#### ROBERT GANT *vs.*WILLIAM HUNSUCKER.

A deed ¡3 valid in a Court of law, notwithstanding any fraud in the consideration of tlie deed or in any false representation of a collateral fact, whereby the party was induced to enter into the contract by executing the instrument.

A party, who does not except to an opinion in lire Court below on h point of law, is precluded from making the exception in the Supreme Court, when the case comes on there.

The eases of *Philips*v. *Smith,*1 Car. L. R. 475, *Williams*v. *Beeman, 2*Dev. 483, *Logan*v. *Simmons,*1 Dev. and Bat: 13, and *Reetlv. Moore,*3 Ire. 310, cited and approved.

Appeal from the Superior Court of Law of Gaston County, Spring Term, 1S51, his Honor Judge Battle presiding.

This is covenant on a general warranty of title, contained in a bill ot sale made by the defendant to the plaintiff on the 21st of September, 1847, for two slaves, and expressed to be for the consideration of one dollar. The pleas are) *non est factum,*no breach, and a special plea, that the deed was obtained from the defendant without consideration and by the fraud of the plaintiff. '

On the trial, the signing, sealing, and delivery of the deed to the plaintiff were not disputed. The plaintiff then gave in evidence a deed from the defendant to John Hunsucker, dated on the 30th of August, 1847, whereby he conveyed, the same two slaves and other chattels, in trust for the sole and separate use of Polly Gant, the .wife of the plaintiff and a daughter of the defendant, during her life, and after her death upon a further trust for Sarah Gant, a daughter of the plaintiff and his wife, and for such other child or children, if any, as the said Polly might thereafter have, and in case the said Sarah and such other child or children should die without leaving issue, then m trust for the plaintiff as *255to a- certáin; share-of the slaves, ánd as to-'the residue thereof in trust for certain other persons. • And the' plaintiff gave further evidence, that he took the two slaves into possession When the deed was made to him, and that after-wards-John Hunsucker, claiming the slaves under the said5 deed made to him- by the defendant,- brought an action of 'detinue against the plaintiff for them and recovered therein- and took the slaves from the plaintiff before the present action was commencedand that the slaves were of the value' of $1400. The plaintiff then produced one Cline, who deposed, that he was the plaintiff’s brother-iñ-law, and that'on-the 21st of September, 1847, the plaintiff came to his; house-and requested him to go to the defendant’s and write' the bill of sale, and that he went with the plaintiff-a-nd wrote the deed, and, after the defendant had executed it, he' and a- son of the defendant attested it; and that on that' occasion the plaintiff told the defendant, that the defendant’ could take dp the deed of trust-he had made to John Hun-' sucker, and that it would be no harm to the defendant to-execute the deed-to the plaintiff which the- witness was' then-preparing. He further deposed, that nothing was paid by the-plaintiff for the negroes, as far-as he Understood; and that the- defendant was at the- time nearly eighty years of age;-but, in-the- opinion of the witness, he understood what he: was doing.

In support of-the issue's on the' part of' the defendant, -he-called'several witnesses'. One of them'-was the Sheriff of Catawba, • who deposed, ■ that the defendant lived in thaC county and- was- véry aged' and an- ignorant Dutchman of w’eak'-mindv Another was! an- unmarried'daughter offh'e" defendant -who'' lived with -him. She deposéd, that'-thé de-' fendant was -very old ■ and infirm, and was'a- drinking-man-; - and-that'he- had been sick; with chills-and fevers5 fór> thréé“ weeks-befóte hemad'e-the deed to-the plaintiff ahd wás of-véry'weafc’miñff and eásilypérsüadéd-fo' almO's-tany'thing*: anffkh'at -dufmg'tftat period the plaintiff wás dftóii’ at-‘:the! *256defendant’s to get him to make the plaintiff a bill of sale for the negroes, and that he was there in the early part of the day, on which the instrument was executed, and went for Cline to write it, and they came together just before night, and did the business. The defendant also called one of his sons, who was the other witness to the deed, and he deposed,, that, before it was executed, the deed of trust to John Hunsucker was talked about- by his father and the plaintiff and the other persons present, and that- they all expressed the opinion, that it might be taken up and destroyed. Evidence was also given, that on the next day the plaintiff applied to John Hunsucker to get the deed of trust, but -the latter -declined giving it up until he could consult Counsel.

■For the plaintiff it was contended before the jury, that the defendant had mental capacity to execute the bill of -sak; and that there was no fraud or imposition practised on him by the plaintiff in procuring it; and that the plaintiff was entitled to damages to the value of the slaves. The Counsel for the defendant also argued before the .jury the question of fact, as to the capacity of the defendant, and as to the -fraud and imposition on him to induce him to execute the deed; and contended further, that,-if the jury should be of opinion against the defendant on these points, .yet the plaintiff could only recover, as damages, one dollar, that being the purchase money mentioned in the deed.

