90 Ala. 441 | Ala. | 1890
it is well settled, that a fraud committed on a vendee in the sale of land, by the false representations of the vendor affecting the Validity and sufficiency of his title, upon which the vendee had a right to rely, and did rely, and was thereby induced to enter into the contract, authorizes its rescission in equity, and a return of the purchase-money paid. Whether the representation was made with or without the knowledge of its falsity, is immaterial; in either event, the vendor is bound to make reparation for the injury. Neither does the fact that the purchaser has accepted a conveyance, with or without covenants of warranty, deprive him of his right to relief.—Bailey v. Jordan, 32 Ala. 50; Greenlee v. Gaines, 13 Ala. 98; Young v. Harris, 2 Ala. 108 ; Rimer v. Dugan, 39 Miss. 477; s. c., 77 Amer. Dec. 687 ; Diggs v. Kirby, 40 Ark. 420.
It is also insisted, that the bill is defective in failing to show
The right of rescission may be lost, by failure to manifest an election to disaffirm the contract within a reasonable time; and what constitutes a reasonable time must be determined from the circumstances of the case.—Foster v. Gressett, 29 Ala. 393. Undue and unnecessary delay in exercising the power of rescission is regarded as evidence of an election to treat the sale as valid, but is dependent for its weight upon existing circumstances. According to the averments of the bill, the complainants had neither notice nor knowledge of the vendor’s want of title until May 1,1888, and made the offer to rescind November 21, 1888. . Complainants were strangers, and citizens of the State of Georgia, and, in the meantime yellow fever was prevalent in Decatur. Under these circumstances, we can not say that the delay was sufficient to amount to acquiescence in the sale.
It appears that the Decatur Land, Improvement and Furnace Company held a mortgage on the lots, given by Orendorff' to secure a part of the purchase-money due by him to the compány, from whom he purchased the lots. In the contract of sale, complainants assumed to pay the mortgage. It is not averred that the company accepted complainants as their debtor in lieu of Orendorff. The company was in no way connected with the transaction between complainants and Orendorff, and has no interest in the result of the suit, or the relief sought by complainants. If the relief be granted, the rights of the company under the mortgage are in nowise affected. The fact that complainant purchased the property subject to the mortgage, and assumed with Orendorff to pay the same, does not make the company a necessary or proper-party to any litigation between complainants and Orendorff' arising out of their contract, with which the company had no connection.
The decree on the demurrer of Orendorff is affirmed, and reversed as to the demurrer of the Decatur Land, Improvement and Furnace Company.