
    JAKE SUTTON v. CHARLES F. DUNN.
    (Filed 9 October, 1918.)
    1. Deeds and Conveyances — Cancellation of Instruments — Fraud — Evidence — Tax Deeds.
    Evidence tending to show that the defendant bought plaintiff’s land at a tax sale, for the amount of taxes due, while the latter was confined at home with sickness, and, before the time for redemption had passed, received from him a payment thereon, with assurances that he would protect the plaintiff’s interest, and, with continued assurances, received several payments upon the taxes due, until he had.greatly overpaid himself; that he had obtained the tax deed, and imposed upon the defendant by giving him, an illiterate man, receipts as for rent, are reasonable and permissible inferences of the defendant’s design to wrongfully secure the land at a nominal sum, and sufficient to be submitted to the jury in a suit to-cancel the tax deed for fraud in its procurement.
    2. Judgments — Justices’ Courts — Appeal—Estoppel.
    Judgment in proceedings in summary ejectment, brought before a justice of the' peace, wherein the plaintiff has set up a tax deed to the defendant’s land to show title in himself, will not operate as an estoppel against the defendant’s right to maintain a suit in the Superior Court to remove the tax deed as a cloud upon his title, when the proceedings in ejectment are still pending in the Superior Court on appeal, the trial in the latter-court being de novo and the justice’s judgment not a final one.
    Appeal by defendant from Calvert, J., at February Term, 1918, of LeNOIB.
    This is an action to cancel a tax deed upon -the ground that the defendant obtained it by fraud and misrepresentations.
    The evidence tended to prove that the plaintiff owned a lot of land in the city of Kinston, on which is situated a dwelling-house, in which the plaintiff has been residing for about twelve years. The value of the-property is about $1,000. In January, February, March, April, and May of the year 1915 the plaintiff was sick with pneumonia and was confined to his home practically all of the months mentioned. At the regular sale by the city of Kinston of real estate for the nonpayment of taxes for the year 1914, on 4 May, 1915, the locus in quo was sold by the city tax collector, and was purchased by one J. G. Banton, to whom a certificate was issued, and then transferred to the defendant herein. The-property was sold for $12.10, which was sufficient to cover the. taxes due the city.
    As soon as the plaintiff sufficiently regained strength from his sickness he went to the defendant to repay the taxes and redeem the certificate-issued to said Banton and then held by the defendant, and paid the defendant $4 upon said taxes. This was prior to the first Monday in May, 1916. Thereafter the plaintiff was again confined to his home by reason of continued illness, and on tbe first Monday in May, 1916, which was the first day when a tax deed was obtainable under the sale for taxes for the year ID 14, the defendant obtained the tax deed mentioned. The notice served upon the plaintiff in order to obtain the tax deed was served prior to the day in April on which the plaintiff went to the defendant and paid $4 on his taxes, and the defendant then assured the1 plaintiff that the matter was all right and that he would see that no' harm came to him by reason of the existing condition.
    Thereafter the defendant obtained the deed mentioned,- dated 4 May,. 1916, and, as the plaintiff would continue to make payments to him upon, the taxes, as shown by the plaintiff’s evidence, the defendant would issue receipts for each payment, and marked thereon “Eents” in lieu of taxes, though the first receipt had been issued for taxes. For some months the plaintiff continued to make payments, which were each time received by the defendant with assurances to the plaintiff that the matter was all right for him and he need have no fears, as he would carefully protect him. When the first payment of $4 was made and a receipt for taxes issued, the plaintiff’s evidence tends to show that there was an agreement then made between the plaintiff and the defendant that the plaintiff would make payments in this way and that they would be accepted in the redemption of the tax certificate, all of which was prior to the execution of the deed, and that, notwithstanding the deed was later obtained without further knowledge to the plaintiff, and he continued to make payments, as he thought, upon his taxes, he was defrauded by the defendant obtaining the tax deed in the manner mentioned, and continuing to take payments and marking his receipts in payment for rent.
    The plaintiff is an ignorant negro, unable to read and write, and unused to business transactions. The defendant, also a negro, has some education. The plaintiff relied upon the defendant to protect him.
    The plaintiff continued to make payments, until finally he sought assistance from his employer in an effort to ascertain how much he had paid, being himself unable to make the necessary additions. It was then learned that he had paid $26.50 upon an indebtedness which the defendant himself contended to be only $17.05. He at-once discontinued payments, and the defendant instituted a summary proceeding in ejectment before a magistrate to obtain possession of the property, and based the suit upon his tax deed and the receipts issued for rent. A judgment was rendered by the magistrate in favor of the plaintiff in that' action (the defendant here), and an appeal taken to the Superior Court, .where the action is still pending. The plaintiff in this action then instituted this action to cancel the deed as a cloud upon his title. The defendant offered evidence contradicting the evidence of the plaintiff. The issue of fraud was submitted to and answered by tbe jury in favor of tbe plaintiff.
    'At tbe conclusion of tbe evidence tbe defendant moved for judgment of nonsuit, which was denied, and tbe defendant excepted.
    Tbe defendant offered in evidence tbe proceedings before tbe justice of tbe peace in summary ejectment, to show tbat tbe plaintiff could not attack bis title. Tbis was excluded, and tbe defendant excepted.
    There was a verdict and judgment for tbe plaintiff, and tbe defendant appealed.
    
      Dawson, Manning & Wallace for plaintiff.
    
    
      Charles F. Dunn for defendant.
    
   AlleN, J.

It was admitted by tbe defendant tbat tbe tax receipt be beld was for $12.10, with $1.05 costs, and tbat tbe plaintiff bad paid bim $26.50, for wbicb be gave tbe plaintiff a receipt for $4 on taxes, and receipts for $22.50 purporting to be for rents.

Tbe plaintiff testified tbat all of bis payments were on tbe taxes and were accepted as sucb by tbe defendant; tbat be went to tbe defendant before tbe tax deed was executed, and wben be bad tbe right to redeem, and told bim be wished to pay tbe taxes, but could not pay all at one time, and tbe defendant told bim be would take it any way be could pay it; tbat be continued making bis payments on tbe taxes, and tbat the defendant, in violation of bis agreement, procured tbe execution of tbe tax deed.

It is a permissible and reasonable inference from tbis evidence tbat tbe defendant bad conceived tbe plan of securing for himself for twelve or thirteen dollars tbe lot of tbe plaintiff, and tbat in order to carry bis plan into execution and prevent a redemption until tbe time bad passed, be told the plaintiff be would take tbe taxes any way be could pay them, and tbat to cover up bis conduct and further strengthen bis claim, be continued to accept payments after be received bis deed, and gave tbe plaintiff, who could not read, fraudulent receipts, showing on their face they weré for rent'; and tbis is, in our opinion, sufficient to justify submitting tbe question of fraud to tbe jury.

Tbe proceeding in summary ejectment before tbe justice was not competent as an estoppel upon tbe plaintiff, for wbicb purpose it was offered, because, as stated in tbe answer of tbe defendant, it is still pending in tbe Superior Court on appeal, where it will be tried de- novo, and none of tbe rights of tbe parties have been finally determined.

We find no error in tbe trial.

No error.  