Duy v. Higdon

• Decision Date: 30 June 1909
• Citation: 162 Ala. 528,50 So. 378
• Parties: DUY v. HIGDON ET AL.
• Court: Alabama Supreme Court

50 So. 378

162 Ala. 528

DUY v. HIGDON ET AL.

Supreme Court of Alabama

June 30, 1909

Appeal from City Court of Birmingham; Charles A. Senn, Judge.

Action by G. B. Duy against Alice S. Higdon and another. Decree for defendants, and complainant appeals. Affirmed.

George W. Huddleston, for appellant.

W. K Terry, for appellees.

DENSON J.

The purpose of this bill is to rescind two purchases of land on account of alleged fraudulent misrepresentations. The first purchase, made March 31, 1904, was of a one-half interest and the second, made the 20th of September following, was of the remaining half interest in the same property and of the entire interest in an additional tract. The bill was filed in June, 1905.

"The right to rescind or avoid a contract proceeds upon the ground that a party has been fraudulently betrayed into making it and, having thus been induced to part with his own property may resume possession of it on returning that which he himself has received, and thus placing the other party in the same position that he was in before the contract was made." This is the general law of rescission. Steele v. Kinkle, 3 Ala. 352; Beck v. Simmons, 7 Ala. 71; Parks v. Brooks, 16 Ala. 529; Jones v. Anderson, 82 Ala. 302, 2 So. 911; Snow v. Alley, 144 Mass. 546, 11 N.E. 764, 59 Am. St. Rep. 119. The principles controlling the action of the court in rescinding contracts, and those in specifically enforcing them, are in many respects the same. The party complaining must be reasonably diligent, prompt in the repudiation of the contract, and must allege precisely the basis of the complaint, and prove it with fullness, so that the court, in giving relief, may not assume the function of making the contract for parties. Pomeroy's Eq. §§ 889, 897; Bogan v. Daughdrill, 51 Ala. 312; Bell v. Lawrence, 51 Ala. 160; Bailey v. Litten, 52 Ala. 282; Johnson v. Rogers, 112 Ala. 576, 20 So. 929; N. B. & L. Ass'n v. Ballard, 126 Ala. 160, 27 So. 971.

In this case the complainant resided in Vicksburg, Miss., and the respondent in Birmingham, Ala., and they were associated together in a brokerage business in the latter city; the complainant being represented therein by his son-in-law, Dozier, and the respondent by her husband, Higdon. Respondent was the owner of a fruit and poultry farm of 200 acres, about 25 miles distant from Birmingham, on the railroad, known as "Fruitcliff Farm," and Dozier had visited it a number of times with Higdon, prior to the 31st of March, 1904, when through his instrumentality complainant became the purchaser of a half interest therein, and through Dozier as his agent went into joint possession. The farm was situated in a wild, uncleared country, and comprised five contiguous 40's, though the land was not in a compact body. The numbers are E. 1/2 of N.E. 1/4 of section 1, on the west, the N.W. 1/4 of the N.W. 1/4 of the adjoining section, on the east, and an 80, cornering with this 40 in the northeast, thus forming an irregular tract, extending a mile east and west and three-fourths of a mile north and south. The clearing extended northeast and southwest, connectedly, in the three western 40's, and there was a separate clearing in the eastern 40's, and all together about 45 acres were cleared. This clearing had small corners 3 or 4 acres in all--between the corners of abutting 40's not belonging to respondent; and some of the improvements, including a small dwelling, were located across the line on one of these outside 40's.

Respondent's husband suggested to Dozier to induce his father-in-law, the complainant, to buy a half interest in this farm, and he accordingly visited complainant, at Vicksburg, for that purpose. The bill alleges, in respect to the first purchase that appellee was in possession of a body of land (without describing it) known as "Fruitcliff Farm," which had on it improvements of great value (specified or enumerated), and that she, through her husband, represented to the complainant that she was the owner of "the said lands" (without otherwise designating them), and of "the improvements situated thereon," and that the purchase was made under the inducement of this representation, which was false, in that a portion of the clearing, and of the land on which some of the valuable improvements were situated, did not belong to her. This transaction, which was consummated on March 31, 1904, by a deed conveying a half interest in respondent's five 40's, by government numbers,...