4 Barb. 95 | N.Y. Sup. Ct. | 1848
Parol evidence adduced to rescind a sale of real estate, on the ground of fraud or mistake, where the sale has been consummated by a conveyance, ought not to prevail unless it amounts to strong and conclusive proof. Our laws very properly require that every contract for the sale of any lands, or of any interest in lands, shall be in writing, and that, except
The other charges in the bill are destitute of proof, and no reliance was placed upon them, either by the learned judge at the special term, or the counsel who argued the case in behalf of Mr. Taylor here. If, however, the testimony of Henry A. Ovington is taken in preference to that of his son, there is nothing to establish the charge of fraud against Fleet. He had not resided on the land, but had managed it principally by a farmer who had worked it upon shares. His own place of residence was at Brooklyn, which was some four or five miles distant. True he had owned it several years, and had shared in the rents and profits, and if the difference between the early productiveness of that land, and the lands generally on that end of the island, had been such as essentially to diminish the prof its, it would probably have been known to him. If, however, a few only of the farms in that neighborhood had been so early as to form exceptions in that particular to the land on that end of the island, he might have been ignorant of the fact. The proof is, that although the land in that vicinity extending from the shore to some quarter of a mile in the interior was from a week to ten days earlier, yet that the land in question was early compared with the lands generally on that part of the island. George Pool, who had worked the place from 1837 to 1842, and John Pool, who was head workman for Mr. Taylor from March until August, both give it that character, and there is no witness who differs from them. Taylor, too, was to take immediate possession of the dwelling house, (in August,) agreeably to the contract, and could have easily ascertained the falsity of any deceptive recommendation before the deed was to be given, which was on the first day of the following March. From all this it may be naturally inferred that Fleet did not make- the representations attributed to him, whatever they may have been, in bad faith. Fraud should be clearly proved, not inferred from slight presumptions.'
There can be no doubt that Taylor was disappointed when he found that there was other land which produced earlier
The power of rescinding a sale of real estate is one of the highest attributes of a court of equity. The public good requires that it should be exercised with great caution, and only in cases of extraordinary hardship. The reasons are too obvi
It would be impolitic, and often unjust, to set aside a sale merely because the seller had warmly commended the qualities of the property, and the buyer had been consequently disappointed. The rule in such cases is “ simplex commendatio non obligat.” Purchasers are often, perhaps generally, disappointed in reference to some supposed quality of what they obtain. To allow them to escape from their bargains for such causes would generate great carelessness on their part, and would constitute a fruitful source of litigation. It would create an uncertainty in our sales which, particularly as to those which relate to real estate, would be most mischievous. These considerations should of course apply only to cases free from fraud. Where that exists, the perpetrator should bear all the consequent losses, and the courts should not hesitate to encounter any labor which may be requisite to detect and punish it.
Neither should a sale be vacated by reason of a mistake caused by the representations of the seller, unless the difference between the recommended and actual value of the property should be very considerable. A mere disappointment of the buyer in some unimportant particular, although he may have ■ made it the principal inducement for his purchase, is notl enough. That may sometimes happen without any farther:) injury, and he may yet have the worth of his money. The law does not protect the fanciful, but only the substantial, interests of suitors. The real injury in the case under consideration does not seem to have been very great. The land, it is true, does not produce as early crops as the other shore lands in the same vicinity. The difference in value between the two, for gardening purposes, is variously estimated by the witnesses; some of them say that it is about half, while the others think
The circumstances of this transaction are far from bringing it within the mischiefs proved in the principal cases where sales have been rescinded, by reason of mutual mistakes, by courts of equity. In Bingham v. Bingham, (1 Ves. sen. 127,) the vendee acquired nothing by his deed, he having by mistake purchased his own land. In Stapleton v. Scott, (13 Ves. 425,) the vendors, who acted as executors, had no power to sell. In Hitchcock v. Giddings, (4 Price 135,) the vendor engaged to sell land in which he had no interest whatever. In Champlin v. Laytin, ( 1 Edw. Ch. R. 471; 6 Paige, 189,) the two lots which were conveyed by the deed had been previously dedicated as streets, and the owner was entitled to, and was eventually awarded, only a nominal sum for damages. In Fulton’s Executors v. Rosevelt, (5 John. Ch. Rep. 174; and 2 Cowen’s R. 129,) the purchase was of a coal mine which, as it turned out, was under the bed of a navigable river, and could not be worked. In Stewart v. Andrews, which came before us last January, the deed was for a narrow strip of land in Buffalo, extending from the canal to the lake. It was described in the deed as being bounded on the south by a street 66 feet wide. The land had been purchased for building lots, and was worthless for any other purpose. It was discovered after the sale that the street from the canal to the lake, instead of being 66
There is no comparison between these cases and that now before us. Nor do we see any thing in the evidence which calls upon us to rescind the sale in question.
