Alexander v. Beresford

27 Miss. 747 | Miss. | 1854

Mr. Justice Fisher

delivered the opinion of the court.

The appellees filed this bill in the superior court of chancery for the purpose of obtaining a decree, rescinding a contract made by them with the appellant for the purchase of a certain tract of land in Rankin county, on the ground of fraud alleged to have been practised by the appellant in making said sale.

The land is situate near the bank of Pearl River, and is, according to the allegations of the bill, the admissions of the answer, and the proof in the cause, subject to overflow from the waters of said river during ordinary or annual freshets.

The bill alleges that the purchasers in making said trade trusted to the truth of the statements made by the appellant respecting said overflow; that when interrogated on this subject, he stated that the land was above the influence of the waters of said river, and had never been inundated within his knowledge; that the purchase was made in the month of November, when the river was very low, and when the purchasers could ascertain nothing from appearances as to the land’s being subject to overflow.

The answer admits that the land is liable to overflow as charged in the bill; but denies that the complainants made any inquiries on the subject, or that the appellant made any false .or fraudulent statements relative to the same.

The first witness examined on behalf of the complainants, proves that he was present with W. F. Beresford, when the cleared land was partially examined by the purchaser; that the witness himself, in the presence of Beresford, asked the appellant the question, whether the land, which they were then examining, was subject to overflow; when the appellant replied, only from the backwater coming into a certain bayou; the appellant on this occasion represented the land to be good and valuable for agricultural purposes; the answer and the proof show very clearly that the appellant was not, at the time of the sale, ignorant of the true condition of the land. But it is said that he concealed nothing, because he was not requested by the purchaser to make any disclosures. The statement to the witness in the presence of the purchaser, was equivalent to a statement to the purchaser himself. This was, to say the least, in effect a clear declaration that the tract of land was only liable to overflow from the backwater, which he averred at the time produced no injury to the land, and remained on it only a few days at a time. The whole testimony, when properly considered, in our opinion fully establishes the fraud.

No objection is made to the interlocutory or final decree; and we have nothing to do, therefore, but to affirm the decree of the chancellor.