Strickland v. Cantonwine , 140 Va. 193 ( 1924 )

Sims, P.,

after making the foregoing statement, delivered the following opinion of the court:

There are but two questions presented for decision by the assignments of error, which will be disposed of in their order as stated below.

1. Does the preponderance of the evidence clearly and distinctly prove the misrepresentations and fraud and the procurement thereby of the two contracts of purchase and the purchase money from the plaintiff by the defendant, as alleged in the bill?

The question must be answered in the affirmative.

To our minds, the letters from the defendant and his employee, Mrs. Manning, when read in the light of the facts as to the real situation, character and value of the lands involved, as shown by the uncontroverted testimony of the witnesses for the plaintiff, clearly and unmistakably demonstrate that the whole Texas land selling scheme of the defendant, which embraced both sales to the plaintiff, was fraudulent, and skillfully calculated to entrap just such an unwary victim as the plaintiff. Further: These letters are so at variance with the testimony of the defendant, protesting his good faith and his innocence of misrepresentation, that we are of opinion that the learned chancellor who entered the decree under review was abundantly justified in disbelieving his testimony upon the material issues in the cause. Moreover, the testimony of the witnesses for the defendant broke down in the attempt to show that the plaintiff entered into a binding contract for her first purchase before she had the talk with the defendant concerning it. And the testimony of and for the defendant practically sets up no defense to rebut the fraud shown by the plaintiff’s evidence as having induced her second purchase of land, other than the unsustained position that it was but a part of her first purchase, the consummation of which was merely deferred at the suggestion of the defendant, as claimed by him. And finally, the age and situation of the plaintiff, as disclosed by her testimony and also by the testimony of and for the defendant, and the very character of the testimony of the plaintiff, as it appears in her deposition, are all so corroborative of the truth of her testimony upon the material issues, that we are convinced that the conclusion we have reached above— which is the same as that embodied in the decree under review — is correct.

Among the misrepresentations proved in the instant case is the misrepresentation as to the existing character and condition of the land. All the authorities agree that such a misrepresentation, if relied upon— that is to say, if it was the inducing cause of the procurement of the contract in question — will furnish sufficient ground for the rescission of the contract.

There were also, in the instant case, other misrepresentations as to value and expressions of opinion, such as that the land was worth such and such an amount, that it w;as “a good investment,” that it had “good oil prospects” and the like. As a general rule, such representations, even though false, are regarded as matters of opinion and as not furnishing good ground for the rescission of a contract. Where, however, the parties, as shown by the evidence, are not on an equal footing with reference to the subject of the transaction (as where, as in the instant case, one of them has or is presumed to have means of information not equally open to the other), and the party to whom the false representations are made is induced to enter into the contract by reliance on the truth of such representations, such representations, even of such matters of opinion, will be regarded as fraudulent and good ground for rescinding the contract. 26 C. J. 1154, 1158; 12 R. C. L. 381; Grim v. Byrd, 32 Gratt. (73 Va.) 293; Fitzgerald v. Frankel, 109 Va. 603, 64 S. E. 941; Cerriglio v. Pettit, 113 Va. 553, 75 S. E. 303.

Moreover, in such case it is settled, that the buyer of property has the right to rely upon representations made by the seller with reference to the property which from their nature might induce the buyer to enter into the contract on the faith of them, and evidence of the seller, that the purchaser did not rely upon such representations, must be of the clearest and most satisfactory character in order to rebut the inference that the buyer did rely upon such representations. Wilson v. Carpenter, 91 Va. 183, 21 S. E. 243, 50 Am. St. Rep. 824; Fitzgerald v. Frankel, supra (109 Va. 603, 64 S. E. 941).

The defendant claims in his deposition that he had never seen the land; did not himself know its character and condition. But this fact, if true, can avail him nothing. Where one, who is reasonably expected to know, makes a positive representation of a material fact, when he is ignorant whether the fact is true or untrue, and it turns out to be untrue, causing damage to another who in good faith relied upon the representation as true, the injured party is entitled to relief. Grim v. Byrd, supra (32 Gratt. [73 Va.] 295); Wilson v. Carpenter, supra (91 Va. 183, 21 S. E. 243, 50 Am. St. Rep. 824); Spoor v. Tilson, 97 Va. 279, 33 S. E. 609; Lowe v. Trundle, 78 Va. 65; Jordan v. Walker, 115 Va. 109, 78 S. E. 643; Bradley v. Tolson, 117 Va. 467, 85 S. E. 466.

