Foster v. Gressett's Heirs

29 Ala. 393 | Ala. | 1856

RIGE, C. J.

A. misrepresentation by the vendor of land, in regard to a material fact, which operated as an inducement to the purchase, upon which the vendee had a right to rely, and by which he was actually deceived and injured, is a fraud, and confers upon him the right to avoid the contract, whether executory or executed. But this right may bo lost by an affirmance of the contract after the discovery of the fraud, or by a failure to manifest the election to disaffirm it within a reasonable time after such discovery ; and what is a reasonable time, must be determined from the circumstances of the particular case. — Galloway v. McElroy, 3 Ala. R. 406 ; Gullurn v. Br. Bank at Mobile, 4 Ala. R. 21; Elliott v. Boaz, 9 Ala. R. 172; Munroe v. Pritchett, 16 Ala. R. 785; Read v. Walker, 18 Ala. R. 323; Smith v. Robertson, 23 Ala. R. 312; Lanier v. Hill, 25 Ala. R. 554; Boyce v. Grundy, 3 Peters, 210; Hitchcock y. Giddings, 4 Price, 135 ; Barnett v. Stanton, 2 Ala. R. 195; Masson v. Bovet, 1 Denio, 69.

We are satisfied that the allegations of the bill in the case at bar, if substantiated, are such as entitle the complainants to the relief sought by them; and that they are substantially established by the evidence.

It is contended, that the relief sought should be denied, on the ground that there has not been sufficient promptness in insisting upon the fraud, nor abandonment of the possession of the land. That position is not defensible under the facts, as we understand them. The land was purchased in August, 1842, by the complainants’ ancestor, who died intestate about eight months thereafter, without having discovered the fraud. One of the heirs was a minor from the time of his death until the filing of the bill. It was filed by the heirs within four years after the purchase, and within one year after the discovery of the fraud. Before the fraud was discovered, the vendor had removed from this State, and about one half of the purchase money had been collected. When the bill was filed, the vendor had no property in this State, and had transferred the note for the unpaid portion of the purchase money to another person, who resided out of the State, and who had recovered judgment at law upon it, and was trying to collect it. Our opinion is, that, under these circumstances, there has been sufficient promptness in insisting on the fraud ; that the retention of the land by the vendee and his heirs was justifiable ; and that as one of the heirs was a minor from the time the vendee died until the bill was filed, and as the heirs could not for that reason have rescinded the contract except by bill and decree in chancery, there was no necessity that an offer to rescind should have been made by the complainants before they filed their bill. The title which had descended to the minor could not by his deed have been divested out of him, and invested in the vendor. To effect that, a decree in chancery was necessary, in the state of things existing when the bill was filed. — Spoor v. Phillips, 27 Ala. Rep. 198; see authorities cited supra.

As the defrauded vendee and his heirs, under the eircum stances appearing in this case, were entitled to retain and cultivate the land up to the final decree, as an indemnity pro tanto, it is but equitable that they should be permitted to keep it in tenantablc condition, and should have a fair allowance for any improvements made by them upon it, “ which were absolutely necessary to render the possession of the land beneficial and profitable, such as necessary fencing, and all indispensable buildings on a plantation”, whether made before or after the filing of the bill. It is equally equitable, that they should not only be charged with the rents, but also with any deterioration of the value of the land .which accrued by “ their injurious or injudicious cultivation of it.” They are also clearly entitled to an allowance for the purchase money paid by them, and interest thereon from the time of its payment.

The overruling of some of the exceptions of the appellant to the several reports of the master may well be justified on the single ground of their generality. — Boyall v. McKenzie, 25 Ala. R. 363 ; Brady v. O’Brien, 28 Ala. R. We do not feel bound no notice any exceptions to the reports, except those which point to the particular item or matter objected to. And confining our attention to them, and noticing the fact that the allowance for improvements' does not exceed the rents, our conclusion is, that they do not disclose any violation of the plain and just rules above stated by us, for taking the account in such cases as the present. So far as they complain of the action of the master, we feel warranted in saying that, giving them due consideration, the result attained by the master is not affirmatively shown to be injurious to the appellant. If error exists, it is not disclosed to us in such manner as authorizes us to declare its existence and apply a corrective.

After having ascertained the amount for which the fraudulent vendor was liable to the heirs of the defrauded vendee, the chancellor was authorized to enforce its páyment in the mode adopted in his decree.

The decree is affirmed, at the costs of the appellant.