Rule v. Pope

• Decision Date: 18 May 1923
• Citation: 215 P. 532,37 Idaho 165
• Parties: ELIZA RULE, Appellant, v. L. T. POPE and STELLA SPAULDING POPE, His Wife, Respondents
• Court: Idaho Supreme Court

215 P. 532

37 Idaho 165

ELIZA RULE, Appellant, v. L. T. POPE and STELLA SPAULDING POPE, His Wife, Respondents

Supreme Court of Idaho

May 18, 1923

SPECIFIC PERFORMANCE-WHEN RELIEF WILL BE DENIED-WAIVER OF RIGHT-EVIDENCE HELD SUFFICIENT TO SUPPORT JUDGMENT.

1. Equity will not award specific performance of a contract to convey real property where the party seeking such relief has been guilty of laches, or has not offered to do equity.

2. Where the holder of a tax deed agrees to quitclaim his interest to the former owner, who thereafter brings an action to set aside the tax deed and quiet title in herself, free from such deed, and the action fails, the tax deed being upheld, it is a waiver of her right in a subsequent action to compel specific performance of the agreement to convey.

3. The evidence examined and held sufficient to support the findings, conclusions and judgment denying specific performance.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Chas. F. Reddoch, Judge.

Action for specific performance. From judgment for defendants plaintiff appeals. Affirmed.

Judgment affirmed. Costs to respondents.

Clarence S. Hill, James L. Boone and Hugh N. Caldwell, for Appellant.

Where fraud is made the basis for relief from the obligation to perform a contract such fraud must be as to a material fact connected therewith. (20 Cyc. 99; 2 Pom. Eq., secs. 890, 898; Isaacs v. Skrinka, 95 Mo. 517, 8 S.W. 427.)

Where false statements are made the basis for relief from the obligation to perform a contract, such false statements must be believed and relied upon by the injured party. (McFadden v. Heisen, 31 Idaho 689, 175 P. 814; Crotty v. Effler, 60 W.Va. 258, 9 Ann. Cas. 770, 54 S.E. 345; Greenstrat v. Walsch, 189 Mo.App. 533, 176 S.W. 1062; Wegeforth v. Wiessner, 134 Md. 555, 4 A L. R. 374, 107 A. 364; Hallidie v. Trust Co., 177 Cal. 600 171 P. 431.)

Where a contract has been entered into by reason of fraudulent representations, the injured party must, within a reasonable time after the discovery of the fraud, rescind the contract and tender back whatever consideration he has received under the contract. (Gallagher v. O'Neill, 78 Neb. 671, 111 N.W. 582; 2 Pom. Eq., sec. 897; Del Campa v. Camarillo, 154 Cal. 647, 98 P. 1049; Burke v. Ellis, 44 Tex. Civ. App. 21, 97 S.W. 321; Breshears v. Callender, 23 Idaho 348, 131 P. 15.)

Where one who has been induced to enter into a contract through fraudulent representations, after discovery of the fraud, chooses to confirm the contract, then the fraud that would have been a defense in the first instance is waived. (Burke v. Ellis, supra; Greenstrat v. Walsch, supra; Gallagher v. O'Neill, supra; 2 Pom. Eq., sec. 897.)

Rhodes & Partridge, for Respondents.

The appellant in seeking the interposition of a court of equity must come with clean hands and be free from the imputation of fraud, trickery and unfair dealing. (Harton v. Little, 188 Ala. 640, 65 So. 951; Miller v. Kraus (Cal.), 155 P. 834; Swanson v. Sims, 51 Utah 485, 170 P. 774; Rudnick v. Murphy, 213 Mass. 470, Ann. Cas. 1914A, 538, 100 N.E. 643; Johnson v. Murphy, 36 Cal.App. 469, 172 P. 616.)

The appellant in disregarding the contract and seeking to have respondent's title declared invalid repudiated and abandoned the contract and cannot now enforce it, (Conrad v. Lindley, 2 Cal. 174; Brown v. Covillaud, 6 Cal. 566; Losher v. Loffler, 190 Ill. 150, 60 N.E. 85; Enkema v. McIntyre, 136 Minn. 293, 2 A. L. R. 411, 161 N.W. 587; Thackery v. Knight, 57 Utah 21, 192 P. 263; Goldthait v. Lynch (Cal.), 33 P. 699; Thaxter v. Sprague, 159 Mass. 397, 34 N.E. 541.)

The respondent was not bound to rescind the contract but could wait until the appellant sought to enforce it and then set up his defense. (Caples v. Morgan, 81 Ore. 692, 160 P. 1154, L. R. A. 1917B, 760; Hart v. Church, 126 Cal. 471, 77 Am. St. 195, 58 P. 910; Evans v. Duke, 6 Cal. Unrep. 973, 73 P. 732; Frank v. Davis, 34 Idaho 678, 203 P. 287.)

It is not necessary that the statements made be the sole cause for the injured party acting, but if such statements were a contributing factor it is sufficient. (Allen v. Pendarvis, 60 Okla. 216, 159 P. 1117; MacDonald v. DeFremery, 168 Cal. 189, 142 P. 73; Baker v. Matthew, 137 Iowa 410, 115 N.W. 15; Laska v. Harris, 215 N.Y. 554, 109 N.E. 599; Windram v. French, 151 Mass. 547, 24 N.E. 914, 8 L. R. A. 750.)

WILLIAM A. LEE, J. McCarthy and Dunn, JJ., concur.

OPINION

WILLIAM A. LEE, J.

--This is an action by appellant to enforce specific performance of an agreement to sell real estate.

March 12, 1912, respondent purchased tax sale certificates from Boise county covering the land involved, the certificates being for the years of 1904 and 1907. The tax deed was issued May 15, 1912, upon the 1904 certificate.

In July, 1913, S. T. Schreiber, an attorney then representing appellant, stated to respondent that he had examined the records of Boise county with reference to the delinquent taxes for these years, that the sales certificate for 1907 was void because the taxes for that year had been paid by appellant, who held a receipt for the same, and that the taxes for 1904 had also been paid, and appellant held a post-office money-order receipt showing payment for that year.

Respondent went to the premises in question and took the matter up with appellant with a view of effecting a settlement, apparently in the belief that his tax deed could be avoided by reason of the information given him by the attorney. Appellant advised him that the matter was solely with her attorney, and declined to take any action in the matter.

December 30th following respondent came to Boise and took up the matter of a settlement with the attorney, who repeated substantially the same statement that he had previously made in July about these certificates being void. Respondent, as grantor, then executed a contract to convey the premises upon which he held this tax deed to appellant for a consideration of $ 75, the amount of taxes he had paid for the certificate for 1904. The attorney at the time of the execution of this agreement to convey paid respondent $ 40 of the consideration; the agreement provided that the remaining balance of $ 35 was to be paid upon the delivery of a quitclaim deed duly acknowledged at the State Bank at Notus, the grantor also to deliver abstract of title to the premises.

It appears that appellant's attorney prepared and forwarded a filled out from of deed to this bank, but did not accompany the same with the balance of the purchase price. Respondent called at the bank, received the proposed deed, and executed the same, calling for the remainder of the purchase price, but was informed by the bank that no money had been sent. He thereupon refused to accept the deed, stating that his wife would not join in the execution thereof until this balance was paid. It never having been paid, and no deed having been executed by respondent and his wife, this action to enforce specific performance was begun in 1919.

Prior to this, however, it appears that appellant and her counsel decided that in lieu of paying this balance or of relying upon this contract to convey, she would bring an action to quiet title to these lands, and in August, 1915, filed the same. During the pendency of that action, appellant and her counsel...