Johnson v. Rogers

• Decision Date: 12 November 1896
• Citation: 20 So. 929,112 Ala. 576
• Parties: JOHNSON ET AL. v. ROGERS ET AL.
• Court: Alabama Supreme Court

20 So. 929

112 Ala. 576

JOHNSON ET AL. v. ROGERS ET AL.

Supreme Court of Alabama

November 12, 1896

Appeal from chancery court, Etowah county; S. K. McSpoddeen Chancellor.

Suit by E. C. Johnson and another against Joseph Rogers and another.

Upon the submission of the cause on the pleadings and proof, the chancellor rendered a decree declaring that the complainant was not entitled to the relief prayed for, and ordering that the temporary injunction previously issued be dissolved, and that the bill be dismissed. From this decree the complainants appeal, and assign the rendition thereof as error. Affirmed.

Denson & Burnett, for appellants.

Dortch & Martin, for appellees.

COLEMAN J.

In November, 1894, the complainants, by deed, conveyed a house and lot situated in the city of Gadsden, the property of E C. Johnson, to Dollie Rogers, and also executed to her a promissory note for $500. The consideration for the house and lot and the promissory note was a deed to 100 acres of land executed by Dollie Rogers and her husband, Joseph Rogers, to E. C. Johnson, the transaction being an exchange of the land by the Rogerses for the house and lot, Mrs. Johnson agreeing to pay $500 as the difference in value. The Johnson refusing to deliver possession of the house and lot, Mrs.

Rogers instituted ejectment to recover possession. Thereupon the complainants filed the present bill, the purpose of which is to enjoin the ejectment suit, and to procure a rescission of the contract, and cancellation of the deeds and note. The bill avers fraud and misrepresentation by Joseph Rogers, who acted in the transaction as agent for Dollie Rogers, as to the quality and quantity of the land and the timber growing upon it. The principles of law and the degree of proof which authorize the granting of the relief prayed for in the bill have been frequently stated by this court. In the case of Thweatt v. McLeod, 56 Ala. 375, it was said: "A misrepresentation of a material fact on which another has the right to rely, whether made willfully or intentionally, or from mistake, inadvertence, or ignorance, will operate to avoid a contract founded on it." In Mining Co. v Musgrove, 90 Ala. 428, 7 So. 747, it was said: "No principle is better settled or more uniformly recognized than that a court of equity will interfere to rescind a contract of sale of land into which the purchaser has been induced to enter by the vendor's false representations of material facts, not patent or open to his inspection, upon which he had a right to rely, and did rely, whereby he was injured, and without the existence of which the contract would not have been made. But the rescission of a contract is not a matter of discretion. The court must be governed by established rules and precedents. Essential elements of a misrepresentation, to be rendered available to rescind a contract, are that the party to whom it is made must be justified in relying, and must rely, upon the representation, and it must be an immediate cause of his entering into the contract. If he did not rely upon it, or was not misled by it, or if it was a fact equally open to the inquiries of both parties, and nothing done to prevent or obstruct or lull inquiry, the court will not interfere to grant relief. Crown v. Carriger, 66 Ala. 590." In Joseph v. Seward, 91 Ala. 597, 599, 8 So. 682, 683, it was said: "By an unbroken line of decisions in this state, if, in negotiating a sale of land, the seller represents or points out an improper boundary of the land he is selling, and thereby induces the purchaser to close the trade; and if the representation is untrue, and the land conveyed or agreed to be conveyed is materially less in quantity or value than that pointed out, this arms the purchaser with the right to rescind the contract. *** And this defense is equally available to the purchaser whether the seller knows or does not know the representation he makes is false." No question of laches or ratification arises in the present case to avoid the application of the foregoing principles. All the authorities agree that the misrepresentations which will avoid a contract must be of "material," "substantial" facts, and not relate to mere matters of opinion, or of future intentions. Meeks v. Garner, 93 Ala. 17, 8 So. 378; Birmingham Warehouse, etc., Co. v. Elyton Land Co., 93 Ala. 549, 9 So. 235, and authorities cited; Joseph v. Land Co., 102 Ala. 346, 14 So. 739. As to the degree of proof, in the case of ...