ALTON P. WALL and NELL R. WALL v. WILLIE RUFFIN and ALTA RUFFIN, 261 N.C. 720

Denny, C.J.

The defendants assign as error the following portion of the charge: “So, under all of the evidence, members of the jury, the court instructs you that if you find the facts to be as all of the evidence in this case, both from the plaintiff and from the defendant, if you find all of the facts to be as all of the evidence tends to show that the facts are, then it would be your duty to answer this one question ‘Yes.’ In other words, if you believe everything that you have heard in this case and the court instructs you as a matter of law that the plaintiffs are the bona fide purchasers for value and the present owners in fee simple entitled to immediate possession of the premises described in the complaint, and so if you believe all of the evidence, it would be your duty to answer this one issue 'Yes’.” When a peremptory instruction is permissible,' conditioned upon the jury finding the facts to be as all the evidence tends to show, the court must leave it to the jury to determine the credibility of the testimony.

McIntosh, North Carolina Practice & Procedure, Volume 2,

section 1516, page 52, et seq.; Shelby v. Lackey, 236 N.C. 369, 72 S.E. 2d 757; Reynolds v. Earley, 241 N.C. 521, 85 S.E. 2d 904; Rhodes v. Raxter, 242 N.C. 206, 87 S.E. 2d 265; Hunnicutt v. Insurance Co., 255 N.C. 515, 122 S.E. 2d 74; Crisp v. Insurance Co., 256 N.C. 408, 124 S.E. 2d 149.

In the last cited case, Moore, J., speaking for the Court, said: “Where the peremptory instruction is favorable to the party having the burden of proof, it must be in such form as to clearly permit a verdict unfavorable to such party in the event the jury finds that the evidence is not of sufficient weight and credibility to carry the burden.” This assignment of error will be sustained. We concur in the view of the trial judge that the defendants neither pleaded nor proved fraud on the part of the plaintiffs herein.

Even so, since there must be a new trial, the defendants may desire to recast their pleadings and make Pickett and Joyce parties to the action and show, if they can, that the deed to them, executed by these defendants, was procured by fraud and that the plaintiffs took their deed with knowledge of the existence of such fraud. There is no evidence tending to show that Pickett and Joyce were ever in possession of the premises or that they ever requested the defendants to vacate the premises. Be that as it may, the record discloses that this case has been tried three times in the court below.

On the first trial, the jury returned a verdict in favor of the defendants and the trial judge set the verdict aside. The second trial ended in a mistrial, and'the third in a verdict for the plaintiffs upon erroneous instructions to the jury. In the case of Garris v.

Scott, 246 N.C. 568, 99 S.E. 2d 750, Parker, J., speaking for the Court, said: “The controlling principle established by our decisions is that inadequacy of consideration is a circumstance to be considered by the jury in connection with other relevant circumstances on an issue of fraud, but inadequacy of consideration standing alone will not justify setting aside a deed on the ground of fraud. However, if the inadequacy of consideration is so gross that it shows practically nothing was paid, it is sufficient to be submitted to the jury without other evidence. Leonard v.

Power Co., 155 N.C. 10, 70 S.E. 1061; Knight v. Bridge Co., 172 N.C. 393, 90 S.E. 412; Butler v. Fertilizer Works, 195 N.C. 409, 142 S.E. 483; Hill v. Ins. Co., 200 N.C. 502, 157 S.E. 599; Hinton v. West, 207 N.C. 708, 178 S.E. 356. See 24 Am. Jur., Fraud and Deceit, secs. 266 and 284.” The defendants are entitled to a new trial and it is so ordered. New trial.