34 Mo. 354 | Mo. | 1864
delivered the opinion of the court.
This was a suit on a note given by the appellants to- the respondent, for the purchase money of a tract of land sold to the appellants by the respondent, as sheriff of Greene county, under a judgment of the Greene Circuit Court, for partition among the heirs of Larkin Payne, deceased.
The appellants alleged in their answer to the petition the
There is nothing in the answer to show that Daniel Payne, who made the false representations complained of, was in anywise the agent or representative of his co-tenants in or about the sale of the land; nor is there any thing in the relation of co-parceners subsisting between him and his co-heirs, implying an authority in him to affect their interest in the common property by any contract or representation of his. If he was alone concerned in the sale, it would hardly be questioned that the appellants, on the facts alleged, would be entitled to be relieved from the obligation of the contract; but here there are other parties interested in the contract, and in its performance by the appellants, who, it is not pretended, are at all in fault. Shall they be made to suffer loss by a fraud, in the perpetration of which they had no participation ? I think not. I would not say the appellants are without remedy as against Daniel Payne, who committed the fraud; but that his remedy is not the one, in the circumstances of this case, which he has invoked.
As a further ground for the relief asked, it is stated in the answer that the false representations of Payne were made in the presence and hearing of the plaintiff, the sheriff, who-failed to deny or contradict them. It does not appear from any thing in the answer that the sheriff knew any thing about the land, or about the truth or falsity of the representations-of Payne, and if not, ho was, of course, under no obligations to notice the statements.
The court committed no error in striking out the answer, and its judgment will be affirmed.