Berry v. Wooddy

• Decision Date: 15 January 1918
• Docket Number: 5 Div. 221
• Parties: BERRY v. WOODDY.
• Court: Alabama Court of Appeals

77 So. 942

16 Ala.App. 348

BERRY v. WOODDY.

5 Div. 221

Court of Appeals of Alabama

January 15, 1918

On rehearing, February 26, 1918

Appeal from Circuit Court, Coosa County; S.L. Brewer, Judge.

Action by S.H. Wooddy against E.H. Berry for damages for fraud and deceit in the sale of land. Judgment for plaintiff, and defendant appeals. Affirmed.

The facts sufficiently appear. The court refused the following charge:

(12) The court charges the jury that all plaintiff had a right to demand of defendant was a good title to the house and lot sold him by defendant, and, if the evidence reasonably satisfies you that defendant offered plaintiff such a title, then your verdict should be for defendant.

James W. Strother, of Dadeville, for appellant.

Riddle & Riddle, of Talladega, for appellee.

BROWN P.J.

This is an action for fraud and deceit in the sale of a house and lot situated in Goodwater, Ala. All counts of the complaint except that denominated count AA, were eliminated either on demurrer or by the affirmative charge in favor of the defendant, appellant here.

It is well settled that one who has been induced to enter into a contract for the purchase of lands by fraud, to his injury may maintain an action for deceit, and recover such damages as are necessary to compensate him for the injury suffered. Foster v. Kennedy, Adm'r, 38 Ala. 359, 81 Am.Dec. 56; 12 R.C.L. 451, § 196. And a recovery has been allowed in such cases for labor and money expended by the purchaser in improving the land before discovery of the fraud. Lawson v. Vernon, 38 Wash. 422, 80 P. 559 107 Am.St.Rep. 880; 12 R. C. L. 457, § 202.

Fraudulent representation by the vendor with respect to his title or ownership, as well as to matters collateral to the title of the property, such as location, quantity, quality, and condition of the land, the privileges connected with it, or the rents and profits derived therefrom, constitutes such fraud as will support the action, although a deed with covenants of warranty is executed and delivered to the purchaser. Code 1907, § 2468; Munroe v. Pritchett, 16 Ala. 785, 50 Am.Dec. 203; Pritchett v. Munroe, 22 Ala. 501; Russell v. Little, 28 Ala. 160; Gordon v. Phillips, 13 Ala. 565; Hutchinson v. Bozeman, 76 So. 406. The character of the representation that will constitute fraud and sustain an action for deceit has been so often and so clearly stated that we refrain from restating the doctrine, which may be found in Munroe v. Pritchett, supra, and Harton v. Belcher, 195 Ala. 186, 70 So. 141. When these principles are applied to the assignments of error predicated on the rulings of the court on the demurrers to count AA, it is clear that the assignments cannot be sustained.

The deed from McCord to Berry "as trustee for Carter, Thurman, May, Gladys, and Winnie Berry," not imposing on the trustee any active duties under the statute of uses, created only a "dry trust," and vested the title to the property in the cestui que trust (Code 1907, § 3408; Jordan v. Phillips & Crew Co. et al., 126 Ala. 561, 29 So. 831; Berry et al. v. Bromberg, Executor, 142 Ala. 339, 37 So. 847), leaving no right, title, or interest in the defendant, E.H. Berry, to convey to the plaintiff.

This deed was not "a conveyance, of said property" to the defendant, and the contention that the plaintiff failed to offer proof sustaining the averments of the complaint is not sustained. The undisputed proof shows that Berry had no title to the property he sold to the plaintiff, and there was evidence tending to sustain the other averments of the...