Rimer v. Dugan , 39 Miss. 477 ( 1860 )

Harris, J.,

delivered the opinion of the court:

The complainant filed this bill to rescind a contract for the exchange of lands between himself and defendant, on the ground of false representation of title by the defendant. Upon the final hearing, the bill was dismissed, and this writ of error is prosecuted to revise that decree.

The record discloses the fact that the complainant dealt with the defendant solely and expressly on the faith of his representation that his title to the land, for which the complainant was about to make an exchange with him, was perfect. It further shows that defendant not only knew that complainant relied on his representation alone, but, to assure him of safety in such reliance, further represented to complainant that if his title was not good, he, defendant, would make it' so; and that if complainant ever found a better owner than defendant, that he would cancel the papers without any law about it.

The record further shows that defendant had no title to the land he thus claimed to own, and for which complainant exchanged his land.

It is clear from the record that the complainant acted on the faith of defendant’s representation, and that such representation was false. Whether the false representation was made with a knowledge that it was false, or without a knowledge that it was true, is wholly immaterial. If, knowingly, he represented what was not true, there can be no doubt he should be bound to make reparation. If, without Tcnowing whether his representation was true or not, he took upon himself to make it to complainant, and upon the faith of it complainant acted, he is not less- bound, although he may have been only mistaken, and therefore comparatively innocent. 2 Tucker’s Lect. p. 421, 422, citing 1 Brown’s Ch. C. 546; 6 Ves. 174, 183; 10 Id. 475; 1 Ves. & B. 355; 9 Ves. 21; and see 1 Story Eq. sec. 193; 3 Cranch, 270.

The same doctrine has long been settled in this court. See Parham et al. v. Randolph et al., 4 How. 451; Davidson v. Moss, 5 Id. 684; Hall v. Thompson, 1 S. & M. 485; Clopton et al. v. Cozart et al., 13 Id. 363; Oswald v. McGehee, 28 Miss. R. 340; Lindsey v. Lindsey, 34 Id. 432.

"When the vendee relies on the representations of the vendor, and acts upon the faith thereof, without relying on his own judgment or opinion, and this is known to the vendor, the latter cannot shelter himself under the pretence that his representation was a mere expression of opinion, when it is discovered to be false.

That the complainant may resort to equity for relief against the fraud, instead of relying upon his covenant of warranty, is well settled in this court. Davidson v. Moss, 5 How. 673; Parham et al. v. Randolph et al., 4 Id. 451; English v. Benedict, 25 Miss. R. 167.

Let the decree be reversed, and a decree rendered here cancelling the respective deeds executed by the parties, and also the note executed by complainant to defendant, and further directing writs of possession to be issued by the clerk of the court below.