Bynum v. Rucker, 6 Div. 230

• Decision Date: 17 February 1938
• Docket Number: 6 Div. 230
• Parties: BYNUM v. RUCKER et al.
• Court: Alabama Supreme Court

179 So. 241

235 Ala. 353

BYNUM v. RUCKER et al.

6 Div. 230

Supreme Court of Alabama

February 17, 1938

Appeal from Circuit Court, Blount County; Alto V. Lee, Judge.

Suit in equity by Jacob B. Bynum against I.N. Rucker and Mae Rucker. From a decree dismissing the bill, complainant appeals.

Affirmed.

J.T Johnson, of Oneonta, for appellant.

R.G Kelton, of Oneonta, for appellees.

BOULDIN Justice.

Bill in equity by purchaser of real estate to rescind for fraud.

Complainant had purchased the mineral interest in a 60-acre tract of land, paying $900 cash therefor.

The specific averments of fraud are:

"That in the negotiations leading up to said contract the respondent, I.N. Rucker, fraudulently represented to the complainant that there was in and under said land great quantities of valuable ore known as manganese ore; and that said manganese ore was four feet thick and of high grade, and complainant, on said representations, relying and acting on the truthfulness of said statement that there was large quantities of valuable manganese ore of a thickness of four feet in and under large portions of said land, paid to the said I.N. Rucker, in the manner hereinafter set forth and for his benefit, the sum of Nine Hundred Dollars ($900.00) in money. ***

"The complainant further avers that said land did not contain said manganese ore, that there was no valuable ore in or under said lands, and the complainant further avers that the said I.N. Rucker, at the time of the execution of said deed and the receipt of said Nine Hundred Dollars ($900.00), then knew that there was no valuable mineral in or under said land hereinabove described. And the complainant by means of the fraudulent representations knowingly made by the said I.N. Rucker procured from the complainant the sum of Nine Hundred Dollars ($900.00), which in equity and good conscience, should be returned to the complainant."

These excerpts from sections 2 and 3 of the bill, respectively, charge fraud as broadly defined in Code, § 8049. The one "misrepresentations of a material fact," "and acted on by the opposite party," whether made "recklessly without knowledge" or "by mistake and innocently." The other "misrepresentations of a material fact, made wilfully to deceive" and "acted on by the opposite party."

The burden was on complainant to prove the misrepresentations substantially as alleged, and that they were acted upon to his hurt. The evidence on this issue is voluminous.

It has been considered with care. Indulging no presumption in favor of the finding of the trial court, the witnesses not being examined orally before him, we concur in his...