Odell v. Story
| Citation | 116 N.W. 269,81 Neb. 437 |
| Decision Date | 23 April 1908 |
| Docket Number | No. 15,134.,15,134. |
| Parties | ODELL v. STORY. |
| Court | Supreme Court of Nebraska |
While the owner of real estate is presumed to know the boundaries thereof, and a purchaser who has no knowledge of such boundaries may rely on the representations of the owner relating thereto when positively made, he is not authorized to rely upon an opinion of the owner or his statement of the distance from a known to an unknown corner, but must in such case investigate and ascertain for himself the true boundary.
When the owner of land has pointed out to his vendee land which he did not own as land which he proposed to sell and convey, and has conveyed to him land of less value than that pointed out and which the vendee supposed he was buying, the vendee may recover the difference in value between the land shown him as the subject of his purchase and the land actually conveyed.
The understanding of a witness derived from language used by a party is not competent evidence for a jury. The language used should be detailed, and the inference deducible therefrom is for the jury to determine.
In a suit brought to recover damages for fraud and deceit in the sale of land, the opinion of a witness as to the amount of damage sustained by the plaintiff is not competent evidence, that being a question for the jury.
Commissioners' Opinion. Department No. 1. Appeal from District Court, Hitchcock County; Orr, Judge.
Action by Charles Odell against James C. Story. Judgment for plaintiff, and defendant appeals. Reversed and remanded.W. S. Morlan and Boyle & Eldred, for appellant.
E. B. Perry, for appellee.
In January, 1906, the plaintiff purchased from the defendant 320 acres of land in Hitchcock county, Neb. The land purchased is the S. W. 1/4 of section 31, the W. 1/2 and the S. E. 1/4 of the N. W. 1/4, and the S. W. 1/4 of the N. E. 1/4 of section 31, in township 4 of range 34 west of the sixth P. M. It will be noticed that the south boundary line of the land purchased is one-half mile in length. The plaintiff in his petition alleges that the defendant pointed out and represented to him that the southeast corner of the southwest quarter of section 31 was 80 rods east of its true location, and that the land he was selling him included a tract of level farming land lying east of the land actually sold and conveyed; that he represented the land to contain 200 acres of good level land with deep soil well adapted to corn and wheat raising; that he was a stranger to that part of the country, had no knowledge of the land he was purchasing, and relying upon the defendant's representation paid $3,100 for said land; that the land sold and conveyed to him did not contain to exceed 60 or 70 acres of level farming land, and was worth $2,500 less than the land pointed out, and which he supposed he was buying. The defense was a denial of any false representations relating to the boundary of the land, and, further, that plaintiff before making his purchase examined and investigated the location, boundary, and character of the land and character of the soil, and that means of knowledge of all matters were open to the plaintiff and equally available to both parties. The jury awarded the plaintiff $1,600 damages, and from a judgment entered upon the verdict the defendant has appealed.
The testimony of the plaintiff and of several witnesses who testified in his behalf tended strongly to establish the allegations of the petition, but the defendant testified in substance that he showed the plaintiff a fence on the west boundary line of section 31, as well as the south line of said section, and told him, and those with him, that the southeast corner of the southwest quarter was one-half mile east from the fence on the west line, and denied locating the southeast corner or pointing it out. The law in this state seems to be well settled that a purchaser of real estate has a right to rely upon representations made by his vendor relating to the location of his property, when the facts concerning which such representations are made are unknown to the vendee. Hoock v. Bowman, 42 Neb. 80, 60 N. W. 389, 47 Am. St. Rep. 691. In that case, Roberts v. French, 153 Mass. 60, 26 N. E. 416, 10 L. R. A. 656, 25 Am. St. Rep. 611, was referred to with approval. In Roberts v. French, a lot was sold at auction. It was inclosed by a fence. The auctioneer announced that he had measured the lot, and that its dimensions were as stated in the advertisement, except as to the easterly line, which was 107 feet long, and that the lot contained about 11,000 square feet. The plaintiff was familiar with the premises, and he understood that he was buying only the land inclosed by the fence, but according to his evidence he believed the statements of the auctioneer as to the length of the line and the area, and made...
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