45 Wash. 98 | Wash. | 1906
-This action was brought to rescind a sale of real estate and to recover back the purchase price, and for damages. The defendants appeal.
The defendants filed a general demurrer to this complaint. This demurrer was overruled, and defendants answered, denying generally all the allegations of the complaint, and alleged
When the answer was filed, the plaintiffs filed a motion for a judgment on the pleadings. The court treated this motion as a general demurrer to, the affirmative defenses, and sustained the demurrer. No other answer was filed. The case was tried upon issues raised by the complaint and the general denials of the answer. The trial court thereupon made findings in substantial conformity to the allegations of the complaint, and entered a decree accordingly. The facts are not brought here. The appellants rely for reversal upon assignments of error based on the overruling of the demurrer to the complaint, and upon the order sustaining the demurrer to the affirmative answer.
Upon the demurrer to the complaint it is argued by appellants that, inasmuch as there are no allegations in the complaint that the representations were knowingly, wilfully and intentionally made, and inasmuch as there is no allegation that the defendants are insolvent or nonresidents of the state, and inasmuch as the complaint shows that the deed from defendants to plaintiffs contained general covenants of title, a court of equity will not assume jurisdiction to rescind the contract, but will leave the plaintiffs to pursue their remedy at law for damages upon the covenants of warranty. It is admitted that the deed above referred to does not describe the land which respondents agreed to purchase and which appellants represented they were selling; but such deed describes only one-half thereof, the other half being left out and an entirely different tract substituted therefor. There is no covenant in the deed that the land shown to the
“ . . . representations Avhich are untrue and which materially affect the value of the property which forms the sub*104 ject of the contract will furnish grounds for a rescission, even though they may not have been made with fraudulent intent. Indeed, the intent of the person making a representation for the purpose of inducing a purchase of property is wholly immaterial. A party selling land or other property must be presumed to know whether the representations made by him are true or false; if he does know them to be false he is guilty of positive fraud, but if he does not know it must be from gross negligence; and false representations which are material, made under such circumstances, although founded on mistake, in contemplation of a court of equity, constitute fraud, and will justify the rescinding of the contract.”
See, also, Friday v. Parkhurst, 13 Wash. 439, 43 Pac. 362; Freeman v. Gloyd, 43 Wash. 607, 86 Pac. 1051; Prewitt v. Trimble, 92 Ky. 176, 17 S. W. 356, 36 Am. St. 586, and authorities therein cited, and note; Wilson v. Carpenter, 91 Va. 183, 21 S. E. 243, 50 Am. St. 824, and note. This being the rule, we are satisfied that the complaint stated a cause of fiction for rescission of the contract based upon fraud, and that the court for that reason properly overruled appellants’ demurrer.
The first affirmative defense substantially admitted the allegations of misrepresentation contained in the complaint, and sought to excuse the same by alleging that the representations were made in the honest belief that appellants owned the land actually pointed out to the respondents, and believed that the description contained in the deed covered that land; but that they learned differently after this action was begun. These allegations amounted to a showing of mutual mistake between the parties, and was therefore no defense to the demand for rescission. 5 Current Law 504, and cases cited. It was not, and is not now, claimed that the appellants were the owners of the land which respondents alleged was the main consideration for the purchase, but it is admitted that appellants were not, and are not, owners thereof. The appellants, therefore, did not have the power
The second affirmative defense was that the respondents, while they had possession of the land or that portion thereof actually conveyed, had negligently permitted certain improvements thereon to deteriorate and become lessened in value, and that said improvements were worth at least $2,300 less than they were when delivered to the respondents. One of the allegations of the complaint was that the respondents had offered to return the original deed which had not been placed of record, and to execute other deeds, and restore the appellants to their original rights in said lands, which appellants refused. These allegations were denied by the general denials in the answer. This second affirmative defense therefore raised no new issue in the case. It was incumbent upon the respondents to prove the facts alleged in the complaint necessary to authorize the court to grant a decree of rescission, among which facts were that the respondents had offered to, and could, place the appellants in the same, or substantially the same, position they were in when the contract of sale was entered into. If the facts alleged in the second affirmative defense were true, they could be proved under the general denial. For this reason the court would have been justified in striking out the second affirmative answer upon motion. The record is not before us, and we do not know whether the court refused to receive evidence upon this question. We must presume that the trial court properly tried all the issues, in the absence of a record showing the contrary. The ruling of the court, therefore, upon the demurrer to the answer was not prejudicial error.
We find no error upon the questions presented and the judgment must be affirmed.
Dunbar, Root, Crow, and Hadley, JJ., concur.