Gaskins v. . Sidbury

Stacy, C. J. It appears tbat tbe plaintiffs bave misconceived their rights and remedies. It will not do to say tbe feme plaintiff may waive tbe fraud and recover tbe value of tbe land which tbe defendant sought by alteration to include in tbe deed, and at tbe same time recover damages for tbe fraud. No deed has been executed by ber for tbe balance of ber land and she still has title thereto. Perry v. Hackney, 142 N. C., 368, 55 S. E., 289; 16 Am. Jur., 643. Indeed, she may bave seizin and legal title to all tbe land described in tbe paper-writing. Respass v. Jones, 102 N. C., 5, 8 S. E., 770. What tbe feme plaintiff needs is to reform ber complaint with a view of removing tbe cloud from tbe title to tbat part of tbe land not covered by ber deed, and demanding damages for tbe consequent injuries. Waldron v. Waller, 65 W. Va., 605, 64 S. E., 964, 32 L. R. A. (N.S.), 284. Tbe only actual damages awarded by tbe jury was tbe value of 'the balance of ber land. She is not entitled to such a recovery on tbe instant record. Nor can tbe verdict on tbe issue of punitive damages presently be sustained. Worthy v. Knight, 210 N. C., 498, 187 S. E., 771; Tripp v. Tobacco Co., 193 N. C., 614, 137 S. E., 710; Webb v. Telegraph Co., 167 N. C., 483, 83 S. E., 56 8; Burris v. Creech, 220 N. C., 302, 17 S. E. (2d), 123; 22 Am. Jur., 548. We are not now concerned with tbe defendant’s executory rights, whatever they may be, under tbe altered deed. 1 Devlin, Deeds, Sec. 460; Burgess v. Blake, 128 Ala., 105, 28 So., 963, 86 Am. St. Rep., 78. Certainly be has no claim thereunder to any land sought to be included by tbe alteration. Out of frauds arise rights in favor of tbe defrauded, but not in favor of tbe defrauder. No one is permitted to found a claim on bis own wrong. Byers v. Byers, 223 N. C., 85, 25 S. E. (2d), 466. Tbe case has been tried on an erroneous theory of law. Where this occurs, tbe practice is to remand it for another bearing. To this end tbe verdict will be set aside, tbe judgment vacated, and tbe cause re *470 manded for sucb further proqeedings as to justice appertains and the rights of the parties may require. New trial.