concurring: Adhering to a course of action adopted, perhaps, without sufficient reason, I did not sit on the argument of this case because I had tried it -in the Superior Court. But, as three < ther members of the Court have concurred in the opinion filed by the Chief Justice, I feel that it is not only my privilege but my duty to express my coi currence in the conclusion of the Court, especially when it rests upon the broad ground that the exception on which the defendant company relies in support of the petition, if taken in apt time and in the prescribed mode, does not entitle it to a rehearing, because there was no error in the ruling of the Court below.
The plaintiff asked the Court to cancel a deed made by him to defendant for the right-of-way through his farm, and for damage done to him in the construction of the defendant’s road by a different route over his premises. Upon the finding of the jury, in the exercise of their exclusive right, *526that the defendant company surveyed and marked, by stakes, a line through the plaintiff’s fields, and, by fraudulently inducing him to believe that its road would be built along the line so marked, procured the execution by him of the deed in question, this Court affirmed so much of the judgment of the Court below as declared the deed fraudulent and void, but reversed so much of said judgment as provided for the recovery of damages for right-of-way, as distinguished from damages recoverable under the statute (The Code, § 1975) for failure to construct cattle-guards and crossings (102 N. C., 281). If we accept the finding of the jury, as this Court is bound to do, without question, we cannot hesitate to admit and declare as an abstract proposition that the fraud has been properly proven and the plaintiff’s right to the remedy of cancellation established. Hall v. Pickering, 40 Me., 548; Barlow v. Railroad, 29 Ia., 276; Douglass v. N. Y. & E. Railroad Co., Clarke’s Cb. (N. Y.), 174; Taylor v. Cedar Rapids & St. Paul Railroad Co., 25 Ia., 371; Tinkhorn v. Erie Railroad Co., 53 Barb. (N. Y.), 393.
It does not appear in this Court that any instruction was asked as to the quantum of proof necessary in showing the fraud. If, therefore, there was any force in the suggestion of counsel upon this point, the argument is not applicable to the facts of this case. Whatever measure of proof was required by law, we must assume that it was offered in oi’der to lead the jury to the conclusion reached by them.
It is not necessary to cite authority to sustain the propositions—
1. That the defendant company could have proceeded, under section 16 of its charter, and chapter 49 of The Code, to appropriate the right-of-way and build its road upon the very line upon which it is now located, without notice to the plaintiff leaving him to initiate proceedings to obtain damage, or lose his right to do so by the lapse of time. Allen v. Railroad, 102 N. C., 381.
*5272. That notwithstanding the fact that it had procured the execution of the deed to the right-of-way through the fraudulent representations of its agents, the company could have proceeded, even while a suit brought for the cancellation of the deed was pending, without notice to plaintiffs, to build the road where it is now located on his premises, and he would have had no right to retard the work of construction and no remedy in damages except by a proceeding under the section of the charter referred to.
3. That if the defendant had not procured the execution of the fraudulent and voidable deed, the plaintiff might have maintained his action, if he had proceeded in the way prescribed by law and brought it in the proper jurisdiction, even despite the plea of the statute of limitations interposed against him.
4. That if no such deed had been executed, and the defendant had entered upon the land of the plaintiff and had begun, as it did, to construct its road, the mere act of accepting one hundred dollars for letting off the mill-pond and losing the tolls for a season, in order to enable the defendant to cross at less expense, by means of a trestle instead of by building coffer dams, would not have operated to stop the plaintiff from claiming damage for digging up or covering up the rich and productive soil at other points.
The statute of frauds would be a nullity if unwary landowners could be so easily and inexpensively entrapped into some act or admission that would enable a corporation to acquire an easement in their land at one-fifth of its value as assessed by the jury. A parol license to enter and build the road even would have been revocable, and would not have operated to pass title. Hitfield v. Central Railroad Company, 29 N. J. L., 571; Miller v. Railroad, 6 Hill (N. Y.), 61 ; Railroad v. Railroad, 104 N. C., 658.
It has been held, too, that when such license is revoked, the licensee has no remaining right growing out of it except *528that of entering upon the premises for the purpose of removing any personal property placed by him on the'land while operating there by leave of the owner. VanNess v. Packard, 2 Peters’, 143; Barnes v. Barnes, 6 Vt., 388.
