81 Neb. 754 | Neb. | 1908
The defendants Burke and Campbell were real estate dealers and brokers at Imperial, in Chase county. The
Prior to January 20, 1907, Burke & Campbell, at the request of Rushton’s attorney, sent to him an abstract, which showed the title to the lánd in Pritchard, subject to a mortgage of $1,100. At or before this time Burke & Campbell had taken steps to avail themselves of the option to purchase contained in the lease, and to secure the
Assuming that the failure of the defendants Burke & Campbell to convey this land by a good and sufficient warranty deed at the time such conveyance was demanded of them by the plaintiff entitled the plaintiff to recover the amount paid by his assignor on the contract, it is clear that such action existed only against the defendants Burke & Campbell. They had received the money and made the contract to convey, and the fact that the defendant Carpenter had acted for them as an agent in securing the purchaser or making the sale, and had received compensation therefor, would not make him liable for a return of the money on account of Burke & Campbell’s failure to make the title good. That was their liability alone.
orally. We therefore proceed to examine the question f. to whether any fraud which would entitle the plaintiff’s assignor to avoid the contract is shown by the evidence to have been practiced upon him. In the reply of the plaintiff this fraud is alleged to have been perpetrated by false statements, first, as to the value of the land; and, second, as to the ownership of the same. With reference to the first question there is absolutely no evidence in the record to show that the land was worth less than it was represented to be. Rushton himself saw and examined the land, and in such a case evidence as to false statements of value, which are always largely a matter of opinion, must be very clear in order to avoid the contract.
Upon the question of false representations as to the ownership of the land, it is admitted that the legal title was in Pritchard; that Pritchard had given a lease with an option to the lessee to purchase; and that this lease and right of purchase was held by Burke & Campbell at the time of making the contract. It is conceded that it was valid and enforceable. When one is so situated with reference to a tract of land that he can acquire the title thereto either by the voluntary act of the parties holding the title or by proceedings at law or in equity, he is in a position to make a valid agreement for the sale thereof. Easton v. Montgomery, 90 Cal. 307; Townshend v. Good-fellow, 40 Minn. 312; Dresel v. Jordan, 104 Mass. 407. The contract made by the defendants Burke & Campbell provides that they shall transfer by warranty deed, together with abstract posted to date showing clear title to the land in question. The claim that the defendants represented that the title was in Burke & Campbell is based upon the testimony of Rushton, who states that Carpenter, on the way to Imperial, told him the land was absolutely clear and belonged to Burke & Campbell.
We therefore recommend that the judgment of the district court be reversed and the cause remanded, with instructions to dismiss plaintiff’s petition as to the defendant Carpenter absolutely, and as against Burke and Campbell without prejudice to future action.
Reverse®.
The following opinion on motion for rehearing was filed October 8, 1908. Rehearing denied:
In the motion for a rehearing, exception is taken to so much of our opinion as dismisses the-action, and we are inclined to the belief that this exception is well taken. Our judgment is therefore modified to read, “and the cause is remanded to the district court for further proceedings.”
Motion overruled.