Mitchell v. Moore , 24 Iowa 394 ( 1868 )

Cole, J.

The plaintiff exchanged his house and lot in Washington, with defendants, for their land in Union county. The defendant T. B. Moore had actual knowledge of the location and quality of the lands, having then recently been upon and examined them. The plaintiff was induced by defendant to make the exchange, relying upon his representations as to the situation, quality and value of the lands. The plaintiff had no knowledge whatever as to them. Shortly after the trade, the plaintiff took a wagon load of his household goods and went from Washington, Iowa, to the-lands in Union county, with the view of settling upon and improving the same; but finding them so materially different from and inferior to the representations by defendant as to them, he returned to Washington and demanded a cancellation of the trade, and offered to surrender the deed and title received by him. The defendant refused, and this suit was- brought.

1. pleading: answer. The plaintiff, his wife and two sons, testify as to the representations by defendant upon which the trade was made. The defendant does not, by his testimony or any other proof, contradict these; but his counsel rely upon his sworn answer, and which they claim has not been overcome by the testimony on the part of plaintiff. Such sworn answer does not make other or greater proof necessary than if the answer was hot verified. Rev. § 2915; Shepard v. Ford, 10 Iowa, 502.

2. contract: land exchange: false representatíons. That the representations were materially false, cannot, under the testimony, be seriously contro- , /» t ** * i • •. % Yerted. Joeing false within the knowledge - y . y * ^ oí the party making them, it amounts to fraud. Holmes v. Clark, 10 Iowa, 423.

3. —- reaciasion: reconvoyance. The plaintiff, upon his return from the lands, tendered back to defendants the deed he had received from them, and which had not been recorded. It is true, . , , , , that such return of the deed would not divest the title which had been conveyed by it. Nicholson v. Halsey et al., 1 Johns. Ch. 417; Blaney v. Hanks, 14 Iowa, 400.

But it is reasonably clear from the proof, that the plaintiff, before bringing this suit, both expressed and manifested his willingness and ability to restore to defendants all he had received frotó them in the exchange, upon having the title to his lot reconveyed to him. This was sufficient, and was refused by defendants.

The counsel for appellants insist, in their argument, that “ plaintiff tenders back $200, but the District Court makes no mention of it in the decree, and it is to be presumed the court did not intend that defendants should have it.” Not so, but being duly tendered, the defendants- would be entitled to it upon performing the condition upon which the tender was made, as the judgment requires them to do. If the money was not, in point of fact, duly tendered and brought into court for the defendants, the District Court will make such orders, as may be necessary to secure its repayment to them.

Affirmed.