#### MAGGIE GASKINS et al. v. K. C. SIDBURY.

(Filed 21 May, 1947.)

1. Alteration of Instruments § 2—

Where a grantee, prior to registration of a deed, fraudulently alters the description so as to include within its terms a greater quantity of land, grantor may not waive the fraud and recover the value of the additional land and at the same time recover damages for the fraud, but her remedy is an action to remove cloud from the title to that part of the land not covered by her deed and for damages for the consequent injuries.

2. Damages § 7—

Punitive damages may not be awarded where plaintiff is not entitled to recover any actual damages.

3. Actions § 3c—

Fraud gives rise to rights in favor of the defrauded but not in favor of the defrauder, since no one is permitted to found a claim on his own wrong.

4. Appeal and Error § 47—

Where a case has been tried on an erroneous theory of law the verdict will be set aside and the judgment vacated and the cause remanded for proper procedure.

Appeal by defendant from *Burney, J.,*at October Term, 1946, of New HaNoveb.

Civil action to recover damages for fraudulent alteration of deed.

The *feme*plaintiff alleges that for a number of years she owned a lot of land in New Hanover County, with a frontage of 70 feet on Highway No. 17; that on 8 April, 1943, she sold one-half of this tract, with a frontage of 35 feet on the highway, to the defendant and duly executed and delivered to him deed therefor; that after delivery of said deed, and before its registration, the defendant fraudulently changed the description therein so as to take in all of her property and more — the call for 35 feet on the highway being changed to 80 feet and a corresponding change being made in the call at the other end of the lot, and that as a consequence, the *feme*plaintiff has lost the balance of her land and otherwise suffered injury. Wherefore, she demands actual and punitive damages.

*469Upon denial of tbe allegations of tbe complaint, and issues joined, tbe jury awarded tbe plaintiff $300 actual damages — tbe value of tbe balance of ber land — and $1,000 punitive damages.

From judgment on tbe verdict, with provision incorporated therein adjudging tbe defendant to be tbe owner of all tbe land originally owned by tbe *feme*plaintiff in New Hanover County, tbe defendant appeals, assigning errors.

*Addison Hewlett, Jr., and Solomon B. Sternberger for plaintiffs, appellees.*

*Glayton G. Holmes for defendant, appellant.*

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*470manded for sucb further proqeedings as to justice appertains and the rights of the parties may require.

New trial.