The proposition contended for by counsel, therefore, if sustained, would establish the startling doctrine, that because the defendant’s agents had practiced a fraud upon the plaintiff, and he had chosen not to bring his suit to annul the transaction until near the close of the statutory period allowed him, a Court of Equity would either curtail the limit of his right to bring his action, as expressly defined by law, or hold that his conduct in receiving compensation for the temporary loss of the tolls of his mills operated to estop him from claiming damages for the injury to his land by making excavations and fills upon it, because he had not notified the perpetrators of the fraud, immediately, or within a reasonable time, that he would invoke the aid of a Court of Equity, and did not, accordingly, begin this action. The defendant cannot show any act of the plaintiff that amounted to an unequivocal acquiescence in the conveyance of the right-of-way, or that was inconsistent with his allegation that he was defrauded by misrepresentations as to the location of the line, or that could have reasonably induced, and did induce, the defendant to make expenditures for which it cannot now be reimbursed, under the belief that the plaintiff recognized the validity of his deed as a conveyance of the right-of-way where the road was actually located on the plaintiff’s land. The acceptance of one hundred dollars for diminishing the cost of construction by affording the corporation the opportunity to erect a trestle across the mill-pond, would have been entirely consistent with the assertion of a claim for damages, necessarily incident to the work of grading the road-bed, if no deed had been executed and no proceedings for damage had been instituted when it was paid. The act was no more mislead*529ing 1han would have been the selling by plaintiff to defendant of timber to construct the trestle. The plaintiff could not control the defendant as to the location or restrain it from'prosecuting the work on the line selected, and it would be hard measure if equity should leave him the choice of refusing a fair price for his timber or a large sum for temporarily stopping the operation of his mill, because the party with whom he was dealing had defrauded him and he had postponed — not unreasonably or beyond the statutory limit — invoking the power of the Court to have the transaction declared fraudulent, null and void. The reason assigned for refusing relief to th.e injured plaintiff is, that the defendant company, which is presumed to have inspired the misrepresentations of its agents, and therefore to have had notice of the voidable character of the deed, was misled by the plaintiff’s exercise of his lawful right in determining when ho should bring his action. The corporation will not be allowed to shield itself from responsibility for a fraudulent act by invoking a piinciple that affords protection only to the innocent. If the deed made by the plaintiff had described specifically the first line surveyed, the company would still have been at liberty to waive their rights acquired under the deed and survey, locate and build upon their present line. How, then, could the plaintiff know whether the company claimed to be acting by virtue of the deed or under the provisions of their charter? He could not restrain its agents. He was not bound, as I conceive, by any principles of equity to treat them as alien enemies, or be concluded in the assertion of his rights because he gave them aid and comfort by selling them provisions, timber, or even affording them the opportunity to cross his pond on a trestle instead of a bridge.
It is not contended that the plaintiff confirmed his voidable deed, because that must have been done, if at all, *530by some “deliberate act, intended to renew and ratify a former transaction known to be voidable.” 2 Pom. Eq. Jur., § 965.
It is claimed by counsel that the conduct of plaintiff amounted to an acquiescence, on his part, in the validity of the claim of the defendant to the right-of-way, where the road was located on his land, under his voidable deed. The defendant seeks to bring himself within the principle applicable to one who “stands by and knowingly permits another to deal with the property as though it were his, or as though he were rightfully dealing with it, without interposing any objections;as by expending money upon it, making improvements, erecting buildings, and the like.” 2 Pom. Eq. Jur , §818. In such cases, in order to deprive the defrauded party of remedy in equity, the party against whom lie asks relief must be ignorant of the real condition, and not the person or corporation whose fraudulent conduct has cast a cloud upon it. Ibid.; Story’s Eq. Jur, §1548. Such is the doctrine of acquiescence operating as an estoppel.
Where it has been held that the conduct of a person was such as to prevent him, in a Court of conscience, from seeking a remedy to which he would have been entitled but for some act of his calculated to mislead his adversary, the ruling has rested on the maxims, that “He who seeks equity must do equity,” and “He who comes into equity, must come with clean hands.” 2 Pom. Eq. Jur., § 815.
