of law in an action turning on the title. For an injury to another, by perverting his legal title to a different purpose from that on which he took it, he is amenable in a different form.
The judgment must, therefore, be reversed, and judgment be entered for the plaintiff on the verdict in his favor.
PER CURIAM. Reversed and judgment for plaintiff.
Cited: Allen v. R. R., 106 N.C. 522; Devereux v. McMahon, 108 N.C. 147.