52 So. 737 | Ala. | 1910
The city court of Gadsden, sitting in equity, on the prayer of Brown, decreed the rescission of a deed which Shahan had made to complainant. The deed had been executed and delivered on May 15, 1907, conveying a parcel of land which was described as follows, and not otherwise: “Lot two and lot three, block 542, up to the line of the T. & O. Railroad according to the map of the Attalla Iron & Steel Company in Etowah County, Alabama.” It is agreed that the map referred to was not on record at the time. This, however, is not considered to be of special importance. The averment of the bill is that at and prior to the time of the purchase Shahan, the defendant, pointed out to complainant the boundaries of the lots, and represented that they extended up to the edge of the cross-ties of the Tennessee & Coosa Railroad; that complainant entered into the contract of purchase in reliance upon that representation; and that the fact was that the Anniston & Cincinnati Railroad Company owned a strip of land 25 feet wide lying between the edge of the cross-ties of the Tennessee & Coosa Railroad and the lots sold by defendant to complainant. The substance of the demurrer filed to the bill was twofold: (1) That the representation was not alleged to have been made with intent to deceive. But the representation was of a material fact which affected and influenced the transaction. This being so, it was of no consequence that, as for aught appearing in the bill, it may have been mistakenly made in good faith. The equity of the bill, as
The authority of those cases, cited by appellant, in which the insolvency of the vendor was held to be essential to relief, does not reach the case in hand. Misrepresentation of a material and controlling fact being charged, the solvency of the vendor is of no consequence as affecting the vendee’s right of cancellation upon restoration of the status quo ante. The distinction between the ground of relief here urged and other grounds for rescission is that misrepresentation, amounting to constructive fraud, itself taints and vitiates the contract. Fraud alone is, in equity, sufficient to avoid it. —Garner v. Leverett, 32 Ala. 410.
We think, also, that the chancellor is to he sustained in his conclusion on the facts. Evidently the property was considered valuable because it was supposed to he contiguous to the Tennessee & Coosa Railroad, which would afford shipping facilities for the milling business
Affirmed.