59 Kan. 12 | Kan. | 1898
The executors of the will of James M. Gillis, deceased, brought suit in the District Court of Shawnee County against Nelson Giles, jr., D. E. Sowers, and others, to recover judgment on three promissory notes, for $4,000 each, executed by Giles and wife, and to foreclose a mortgage, on a quarter section of land near Topeka, securing the same, executed by the same parties. The petition alleged that the undivided one-eightli of the land had been conveyed to Sowers, and that as a part of the consideration for the conveyance he had assumed the payment of $3000 of the mortgage debt. Parker was not named in the petition as a party to the action. After proceedings not shown by the record, Sowers, by leave of court, filed an amended answer, in -which he alleged that on the second of March, 1887, James M. Gillis, the plaintiff’s testator, was the owner of the land described in the petition ; that Albert Parker represented to Sowers that he had formed, or was forming, a syndicate for the purchase of the land, that it would cost $200 per acre, that that was the price they would be required to pay for it, and that if Sowers would take an interest in the land, he could have it at cost price, and would be admitted “on the ground floor”; that afterwards, Parker caused Gillis to convey the land to E. D. Giles, Parker’s brother-in-law, for a consideration of $24,000 ; that Giles had no interest in the land, but held it in trust for Parker; that Parker afterwards procured from Giles a deed conveying the land to Nelson Giles, Jr., the consideration named in that deed being $32,000; that no actual consideration passed, but that the conveyance was made at Parker's instance, for his benefit, and to aid him in carrying out his purpose to cheat Sowers ; that Nelson Giles, Jr., and his wife, then executed
Many questions are discussed in the briefs,'but as a single proposition is decisive of the case it is unnecessary to consider anything further. There is no averment that Sowers was deceived by anything that Parker said or did as to the quantity, character, or actual value of the land purchased. The claim of fraud is based solely on the proposition that Parker stated that the land had cost him $200 an acre, when it had, in fact, cost him but $150. This is not such a false representation as entitled Sowers to rescind the contract. Holbrook v. Connor, 60 Me. 578; Hemmer v. Cooper, 8 Allen, 334; Cooper v. Lovering, 106 Mass. 77; Tuck v. Downing, 76 Ill. 71; Graffenstein v. Epstein, 23 Kan. 443; Burns v. Mahannah, 39 id. 87, 17 Pac. 319; Elerick v. Reid, 54 id. 579, 38 Pac. 814.
The case was tried under .the claim and on the theory that Sowers purchased his. interest in the land from Parker. If he purchased it at the fixed price of two hundred dollars an acre it is impossible to see how the fact that Parker had bought it at any less
Whether, under pleadings differently framed, Sowers might recover the difference between one hundred and fifty and two hundred dollars per acre, is not before us for consideration; but, at the utmost, under the facts disclosed, he could not claim more than a purchase of the land at the rate of one hundred and fifty dollars an acre. He alleges nothing tending to excuse him from payment at that rate.
The order of the district court is affirmed.