[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *630 This is an action to rescind a contract made with defendant Mills Land and Water Company whereby plaintiffs agreed for a stipulated sum, payable as therein specified, to buy certain real estate described in said contract, and to recover a cash payment made to said Mills Land and Water Company on account of said purchase; also, to procure the repayment of certain moneys and the surrender and cancellation of certain notes paid to and deposited with defendant, Title Guarantee and Trust Company (a corporation), to be held by it in escrow pending the consummation of such purchase.
The contract was made on July 6, 1905, and the land is described therein as follows:
"All of that certain said property of the party of the first part, being blocks numbered seven (7), eight (8), nine (9), ten (10), and eleven (11), as shown upon the copy of a map hereto attached and marked 'exhibit A,' the said property being more particularly bounded and described as follows, to wit:
"A piece or parcel of land situated in the county of Orange, state of California, and being a portion of section 14, T. 6 S., R. 11 W., S. B. B. and M. Said piece or parcel of land being more particularly described as follows, to wit:
"Beginning at a point 157.8 feet north 53° 06' west of where the east line of section 14 is intersected by a line 30 feet northeasterly from and parallel to that certain strip of land 40 feet in width conveyed by the Stearns Rancho Company and Rob't J. Northam to the Santa Ana Newport *631 Railway Company by deed recorded in book 44 of deeds, records of Orange County, California, at page 66 thereof; thence from said point of beginning north 53° 06' west on a line parallel to and 30 feet northeasterly from the northeasterly line of said strip of land 40 feet in width, 1400 feet to a point; thence south 36° 54' west 270 feet a little more or less to the Pacific Ocean; thence easterly along the Pacific Ocean 1400 feet to a point; thence northeasterly 270 feet a little more or less to the point of beginning.
"The foregoing description to be made more certain by survey of the property to be hereafter had."
The contract called for the payment of $1,000 in cash (which was duly paid), and specified that the balance of the purchase price should be in cash and promissory notes of plaintiffs paid and delivered upon deposit of the contract and necessary instructions and escrow papers with said Title Guarantee and Trust Company. By the contract the Mills Land and Water Company covenanted that it would, on or before six months from the date thereof, convey the property therein described to plaintiffs free and clear of any encumbrances other than as therein mentioned, provided "that in the event for any reason the party of the first part (Mills Land and Water Company) should be unable within six months from the date hereof to furnish the party of the second part a clear title to said property, the party of the second part shall have the option of rescinding his contract and of recovering from the party of the first part all payments with legal interest made hereunder, but the party of the first part shall not be held to any other or further liability in the premises than the return of such payments."
The grounds upon which plaintiffs base their right to a rescission are: First, a partial though substantial failure of consideration; second, that the execution of the contract on their part was procured by false and fraudulent representations made to them by the defendant Mills Land and Water Company as to the quantity of land contained in the tract of real estate so purchased by them, and upon which representations they relied, believing them to be true, and without which they would not have made said purchase.
Both contentions are based upon the alleged fact that the defendant Mills Land and Water Company, prior to the execution of the contract, represented to plaintiffs that the land *632 in question consisted of a tract fourteen hundred feet in length and two hundred and seventy feet in width, which dimensions, a little more or less, were likewise called for and specified in the contract; that as a matter of fact said tract of land so owned by the Mills Land and Water Company, and all which it was able to convey, did not exceed one hundred and seventy feet in width by fourteen hundred feet in length.
The court made its findings of fact, from which, as a conclusion of law, it found that plaintiffs were entitled to take nothing, and thereupon gave judgment for defendants. Plaintiffs appeal from the judgment, and an order denying their motion for a new trial.
The court made findings from which it appears that defendant, Mills Land and Water Company, pending the negotiations which culminated in the making of the written contract to purchase, represented to plaintiffs that it was the owner in fee simple of the unencumbered title to the land in question, which consisted of a tract fourteen hundred feet in length bordering upon the Pacific Ocean, by a width of two hundred and seventy feet, a little more or less. That at the time it made the representations said defendant had knowledge of the fact that the said tract of land which it had agreed to convey was not of the dimensions as represented by it, and said defendant knew it could not convey title thereto. That relying upon said representations, and not otherwise, plaintiffs agreed to purchase said land; that they would not have purchased the same had they known said tract was less than as represented by said defendant. That pursuant to said agreement the parties entered into a written contract wherein said land was particularly described in accordance with the representations as to the area thereof so made by said defendant, to which contract was attached a map upon which was delineated the blocks specified in the general description contained in the contract. That notwithstanding the fact that said defendant had knowledge that said tract of land was less than of the dimensions so represented by it and so specified in said contract, it presented to plaintiffs a certificate of title containing a map falsely showing a tract of land of the dimensions called for in said contract, and by such presentation of such certificate falsely represented to plaintiffs that said tract of land was of the dimensions specified in said contract, and that it had title to and was able to convey the same. The plaintiffs did not learn that the tract of land owned by said defendant *633 and which they agreed to purchase was of less dimensions than as described in the contract until after the execution thereof, and that plaintiffs did not know the dimensions of said tract of land nor anything regarding the dimensions thereof, other than the facts stated to them by said defendant, except the knowledge which plaintiffs obtained by being shown the monuments, physical features and marks upon the ground. It further appears that the tract of land is situate between the Pacific Ocean and the right of way of the Los Angeles Interurban Railway, the line of which right of way was fixed, easily visible and ascertainable, and that upon said land were monuments and marks whereby the boundaries of said tract could be shown or disclosed, and other physical features easily discernible and in plain view, and that plaintiffs prior to the execution of the contract visited the land and were shown the boundaries thereof and had opportunity to observe, measure and ascertain the true dimensions of the tract of land; that there was shown to plaintiffs a map like the one attached to said contract, but said map did not correctly represent the quantity and extent of said land.
