dissenting: The plaintiff executed a deed to the defendant for a general right-of-way over his lands, and this action is brought for the purpose of having the deed cancelled upon the ground that it was procured by the false representation of the defendant’s agent. The fraud found by the jury consisted in the false representation that the defendant would build its 'road upon a certain line which had been surveyed and located, and was then understood and designated between the parties, and that the defendant abandoned the said route and built its road upon an entirely new and more objectionable one. The fraud having been in the treaty, and not in the fadum, the deed was not void, but voidable, and could only be set aside by the decree of a Court of Equity. The plaintiff could confirm it either expressly or by conduct, and until actually *522set aside, it was an effective and operative conveyance, vesting a general right-of-way in the defendant. Logan v. Simmons, 1 D. & B., 13; Canoy v. Troutman, 7 Ired., 157 ; 2 Pom. Eq., 964; Pollock Cont., 506 ; Bispham’s Eq., 472.
“ Cancelling an executed conveyance is the exertion of a most extraordinary power in Courts of Equity, and when asked for on any ground it will not be granted unless the ground for its exercise most clearly appears.” Bispham’s Eq., 475. “ When a party desires to rescind, on the ground of fraud or mistake, he must, upon the discovery of the facts, at once announce his intention and adhere to it. He is not permitted to play fast and loose.” Bispham’s Eq., 259. “ He must not only act promptly upon the first discovery of the fraud, if fraud be the cause assigned for the rescission asked for, but he must act decidedly.” Knight v. Houghtalling, 85 N. C., 31. “ Pie must do so at the earliest practical moment after the discovery of the cheat. That is the time to make his election, and it must be done promptly and unreservedly. He must not hesitate, nor can he be allowed to deal with the subject matter of the contract and after-wards rescind it.” Chitty Cont., 408 et seq.; Mason v. Bovet, 1 Denio, 69; Kerr on Fraud and Mis., 127; Pollock Cont., 511; Swain v. Seamens, 9 Wall., 250.
Applying these familiar principles of equity to this case, it is difficult to understand how the plaintiff is entitled to relief.
The record shows that the defendant commenced building its road on the plaintiff’s land in December, 1885. The plaintiff not only had notice, but he actually assisted the defendant in constructing the-road upon the new route, by drawing off the water from his mill-pond, in order to facilitate the \v> ik. For this, he received the sum of one hundred dollars. And now after the road has been completed, and about two years after the discovery of the fraud and his confirmatory acts, he asks a Court of Equity to set aside the deed and expose the defendant to a suit for damages for doing the very thing which he helped it to do. It seems to *523me that the bare statement of such a proposition ought to shock the-conscience of a Court of Equity and effectually bar its doors against relief.
The principle which denies relief in such a case is so plain that it is hardly necessary to cite any authority in its support; but as it seems to be drawn in question by the disposition of this appeal, the following extracts are submitted:
2 Pom. Eq., §897: “If, after discovering the untruth of the representation he, the plaintiff, conducts himself with reference to the transaction as though it were still binding, he thereby waives all benefit of, and relief from, the misrepresentations.”
Big. Frauds, 184: “It is well established that if a party, with knowledge that a fraud has been perpetrated upon him in a particular transaction, confirm the transaction by making new agreements or engagements respecting it, or by retaining or using the subject of it after knowledge, or otherwise recognize it as binding, he thereby waives the right to treat it as invalid and abandons his right to rescind.”
And see 2 Pom. Eq., § 965, p. 499.
Humphreys v. Finch, 97 N. C., 308: “It is established doctrine that whenever an act is done or statement made by a party which cannot be contradicted without fraud on his part and injury to others whose conduct has been influenced by the act or admission, the character of an estoppel will attach to what otherwise would be mere matter of evidence.”
In addition to these authorities, we have the stiong intimation of Chief Justice Smith in this very case, 102 N. C., 381, and it can hardly bfe doubted that he would have declined any relief had he thought that the effect of the confirmatory acts of the plaintiff was .presented by the exceptions. He was inadvertent to the decisions in Thornton v. Brady, 100 N. C., 38; Godwin v. Monds, 101 N. C., 356, and other cases in "which it is held that, “as to the rssential parts of the record, the Court will, ex mero motu, take notice of errors apparent in it, and enter such judgment as in law *524ought to be-rendered. * * * If what it must necessarily see in the record of the action is erroneous, it will correct the error, although it be not assigned.” It now seems to be conceded that this difficulty about the absence of exceptions is out of the way, but it is said that the ratifying acts of the plaintiff were pleaded only as a license and not as an estoppel. It matters not what has been pleaded, these acts are found by the jury, and they stand as a part of the record, and upon such a record (which ■we are bound to inspect), I am unwilling to agree that any relief can be granted. Such strictness in pleading is not consistent with the liberal rules heretofore acted upon by this Court. The fact of the plaintiff having assisted in the location of the road w>as, however, set forth in the answer, and this fact being found, it, in my opinion, presented an insuperable barrier to the plaintiff’s action, and this without regard to whether it was pleaded as a license or an estop-pel, or whether its legal effect was pleaded at all. Under The Code it is well settled that the Court renders judgment upon the facts found, irrespective of the prayer for relief or the technical rules of pleading.
Apart from this, however, I deny that it was necessary for the defendant to have specially pleaded the ratifying acts of-the plaintiff. In cases like the present, it is the duty of the plaintiff to show-all of the circumstances entitling him to such extraordinary relief, and in this case it was absolutely necessary that he should have explained his long delay and inconsistent conduct-. This he has utterly failed to do, but it is suggested that he majr have acted under the supposition that the defendant had entered by virtue of the provisions of its charter. To this it may be answered that a Court of Equity does not go out of its way to imagine an excuse for the inconsistent conduct of one who is seeking its aid, and especially is this true when the plaintiff himself does not pretend to explain his conduct upon such a ground, and *525which ground, as a matter of law, did not and could not exist.
At the time of the entry, the defendant had a conveyance of a general right-of-way. It is presumed to have entered under it. Ryan v. Martin, 91 N. C., 465; Graybeal v. Davis, 95 N. C., 508. Until that conveyance had been disaffirmed and set aside, it could not have entered under the right of eminent domain, conventio vincit segem. This right under the charter does not arise until there is a failure to agree with the owner. Pearce on Railroads, 1881; 1 Redfield, 65, et seq. See also the original opinion in this" case, 102 N. C., 381.
The estopping conduct of the plaintiff having been pleaded by the defendant and found as a fact by the jury, and this fact being entirely unexplained, I am of the opinion that we erred in granting the relief prayed for, and that the petition to rehear should be granted.