67 So. 983 | Ala. | 1915
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.”
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
From whatever angle this case is viewed, the allegations of fraud and deceit are sufficient.
Upon these considerations, the decree of the chancellor overruling the demurrer will be affirmed.
Affirmed.