Appellants contend that the findings clearly disclose actual fraud on the part of defendant, within the meaning of section
The effect of these findings is that plaintiffs, instead of measuring the land and for themselves ascertaining the dimensions thereof, as they could have done, chose rather to rely upon the representations of defendant in relation to the same. Were they justified in so doing? As the representations were made prior to the transaction and directly related to it, it must be presumed that they were made for the purpose and with the design of inducing plaintiffs to enter into the contract. (Pomeroy's Equity Jurisprudence, sec. 880.) As a general rule, the owner of real estate, in the absence of facts showing the contrary, is presumed to know the boundaries and area of his land, and a buyer is warranted in relying upon his representations in respect to such facts. It is immaterial whether the representations as to area be as to acreage or dimensions.
In the case of Roberts v. French,
In Stevens v. Giddings,
In Lynch v. Mercantile Trust Co., 18 Fed. 486, it is said: "The owner of property, when he sells, is presumed to know whether the representation which he makes about it is true or false, and the positive statement thus made of a material fact, if false, is a fraud in law. A purchaser trusts in the owner's statements, and the law will assume that the owner knows his own property and truly represents it."
In Quarg v. Scher,
In the absence of any inquiry instituted by plaintiffs for the purpose of ascertaining the dimensions of the land, and in the absence of knowledge as to the true dimensions, both of which facts appear from the findings, plaintiffs were warranted in relying upon the representations in that regard made to them by the seller, Mills Land and Water Company. (Wainscott v. Occidental etc. Assn.,
Respondents further insist that the facts disclosed by the map found by the court to have been shown plaintiffs, a copy of which was attached to the contract, were such as to indicate to them as reasonably prudent men that the tract of land was not as represented and described in the contract; that notwithstanding the fraudulent representations, such map and the facts disclosed thereby was a warning which they neglected to heed, and hence they should not afterward be heard to complain, for the reason that their own conduct contributed to the injury. Reference to this map discloses that delineated thereon are blocks 7, 8, 9, 10 and 11, designated in the general description contained in the contract to which it was attached; that these blocks were two hundred and fifty feet in length, measured substantially parallel with the line of the beach, and of a width of one hundred and seventy feet; that they were separated by unmarked spaces (presumably streets) twenty-five feet in width and of a length corresponding with the width of the blocks; that on the ocean side of said blocks was a space of ten feet as indicated, marked "Board walk," between which and the water line was an unmarked space of twenty feet; on the other or land side of said blocks extending the length thereof was a strip of land the width of which was one hundred feet measured from the boundary line of said blocks to a line marked, "Curve to connect proposed right of way," etc. This strip of land fourteen hundred feet in length and one hundred feet in width was *637 designated upon said map as "reserved for right of way for railroads."
In view of the fact that the court found that this map did not correctly describe the land, that it is apparent that the subject of the contract was not five separate and distinct blocks one hundred and seventy feet in width and of an aggregate length of twelve hundred and fifty feet, and that no facts were shown by the map which would indicate that defendant owned less land than as represented, we are unable to find anything in connection therewith calculated to arouse suspicion on the part of plaintiffs as to the falsity of defendant's representations that it did own and was selling to plaintiffs a parcel of land of a width of substantially two hundred and seventy feet; added to which is the fact that this general description by blocks is controlled by the more particular description following, whereby the tract is described by metes and bounds in full accordance with the representations theretofore made.
In support of this contention respondents citeDillman v. Nadlehoffer,
It is true, as contended by respondents, that the courts of this state have said that "the means of knowledge is equivalent to knowledge, and that a party who has the opportunity of knowing the facts constituting the fraud of which he complains cannot be supine and inactive and afterward allege a *638
want of knowledge that arose by reason of his own laches or negligence." (Shain v. Sresovich,
Courts of equity will not withhold relief from parties ignorant of the true condition who, relying upon false representations as to material facts made for the purpose of inducing assent, are thereby inveigled into contracts, upon the ground that there were circumstances calculated to arouse their suspicion and cause an investigation whereby they might have discovered the swindle. The liability of the defendant arises from its own fraud and false representations, and is unaffected by the question of diligence on the part of plaintiffs in availing themselves of the opportunity afforded for determining the size of the tract of land, or their failure to give heed to such warning as the exhibition of the map afforded of defendant's dishonesty. (Bank of Woodland v. Hiatt,
While the findings do not support the judgment rendered by the court in favor of defendants, they are, by reason of the court's failure to find upon a material issue, likewise insufficient to support a judgment for plaintiffs.
The ground upon which the right to rescind is based is two-fold, namely, on account of the fraudulent representations, and for a partial failure of consideration. Fraud, in order to warrant the rescission of a contract, must be accompanied by some appreciable loss or damage; for "courts of justice do not act as mere tribunals of conscience to enforce duties which are purely moral and involving no pecuniary or tangible injury" (Wainscott v. Occidental etc. Assn.,
The line to which the flow of the water reaches at ordinary or neap tide, unaffected by wind or wave, not the line of extreme high tide nor extreme reach of the wash of the waves, constitutes the boundary line between the tract of land in question and the Pacific Ocean. Accepting finding XII, to the effect that defendant is unable to convey more land than the width of one hundred and seventy feet at one end and one hundred and sixty-eight feet at the other end, as a finding of fact and not a conclusion of law, it is nevertheless predicated upon a measurement shown by finding VIII to have been erroneously made, as heretofore stated.
It follows that the judgment and order appealed from must be reversed, and it is so ordered.
Allen, P. J., and Taggart, J., concurred.
A petition for a rehearing of this cause was denied by the district court of appeal on January 30, 1909.