dissenting.
The plaintiff and his wife in. 1899 executed to the -defendant a deed, on the fane of which there is conveyed aill the timber on the land described in the deed. This action is brought to have the deed set aside and declared Void, except as to' the growth of timber to a certain size since 1887, on the ground of fraud; and also for the recovery of $400, the alleged value of timber, which the defendant is 'alleged 'to have wrongfully euit and removed from the land by virtue of the provisions of the deed. The fraud alleged is set out in allegation 3 of the complaint, and is as follows:
“3. Thait the defendant company, as this plaintiff is informed and believes and avers, claimed the right to go upon said land and remove said timber, by virtue of a deed executed to the said defendant by J. M. Cutler, registered in Book 41, page 236, which deed the plaintiff alleges was obtained by the defendant company by fraud, in tbe manner and method as follows: Tbe said company, through its agent, S. F. Freeman, on the 17-th day of March, 1899, proposed to the said J. M. Quitter to' buy the timber on said land which had grown to merchantable size since Tune, 1887, and expressly stated that be did not want to' buy any other, and for said timber offered to s'aid J. M. Cutler the sum of $25, which offer said Cutler accepted and authorized said Freeman to draw deed for said timber, which had grown up- since 1887, as aforesaid, and no other, and left the said Freeman alone to write said deed, and on Ms return found the deed filled out and ready for signing.' That, the said J. M. Cutler was unable to read the said deed ait that, time anti did not read it, but asked the said Freeman a© to the contents, of it, and he, the said Freeman, expressly stated that 'the deed conveyed only tire timber that had grown up since 1887, and did not convey any other, nor any rights to any other, and the said Freeman so read the deed to said Cutler, from which it *494appeared that no interest passed except as above stated, and relying upon that representation and reading and statement of said Freeman, said Cutler signed and delivered said deed.”
Tbe allegation of fraud is bath in tbe factum and in tbe inducement or treaty. In McArthur v. Johnson, 61 N. C., 317, it was said by ¡tbe Count: “Another instance (fraud in the factum) is 'afforded by tire case of a deed executed by a blind or illiterate person, where it has been read falsely to him upon hiis request to lrave it read.” Upon tbe trial, however, the plaintiff’s own testimony disproved the allegation of fraud in the factum■, and in the argument before this Court tibe plaintiff’s, counsel abandoned that view of the case and relied entirely upon fraud in ¡the treaty.
I will now consider that aspect of tire case. The evidence of tbe plaintiff consisted of bis own testimony alone, which was as follows:
“The bargain between me and Mr. Freeman, 'tire defendant’s agent, for 'the sale of tbe timbea* under tbe deed of March 17, 1899, was made at Horace Bowen’s store. Mr. Freeman said that tire company would cut the timber I had sold to it by tbe deed of June 13, 1887 (which was same sold in last deed before the ¡time went out on June 13, 1899), and that ¡the company didn’t want any more time, but that there was a lot of timber on tbe land that bad grown np over 13 inches at stumpi since ¡that deed was executed; that they could not cut under that deed, and th'at the company wanted to buy the growth that had grown up si-ee June 13, 1887. I ¡thought they would break it to pieces in cutting tire other, so I agreed to sell it. I told him I would not sell him any more time on tire other timber, because 'he wouil'dn’t offer* me as much as he was offering others in the neighborhood. He said all right, he didn’t want anything but the growth, as he already had the balance. "When we bargained, I went home ■to get my wife to sign ¡the deed. It Was about one-half or *495three-fourths of a mile. He went along with me to where a log was across 'the path, where he could not pass. He was on buggy. I walked. I left him at log to write the deed while I went to 'house for my wife. When I goit back he had the deed written. It was late in the evening, sun about an hour high. His horse was so restless he wouldn’t be still a minute. He said to nue, “Maike haste and sign, it; it is late and I ’am in a great hurry. I’ve got to go to Washington tonight. This horse hasn’t got sense enough to stand still.” My son was off some distance cutting wood. He handed me the deed to sign and asked me if I wanted to read it .1 told him that if it was like the bargain we made, it was all right. He said it is just as the bargain was. I will have all the timber out off by June and before. I thought he was telliug me 'the truth, amid I trusted to his honesty. He paid me only $25 for the timber, passed in this deed and didn’t read it. I can not read good. I didn’t have mry glasses, and when I tried to read without them the lines, run together. I can read print better 'than writing. The timber is described in the printed part of the deed. I clan read 'the words of the printed part of ithe deed as the counsel moves his pencil to them, but tbe lines at onces run together when he stops. (Counsel here took the deed, pointing with Ms pencil to portions of it and witness-’ statements were in i*eference bo the principal portions of 'the paper.) Freeman was Notary, and took my acknowledgment and examination of wife.
“I thought when I signed deed it did not convey all'my timber, ’and was misled 'and induced to sign it by the statement, of Freeman that it was as we bargained.”
Freeman, as a witness for the defendant, testified, that the deed was drawn 'according to 'the agreement; and Jordan, another witness for the defendant, said that the plaintiff told bim that “Freeman offered to read the deed, or to let him (plaintiff) read it; that he did neither’, and did not know its *496contents.” But tibe evidence of the defendant is of no consequence in Ubis appeal, 'and is only referred to in fairness to the defendant. The admission of the plaintiff’s' evidence in reference to the ti*ea¡try leading* up to die sale, in plain contradiction of the term's of tibe deed, and lihei further admission of the plaintiff’s evidence that he was induced to sign the deed upon the statement and representation of Ereennan, that only the growth of timber since 18 87 was conveyed in the deed, and the charge of his Honor upon that evidence, are before us for consideration.
The 'transaction wiais between, parties who were dealing as strangers, there being no relation of confidence between tliem. The deed was drawn by the grantee’s agent, and handed to the grantor for Ms signature and that of his wife. The grantor, the plaintiff and his wife could both read and write, and they signed the deed without reading it, or without ashing that it he read to them. If a fraud was perpetrated by Ereenran, the agent of the defendant, as is alleged in the complaint, the plaintiff can not have relief because bis execution of the deed under the facts of this case was negligence on his part. Dellinger v. Gillespie, 118 N. C., 737. He should have read the deed, or have had Ereemian to do so. The deed was before him; he had every opportunity to read it, and Riere w'as not only no trick or device practiced on him to, procure his signature, but Riere was none charged in the complaint. The plaintiff himself testified: “I thought when I signed Rue deed it did not convey all my timber, and was misled and induced to, sign it by the statement of Eree-nran thait it Was, as we bargained.” By his own evidence, the plaintiff executed this deed, relying as to its, contents upon the statement made by one with whom he was dealing as a stranger, and not as with, one in whose statements he- had in law the right to confide. If the plaintiff ha's been cheated it was bis own fault, and the fraud, if there has been fraud, *497w'as perpetrated successfully through tíre plaintiff’s own negligence in failing to read the deed.
It was argued here by the plaintiff’s counsel that the request made by Freeman to the plaintiff when he handed him the deed — “make haste and sign it; it is late and I am in a great hurry; I have got to go to "Washington to-night; this hors© has not got sense enough to' stand still” — was some evidence tending to prove a trick or contrivance on the part of Freeman to procure the plaintiff’s signature to the deed without reading it. In my opinion, it, was not sufficient to be submitted to- the jury as evidence; and certainly from the plaintiff’s own testimony it made no impression upon him, for in his complaint he does not set up that matter as a trick or device to get his signature to the deed, or any other trick •or device as we have already seen.
I think there was error.