65 So. 986 | Ala. | 1914
Lead Opinion
This amended bill, filed by appellant (a corporation) against appellees, seeks the rescission of a contract of purchase of land, the restoration of the parties to the status quo, and the cancellation of the conveyance made to the corporation. The other theory of the amended bill, which appellant would seem to assert as an alternative, contemplates a reformation of the. conveyance. But this theory is rendered impossible of sanction by the averment of the amended bill whereby the absence of title in the grantors is affirmed. This appeal is from the decree sustaining demurrer to the bill as last amended.'
The basis of complainant’s claim for relief is misrepresentation in respect of one boundary of a plat of land containing one acre. Complainant was and is the proprietor of an area devoted to cemetery purposes. In order to improve the means of ingress and egress therefrom, the company desired to extend its holdings so as to afford a way into the burial ground from a nearby public road, which ran approximately 350 feet from the company’s land. Dinkins, since deceased, and Jackson, Dinkins’ brother-in-law, owned, as we must interpret the bill, an acre of land lying between the company’s property and the public road to which the company desired to approach from its land. It is averred in the bill that, when fully advised of the company’s purpose to secure approach to the public road, the grantors falsely represented, as a fact, that their property would, if purchased by the company, afford the desired means of way from the public road to the company’s property;
“And complainant further avers that at the time of the negotiations leading up to the making of said conveyance to it, or.just prior thereto, and for-the purpose of informing complainant as to their [grantors’] title in said tract, said Jackson and Dinkins furnished -to complainant an abstract of title to said land with which a plat of .said land was also exhibited and appended thereto, and was also furnished to complainant; and it avers that the said plat designated the said tract which was then about to be conveyed to complainant by them as being bounded by or extending up to and along the said public road on the east side of said road, or so very near thereto that by reason of the furnishing of said plat to complainant, and the said fence being along the eastern line or boundary of said road as aforesaid, .and the statements contained in the said conveyance which was executed to complainant, and the representations therein contained, and the representations made to. complainant by said Jackson and Dinkins at and prior to the time of said conveyance as aforesaid, that the land so conveyed, or which at that time was about to be conveyed, to complainant was bounded on the west side by a public road, the remaining of said fence along the boundary of said road as aforesaid, together with the fact that said land was undisturbed by any one claiming a title superior to the title of complainant or other*603 wise as aforesaid, all together lulled complainant into inactivity and the belief that further inquiry as to the true 'location of the western boundary line of the tract so conveyed was entirely unnecessary.”
It is manifest that the alternative averment, which we have italicized, shows no more than that the plat, which was made for the particular purpose, and so ac cepted by complainant, of advising and informing the complainant of the western boundary of said DinkinsJackson plat, pictured that area as extending only very near to said public road, and by necessary implication negativing any basis for conclusion that it extended to said public road. Pleadings are no stronger than their weakest alternative.—Shahan v. Brown, 179 Ala. 425, 60 South. 891, 895, 43 L. R. A. (N. S.) 792; Jordan v. Ala. City Ry. Co., 179 Ala. 291, 60 South. 309, 311; Osborne v. Ala. S. & W. Co., 135 Ala. 571, 33 South. 687.
The result is that the amended bill sets forth a case where the party complaining — -with a view to equitable relief against a consummated contract — was afforded, before concluding the negotiations, ample and particular opportunity to ascertain and to know by mere inspection of a plat, furnished and accepted for the very purpose of informing the complaining party, that the false assertion upon which the complaining party claims to have relied and acted was untrue. So that the familiar doctrine which denies relief in equity because of false representations, where the real truth and fact was open to the unhindered observation of him who complains, or his ignorance (if so) is attributable to his negligent failure to use the means and opportunities in his power to ascertain the facts (N. O. & Ala. C. & M. Co. v. Musgrove, 90 Ala. 428, 7 South. 747; Johnson v. Rogers, 112 Ala. 576, 20 South. 929; Crown v. Carriger
Omitting account of other considerations that might justify the same conclusion on this appeal, the decree must be affirmed.
Affirmed.
Rehearing
ON REHEARING.
While affirming the decree sustaining the demurrer to the bill as last amended upon the consideration stated in the opinion (ante) delivered as from the original submission, the reason leadipg the learned chancellor to the result effected by the decree, viz., laches, cannot be approved. According to the aver
Laches is founded upon acquiescence in the assertion of adverse rights and unreasonable delay, to the prejudice of the adverse party, on complainant’s part in asserting the rights it would vindicate. Acquiescence involves actual or imputable knowledge. If a complainant is ignorant of the facts and of his rights, acquiescence and unreasonable delay cannot- be appealed to to conclude him. In order to leave that effect, the complainant must have knowledge o-f the facts which entitle him to relief, and thereafter manifest a want of diligence in asserting his right.—James v. James, 55 Ala. 525; Haney v. Legg, 129 Ala. 619, 30 South. 34, 87 Am. St. Rep. 81.
It appears from the bill as last amended that the fact that the -plat of land actually purchased did not extend to the public road, so as to afford a way therefrom into the complainant's property, as Dinkins and Jackson are averred to have represented, was not known to the complainant until, at most, eight months before this bill w;as filed to rescind the contract, and that, aside from the death of Dinkins, about fourteen months after the execution of the conveyance in question, “there has been no change of conditions” which would affect or embarrass the process of restoring the parties and the property to the status existing before the conveyance was executed. The averments of the bill as last amended render it impossible of a construction that would impute to the complainant a confirmation of the result of the fraudulent representations alleged, or that would justify the imputation that complainant did anything in respect of the conveyance or the property approaching, even, a waiver of the rights it would now assert, thus exempting the bill from the concluding doctrine stated in Lockwood v. Fitts, 90 Ala. 154, 155, 70 South. 467.
The application for rehearing is denied.
