216 P. 792 | Mont. | 1923
prepared the opinion for the court.
In August, 1912, Annie C. Morehouse, plaintiff herein, and Nicholas 0. Tuttle gave an option to purchase certain lands in Teton county to Thomas 0. Larson. Defendant, Northern Land Company, a corporation, succeeded to the option. Subsequently, in August, 1913, after a protracted series of negotiations, a deed was executed and delivered, whereby plaintiff and Tuttle did “grant, bargain, sell, convey, warrant, and confirm,” unto defendant the land covered by the option. The deed also contained the covenant providing that the grantors “will forever warrant and defend all rights, title, and interest in and to the said premises and the quiet and peaceable possession thereof unto the said party of the second part, its sue
Some time in 1914 the defendant obtained possession of the premises and is now in the possession thereof. Defendant’s proof discloses that plaintiff’s attorney, prior to the delivery of the deed, stated orally that the title was good and that any defects would be remedied. Defendant claims that reliance was placed on these statements. Tuttle was paid off in full, and the major part of the amount due plaintiff was paid. In the meantime an action to quiet title to the lands had been commenced by plaintiff. This action was pending at the time the last note belonging to plaintiff fell due. Defendant refused to pay as long as this action was pending. In some manner which does not definitely appear, this action was disposed of, but in the meantime, defendant having discovered
The trial court found that the plaintiff was, on July 16, 1913, the owner in fee of an undivided three-fourths interest in the premises involved. Error is predicated upon this finding. Defendant also specifies as error the making and entry of judgment for plaintiff, for the reason that it is contended the proof shows that the plaintiff was not the record owner of an undivided three-fourths interest in the lands, that plaintiff had covenanted to give perfect title, and that defendant was induced to accept the deed by the statements of plaintiff’s attorney that the title was good, when in fact it was not and
In our opinion the judgment was correct. The rule which controls this case is found stated in Eawle on Covenants for Title, page 612 et seq. After remarking on the distinction between the rules which govern the relation of vendor and purchaser before and after the execution of the deed, and pointing out that a purchaser under an executory contract of sale may demand a title clear of defects, usually even in the absence of specific covenants therefor, the author says: “But when the deed of conveyance has been delivered, a different rule applies. The contract is then executed, and any inconsistencies between its original terms and those of the deed are, in general, to be explained and governed solely by the latter, into which the former is merged, and by which the parties are thereafter to be bound, and the purchaser’s only right to relief, either at law or in equity, from defects or encumbrances, depends, in the absence of fraud, solely upon the covenants for title which he has received. * * * And it is one of the most settled principles of the law of vendor and purchaser that a purchaser who has received no covenants which cover the defect or encumbrance, can neither detain the purchase money, nor recover it back, if already paid. Unless there has been fraud, he is absolutely without relief, as against his vendor, either at law or in equity.”
Before proceeding further, we point out that this court, in Green v. Balter, 66 Mont. 568, 214 Pac. 88, held that a deed which is not distinguishable from the one at bar in legal effect did not contain a covenant of seisin, and that an action was not maintainable based on defects in the title, without allegations and proof of an eviction, either actual or constructive, by the owner of the paramount title. The record in the instant case is barren of any such allegation or proof.
It is argued, however, that the statements of plaintiff’s counsel that the title was good and that all defects would
In the first place, the testimony discloses that the only statement which was relied on was the attorney’s oral promise to make the title good. If by any construction it can be said that defendant relies on subdivision 4 of section 7480, Revised Codes of 1921, providing that “a promise made without any intention of performing it” is actual fraud, the facts do not bring the ease within that rule, for the plaintiff did proceed to do the things which defendant insists she promised through her attorney to do. Certainly there is no proof that a promise was made without any intention of performing it, and in fact the allegations of the answer do not permit of such contention being made. Furthermore, it is apparent that these conversations between plaintiff’s attorney and the officers of defendant company had reference to the suit to quiet title which was then pending against plaintiff and her co-owner, and nothing more. The negotiations culminated in the collateral written contract by which it was agreed that, in the event the result of that action was to determine that plaintiff and her co-owner were not the owners of the lands involved in that action, defendant would be reimbursed.
In the second place, the proof discloses that the defendant had caused an examination of the title to be made and could have learned of the defects if it did not already know them. The statement of this court in Grinrod v. Anglo-American Bond Co., 34 Mont. 169, 85 Pac. 891, is in point here: “When it appears that a party, who claims to have been deceived to his prejudice, has investigated for himself, or that the means were at hand to ascertain the truth or falsity of any representations made to him, his reliance upon such representations, however false they may have been, affords no ground of complaint.”
While the question was not discussed by counsel we deem it proper to point out that under the provisions of sections 7520 and 10517, Revised Codes of 1921, all oral negotiations were superseded by both the deed and the contemporaneous written contract, and no reliance can be placed thereon as covenants of seisin.
In the light of what has been said, the question as to the nature of the defect in the decree of distribution becomes immaterial.
The same answer may be made to the specification of error based upon the court’s finding that the plaintiff was on July 16, 1913, the owner in fee of an undivided three-fourths interest in the premises involved.
What has been said also disposes of the proposition that the court made no finding upon the counterclaims. In fact it applies to the counterclaim with particular force, since we are doubtful whether in any event the facts alleged were a defense to the action. In our opinion, assuming the correctness of defendant’s other theories, the remedy was either by way of countei’claim or to rescind the contract. This latter remedy was never attempted, nor could it have been successfully invoked under the facts. There was therefore no reversible error committed in not making any finding upon the counterclaims. Any necessary findings pertinent thereto will be implied.
We have examined the specification as to the correctness of the court’s action in granting plaixxtiff additional time within which to offer amendments to the proposed bill of exceptions. Under the provisions of section 9823, Revised Codes of 1921, we think the trial court had the power to extend the time. Possibly the same limitations as are provided by sec
We recommend that the judgment be affirmed.
For the reasons given in the foregoing opinion, the judgment appealed from is affirmed.
.Affirmed,