137 Ala. 214 | Ala. | 1902
It inay be conceded that the mortgage sought to be foreclosed by the. bill was invalid and yet, the decree of the chancellor • declaring a vendor’s lien in favor of the complainant under .the general prayer for relief, upon the facts averred, was .entirely correct, unless the defenses set up in the answer and cross-bill can be held to bar the recovery. — Joseph v. Decatur Land, Imp. & F. Co., 102 Ala. 346. Only one of these defenses is insisted upon here. It is the one predicated upon misrepresentations inducing the respondent to purchase the lands. If it be conceded that this defense is properly alleged in answer, which is made •a cross-bill, and that, the evidence is clear and convincing on that point, yet, after respondent obtained knowledge of the fraud or became informed of facts and circumstances from which such knowledge would be imputed to it, a delay in instituting judicial proceedings for relief will be regarded as an acquiesence and is a bar to any equitable remedy. This upon the principle that “the. person who has been misled is required, as soon as he learns the truth, with all reasonable diligence to disaffirm the contract or abandon the transaction and give the other party an opportunity of rescinding it, and of restoring both of them 'to their-original position. He is not allowed to* go on and derive all possible benefits from the transaction and then claim, to be relieved from his own obligations by a rescission or a refusal to perform on his own part. If after discovering the untruth of the representations, he conducts himself with reference to the transaction
We have but to apply this principle to the facts of this case 'to see that the respondent waived any and all benefits of and relief from the misrepresentations, if they were in fact made and relied upon as an inducement to the purchase. On this point the facts are undisputed, that after the respondent acquired the deed in January, 1899, to the land, it, by and through its officers and agents, went immediately into the possession of the property and began mining ore from it. The evidence shows further, ¿s said by counsel for appellant, that after six months spent in developing it at a cost of over $16,000 “in a vain attempt to find gold in paying quantities,” the respondent only found the amount of $194. This result, it would seem, would be sufficient without more, to have convinced the respondents that the representations, which are claimed to have been made and acted upon, were false, and imposed upon it the duty of repudiating the transaction and of not conducting itself with reference to it as though it. was subsisting and binding. But this it did not do. It continued to use the property as its own and as was stated by appellant’s counsel placed upon it all modern improvements, including a chlorinating plant, at an additional cost of $15,000 and with this improved machinery another effort was made to find gold in paying quantities, only to result in failure. Furthermore, after acquiring all this knowledge, in a practical way, that the ores did not possess the gold bearing qualities, which it is contended the complainant represented them to possess and which it is asserted induced the purchase, the respondent remained ,in..possession of the property exercising.acts of ownership over it .and dealing with it as its own until it was dispossessed by.the complainant in July, 1900. . And it was not until the. answer and cross-bill was filed (December 6,. 1900) in the cause, that any attempt was
Affirmed.
