46 Minn. 405 | Minn. | 1891
This is an action to rescind, and to have cancelled, & contract for the sale by the defendant to the plaintiffs of a lot of .land described as “Lot 5 in J. F. Eisenmenger’s Lake Villas,” a platted tract of land in Ramsey county. The ground of the relief sought, and upon which it was granted, was the fraudulent representation of the defendant that the lot contained five acres of land,
It seems to us that, in view of the facts known to both parties, the-evidence did not so clearly establish the fraud as to justify that conclusion. For the present we will disregard the street at the end of' the lot, upon which the lot abuts, but over which the lines of the lot-as platted were not extended. It may be assumed that representations of the area of a lot so abutting might be deemed to have reference to the land within the platted lines of the lot, exclusive of the street. But with respect to Lake View avenue, known to the parties-to have been platted across the lot, the bare representation that the
We have been considering the matter only with reference to the deficiency in the represented area, when the land covered by Lake View avenue is excluded. It is true that, even if the land within the limits of both streets be included, it would be about 8-100 of an acre, less than 5 acres. But we understand the decision under review, as to the fraud of the defendant, to include, as a material feature, the fact that he in effect fraudulently represented the given area of the lot as being exclusive of the land in Lake View avenue, so that the whole area was 62-100 of an acre less than represented. To the extent and in the sense above indicated, we deem the finding erroneous; and it is not to be presumed that the court would have reached the same conclusion as to the fraudulent character of the representations, and as to the relief to be awarded, if the stated amount has been deemed to include the land within Lake View avenue, which would make up the greater part of the alleged’ deficiency. Therefore a new trial should be allowed.
No question has been raised as to the propriety of the kind' of relief granted, if fraud was established, and we have not considered that subject. If on another trial it should be found that the purposes for which the land was bought were such that it was not deemed by the purchaser to be essential that there should be the amount of land represented, it will be worthy of consideration whether the proper remedy for a small deficiency in area should be a rescission of the
Order reversed.