concurring in result.
The charge here is fraud in tire factum, in the execution of the deed after grantor consented to* sign it, and not in 'the preliminary representations or treaty. The complaint 'alleges that the plaintiff agreed with one Freeman, agent of the defendant, to sell a part of the-timber, whereupon the said agent of tbe defendant company drew the deed while plaintiff went off to get his wife; that on his return the deed was already drawn up, but plaintiff having left his spectacles, was unable- to read it; that he asked Freeman the contents of it, and was assured -that it was a conveyance only of the specified timber, -and plaintiff, relying upon the truth of such, signed and delivered the deed, *489whereas, the timber actually conveyed was all the timber on the land, and the price paid ($25.00) was not omediwentieth in value oí the timber conveyed; wherefore, plaintiff charges that 'the execution oí the deed was procured by fraud, and asks that the deed be reformed so as to convey only the timber agreed to be sold, and for recovery of $400, the value of timber already cut, outside of the kind it was agreed the plaintiff was to convey.
The plaintiff introduced evidence in full support of above contention, and, as a further circumstance in corroboration of the charge of fraud, evidence, which was admitted without objection; that when he got back, not having his spectacles, Freeman said to him, “Make haste and sign it; it is late and I am in a great burry. Iv’e goit to gat to Washington tonight. This horse hasn’t got sense enough to stand still.” The plaintiff contends that this, together with the gross inadequacy of price, $500, for $25.00, and the difference between the deed as written, and as it was agreed to be written, and the fact tihialt Freeman told plaintiff that the deed Was written as agreed, and knew that plaintiff could not read without his glasses, was evidence to' go to the jury to show imposition and fraud by brick and device. As 'the defendant’s exception is for refusal to tell the jury that there was no evidence, this evidence of the plaintiff must he taken as true and in tire most favorable aspect for the plaintiff.
Taken as true, no court of equity could refuse the relief asked. The jury found that it was 'time. The following issues were submitted without objection:
1. Was the deed from <T. M. Outler and wife to the defendant, dated 17th March, 1899, obtained by fraud? Ans. Yes.
2. If so, what was the vlalue of the timber ? Ans. $243. The latter evidently meaning from the complaint and judgment, the value of timber cut in excess o>f what was agreed to be paid.
*490The defendant aisfced the following special instructions, which were given with the modification below recited:
1. That if the jury find from the testimony that the plaintiff, J. M. Cutler, when he executed the deed to defendant, on March 17, 1899, could have read it, if he had so desired, and failed to do SO, then he is bound by it and can not be heard to say thlaJfc a fraud was practiced upon him by defendant’s agent, S. E. Ereemlan, by inserting in said deed more timber than said Outier thought was therein, and more than said Freeman told him was conveyed by iit. And if he could by reasonable diligence have ascertained the contents of said deed, it was his duty to' do so.; 'and if yon find that he failed to do so, by not refeuding it, you will answer the first issue “No.”
2. That from all 'the evidence-, if believed, the plaintiff, J. M. Cutler, could 'have read 'the deed of March 17, 1899, before signing it, and could have ascertained thereby what timber it conveyed and his failure- to do so, if he did fail, does not relieve him from the operation of said deed, and you will answer the first issue “No.”
3. That the deed of June 13, 1887, conveyed all the timber on the land -described in the complaint down to 13 inches o-n tire stomp to the defendant in fee^simpie, and the deed of March 17, 1899, by the plaintiffs admission, conveys the timber on said 'land down to- 12 inches-, which h'ad grown to that size since June 13, 1887, and the legal effect of these deeds is to convey all the timber on siaid land toi defendant, and to give defendant the right to- enter -and cut and remove the sarnie, and you will answer the second issue “Nothing.”
These charges were given with this modification to each:
With this modification: “Unless- you shall find from the evidence that the company, by its agents, m-ade a false representation as to 'the contents of the deed, and in reliance on this statement or representation, the agent knowing it to be *491false, be (plaintiff) signed, 'tbe deed, and was defrauded thereby in tibe respect complained of.”
(To this modification 'tire defendant excepts.)
Those instructions were asked by defendant and were the strangest passible presentation of defendant’s ease. The modification was eminently proper to be submitted to the jury in view of the uncontradicted evidence that plaintiff could not re’ad without his glasses; that Freeman was urging to hurry him up and sign, that Ms horse would not stand, etc., 'the evidence tending tie show gross inadequacy in price, and that the deed was written differently from agreement, and Freeman’s misrepresentation that it was written as agreed. Without holding iit illegal, it is proper to say that for the defendant’s agent Who* procured the execution of the deed to take the acknowledgment of the grantor, and the privy examination of 'his wife, is a practice to be avoided, not followed.
Dellinger v. Gillespie, 118 N. C., 737, was correctly decided. It holds 'thlat where a grantor negligently fails to read a deed, no fraud or deceit being shown, he can not he allowed to contradict its terms by parol evidence by showing that he intended something else.
Bnt here tbe very gravamen of tbe complaint is fraud in tbe factum, tbe taking advantage of plaintiff’s inability to re'ad, the writing it differently from the wlay iit was agreed to he written, the urging plaintiff to’ hurry up and sign it, knowing he could not read it without, going to his house a half-mile off on foot to get his spectacles.
While every presumption is in favor of the “written word,” no deed is prolof against frlandL Whether this evidence proved fraud was a matter which only a, jnry could piass upon. In submitting it to that tribunal, which the Cbnstitution says is “one of the best securities of tbe rights of the people and ought to remain sacred and inviolable ” his Honor did only *492bis duty. There being disputed matters of fact, tibe plaintiff bad an inalienable rigb't to have the truth of the evidence passed upon by a jury of his peers. The misrepresentations here axe not as 'to mlatiters in the treaty, as to which both parties had equal opportunity for examination, but as to the contents of a deed drawn by one of them, which the other could not read without Ms glasses, and who at the. same time was ■urged to sign ait once without going for his glasses. I't was exactly as if the same advantage had been taken of a blind man, if plaintiffs evidence is- to be believed, and whether it was to be believed or not, no one could decide- save a jury, to whom therefore the Court properly submitted it.
Juries may sometimes be prejudiced, but knowing that Judges are “men of like passions,” the wisdom of the ages lias properly provided that disputed facts shall be passed upon by twelve impartial men drawn from the body of the people, and at once returning to- them, with unlimited challenge for favor and a reasonable number' of challenges without cause assigned. Besides, if the verdict shows bias, or mistake, or is upon insufficient evidence, the Judge can set it aside without- assigning cause. Hardy v. Hardy, at this term. There is thus every protection. But if the Judges take to deciding the facts, there is no- protection against bias, or negligence, or incompetence, -and no power to set aside tfa-edr verdict. Every consideration therefore demands that the evidence should be submitted to the jury, unless it is clear ’that there is not a scintilla in favor of him upon whom rests the burden, and that upon the evidence only one conclusion (amid 'that adverse to "the plaintiff) can be drawn. The Judge below bad power to set the verdict aside if be doubted the sufficiency of the evidence, and submit the issue to another jury. Thlait is the proper remedy. It is not for this C’ourt upon this evidence, to adjudge that the evidence was not sufficient to prove fraud, and thus deprive the plaintiff altogether of a right to trial by jury.