Brown v. Coker

• Decision Date: 03 July 1922
• Docket Number: 22687
• Citation: 92 So. 585,129 Miss. 411
• Court: Mississippi Supreme Court
• Parties: BROWN ET AL. v. COKER ET AL

92 So. 585

129 Miss. 411

BROWN ET AL. v. COKER ET AL

No. 22687

Supreme Court of Mississippi

July 3, 1922

VENDOR AND PURCHASER. Sale will be rescinded or damages allowed for material mutual mistake as to identity of land; purchaser held entitled to rescission or damages for mutual mistake as to boundaries.

A land sale will be rescinded, or damages allowed purchaser, where a mutual material mistake is made as to identity of land intended to be purchased. Held, facts warrant rescission or damages.

HON. E N. THOMAS, Chancellor.

APPEAL from chancery court of Humphreys county, HON. E. N. THOMAS Chancellor.

Action by D. L. Brown and others against R. L. Coker and others. From a decree dismissing the suit, plaintiffs appeal. Reversed and remanded.

Decree reversed and cause remanded.

Noel Jordan & Neilson, for appellants.

Failure of deed to legally convey that part of tract which constituted material inducement for purchase by vendee, even though not intentionally, and though vendee had placed false estimate on the value of such a thing, makes sale rescindable. Chief Justice SHARKEY, in Gilpin v Smith, 11 S. & M. 109, 130-1; Harrison v. Gibson, Walker, 165, 169; Oswald v. McGehee, 28 Miss. 340; Rimer v. Dugan, 29 Miss. 477; Davis, Admr. v. Heard, 44 Miss. 50; Vincent v. Corbett, 94 Miss. 868, 873, 48 So. 186; McNeer & Dood v. Norfleet, 113 Miss. 611, 74 So. 577; Fleming v. Miller, 124 Miss. 721, 722; Westerman v. Corder, 36 Kan. 239, Ann. Cas. 1913C 60, 63.

Whether the party misrepresenting a material fact knew it to be false, or made the representation without knowing whether it was true or false, is wholly immaterial, for the affirmation of what one does not know or believe to be true, is equally in morals and law, as unjustifiable as the affirmation of what is known to be false. And even if the party innocently misrepresents a material fact, by mistake, it is equally conclusive, for it operates as a surprise and imposition on the other party. 1 Story's Eq. 225, par. 193; Smith v. Richards, 13 Peters (U.S.) 36, (10 L.Ed. 42); Read v. Walker, 18 Ala. 332; Shaeffer v. Sleade, 7 Blackf. (Ind.) 178; Bennett v. Judson, 21 N.Y. 238; Shackleford v. Handley Executors, 1 A. K. Marshall, 496 (10 Am. Dec. 753); Oswald v. McGehee, 38 Miss. 340, Rimer v. Dugan 30 Miss. 483 (77 Am. Dec. 687); Davis v. Heard, 44 Miss. 50, 58; 2 Pomeroy's Equity Jurisprudence, sections 852, 853; Bigham v. Madison, 103 Tenn. 358, 52 S.W. 1074, 47 L. R. A. 267. Allen et al. v. Lucket, 94 Miss. 868, 873, cited and approved in Fleming v. Miller, 124 Miss. 721, 722.

Whatever may be the law in other states, the above authorities demonstrate the law of Mississippi, brought down to date which holds that a vendor is entitled to rescission of a deed for false representations innocently made. This same doctrine with scores of cases supporting it, including several from the supreme court of the United States is given in a note in Westerman v. Corder, Ann. Cas. 1913C, 63, under the rule:

"Rescission of deed, whether for fraud, or 'a case of mutual error and mistake in reference to situation of the land' entitles vendee to repayment of the purchase money and damages sustained." Harrison & Gibson v. Stowers, Walker 165, 169; 39 Cyc. section e, 2014-15, 2036-9; Davis v. Frank, 44 Miss. 50; Miller v. Palmer, 55 Miss. 343.

Appellants have a lien for their purchase money and outlays, incident to their land purchase.

