Shahan v. Brown

• Decision Date: 31 May 1910
• Citation: 167 Ala. 534,52 So. 737
• Parties: SHAHAN v. BROWN.
• Court: Alabama Supreme Court

52 So. 737

167 Ala. 534

SHAHAN v. BROWN.

Supreme Court of Alabama

May 31, 1910

Appeal from City Court of Gadsden; John H. Disque, Judge.

Suit by J. R. Brown against W. P. Shahan. Decree for plaintiff, and defendant appeals. Affirmed.

Culli &amp Martin, for appellant.

Goodhue & Blackwood, for appellee.

SAYRE J.

The city court of Gadsden, sitting in equity, on the prayer of Brown, decreed the rescission of a deed which Shahan had made to complainant. The deed had been executed and delivered on May 15, 1907, conveying a parcel of land which was described as follows, and not otherwise: "Lot two and lot three block 542, up to the line of T. & C. Railroad according to the map of the Attalla Iron & Steel Company in Etowah County Alabama." It is agreed that the map referred to was not on record at the time. This, however, is not considered to be of special importance. The averment of the bill is that at and prior to the time of the purchase Shahan, the defendant pointed out to complainant the boundaries of the lots, and represented that they extended up to the edge of the cross-ties of the Tennessee & Coosa Railroad; that complainant entered into the contract of purchase in reliance upon that representation; and that the fact was that the Anniston & Cincinnati Railroad Company owned a strip of land 25 feet wide lying between the edge of the cross-ties of the Tennessee & Coosa Railroad and the lots sold by defendant to complainant. The substance of the demurrer filed to the bill was twofold: (1) That the representation was not alleged to have been made with intent to deceive. But the representation was of a material fact which affected and influenced the transaction. This being so, it was of no consequence that, as for aught appearing in the bill, it may have been mistakenly made in good faith. The equity of the bill, as against this objection, is abundantly supported by decisions of this court. Perry v. Boyd, 126 Ala. 162, 28 So. 711, 85 Am. St. Rep. 17; Porter v. Collins, 90 Ala. 510, 8 So. 80; Lindsey v. Veasy, 62 Ala. 421; Baptiste v. Peters, 51 Ala. 158; Lanier v. Hill, 25 Ala 554; Munroe v. Pritchett, 16 Ala. 785, 50 Am. Dec. 203; Juzan v. Toulmin, 9 Ala. 662, 44 Am. Dec. 448. (2) That complainant was negligent in relying upon the misrepresentation and ought not to be protected against the consequences of his own folly. Porter v. Collins, 90 Ala. 510, 8 So. 80, is cited here. In that case there had been a sale of a small parcel of land which was described in the deed as part of a 10-acre tract, which was described by government numbers, and as being "at or near the town of Sheffield." The claim of relief was based solely on alleged misrepresentations of the grantor as to the location of the land. It was said in the course of the opinion: "It would seem that the location of the land appearing, as the proof shows, from the public records of the county, due diligence would have imposed on complainant the duty of ascertaining the real fact in this regard from these records, in such sort as that he could not have the sale set aside on the ground that he was misled as to it by information derived from the respondent." A decision to that effect was, however, expressly pretermitted, and the case was disposed of on the fact that there was absolutely no evidence in the record of any misrepresentation as to the location of the land. In Younge v. Harris, 2 Ala. 108, the court used this language: "Where one by the fraudulent silence, or fraudulent representations of another, in relation to material facts concerning the title of land, the falsehood of which he had not the means of ascertaining, and could not have ascertained by reasonable diligence, is induced to invest his money in the purchase of land, or has made on the faith of such purchase, valuable and lasting improvements, he can have relief in chancery before an eviction, and without abandonment of the possession." This language, with the omission of so much as relates to fraudulent silence--omitted no doubt because the cases called for no application of the principle--has been quoted in Meeks v. Garner, 93 Ala. 17, 8 So. 378, 11 L. R. A. 196; Coleman v. National Bank of Decatur, 115 Ala. 307, 22 So. 84; Rarden v. Badham, 142 Ala. 500, 38 So. 1029. The principle of Younge v. Harris has been repeatedly followed. But it has never been held that, in the absence of knowledge to the contrary or of circumstances calculated to arouse suspicion, a vendee may not rely upon the positive and material statements of his vendor. On the contrary, in a number of the cases heretofore cited it was assumed that he might so rely. And in Crown v. Carriger, 66 Ala. 590, it was said, in substance, that a purchaser who does not know their falsity may rely upon the truth of his vendor's material representations unless they relate to matters patent and open to inspection, or to facts equally open to the inquiries of both parties, and in regard to which neither could be presumed to trust the other. And in Younge v. Harris it was held that a purchaser was not to be censured for relying on...