The Court instructed the .jury, that, -to render the instrument valid, it was not necessary the defendant should have a -mind equal to the most intelligent and best informed men, nor that his mind should at the. time of executing it have been equal to what it had -been ; but it was sufficient, if he had mind and memory enough to know what he was doing, and understood, its effects. The Court further instructed the jury with regard to the alleged fraud and imposition that, if .the plaintiff knew that- the deed of trust could not be taken up and yet-represented to the defendant that it could,*257so that he signed the bill of sale under that belief, induced by such fraudulent misrepresentation of the plaintiff, it would invalidate the bill of sale ; but that if both parties were mistaken as to the right to take up the deed of trust, then it would not have that effect. As to the damages, the Court instructed the jury, that, if upon the other points they should think the plaintiff entitled to recover, he was entitled to one dollar only, being the consideration mentioned’in the deed, with interest thereon. The jury found for the defendant 'on all the issues ; and the plaintiff moved for a new trial, because the verdict was against the weight of evidence. That was refused; and he then moved for a *venire de'novo,.*because the Court erred in the instruction upon the question of damages: which, being also refused, the. plaintiff appealed.

*Avery, Landers*and *Alexander-,*for the plaintiff.

*Craig,*for the defendant.

Ruffin, C. J.

This Court has no cognizance of the motion for a new trial: which was addressed entirely to the discretion of the Court, in which the trial was, and ought not to encumber the bill of exceptions.

The point respecting the damages presented questions "on the trial of some novelty, and, nerhaps, of not very easy solution. The difficulty would not, indeed,. arise out of' a 'supposed restriction of a purchaser of slaves to the recovery of damages to the amount of the purchase money mentioned in the bill of sale, and interest thereon, in analogy, apparently, to the rule relative to the warranties of land*. For, the rule as to land stands on peculiar reasons, which were thought to control the usual measure of damages in the personal action of covenant, which is held to lie on a warranty. *Phillips*v. *Smith,*1 Law Repos. 475; *Williams*v. *Beeman,*2 Dev. 483. But as mentioned in the latter case, on covenants relating to personal' things, the *258recovery always is for the actual damages or loss to the covenantee from the breach; as, for example, the value of an article at the time it ought to be delivered, or the value ’,o,f slaves at the time of eviction. But it might not be so easy to say, whether there be any rule of la-w as to the' measure of damages, or, if there be, what it is, in a case like this ; in which the conveyance and covenant are substantially voluntary, and the eviction was j,by a title paramount in trust for the plaintiff's family and himself, of the .existence of which he -was aware at the time he took his &eed, and from which he then represented to the defendant no harm could come. But, whatever may be the rule of law °d those points, the case, as it now stands, cannot be affected by it. For, it is clear, that the instructions on this part of the case had no effect on the verdict, since the jury did not give the plaintiff damages on either basis, but found against him altogether. It is thus reduced to a certainty that the verdict was upon the other parts of the case, and therefore that the instruction as to the measure of damages wap perfectly immaterial, and coulct not prejudice t.he plaintiff-

It was next said for the plaintiff, that there is error in the instruction as to the effect on the deed of tt)e alleged fraud and imposition in inducing the defendant to execute the .deed, by deceitfully representing to him, that he could lawfully conceal the prior deed of trust made by him, although the plaintiff knew at the time, that the deed of trust was irrevocable, and conclusive of the title to the two slaves. The Court, it is .true, does not approve of thajt part of the instructions. For, although the facts assumed in the hypothesis might in another forum affect the operation of the deed, so as to cause it there, according to circumstances, to be set aside, or to be held as a s.epurity for money paid or laid out under it, yet at law they do not avoid the deed. In g, Court qf law the question is a. naked ope, of deed or no deed ; for, if the deed be an instrument for any purpose, it *259remains so to all purposes, either as conveying the thing, or covenanting for the title. And, supposing the defendant to have had capacity to contract, and that no trick or deception was practised on him as to the terms of the instrument he was executing, but he knew the contents of it and executed it voluntarily, the Court holds, that upon *non est factum*the instrument would not be avoided, but be held to be the defendant’s deed, notwithstanding any fraud in the consideration of the deed or in any false representation of a collateral fact, whereby the defendant was induced to enter into the contract by executing the instrument. *Logan*v. *Simmons,*1 Dev. and Bat. 13; *Reed*v. *Moore,*3 Ire. 310. But, though that be the opinion of the Court, it is not now •open *to*the plaintiff to complain of that en or, because he took no exception to it on the trial. For the best reasons it is entirely settled, that the Court can take no notice of an error not apparent in the record, that is, in the pleadings, verdict, or judgment, unless the appellant except to it at the trial. Besides the presumption, that every thing was done right until the contrary be alleged, there is another, that, for purposes of his own, the party assented to or acquiesced in every opinion of the Court, to which he did not at the time except. In this case the exception is confined to the directions respecting the damages, and finds no fault with that as to the fraud and imposition. Indeed, the plaintiff seems to have preferred putting his case before the jury on the questions of fact alone, whether he had made the alleged representation, and whether the plaintiff acted on it. He did not raise the question of law below, which he urges here, and therefore he cannot now raise it.

Per Ccjriam. Judgment affirmed.