2. Is the deed of the plaintiff, as sole grantor, to the defendant, filed pursuant to the decree under review, sufficient to reinvest the defendant with the legal title to the lands which were conveyed to the plaintiff by the deeds from the defendant, which are rescinded by such decree, in view of the facts which are material upon this question, as they must be taken to be concluded as against the defendant by the pleadings and proof in this cause?

The question must be answered in the affirmative. The answer alleges that the plaintiff informed respondent, before the first purchase of land involved in this cause was made, “that she had married Hamilton,” a man who accompanied her on a previous visit of the plaintiff to the defendant. The defendant in his deposition testifies to the same fact, but adds that the plaintiff, at the same time, told him that “she had gotten rid of him.” That, according to the defendant’s testimony, was in 1918, two years before the first deed involved in this cause was made by the defendant to the plaintiff.

On the cross-examination of the plaintiff she was asked and answered the following questions on the subject of Hamilton and her relations with him at the time of her first and second visits to the defendant, both being prior to the time the deeds involved in this suit were made:

“Q. And you went to Dr. Strickland’s office to see him?

“A. Yes, sir.

“Q. You went there with the man you expected to marry?

“A. With a man named Hamilton.

“Q. You did marry this man Hamilton?

“A. Yes.

“Q. When did you come back to Roanoke again?

“A. After I got rid of Hamilton *

“Q. After you got rid of Hamilton you came to Roanoke again?

“A. Yes, sir; after a good little bit.”

There is in evidence (by whom introduced does not expressly appear in the record before us, so far as we have found, although it does appear that the defendant was questioned about it, on cross-examination, for a different purpose and upon a different subject altogether from the subject under consideration), the check which the plaintiff gave the defendant for the $400.00 consideration for her second purchase of land from him, which, as it is copied in the record, is as follows:

“Roanoke, Va., November 1, 1920. “Colonial Bank and Trust Company,

“Pay to the order of J. T. Strickland..................$400.00

“Four Hundred........................................................Dollars

“Vina Cantonwine,

- “Chg. Aeet. Vina C. Hamilton.”

.Whether the words “chg. acct. Vina C. Hamilton,” appearing under the signature of the plaintiff, were written by her, or were entered as a memorandum by •some official of the bank, does not appear in evidence.

The above mentioned evidence is all of the evidence which appears in the record on the subject of the facts under consideration. It was introduced in pleading and in proof altogether by the defendant, with the exception perhaps of the check mentioned. At most, taken as 'the defendant testified he took it — at its unquestioned face value — such evidence showed affirmatively the pivotal fact that the plaintiff did not have a husband at the time of the conveyance to her from the defendant — that her prior marriage relationship mentioned was ended long prior to the time of such conveyances.

As the defendant introduced this evidence as showing the facts on the subject, which the plaintiff did not controvert, there was no duty resting upon the plaintiff to take any issue thereon, or to introduce any further evidence on the subject. Hence we must consider that the pivotal fact aforesaid must be taken as concluded as aforesaid, as against the defendant, by the pleadings and proof on the subject.

Such being the fact, it is, of course, obvious that the deeds from the defendant to the plaintiff vested no interest whatsoever in any husband of the plaintiff.

The deeds to her having vested the title to the lands in her as a feme sole, the deed from her as a feme sole has conveyed back to the defendant the legal title which he conveyed to her.

Such being our conclusion, it becomes unnecessary for us to deal with the question whether in such a cáseas this (where the lands are in another State) the well settled rule, that where a deed is rescinded for fraud it is abrogated, not partially but completely, and puts an end to all dower or curtesy rights derived thereunder, is or is not applicable.

The decree under review will be affirmed.

Affirmed.