Bianconi v. Smith

• Decision Date: 16 January 1892
• Docket Number: Civil 317
• Citation: 3 Ariz. 320,28 P. 880
• Parties: JOHN BIANCONI, Plaintiff and Appellant, v. PARLEY SMITH, Defendant and Appellee
• Court: Arizona Supreme Court

28 P. 880

3 Ariz. 320

JOHN BIANCONI, Plaintiff and Appellant, v. PARLEY SMITH, Defendant and Appellee

Civil No. 317

Supreme Court of Arizona

January 16, 1892

APPEAL from a judgment of the District Court of the Third Judicial District in and for the County of Yavapai. Henry C. Gooding Judge.

Affirmed.

Baldwin & Johnston, for Appellant.

"That the purchaser of real estate may maintain an action to recover damages of his grantor, even when he takes a quitclaim or other deed without covenants upon such purchase when he has been induced to make the purchase by means of fraudulent representations made by the grantor for the purpose of inducing him to purchase, and when the purchaser relies upon such fraudulent representations, is well settled by authorities. It is not the character or kind of property sold and purchased which gives the purchaser a right of action against the vendor for practicing a fraud upon the vendee in effecting a sale. It is the fraud of the vendor and not the kind of property sold, which is the foundation of the action. Nor does the fact that the grantor refused to give a deed with covenants relieve him from his liability for fraud." Tyner v. Cotter, 67 Wis. 488; Haight v. Hoyt, 19 N.Y. 465; Whitney v. Allaire, 1 N.Y. 308; McClellan v. Scott, 24 Wis. 87; Parks v. Burbank, 58 Iowa 707, 12 N.W. 729; Starkweather v. Benjamin, 32 Mich. 306; Lloyd v. Quimby, 5 Ohio St. 265.

"It is not now claimed that the fact that the mortgage was recorded was of any importance. Where positive representations are made concerning a title for fraudulent purposes, and are relied on, it can hardly be insisted that what would be merely constructive notice in the absence of such declarations, will prevent a person from having the right to rely on statements which, if true, would render a search unnecessary." Weber v. Weber, 47 Mich. 571, 11 N.W. 389; Stewart v. Drake, 9 N. J. L. 143; Miller v. Halsey, 14 N. J. L. 48; Chapel v. Bull, 17 Mass. 221; Norton v. Babcock, 43 Mass. 510; Mead v. Bunn, 32 N.Y. 279; George v. Taylor, 55 Tex. 97; Jackson v. Armstrong, 50 Mich. 65, 14 N.W. 702.

The appellee contends that inasmuch as the deed was a mere quitclaim, the appellant was not a bona fide purchaser; that the quitclaim character of the deed should have warned the appellant into suspicion and vigilance, and that the doctrine of caveat emptor applies to the transaction. When the grantor induces the grantee by falschood to accept a quitclaim deed, there is no rule of law or equity which will relieve him of liability for his fraud. Ballou v. Lucas, 59 Iowa 22, 12 N.W. 745.

Herndon & Hawkins, and John Howard, for Appellee.

The allegation of fraud in the complaint is insufficient. It simply charges a conclusion without setting up any facts or circumstances showing fraud.

The alleged fraud is in regard to a matter of law. The allegation as to fraud relates wholly and entirely to the question of title. Where the alleged fraud relates entirely to the question of title, where one has a title or color of title, it is insufficient to sustain a recovery.

The allegation, showing that plaintiff took only a quitclaim deed, is sufficient to show that he was not an innocent purchaser in the eyes of the law, but assumed to take upon himself all the defects or infirmities of the title.

"False and fraudulent representations upon the sale of real property may undoubtedly be ground for an action for damages when the representation relates to some matter collateral to the title of the property and the right of possession which follows its acquisition, such as the location, quantity, quality, and condition of the land, the privileges connected with it or the rents and profits derived therefrom. Such representation by the vendor as to his having title to the premises sold, may also be ground of action when he is not in possession and had neither color nor claim of title under any instrument purporting to convey the premises, or any judgment establishing his right to them." Andrus v. St. Louis Smelting Co., 130 U.S. 648, 9 S.Ct. 645.

An action cannot be maintained for alleged false representations pertaining solely to the naked fact of title. Andrus v. Smelting Co., 130 U.S. 648, 9 S.Ct. 645; Peabody v. Phelps, 9 Cal. 227.

Statements of opinions do not constitute fraud. Rendell v. Scott, 70 Cal. 514, 11 P. 779; Kerr on Fraud and Mistake, p. 83; Buckner v. Street, 15 F. 368.

The complaint further shows that plaintiff knew that John White was in possession, claiming to own the premises, and under this state of facts took a quitclaim deed from the defendant. Plaintiff was not therefore a bona fide purchaser without notice. Dickerson v. Colgrove, 100 U.S. 578; May v. Le Claire, 11 Wall. 217; Oliver v. Piatt, 3 How. 333; Johnston v. Williams, 14 P. 537.

Sloan, J. Kibbey, J., concurring. Gooding, C. J., not sitting.

OPINION

The facts are stated in the opinion.

SLOAN, J.

This is a suit to recover damages for an alleged false and fraudulent representation in regard to the title to certain real property sold and conveyed to appellant by appellee. The complaint reads as follows: "(1) That the said plaintiff and defendant are residents of said county and territory. (2) That on the nineteenth day of November, 1889 at the town of Prescott, in said county and territory, the said defendant, for and in consideration of the sum of fifteen hundred dollars to him cash in hand paid by this plaintiff, did make, execute, and deliver to this plaintiff a certain deed of conveyance, wherein and whereby, for and in consideration of the said sum paid by this plaintiff as aforesaid, the said defendant did pretend to demise, release and forever quitclaim to this plaintiff, and to sell and convey to this plaintiff, a certain piece or parcel of land, with the tenements and appurtenances thereto belonging, a copy of which said deed is hereto annexed, marked 'Exhibit A,' and made a part of this complaint. (3) That before and at the time of the making, execution, and delivery of said deed by said defendant, and before and at the time of the payment of the said sum of fifteen hundred dollars by this plaintiff to said defendant, as aforesaid, the said defendant did, with the intent to cheat and defraud this plaintiff of said sum of money, falsely and fraudulently represent and say to this plaintiff that he, the said defendant, had then and there an absolutely valid and perfect title to the said land, and could and would by said deed, for said consideration, convey said absolutely valid and perfect title to this plaintiff. (4) That this plaintiff, relying implicitly upon and with perfect confidence in the truth and integrity of...