Rasmussen v. Reedy

• Decision Date: 21 November 1900
• Citation: 84 N.W. 205,14 S.D. 15
• Parties: LARS RASMUSSEN and FREDEREKKA RASMUSSEN, Plaintiff and, v. JOHN L. REEDY, Defendant and.
• Court: South Dakota Supreme Court

14 S.D. 15

84 N.W. 205

LARS RASMUSSEN and FREDEREKKA RASMUSSEN, Plaintiff and,

v.

JOHN L. REEDY, Defendant and. South Dakota Supreme Court Appeal from Circuit Court, Union County, SD Hon. Joseph W. Jones, Judge Affirmed French & Orvis Attorneys for appellant. E. C. Ericson, Keith & Warren Attorneys for respondents. Opinion filed November 21, 1900

CORSON, J.

This is an action to set aside and cancel a deed executed by the plaintiffs to the defendant of certain land owned by them in Union county, which was conveyed by them to the defendant in exchange for certain land owned by him in Yankton county. Judgment for plaintiffs, and defendant appeals. In the fall of 1898 a contract was entered into between the parties by which the plaintiffs agreed to convey their Union county land to the defendant in exchange for his Yankton county land. The plaintiffs claim that they were induced to enter into the contract by fraudulent representations as to the boundary lines of the defendant’s land, the principal misrepresentation being that the western line of said land ran along the foot of a bluff, whereas in fact it ran along the top of the bluff, from 15 to 30 rods west of the line pointed out as the boundary by the defendant, and that the land included between the line so pointed out and the true line was comparatively worthless, and that the plaintiffs, in making said exchange, relied upon said representations. It is claimed that within a short period of the execution of the deed the plaintiffs discovered that the western line of said land had been falsely represented to them, and that they immediately tendered back $100 received by them from the defendant as payment of the difference in value between the two tracts of land, and tendered to the defendant a deed to said land, which was refused, and the plaintiffs instituted this action. The case was tried to a jury, to whom were submitted two questions. The only one we deem material in the decision of this case reads as follows:

“Did James Reedy, when showing Lars Rasmussen, plaintiff, the Yankton county land, represent and state to him that the west line of the Yankton county land laid along the traveled track at the foot of the bluff? Ans. Yes.”

The court adopted this finding and found in addition that:

“James Reedy is the father of the defendant John L. Reedy, and that on September 29, 1898, the said James Reedy, acting for and at the request of the defendant herein, arranged with the plaintiff, Lars Rasmussen, to take him on the ensuing day, to-wit: September 30, 1898, to certain lands in Yankton county, South Dakota, owned by the defendant and to show said plaintiff the same, for the purpose of effecting a trade thereof for the lands in the first finding described, … That on September 30, 1898. the said James Reedy, acting at the request of, with the knowledge of, and in behalf of the defendant, took the plaintiff, Lars Rasmussen, to Yankton county to view and inspect said land, in order to accomplish a trade. That at said time the plaintiff was in ignorance of where the boundary lines of said land were, and did not know how or where the lines thereof run, except as then stated and represented to him by the said James Reedy. That on said 30th day of September, 1898, and for the purpose of inducing the plaintiff to sell and exchange said land in the first finding described for said Yankton county land, the said James Reedy, showing said land at the request of and for the defendant, and with in tent to deceive and defraud the plaintiffs, represented and stated to said Lars Rasmussen that the west boundary line of said Yankton county land laid and ran along the traveled track at the foot of certain bluffs, running near the western boundary of said Yankton county land so owned by defendant. That at the same time, and for the same purpose, the said James Reedy, acting at the request of the defendant in showing said lands, stated to the plaintiff, Lars Rasmussen that said Yankton county land included no bluff land at all on the west side thereof. That on the evening of September 29, 1898, at the request of the defendant, the said James Reedy, acting in behalf of the defendant in arranging for such visit to inspect said Yankton county land, stated and represented to both of the plaintiffs that said Yankton county land included no bluff land along its western side at all, and that the western boundary of said land was a certain track running at the foot of a range of bluffs. That the plaintiffs confided in the truth of said representations so made as to the lay and boundary lines of said land, and believed them to be true, and relied there on, …”

and the plaintiffs believing such representations to be true, and relying thereon, executed the deed sought to be canceled.

“That in truth and in fact the said traveled track near the western line of said Yankton county farm, and lying at the foot of said bluffs, was not the west boundary line of said farm, but laid from ten to thirty rods east thereof. That in truth and in fact the western portion of said Yankton county farm was not level land, but a strip from ten to thirty rods wide, running along nearly the entire west side of said farm, was composed of high and steep bluffs, with undesirable and almost worthless soil, and totally unfit for farming purposes.”

The court concludes, as matter of law, that James Reedy acted as the agent of the defendant in making the alleged false and fraudulent representations concerning said land, that the conveyance by the plaintiffs to the defendant is null and void, and that the plaintiffs are entitled to judgment as prayed for in their complaint.

The appellant relies for a reversal upon three propositions: First, that James Reedy, the father was not authorized by the defendant to make the representations complained of by plaintiffs, and therefore the statements alleged to have been made by him to the plaintiffs as to the boundaries of the land were not binding upon the defendant, and were inadmissible in evidence; second, that the evidence was insufficient to support the findings of the court; third, if the representations were made as claimed, the plaintiffs had no right to rely upon the same, as one of them had made an examination of the land in person.

Lars Rasmussen, when on the stand as a witness in his own behalf, was asked certain questions in regard to statements made to him and his wife by James Reedy the day prior to going with him to examine the land. These questions were objected to on the part of the defendant on the ground, among others, that the representations made by James Reedy could not be given in evidence until it was first shown that he was authorized to make them by the defendant, or that the defendant was present at the time the...