2 Paige Ch. 390 | New York Court of Chancery | 1831
Upon the merits of this case the demurrer cannot be sustained. I am not aware of any case in our own courts, or in England, where the simple suppres-" sion, by the buyer, of a fact which materially enhanced -the value of the property, has been deemed sufficient to set aside the sale, on the ground of fraud. The rule is different where the purchaser applies to a court of equity to enforce the spe-. cific performance of an agreement. In such a case this court will not enforce a specific performance of the contract, if the complainant has intentionally concealed a material fact from the adverse party, the disclosure of which would
From the statement in the bill this case appears to be one of that description. The defendant Palmer had discovered a valuable mine on the lands of Livingston, whjch were then wild and uncultivated and lay remote from the residence of the latter. Knowing that he could not obtain the land if he discovered the fact of the existance of the mine, he does not content himself with making a bargain, in the language of Lord Eldon, at arms length ; but he falsely and fraudulently represents the the land as being of no value except for a sheep pasture, and states that he wants it for that purpose. By this deception the vendor is thrown completely off his guard, and he contracts to sell the land at the usual rate or price, of. rough broken land in that region, instead of directing his agent, near the premises, to enquire and ascertain its true value.
But I think there is an insuperable objection to the complainant’s recovering upon his bill in its present shape. Al-' though the conveyance of the land was obtained by a fraudulent misrepresentation, it was not void. It was- only voidable, at the election of the vendor. And the defendants or some of them were in the actual possession of the premises, claiming title to the same under their deed, at the time of the conveyance to the complainant. The legal title to this property could not pass to the complainant, under that conveyance, while it was thus held adversely. If John Livingston was still living he would be a necessary party to a bill to rescind the sale on the ground of fraud. Since his death, all his heirs at law, or the devisees of this particular part of his estate, are necessary parties. I lay out of question what was 1 said on the argument as to this conveyance to the complainant being in the nature of a testamentary disposition of his property, to carry into effect a previous arrangement. The
The demurrer must therefore be allowed, with liberty to the complainant to amend his bill by making all the heirs at law, or the devisees of John Livingston, parties thereto, on payment of costs. And if he does not amend -within' sixty days, the bill must be dismissed, with costs to the defendants.
It may be proper however to suggest that if the fact is, as stated by the defendant’s counsel, that John Livingston devised no part of this land to the complainant, but that he actually made a -will by which it was devised to other persons, under the general, description of all the residue of his estate, no amendment can help the complainant.
See The King of Spain v. Moichade, 4 Russ. R. 225 ; Cuff v. Platell, id. 242; Makepeace v. Haythorne, id. 244.