Dean v. Oliver , 131 Ala. 634 ( 1901 )

HARALSON, J.

The bill .is not filed to enforce a vendor’s lien, to compel payment of unpaid purchase price of land which had been conveyed, nor to remove another deed as a cloud on 'Complainant’s title, but, from its frame and prayer it is one for the rescission of complainant’s own deed to defendant’s intestate, A. W. Oliver, on account of the fraud alleged in its procurement. . .

In B. W. & E. Co. v. E. L. Co., 93 Ala. 549, .it is said: “A promise, strictly speaking, is not a representation. The failure to make it good may give a cause of‘action, but it is not a false representation, which will authorize" the rescission of a contract. * ..The.making of a promise, and having no intention, at the time of performing it, constitutes a fraud for which a contract may be rescinded.” .It .was evidently under .this authority that complainant,. who had originally alleged' no fraud, amended his bill to meet demurrer on that; ground, alleging that “said A. -W. Oliver, at the time.he made said pormise [to convey 20 acre® of land of .his own to complainant as a consideration for the. conveyance of said 10 acres by complainant to him], had no intention of performing said promise, and no part of-said promise has been performed.”- — Baker v. Maxwell, 99 Ala. 558; Manning v. Pippen, 95 Ala. 537. In the latter case, the principle was announced, that if a person procures the execution of a conveyance of land by promising to devise the land by will to the grantor, having at the time no intention to do so, and afterwards die® intestate,- the fraud will vitiate the transaction and a court -of equity will grant relief against the conveyance; but the fraud must he established by clear and convincing evidence, and relief must be sought seasonably after the discovery of the fraud. Equity in such a case, to accomplish its ends, declares the grantee to- be a trustee ex maleficio, ancl will devest tlie title for the-fraud in procuring it. Manning v. Pippen, 86 Ala. 357.

The right to rescind -a -contract because of fraud or 'fraudulent representations, to be available, must be asserted with promptness. He who would rescind must act promptly, both to ascertain the fraud, and in the assertion of his right to rescind. There must be no unnecessary -delay as to either. — Allgood v. Bank of Piedmont, 115 Ala. 418; Coleman v. Bank, 115 Ala. 307.

Here, at the time of the alleged -trade for the exchange of lands, as the 'bill shows, the complainant executed his deed ito Oliver, and delivered possession to him contemporaneously with the delivery of the deed. Why the purchaser, Oliver, did not convey the 20 acres to complainant agreed to be conveyed by him, in exchange of lands, and as consideration for the conveyance he received, is not shown; nor is it shown that complainant, in the lifetime of Oliver, — who died in July, 1897, about two years and eight- months after the trade between them, — ever requested said Oliver to execute a conveyance t-o him, or that he ever refused to do so.

It further appears, that the defendant, Dean, was duly appointed administrator of the estate of said Oliver, on the 24th August, 1897, and, afterwards, proceeded in the. probate court to have the lands of his intestate, including the ten acres mentioned in the bill, ■sold for the payment of the debts of the deceased, and on the 12th of November, 1898, they were -sold for that purpose under the orders of said court, at which sale, the defendant, J. T. Blackburn, became the purchaser of said land under said decree. It' does not appear, that prior to the day of said sale, the complainant had ever made known to the administrator, Dean, that he had ■ any claim to said land, nor that he offered in any way to him, to rescind the sale, bjr which Dean’s intestate ■procured title -to the same from complainant.. On the day of sale, all that is shown that complainant did, was to give notice,, that he owned and was in possession of said land, and whoever purchased it would buy a law suit. He did not, then, make known his rights to the land, except in the general way that he owned it, nor did lie, on the 'occasion, make known his alleged right to rescission of hi® trade with Oliver, on account of the alleged fraud the latter had practiced on him; and this was over 'four years after the date of his conveyance to the deceased. Prior to that date, it does not appear, that Dean, the administrator, ever had any knowledge or actual notice, that complainant set up any claim to the land in question.

The complainant does not allege when be first ascertained that Dean’s intestate, at the time he received from him said conveyance to the land in question, had no intention to execute a deed to complainant to the 20 acres he promised to convey. Nothing besides the bald averment, that at the time he made said promise he had no intention .of performing it, appears. Under all these conditions the complainant has failed to make it appear That he acted with reasonable diligence to ascertain the alleged fraud, and to avail himself of a rescission in consequence of it. — Authorities supra.

From the averment of facts, the bill fails on its face to show equity, and it being manifest from what appears that the complainant is not entitled to equitable relief, the motion to dismiss on that ground should have been sustained. A decree will be here ¡rendered reversing the decree, below and dismissing the bill for want of equity. — Blackburn v. Fitzgerald, 130 Ala. 584.

Reversed and rendered.