Crislip, Guardian, &c, v. Cain.

Decision Date22 April 1882
Citation19 W.Va. 438
CourtWest Virginia Supreme Court
PartiesCrislip, Guardian, &c, v. Cain.

1. If in a chancery cause land has been sold, and a sale confirmed, and a ruleissued against the'purchaser to show why the land should not be resold, to which rule the purchaser answers, and the evidence to overrule and support his answer is all taken, and the plaintiff in the original cause then dies, and the court, the original cause not having been revived, enters a decree on the proceedings under the rule, Held:

The court had jurisdiction to render such decree. (p. 457.)

2. Exception to a commissioner's report has to be of the nature of a specia demurrer; and if the report is erroneous, the party complaining of the report or excepting thereto must in his exceptions point out the errors with reasonable certainty, so as to direct the mind of the court to them; and when he does so, the parts not excepted to are admitted to be correct not only as regards the principles but as relates to the evidence, on which they are based. (p. 458.)

3.If lands be sold under direction of a court of chancery by certain metes and bounds by a widow as guardian of her infant children, who own the land subject to the widow's right of dower therein, and she conveys their interest as well as her own designating the boundaries of the land and warranting the title, and she having shown to the purchaser before the sale the tract offered to be sold, and he is put in possession and enjoys without controversy all the land so shown him, the title thereto being per feet, but it turns out. that the boundaries set out in the deed include land not shown to the purchaser, and never held or claimed by the vendor, or those under whom she claims, the court by a rule in said cause may properly require the purchaser to pay the whole of the pnrchase-money without allowing him any abatement for the land, which was not shown him, but which is within the boundaries specified in his deed, and to which his title is worthless. (p. 459.)

4. a special commissioner is by consent of parties appointed by a chancery court to make report on certain matters in controversy in the cause. The report of such commissioner may be set aside by the court for causes, which would justify the court in setting; aside the report of a general commissioner on the subject, who has without the consent of parties been directed to make the report; such special commissioner is not to be regarded as an arbitrator chosen by the parties, nor his report as an award. (p. 462.)

5. When a party has been guilty of a fraud in making a contract with another, a court of equity at the instance of the party defrauded may set aside the contract or may award to the party defrauded a compensation for the injury inflicted by way of abatement from what may be due to the other party, provided the amount of such abatement can be ascertained with certainty by fixed rules; but if the nature of the fraud is such, that the injury done to the party defrauded cannot be definitely ascertained by any fixed rule but is in the nature of unliquidated damages, the court of equity has no jurisdiction to make such abatement, but the party injured should be left to his action of deceit at law. (p. 464.)

6. Fraud is usually shown by either establishing a suggestio falsi or a suppres- sio veri. A suggestio falsi or misrepresentation, in order to amount to fraud, must not be about a trifling or immaterial thing, but must be material and not vague and inconclusive in its nature, and must not be a mere matter of opinion or about a fact equally open to the enquiry of either party, and in regard to which neither could be presumed to trust the other; and when the misrepresentation is material and not vague, in order to amount to fraud, it must have been actually relied upon by the other party, who must have been misled by it to his injury to do or agree to do that, which he would not otherwise have done or agreed to do. (p. 464.)

7.If a party to a contract makes a statement of a material fact not on his own knowledge but on information, and if either from the express declaration of the party or from the nature of the fact stated the othor party understands, that the fact is stated on information and not on knowledge, the party cannot be guilty of fraud, if he had reason to believe and did believe his statement to be true, though it turned out to be untrue, and though the other party did rely on it, and was by it misled to his injury. (pp. 468, 471.)

8. But if a party to a contract makes a statement of a material fact, when he has no personal knowledge of the fact and no real information on the subject, or if he makes a statement of such a fact as made on his own personal knowledge, when he really has no such personal knowledge but has information on the subject, which he believes to be reliable, he is still responsible as for a fraud, if the other party relied upon his statement, and was thereby misled to his injury; and a statement will be regarded as thus made on tbe personal knowledge of the party, though he does not say so expressly, if the mode of making the statement and the nature of the fact declared is such, as would naturally lead the other party to the conclusion, that this statement was made on personal knowledge and not on mere information. In such a case, if he would not be held responsible for the statement as a fraud, the party making it is bound to warn the party, to whom it is made, that it is made on information only, so as fairly to put him on enquiry. (pp. 464-4.68).

9. If a mutual innocent mistake in reference to the substance of a contract is made by the parties, though neither party be guilty of fraud in the sense above explained, a court of equity has jurisdiction to rescind the contract and should do so or refrain from doing so according to circumstances. The jurisdiction of a court of equity in such a case is based on the fact, that the minds of the parties to the contract because of such mistake never in fact met; so there was really no mutnal assent to the contract, and no contract is binding without such mutual assent, (pp. 468, 476, 482).

10. But no court of equity in such case of mutual innocent mistake, neither party being guilty of any fraud in the sense above explained, has a right to modify and alter the contract of the parties, so as to make it correspond with what, the court may think it probable, would have been the terms agreed upon by the parties, had they not by means of such innocent and mutual mistake been ignorant of the actual facts at the time, when the contract was entered into. All the court can do in such a case is to rescind the contract. It cannot modify the contract; for that would really be making a contract for the parties against their consent and then enforcing it, which would be usurpation of a very dangerous power. (pp. 468, 474).

11. But though there be no fraud in a contract of sale, yet the vendor may sometimes be responsible for a false affirmation of a fact, when such affirmation amounts to an implied warranty, as it may, when it appears, that it was so intended by the parties to the contract; but this must appear, and it is not alone sufficient without this appearing to show, that the vendee relied on the statement of the vendor and was thereby induced to purchase at a price, he would not otherwise have agreed to give. It is therefore often difficult to determine, whether an affirmation does or does not amount to implied warranty. (pp. 472, 480).

12. A court of equity may reform a written contract, where the suit is brought for the purpose, and it is alleged, that by fraud, accident or mistake of the scribe or by some other means the real agreement of the parties was not that, which is expressed in such written agreement; but except when such a suit as this is brought, no parol evidence can be introduced to explain, alter or modify in any manner a written agreement. (p. 483).

13. To this rule there is one exception, that is, when on the face of the written contract the meaning of the parties is ambiguous. In such case the situation of the parties, the circumstances surrounding them, when the contract was entered into, and their conduct subsequently in carrying into effect the written contract may be received as evidence; but this is the only character of parol evidence, which can be received to show the real intention of the parties in such ambiguous contract, and all other, such as the verbal declarations of parties, must be excluded. (p. 483).

14. Applying these principles to a written contract for a sale of land or to a deed conveying land, if it be a contract for a sale of land in gross, and the number of acres contained in the tract sold or conveyed is named, and on survey it turns out afterwards, that there is either a deficiency or excess in the number of acres in the tract, under some circumstances a court of equity might rescind the contract or annul the deed because of a considerable mistake of the parties as to the number of acres in the tract, though such mistake was mutual and innocent, and neither party was guilty of any fraud in the sense, in which fraud is above explained Such rescission could not be made, unless the mistake was so material as to show, that it affected the substance of the contract, and that the minds of the parties had not really come together on the terms stated in the contract or deed. But in such a case, if there was no fraud in either party in the sense above explained, a court of equity could allow no abatement on account of a deficiency in the land, nor could it require the vendee to pay any increased price because of a surplus, the mutual and innocent mistake of the parties not authorizing a court of equity to make for them, as this would be doing, a new contract, such as the court might think it probable, they would have made, had they known the true quantity of the land, when the...

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