135 S.E. 606 | W. Va. | 1926
On Feb. 17, 1917, Bailey Mills and wife granted to Joseph Woods and Vina, his wife, thirty acres of land in Wyoming county. On Dec. 30, 1920, John Moran conveyed to Joseph and Vina his right, title and interest in a tract in said county, fully described by metes and bounds, but with no acreage given.
Joseph acquired creditors who impleaded him with the result that his undivided interest in the above lands was sold and conveyed by a commissioner to W. M. Rutherford, by deed dated June 21, 1923. In the commissioner's deed, the Moran tract is referred to as containing twenty acres.
On Aug. 25, 1923, Vina and Joseph conveyed to S.E. Johnson "all their right, title and interest" in the Mills and Moran tracts. The deed recited a cash consideration of $250.00, and reserved a vendor's lien for a further consideration of $650.00, represented by two notes of $325.00 each.
This suit was brought in the circuit court of Wyoming county by Vina Woods against S.E. Johnson to enforce the collection of the two notes.
The defendant's answer alleged misrepresentation and fraud, and prayed for a cancellation of the notes.
Evidence was taken, and upon the hearing, the court was of the opinion that the plaintiff was not entitled to the relief prayed for, cancelled the two notes, and dismissed the cause.
Plaintiff seeks relief from the decree below on the grounds that (1) fraud was insufficiently pleaded in the defendant's answer, (2) the evidence does not sustain the charge of fraud, and (3) the damage to defendant was not shown to equal the amount of the notes.
(a and b) The answer does not contain the averments above referred to. In support of his contention that these allegations are vital, counsel relies mainly upon 12 Rawle C. L. 419-422. On the necessity of an averment of the right to rely, R. C. L. cites Jenkins v. Long (Ind.) 81 Am. Dec. 374, andHooker v. Steel Co. (Ill.) 106 A.S.R. 176. Neither of these two cases supports the text, although such an averment seems necessary under the Indiana statute. Par. 169, p. 422, 12 Rawle C. L. states: "A pleading must show that the complaining party suffered some damage as the result of the alleged fraud." It does not seem to require, however, a specific averment that the pleader is damaged by the fraud. That one has been defrauded, that one had the right to rely upon misrepresentation, and that one has been damaged, are mere conclusions on the part of the pleader. This court has consistently admonished litigants against the pleading of mere conclusions, and has emphasized the necessity of a complete statement of the facts constituting the fraud or misrepresentation. In the early case of Loomis v.Jackson,
Consequently, we cannot hold that the answer was insufficient under our practice, because of lack of the averments specified.
(c) The defendant's case as alleged in her answer is: "on the 25th day of August, 1923, the said J. S. Wood and Vina Wood, his wife * * * approached this defendant and proposed a sale to her of the tract of land, representing to her that they were the absolute owners, in fee, of a fifteen acres tract of land, and on which the residence was situate; that it was unencumbered, and that they had exclusive title to same; and that they made fraudulent representations to this defendant for the purpose of selling her said fifteen acres of land and said residence * * * and went upon the ground and pointed out to this defendant a purported boundary line and stated that they were the absolute owners, in fee, of the land so pointed out by them and on which the residence was situate, and that this defendant, relying upon said promises and representations that they were the exclusive owners of said land, did, on last mentioned date, purchase from them and take their deed for said tract of land * * * Soon thereafter this defendant moved upon said tract of land, it having a comfortable dwelling situate thereon as well as outbuildings, and took possession thereof, and a short time thereafter the said W. M. Rutherford sent this defendant a statement for rent due him on his part of said land, and defendant avers that the first knowledge or information she had that the said J. S. Wood and Vina Wood were not the owners of the entire tract of land with the residence thereon, was when she received the statement for *488 rent from the said Rutherford, and upon failure to pay said rent, as claimed by Rutherford, he took judgment against this defendant in the court of E. E. Cook, a Justice of the Peace of said county, for $90.00, that being the amount of rent which he claimed for his part of said land, being an undivided one-half interest in said tract of land."
The above allegations are sufficiently certain and definite.
The decree complained of is accordingly
Affirmed.