51 Kan. 144 | Kan. | 1893
The opinion of the court was delivered by
This was an action in the court below for fraud and deceit in a land trade. It is contended that the trial court erred in overruling the demurrer of Mrs. R. C. Stevens to the evidence; also, that there is absolutely no evidence whatever upon which to base the verdict returned and the judgment rendered against her. The land traded was the separate property of J. L. Stevens, the husband of Mrs. Stevens. She had no interest therein, excepting as his wife. The patent right owned by Mrs. Allen was transferred to J. L. Stevens, not to Mrs. Stevens. In signing the conveyance of the land to Mrs. Allen, Mrs. Stevens did so as the wife of J. L. Stevens, and for the purpose of transferring or relinquishing her inchoate interest. It appears from the evidence that Mrs. Stevens, in company with her husband, went to the house of Mrs. Allen before the deeds were exchanged, and made statements about the land. Mrs. Allen, however, testified that Mrs. Stevens informed her “she had never seen the land;” that “she made the statements from what her husband had told her about it;” that “she did not know the land herself.” She did not pretend to have any personal knowledge thereof.
It is not necessary, in an action for false representation as to the condition, quality or other matters affecting the value of property, that the person making the representation should derive any benefit from the deceit. But in this case it does not appear that Mrs. Stevens had any knowledge of the falsity of the representation she made, and it further appears that she informed Mrs. Allen that all she said about the land was obtained from her husband, who was present at the interview.
The other errors assigned concern J. L. Stevens, the owner of the land, who made the trade with Mrs. Allen, but none of these alleged errors are sufficient to cause any reversal of the judgment of the trial court against him. Stevens had seen the land, knew its condition, quality, and value. The representations he made were of material facts. Mrs. Allen was induced to trade for the land and pay much more than its value by reason of these false and fraudulent representations. They were evidently made for the purpose of deception, and with full knowledge of their falsity. (DaLee v. Blackburn, supra; Nolan v. Cain, 3 Allen, 263; Brown v. Rice’s Adm’r, 26 Gratt. 467; Hull v. Fields, 76 Va. 607; Busterud v. Farrington, 36 Minn. 320; Grinnell, Deceit, 41-64; Medbury v. Watson, 6 Metc. 246, 39 Am. Dec. 726.)
Under the circumstances of this case, Mrs. Allen was excusable for not verifying the accuracy of the statements made by J. L. Stevens by actual inspection of the land, which was many miles distant from where she resided. (Endsley v. Johns, 120 Ill. 469; Miner v. Medbury, 6 Wis. 295; Kerr, Fraud & M. 80; Hale v. Philbrick, 42 Iowa, 81; Carmichael v. Vandebur, 50 Iowa, 651; The State v. McConkey, 49 id. 499.)
“If a vendor of land makes express representations of title which are fraudulent, and even so appear by the record, he is*150 responsible for the misrepresentations to the vendee.” (Claggett v. Crall, 12 Kas. 393; Bailey v. Smock, 61 Mo. 213; Kiefer v. Rogers, 19 Minn. 32.)
The judgment of the district court against J. L. Stevens will be affirmed, but the judgment against Mrs. Stevens will be reversed, and the cause remanded, with direction that the trial court sustain her demurrer to the evidence, and render judgment in her favor, for the want of any evidence to sustain the judgment.