The rule which has obtained for many years in this country and in England is that, "the purchaser of land by an executory contract, where the contract fails by reason of vendor's default, and without any fault of the purchaser, is entitled to a lien upon the land for the repayment of what he paid under the contract. If the contract fails or is avoided, because of the inability or refusal of the vendor to make it a marketable title, or title free from incumbrances, or because of fraud or misrepresentation, in the contract, or for any other reason which is chargeable to the vendor and which is not due to default on the part of the purchaser, the latter is given a lien upon the land as security for the repayment of what he paid in the performance of the contract." 39 Cyc. 2031-2, citing many cases including Davis v. Frank, 44 Miss. 50; 2 Washburn on Real Property 93; Bibb v. Prather, 1 Bibb (Ky.) 313; Shirley v. Shirley, 7 Blackf. (Ind.) 452; Taft v. Kessel, 16 Wis. 274; Payne v. Atterbury, 1 Harrington (Mich.), ch. rep. 414. (Cited in Miller v. Palmer, 55 Miss. 343); 39 Cyc. 2036-8 and authorities there cited.

The principles set forth in the above points and authorities, cited in support of same, seem to us so clear as to need no special argument nor brief.

Roberts & Hallam, for appellee.

Unless appellants have established clearly in the mind of the court that Dr. Hooper as agent of the appellees, with full authority so to do, made the representation as to the northwest corner of section 3 as testified to by Brown, the only witness competent to testify on this point, the testimony of Allen and Fancher, being purely hearsay, and the court does not believe the testimony of Dr. Hooper on the vital question, the appellants, did not make out their case and the defendants in the court below were clearly entitled to the decree awarded them by the lower court. It is the law of Mississippi that the right to a rescission of the contract does not rest upon the same ground as the right to specific performance. In general, "fraud or plain and palpable mistake must appear to justify the rescission of a contract." Liddell v. Sims, 9 S. & M. 610.

Although they used the materials and there was no loss to the appellants they asked a court of equity that they be reimbursed for these very same materials. This demand at least of the appellants would hardly satisfy the equity maxim of coming into equity with clean hands.

The court's careful attention is directed to the cases of Samson v. Beale, 27 Wash. 557, reported in 68 P. 180; Improvement Co. v. Newlands, 39 P. 366, 367. Also quoting from Slaughter's Adm'r. v. Gerson, 13 Wall. 379, 20 L.Ed. 627.

The propositions of law submitted in the brief of appellants correctly states the law of the state of Mississippi, but are not applicable to the issues in the present case. The appellants overlooked the fact that they were dealing with an agent with limited powers instead of the responsible principals. So far as the principals are concerned in this case there was a meeting of minds as to all essential elements. The principals offered to sell sections 2 and 3 for a certain price and the appellants agreed to purchase this same land at the price proposed by appellees. A reference to the sale contracts, a part of this record, will clearly demonstrate this proposition.

On the second proposition, all the cases cited by appellants are cases in which the dealings were had between vendor and the vendee and the representations made were made by the vendor to the vendee, or as in one case, by the vendee to the vendor. But the fact that an opinion was stated by the agent of the vendors, even if called a representation, puts quite a different attitude of the matter before the court. We agree with appellants that a misrepresentation made by the vendor whether made fraudulently or mistakenly, would entitle the vendee under the proper conditions to the right of rescission but not so under the conditions in the present case.

The third proposition we submit is proper if the facts of the case would entitle the appellants to a decree for a rescission, and likewise the fourth proposition.

And we also submit, that if the court should find that appellants are entitled to any damages on account of the difference in the value of the lands which appellants thought they were securing over that which they did secure because of the deed, then, the cause should be reversed and remanded for the proposition of determining what the difference in value is, but we respectfully submit that from the foregoing authorities, presented in this court as bearing upon the evidence presented, clearly entitles the appellees to expect with confidence that the finding of this court will be that, the finding of the lower court will be affirmed in all respects.

OPINION

HOLDEN, J.

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