57 Me. 346 | Me. | 1869
This suit is upon a note of .the defendants, the consideration of which is a bond given by the .plaintiff, con
The bond alleges that “ said Freeman Coburn is possessed and seized in fee of a certain tract or parcel of land situated in Greene, aforesaid, bounded as follows,” &c., then giving the boundaries. In fact, however, the plaintiff was not “ possessed and seized in fee ” of the premises contracted to be conveyed, having only a bond from the legal owners, which he permitted to be forfeited before the maturity of the note in suit, but of which he afterwards obtained a renewal. It does not appear that he has now acquired the title.
The defendants seek to avoid their liability, on the ground that the plaintiff was guilty of a fraudulent misrepresentation of his title, by stating that he was “ possessed in fee ” of the premises, when he had no title thereto. A promissory note, founded on the payee’s bond to convey to the promisor land belonging to a third person, is not void for want of consideration. Trask v. Vinson, 20 Pick. 108. It is a promise for a promise, — one being the consideration of the other. “ Whether the contractor would be bound to disclose his want of title, or whether the omission to do so would be such a suppressio veri as would render the contract voidable, are questions,” observes Morton, J., “ which we are not now required to decide.”
A material misrepresentation in reference to the essentials of a contract will justify a party deceived thereby in rescinding the same.
In Trask v. Vinson, supra, the contract was “ executory, and contained no stipulation that the contractor was then seized of the estate.” In the case before us there is the express assertion, that the obligor “ is possessed and seized in fee ” of the land described in the bond.
Now for what were the defendants contracting ? Not for a lawsuit, the result of which might be a sum in damages. The contract was for the land which one was to convey, and for which the defendants were to pay. Whether the obligor had or had not a legal title was material. If he had the title, a court of equity would compel him to convey the premises upon a performance, by the defendants,
The obligor, if he would tender a deed, it must be one conveying the title. To tender one conveying no title would not be deemed a performance. The title is manifestly of the essence of the contract, and a false assertion in relation thereto cannot be deemed other than material. When a vender of an estate had made a fraudulent misrepresentation of the title, the vendee is entitled, in equity, to a rescission of his contract. Harris v. Carter, 3 Stew. 233.
It was not necessary for the defendants to return their bond. They may rely on the misrepresentations of the plaintiff as a defense without returning the bond. Wyman v. Heald, 17 Maine, 329.
Plaintiff nonsuit.