The decree made at the special term must be reversed with costs. The bill filed by Mr. and Mrs Taylor must be dismissed also with costs. In the other suit a decree may be entered directing a reference to ascertain the amount due, and providing that upon the coming in and confirmation of the report the mortgaged premises shall be sold, to satisfy the amount reported to be due, with the interest and costs.
The justice by whom this cause was decided at the special term, held that the complainant was entitled to relief, on the ground of mistake. The bill, however, seeks relief upon the additional ground of fraud. And the case was pressed upon the argument, and must now be decided, upon both the grounds taken in the bill.
The first question to be considered is, whether the sale was made upon false and fraudulent representations.
There was no dispute upon the argument, as to the law upon this subject, and the question is entirely one of fact. The fraudulent representation alleged in the bill is, that the land was as early if not earlier, than any land on that part of Long Island. The proof of the alleged fraudulent representation, rests upon the testimony of Henry A. Ovington,' the brother-in-law, and William H. Ovington, the nephew of the complainant, each of whom professes to testify to the same conversation.
The last named witness says that the defendant represented that the land in question was as early as any that could be obtained. The other witness says that the defendant stated that there was no earlier land any where about. A question was raised upon the argument, as to what was the meaning of the representation testified to by William H. Ovington. On the
Now, adopting the elevated rule of morality which is laid down in the case of Doggett v. Emmons, (2 Story, 473,) and which was relied upon by the justice who decided this case at the special term, and assuming it to be, as it undoubtedly is, a clear principle of equity that there should be “ the most scrupulous good faith and exalted honesty in every representation made by a vendor as an inducement to the salestill there is another principle of law, equally well settled, that when fraud is charged, it must be clearly and fully substantiated by proof. Dolum non nisiperspicius indiciisprobari convenit. (1 Poth. on Oblig. by Evans, p. 19, n. 30. 1 Story Eq. Juris. § 194.)
Where there is ambiguity -in the meaning of the expression used, how can it be said with certainty that the representation is either false or fraudulent ? And a fortiori, how can fraud be imputed when there is discrepancy and uncertainty in the proof itself? But irrespective of this, and even if it should be admitted that the representation alleged in the bill has been substantially proved, still it seems to me that the testimony does not establish a case of bad faith on the part of the defendant.
The next ground on which the complainant seeks relief is, that there was a mutual mistake as to a material fact.
To a certain extent, the same objection'taken to the insufficiency of the proof to sustain the allegation of fraud, will apply to the testimony which is relied upon to sustain the allegation
To entitle a party to relief in a court of equity, on the ground of mistake, in a case free from fraud, the mistake must be, 1. As to a material fact constituting the very essence and condition of the contract. 2. The mistake must be as to a fact of such a nature, that the party could not by reasonable diligence get know-j ledge of it, when put upon inquiry. (1 Story’s Eq. Jurisp. § 146.)
The fact in reference to which the complainant alleges that he was mistaken in this case, was a peculiar quality of the soil, which would enhance the value of the land in question, for a particular purpose, but which could have no influence upon its value for other or general purposes ; a quality too which, as appears by the testimony, belonged only to a very small strip of land upon that part of Long Island, and which would be affected in some measure by the nature of the season, and the method of cultivation adopted. It might admit of doubt, whether this is a fact of such a character that a court of equity could say, with certainty, that had there been full knowledge on the part of the complainant, he never would have entered into the contract. It appears by the testimony that the land in question was capable of producing early crops ; and it is, to say the least, questionable whether the complainant is entitled to relief because it did not fulfil his very sanguine expectations, in producing the earliest crops that could be produced in that part of Long Island.
The remaining question to be considered, is whether the ; fact in reference to which the complainant alleges that he was / mistaken is not one of which he might have obtained know-I ledge, by reasonable diligence. If it is, it is a fact in reference : to which a court of equity will suppose that he must have had , knowledge, or, as is expressed in the rule of the civil law, which 'is cited with approbation by Justice Story ; knowledge will be imputed to him qui earn rem diligenter inquirendo notam ha-1 here possit. (Story’s Eq. Jurisp. § 146, note 2. Dig. lib. 22, tit 6, 1, 9, § 2. Pothier Pand. lib. 22, tit. 6, § 4, note 11.) A
In this case, if the complainant had considered it so essential to ascertain whether there was any land upon that part of Long Island, capable of producing earlier fruits or vegatables, he could easily have informed himself. But it seems that, instead of using any means to do so, when he inquired of Mr. Beuren, who owned land in the neighborhood, as to the value of the land in question, he did not even make the inquiry as to its quality for producing early crops.
With these views, I am of opinion that the decree made at the special term should be reversed with costs.
McCoun, J. concurred.
Decree reversed.