| Miss. Ct. App. | Oct 15, 1852
delivered the opinion of the court.
The appellee filed his petition in the probate court of Tishamingo county, against William L. Duncan, as administrator of the estate of Horace Warren, deceased, to compel the said administrator to make the petitioner a title to certain lands situated in said county, and which the intestate, by his title bond, executed in 1841, covenanted to convey to the petitioner.
The answer of the administrator sets forth, that the petitioner practised a fraud on the intestate in making payment for said lands, by transferring to him certain claims, which he represented to be valid, on the post-office department of the United States, when, in truth, said claims were wholly worthless, and have never been allowed by the department.
The‘petitioner by his replication, admits that he made the payment in said claims, but says that the petitioner was to lake them at his own risk. The replication further alleges, that petitioner paid more than the land was worth, as an inducement for the intestate to assume all the risk in obtaining an allowance by the post-office department in payment of said claims.
In this state of the case, an application was made to the probate court for an issue, to be sent to the circuit court of said county, to be tried by a jury therein. The record, as to the action of the court on this application, is entirely silent.
The administrator presented an amended answer, setting forth that he had sold the said land, as administrator, in 1850, under an order of said court, which answer was by the court
The question for decision is, whether under the facts recited this order is erroneous ?
The statute says, that if the court shall find that the sale was fairly made, they shall order the administrator, &c. to make title according to the tenor of the bond or other written agreement. Plutch. Code, 671.
That which both parties have assented to must be regarded as a fair contract. "When one party assents to a contract, relying upon representations made by the other, all must understand that the assent is given upon condition that the representations are true. If the representations thus made to procure the party’s assent turn out to be untrue, then it may be said, that such assent was fraudulently obtained; in which event this part of the contract will be voidable, at the option of the injured party.
The question, therefore, presented by the first answer of the administrator, was, whether the vendor’s assent to take the claims on the post-office department was fraudulently obtained ? If so, they would not be regarded in law as a payment for the land. This answer presented a proper question to be tided by a jury; and, in our opinion, the court should have granted the issue as prayed for.
The case presented by the second answer is, that the administrator had sold the land under an order of the probate court, before the petition was filed. Whether the purchaser at this sale acquired a good title, is a question of fact, whether such purchaser had notice of the petitioner’s equitable title. Under the state of facts presented by this answer, the petitioner’s remedy would certainly be more complete by bill in equity against all parties concerned, as the probate court can take no jurisdiction over any, except the parties to the bond, their executors or administrators. The statute is silent as to maldng the heirs parties.
Believing that the court should have granted the issue to a jury, we reverse the decree, and remand the cause, leaving the party to his option as to his remedy in equity.