The jury have found that the hands of the defendant were stained by fraud, of which the plaintiff was-the victim. This Court cannot pervert the benign principles of equity so as to reverse that finding and fasten the fraud upon the party found to be innocent by those empowered by law to ascertain the facts. This doctrine operates by analogy to the principle governing estoppel, and is often spoken of by law writers as a form of quasi estoppel. 2 Pom. Eq. Jur., § 817.
*531In DeBussche v. Alt, 8 Ch. Div., 286, Thesiger, L. J., crystalized tlie principle as follows:
“ If a person having a right and seeing another person about to commit, or in the course of committing, an act infringing upon that right, stands by in such a manner as really to induce the person committing, and who might have otherwise abstained from it, to believe that he assents to its being committed, he cannot afterwards be heard to complain of the act. * * * But when once the act is completed without any knowledge or assent upon the part of the person whose right is infringed, the matter is to be determined upon very different legal considerations. A right of action has been vested in him, which, at all events, as a general rule, cannot be diverted without accord and satisfaction or release under seal. Mere submission to the injury for any time short of the period limited by statute for the enforcement of the right of action, cannot take away such right, although under the name of laches it may afford a ground for refusing relief under some peculiar circumstances, and it is clear that even an express promise by the person injured, that he would not take any legal proceedings to redress the injury done him, could not by itself constitute a bar to such proceedings, for the promise would be without consideration, and therefore not binding.” Ibid. See also Duke of Leeds v. Earl of Amheist, 2 Phil. Ch. Div., 117.
Applying the principles to this case, we find that, though the deed was voidable at the instance of the plaintiff, the entry by the defendant upon his land was not, therefore, an infringement of his rights. Until he had actually begun to construct his road on a different line from that first surveyed, shown to plaintiff in order to procure the execution of the deed, the plaintiff had no cause of action. The defendant company might, until then, and the plaintiff was bound to assume, that it would locate its road in good faith according to the promises made by its agents. After the work had *532begun, and his cause-of action had arisen, the institution of a suit in the Superior Court to annul the deed, and cotem-poraneonsly of a proceeding for the condemnation of the right-of-way and the assessment of damage in another jurisdiction, would not have retarded the work of construction for a moment, or have diminished the cost of building by a single dollar. Indied, the act relied upon to show acquiescence on the part of plaintiff in the change of location, manifestly helped the- company to save, instead of causing it to expend, money that it would not otherwise have paid for building.
The defendant had fraudulently induced the plaintiff to execute the deed, and was deemed to have known that a different line had been marked by stakes and shown to plaintiff, and ought, therefore, to have approached him if its purpose was to claim the right-of-way over the new line under the deed. Under the provisions of subsection 9 of section 155 of The Code, as amended by chapter 269 of the Laws of 1889, the plaintiff’s right of action accrued on the discovery of the fraud (when he saw the defendant company engaged in constructing its line of road), and it was not barred by the lapse of time until three years after such discovery. I have not been able to discover any principle of equity that deprives the plaintiff of the right thus plainly given him by the letter of the statute.
The principle announced in Knight v. Houghtalling, 85 N. C., 31, which’ was cited in support of defendant’s position, has, I think, no application to this case. The defendant was not induced, by the fraud or negligence of the plaintiff, or his failure to give notice of his purpose, to expend such an amount of money that it could not be put in statu quo. On the contrary, the right of action did not accrue until the defendant had carried out its original intent by actually entering upon, appropriating and commencing work upon the new line. An action brought after he surveyed, but *533before he occupied and began the construction of a new line, would have' been dismissed, but a suit instituted the day-after in the Superior Court in term for the purpose of can-celling the deed cou'cl be maintained if the fraud could be established, as it was, and could be followed by a proceeding under the charter to assess the value of the right-of-way. To deprive the plaintiff of this right, on the ground that he had condoned the defendant’s fraudulent conduct and concluded himself as to his own right to damages because he did not cause a summons to issue against the company at the earliest possible moment after its purpose was made apparent by beginning the work of ditching, filling or excavation, would be to encourage iniquity under the guise of doing equity, to pervert principles established by a Court of conscience, so as to make them shield a party who is admitted to have done an unconseiable act. Whatever might be the opinion of an appellate Court as to the weight of evi: deuce, the findings of the jury cannot be reviewed by it. We must act upon the assumption that a fraud was perpetrated, and ápply the principle of law accordingly.
Per Chiriam. Dismissed.