Bell v. Henderson

Opinion of the court by

Turner, Justice.

The principles of this case have been settled in several which preceded it in ora courts. The case of Anderson &c. v. Burnett, 5 How. 165, is similar to this, and rose from a like contract — the sale of lots in the town of Aberdeen, on the Tombigbee river. It is true, that was a case at law — this in chancery; and the question here is, on a general demurrer to the complainant’s bill seeking relief against a judgment at law on a note given for the purchase money; whether the facts stated show a want of consideration or fraud practiced by the defendants on the plaintiff.

The vendors of the lots were trustees of the town of Aberdeen, and sold under an advertisement, at public auction, the lot in question; took notes for the purchase money, and gave bond to make titles after the payment thereof. The purchase money has not been paid, and no eviction averred. The complainants are therefore not entitled to relief on that ground.

As to the charge of fraud and trick, the facts set forth do not sustain it. It is not sufficient merely to charge fraud. The facts stated must show a fraudulent intent. There was nothing stated in the advertisement to induce purchases, but what every man was capable of judging for himself. Whether there was such a town, with five hundred inhabitants, at the head of steamboat navigation, with a fair prospect of a railroad from thence to Pontotoc, the vendee could ascertain and know as well as the trustees. The publicity of the facts, by advertisement published, no doubt, far and wide, was intended and calculated to draw public attention to this town and its future prospects; to excite inquiry, and full canvass, for days and weeks before the sale; and the probability is, that the purchaser calculated that he was making a profitable-speculation in embarking, with others, in rearing up a new town in that part of the state.

The decree of the chancellor must be affirmed.