Elliott v. Boaz , 9 Ala. 772 ( 1846 )

COLLIER, C. J.

In Younge v. Harris’s adm’r, et al., 2 Ala. Rep. 108, it was held, that, where one is induced to purchase land in consequence of the fraudulent representation of the vendor in respect to the title, the falsity of which he had no means of ascertaining by the exercise of ordinary diligence, he may havé relief in chancery, although he still retains the possession — it being shown that the vendee had died, leaving his estate insolvent, and that the vendor has paid part of the purchase money. So where the vendor of land represented to a person who afterwards became the purchaser, that an open unmarked line would so run as to include a field of forty acres of rich bottom land on an adjoining tract, worth more than the residue of the land proposed to be sold; this representation of the vendor, which was an inducement to the purchase, Avas false, and he was so informed before he made it: Held, that this was such a misrepresentation of a material fact, as Avould authorize a court of chancery to rescind the contract. (Camp v. Camp, 2 Ala. Rep. 632.]

Where the vendor of land fraudulently induces the vendee to purchase, by showing him lands of a superior quality, and after the contract conveys lands less valuable, the vendee can not set up these facts in his defence, when sued at law, for the purchase money. In such case relief must be sought in equity, AAfhere complete justice can be done to both parties, either by rescinding the contract, or allowing compensation, as may seem most proper under the circumstances. [Calloway v. McElroy & Flannagin, 3 Ala. Rep. 406.] The allegations in the present case, touching the repre sentations by Elliott at the time he shewed the land to the defendant Boaz, make case strikingly analogous in principle to those cited, and not only in principle, but in its facts, to Camp v. Camp. Conceding that the true lines of the forty acres conveyed, might Avith proper diligence have been discovered, and yet we cannot think that such negligence is attributable to the vendee, as should prevent him from setting up the fraudulent misrepresentation of the vendor, as a ground for the rescission of the purchase. It perhaps requires some observation and experience to be able to distinguish the marks of a surveyor, made elsewhere than at the corners. Besides, it is, in general, permissible, to rely on the positive asseverations of the vendor, and visit him with the consequences of their falsity, if made mala fide.

Let us inquire whether the testimony taken in the cause sustains the Charge of misrepresentation. It does not appear from the proof that Elliott informed Boaz that he was selling the land as the agent of Huey, or that the vendee understood such to be the fact.

There is no material conflict in the testynony of the seven or eight witnesses whose depositions were taken. These facts may be considered as satisfactorily proved, viz : when Elliott and Boaz were on the treaty for a sale of the lands in question, the former designated a tree as the corner, and pointed out to the latter the direction that the lines would diverge therefrom; he also said that a field containg twelve or fourteen acres, was, with the exception of about three acres, embraced by the forty acres agreed to be sold, when in fact the true line was full sixty yards from that designated, and but a small portion of the field was embraced within them. The difference between the value of the land as represented by Elliott, and that conveyed by Huey, was one hundred dollars. Elliott knew where the corner and lines, which he had professed to point out, were located. Further,■ Boaz, upon'discovering the misrepresentation, proposed to Elliott to rescind the contract — to give up the land, or retain it and have a deduction made from the purchase money, or leave the matter to arbitration; but 'each of the propositions were rejected. The v.alue of the improvements made upon the land by Boaz, was about thirty-four dollars.

The proof is so direct and pointed, that its mere statement is quite sufficient to .show that the inference of a fraudulent misrepresentation is entirely legitimate, and the allegation of the bill in this respect is well sustained.

It is insisted for the plaintiffs in error, that the bill is defective in not stating that the offer to rescind was made to Huey instead of Elliott, and that such an offer would be unavailing, even if made to the former, unless it was followed by an actual abandonment of the possession. We cannot think that the frame of the bill is objectionable in this particular. It affirms in effect, that although the conveyance was made by Huey, and the notes for the purchase money payable to him, yet the land was the property of Elliott, and sold by him for his own benefit. In this aspect of the case, it would seem quite sufficient that the offer of a rescission of the contract should have been made to Elliott. But if the bill had proceeded upon the hypothesis that Elliott was a mere agent of Huey, for the purpose of selling the land, we should be inclined to think that his authority ceased with the sale, and in that event the offer should have been made to Huey.

In respect to the necessity of abandoning the possession of land where an offer is made to rescind the purchase, it may be asked if this is necessary for any other purpose than to put the vendor in statu quo ? Is there any rule of law which makes it more imperative upon the vendee of land to abandon the possession where the vendor refuses to accept it, than it is upon the vendee of personal property, who for some defect in the title, or thing itself, proposes a rescission of his-purchase ? If the vendor, after having refused to rescind, should take advantage of the locus penitentim, and so inform the vendee, the failure of the latter then to yield to him the possession would perhaps destroy the effect of the offer and refusal. But these are questions which it is not necessary now to consider. The general terms in which the court speaks upon this point, in Duncan v. Jeter, 5 Ala. Rep. 604, are to be taken in reference to the case before the court, and beyond that, if in conflict with the law, would not be regarded as authoritative. But taking the language employed in that case in its broadest sense, and we still incline to the opinion that the failure to abandon the possession in the present case cannot affect complainant’s right to relief. Although it is not alledged in totidem verbis, that Elliott is insolvent, yet perhaps there are equivalent allegations, viz: that he conveyed the land to a third person to prevent it from being sold to pay a debt for which he was liable as a surety. The land was chargeable to Boaz for the value of improvements which he made on it, at least up to the time that he discovered the fraud, and if Elliott was really his vendor, and insolvent, according to the case last cited, he was authorized to retain the possession for the purpose of reimbursing himself.

This view will show that the bill is not obnoxious to the objection of a want of equity, and its essential allegations are supported by the proof. It is however insisted, that as Huey was the proprietor of the land, and the sale was made by Elliott as his agent, that the contract cannot be rescinded, because an offer to rescind was not made to him. Under the circumstances of the case, this agreement, we think, cannot be supported. Huey, in his answer, denies upon information and belief, that Elliott made any fraudulent misrepresentation, insists upon the liability of the complainants to pay their notes, and shows that an offer to rescind would not have been acceded to by him. A court of equity cannot, consistently with its liberal and enlarged views of justice, dismiss the bill for the supposed defect of proof, when it is palpable that a proposition to rescind would be met by a direct refusal, and a resort to another suit similar to the present, would be necessary to give to the complainants what it now appears they are entitled to.

What has been said, will serve as an answer to the argument that the deed should have been tendered to Huey by Davis, and his notes demanded. Davis is the grantee in the deed, and one of the makers of the notes — perhaps as a surety ; but however this may be, he is clearly a proper party. [Chapman v. Chunn, et al., 5 Ala. Rep. 397.]

We have only to add, that the decree of the court of chancery is affirmed.