Hartley v. Frederick, 67 So. 983

Hartley v. Frederick

67 So. 983 | Ala. | 1915

SOMERVILLE, J.

(1) The hill of complaint alleges with clearness and precision every element of fraud and deceit which is necessary to entitle the complainant to' the relief prayed for.

(2) The demurrant insists, however, that, on the facts shown by the bill, the complainant had no right to accept as true the claim of the respondent J. H. Hartley that he was the owner of the real estate in question by virtue of a deed made to him by his father; that complainant’s intestate had no right to leave it to the complainant; and that the records would verify his statements; in short, that the complainant should have investigated the state of the title for herself, and, failing to do so, cannot complain that she was deceived.

In support of this contention the demurrant cites the following: “It is a general principle, however, that if no confidential relations exist between the parties, and if the facts misrepresented or concealed are not peculiarly within the knowledge of the party charged, and the other party has available means of knowing the truth by the exercise of ordinary prudénce and intelligence, and nothing is said or done to' prevent inquiry by him, he must make use of his means of knowledge or he cannot complain that he was misled.” — 20 Cyc. 32, b.

But the same authority states in the same paragraph that: “The respective character, intelligence, experience, age, and mental and physical condition of the parties are considerations which may vary this rule or render it of small importance.”

*180And further: “On the other hand, if the fact represented is one which is susceptible of accurate knowledge, and the speaker is or may well be presumed to be cognizant thereof, while the other party is ignorant, and the statement is a positive assertion containing nothing so improbable or unreasonable as to put the other party upon further inquiry or give him cause to suspect that it is false, and an investigation would be necessary for him to discover the truth, the statement may be relied on.”

So also the rule requiring investigation does not apply “if any relation of trust or confidence exists between the parties, so that one of them places peculiar reliance in the trustworthiness of the other.”—20 Cyc. 34 (III) .

Specifically, as to the availability of public records to show the true title, the authorities hold without conflict that: “Where the fact represented is one peculiarly within the vendor’s knowledge, and of which the person is ignorant, * * * although the real facts appear on the public records, the purchaser is under no obligation to examine the records, and his failure to do so does not affect his right of action.”—20 Cyc. 57 (2), and cases cited.

With respect to a vendee, as the same authority points out, the tendency of the modern decisions is to relax the requirement of diligence, and to hold that -a vendor guilty of intentional deceit should not be heard to say that the purchaser ought not to have believed him.—20 Cyc. 62 (D). We thoroughly approve of this tendency, and it is as applicable to vendors as to vendees. Indeed, it would seem to be a singular perversion of morals as well as of policy for a court to punish the venial faults of negligence and credulity by confirming a. successful deceiver in the enjoyment of the *181fruits of Ms fraud. We have heretofore expressed our views somewhat forcibly upon this subject, and need not now repeat them.—King v. Livingston Mfg. Co., 180 Ala, 118, 60 South. 148.

From whatever angle this case is viewed, the allegations of fraud and deceit are sufficient.

(3, 4) If it be true, as alleged, that the $4,000 paid to the complainant was received by her from the administrator as an advancement representing the value of the mortgage debts due the estate, she was under no obligation to return that amount to him as a condition to the rescission of her deed. And, even if it were received as a consideration for the deed, it is sufficient, under the circumstances shown, to offer to account for it or to be charged with it as may be equitable. There can be no practical difficulty in this regard.

(5, 6) T. H. Hartley, being a party to and beneficiary under the deed, is obviously a necessary party to the bill of complaint. And, although he does not appear to have actually participated in the fraudulent misrepresentations imputed to his corespondent, yet both in law and in equity he is equally responsible and answerable therefor so long as he stands as a.grantee and beneficiary under the fraudulent deed.—Fowler v. Ala., I. & S. Co., 189 Ala. 31, 66 South. 672.

Upon these considerations, the decree of the chancellor overruling the demurrer will be affirmed.

Affirmed.

Anderson, C. J., and Mayfield and Thomas, JJ., concur.