Hargett v. Lee

*539 Stacy, 0. J.

The argument submitted.by plaintiff on his appeal from the judgment of nonsuit treats the case as one in ejectment, but this is not the theory upon which it was tried in the court below. An appeal ex necessitate follows the theory of the trial.

Walker v. Burt, 182 N. C., 325 , 109 S. E., 43 ;

Holland v. Dulin, ante, 211;

Shipp v. Stage Lines, 192 N. C., 475 , 135 S. E., 339 .

In an action to avoid an instrument on the ground of fraud, non est factum, it is provided by C. S., 441, subsection 9, that suit shall be commenced within three years after the cause of action accrues; that is within three years after the discovery by the aggrieved party of the facts constituting the fraud, or when such facts, in the exercise of proper diligence, should have been discovered.

Taylor v. Edmunds, 176 N. C., 325 , 97 S. E., 42 ;

Little v. Bank, 187 N. C., 1 , 121 S. E., 185 .

It clearly appears that plaintiff had information of the facts constituting the alleged fraud as early as January, 1925, certainly enough to put him on inquiry; and the rule is that such notice carries with it a presumption of knowledge of all a reasonable investigation would have disclosed.

R. R. v. Comrs., 188 N. C., 265 , 124 S. E., 560 ;

Mills v. Kemp, 196 N. C., 309 , 145 S. E., 557 . A party having notice must exercise ordinary care to ascertain the facts, and if he fail to investigate when put upon inquiry, he is chargeable with all the knowledge he would have acquired, had he made the necessary effort to learn the truth of the matters affecting his interests.

Austin v. George, 201 N. C., 380 , 160 S. E., 364 ;

Wynn v. Grant, 166 N. C., 39 , 81 S. E., 949 ;

Ewbank v. Lyman, 170 N. C., 505 , 87 S. E., 348 ;

Sanderlin v. Cross, 172 N. C., 234 , 90 S. E., 213 .

The action, therefore, was barred at the time of its institution; and judgment of nonsuit was properly entered in favor of the defendants pleading the statute of limitations and demurring to the evidence.

Drinkwater v. Tel. Co., 204 N. C., 224 , 168 S. E., 410 ;

Tillery v. Lbr. Co., 172 N. C., 296 , 90 S. E., 196 .

Notwithstanding the judgment of nonsuit entered at the close of plaintiff’s evidence in favor of the defendants pleading the statute of limitations and demurring to the evidence, the plaintiff was allowed to amend his complaint, after verdict (C. S., 547), and judgment was rendered thereon adversely affecting the rights of the appealing defendants.

Perhaps it is enough to say the judgment of nonsuit is in conflict with the judgment on the verdict in so far as the latter affects the rights of the appealing defendants. But plaintiff contends the defendants are in no position to appeal in the case (Watts v. Lefler, 194 N. C., 671 , 140 S. E., 435 ), and, at the same time, asserts the final judgment is binding upon them.

Wooten v. Cunningham, 171 N. C., 123 , 88 S. E., 1 .

*540 As humorously stated on the argument, the judgment of nonsuit only provided that the appealing defendants “go without day,” whereas, in view of plaintiff’s subsequent activities, they should have asked that they “go without night also.”

Ordinarily, a defendant who asks for no affirmative relief, is not the “party aggrieved” by a judgment of nonsuit within the meaning of C. S., 632.

Guy v. Ins. Co., ante, 118. But it is not the judgment of nonsuit from which the defendants appeal. They appeal from the final judgment. Nor is this an ordinary case from a procedural standpoint. 3 O. J., 643.

There was error in the final judgment to the prejudice of the appealing defendants.

On plaintiff’s appeal, affirmed.

On defendants’ appeal, error.