Gilfillen v. Moorhead

Hall, J.

The defendants—one of whom was a real estate dealer in whose hands had been placed to be sold, for $4,500, a tract of land 100 feet on Norton Street—falsely represented to the plaintiff that the owner, Mrs. Hatch, had sold to Donnelly, the other defendant, 45 feet of said tract, that he had paid her $1,000 therefor, and that she asked $4,500 for the remaining 55 feet. Believing said statements the plaintiff paid $4,500 for said tract of 55 feet on Norton Street, and after-wards, on the same day and without having received any further consideration therefor, Mrs. Hatch conveyed to said Donnelly the remaining 45 feet. '

It is urged that these facts, which are more fully set forth in the complaint demurred to, give to the plaintiff either a right of action at law for damages, or a right in equity to the 45 feet of land held by the defendant Donnelly.

The averments of the complaint wholly fail to show that the defendants made any such representations‘regarding the value of the land conveyed to this plaintiff, or regarding the particular land or quantity of land to be conveyed to him for the price paid, as entitles him to a judgment for damages.

If it could be said that the complaint alleges that the defendants represented the value of the 55-foot tract to be $4,500, and that they made such representation of value under circumstances which entitled the plaintiff to rely upon it, it is not alleged that the 55-foot tract conveyed to the plaintiff was not of that value, nor is it in any manner alleged that the plaintiff suffered any damage from such representation. And again, although it appears that the defendants were authorized by Mrs. Hatch to sell the entire 100 feet for $4,500, and although it appears that the rules of fair and honorable dealing required them to sell said entire tract to the plaintiff for the price paid, yet it is not alleged that the defendants undertook to sell the plaintiff the 100 feet for the price paid, or that they induced or attempted to induce the plaintiff to believe that he was to receive any more than the 55 feet which was deeded to him, or that the plaintiff at any time supposed that the 45 feet conveyed to Donnelly was to be included in the land purchased by himself.

The real deception practiced by the defendants upon the plaintiff was in inducing him to pay $4,500 for the 55 feet of land, by fraudulently concealing the fact that they were authorized to sell the entire 100 feet for that price, and falsely representing that the owner demanded that price for the 55 feet; while they apparently practiced a further deception upon Mrs. Hatch, by inducing her to believe that the $4,500 was paid for the tracts conveyed by the two deeds. But as it appears that the plaintiff received a conveyance of all the land he bargained for, and as it does not appear that its value was less than the price paid by him for it, he has no right of action at law for damages for the deceit practiced upon him.

The facts alleged do not show an equitable right in the plaintiff to the 45 feet of land conveyed by Mrs. Hatch to Donnelly.

The plaintiff insists that he is entitled to this land upon the ground that he paid for it, and that it appears by an allegation of the complaint that “he paid the entire purchase price for both tracts of land ” described in the two deeds; and he claims that Donnelly should therefore be treated as holding the 45 feet in trust for him.

It does not appear from the allegations of the complaint that the plaintiff has paid for the land conveyed to Donnelly. That he did not in fact pay for that land, and that the particular averment quoted is but a statement of a claimed conclusion from other facts alleged, is shown by the allegation in the last paragraph of the complaint, that the plaintiff did not learn “ that he had paid the purchase price of said entire tract of land until long after the execution of said deeds.” It appears from the allegation of the complaint that nothing has been paid, either by the plaintiff or the defendants, for the land conveyed to Donnelly, and it is consistent with such allegations that that tract was procured to be conveyed to Donelly by the fraud of the defendants in falsely representing to Mrs. Hatch that the §4,500, which was in fact paid for the 55-foot tract, was paid for the land described in the two deeds. We think it is evident from the language of the complaint that the plaintiff paid the §4,500 for the 55-foot tract only, that he did not intend to purchase the 45-foot tract and that he has not paid for it, and that Donnelly cannot, therefore, properly be regarded as holding it in trust for the plaintiff.

Had Mrs. Hatch not deeded the 45 feet to Donnelly, equity would not have compelled her to convey it to the plaintiff because the defendants had sold him the 55 feet for the price for which she had offered to sell, and instructed the defendants to sell, the 100 feet. If Mrs. Hatch, with a knowledge of the facts, has voluntarily conveyed the 45 feet to Donnelly, the plaintiff has no greater right against him than he would have had against Mrs. Hatch had no conveyance been made to Donnelly. If, however, the defendants have procured the 45 feet to be conveyed to Donnelly by fraudulently representing to Mrs. Hatch that the §4,500 was paid for the entire 100 feet, she, rather than the plaintiff, is equitably entitled. to the 45 feet so conveyed to Donnelly.

There is no error.

In this opinion the other judges concurred.