58 P. 767 | Or. | 1899
after stating the facts, delivered the opinion of the court.
The facts of the case do not call for a discussion of the question as to whether, under the doctrine of caveat emptor, which applies to all execution sales, a plaintiff who purchases under an execution issued on a judgment in his favor is entitled, in the absence of fraud, after the sale has been confirmed and a sheriff’s deed made, to have it and the satisfaction of the judgment set aside, and a new execution issued, where the defendant had no interest whatever in the property purchased by him. Upon this point the authorities are quite evenly divided, and, Mr. Freeman says, clearly irreconcilable. But, even in states holding the affirmative of the proposition, a sale will not be set aside if the defendant had, in fact, some interest in the property sold, although the plaintiff may have been mistaken as to the extent thereof: 2 Freeman, Judg. § 478; Holtzinger v. Edwards, 51 Iowa, 383 (1 N. W. 600); Gonce v. McCoy, 101 Tenn. 587 (70 Am. St. Rep. 714, 49 S. W. 754). It is admitted that Mrs. Bryan had an interest in the property purchased by the plaintiff at the time of the sale, and therefore, under the rule referred to, the plaintiff cannot, in the absence of fraud, have the sale vacated because she was mistaken as to the quality of such interest. Nor, indeed, is there any contention that she is entitled to the relief sought on account of the failure of title, but she grounds her right entirely upon what she claims to have been the fraudulent misrepresentation of the judgment debtor concerning her title to the property. But we do not think she is entitled to relief upon that ground, because it does not appear, either from the allegations of the petition or the findings of the court, that at the time Mrs. Bryan made the representations she knew them to be false, or that
Again, it is doubtful from the findings whether, if the representations had been false and fraudulent to the knowledge of Mrs. Bryan, the plaintiff would be entitled to relief, because it is uncertain whether they were relied upon by her. It is elementary law that false representations, made by one party to another, will not be sufficient ground for relief at law unless it is shown that the party complaining relied upon such representations, and was thereby misled: Dunning v. Cresson, 6 Or. 241. The finding of fact is that the “plaintiff relied partly on the said representations of Mrs. Bryan and believed them to be true, partly on her own investigation, and partly on the representations of other persons, and supposed said Mary Bryan was, at the time of the levy and sale, the owner in severalty of three or four acres in said Robinson donation land claim and other tracts in said donation land claim sufficient to satisfy said execution.” There is no finding that the plaintiff was induced to make the purchase.by reason of Mrs. Bryan’s representations. It is admitted that she did have an interest in the land sold, and it is quite, probable the plaintiff, upon an investigation for herself, believed that this interest was sufficient to satisfy the execution. And, while it is not necessary for us to put the case upon that ground, it is very doubtful whether this finding would be sufficient to support
Reversed.
