Wamsley v. Use

• Decision Date: 04 April 1885
• Citation: 25 W.Va. 543
• Court: West Virginia Supreme Court
• Parties: Wamsley v. Currence for use, &c.

25 W.Va. 543

Wamsley

v.Currence for use, &c.

Supreme Court of Appeals of West Virginia.

Submitted January 29, 1885.

Decided April 4, 1885.

1. Misrepresentation of quantity or quality of land in a sale thereof, in order to amount to fraud, must not be about a trifling or immaterial thing and must not be vague and inconclusive in its nature, nor a mere matter of opinion, nor about a fact equally open to the enquiry of either party, in regard to which neither could be presumed to trust the other; and when the misrepresentation is material and not vague, in order to amount to fraud, it must have been actually relied upon by the other party, who must have been misled thereby to his injury, (p. 546.)

2. Upon a dissolution of an injunction it is not only proper, but it is required by section 12 of chapter 78 of the Acts of 1882, that a personal decree should be rendered against the defendant for the judgment, interest, costs and damages at ten per cent, in lieu of interest while the judgment was enjoined, (p. 549.)

The opinion of the Court contains a statement of the facta of the case.

J. H $ J. F. Brown and W. S. Laidley for appellant

J. T. McGraw for appellee

Johnson, President:

Jacob S. Wamsley bought of A bram Currencc of Randolph county in April, 1872, a tract of land, which was by deed dated on that day conveyed to him by said Currencc and wife with general warranty. The deed is for the consideration of $3,640.00 therein expressed, a part of which was in hand paid, and the residue therein and thereby secured to be paid. The landis conveyed by metes and bounds, and the number of acres contained, or supposed to be contained, in the tract is not mentioned in the deed. On July 13, 1872, the said deed was admitted to record. The said Wamsley paid all the purchase-money except the last payment, which was evidenced by a note of $640.00. This note was by said Currence assigned to Mary J. Crouch, who brought suit in the county court of Randolph county in the name of said Currencc for her use-, and on September 11, 1878, recovered against said Wamsley the said debt, amounting at that time principal and interest to the sum of $887.47. On September 19, 1878, an execution issued on said judgment, and on the first Monday of January, 1879, the said Wamsley filed his bill in the circuit court of Randolph county against Currence and Mary J. Crouch, charging that said Currence had made false representations to him about the quantity of improved land in said tract, and also as to the quantity of "bottom" land therein.

H e sets this forth as follows: The inducement for the purchase of said land was solely the improved land upon the farm and mainly a meadow, which the said Currence represented to the plaintiff to contain thirty acres of land, and the residue that was under fence he represented to contain about seventy-five acres, (the said land not having been surveyed to the pointers;) that the out-lands are comparatively valueless; that relying upon the representations made to him by the said Currence as aforesaid he purchased the said land as before stated; that all the purchase-money has been paid except the last note for $640.00; that some time back having reason to suspect the representations made to him in relation to the number of acres inclosed upon the said premises, and especially of the meadow, he had the land carefully surveyed and found that the meadow contained less than twenty-seven acress, and the other improved land fell short some eight or ten acres, but that the whole contained about what the said Currence represented it to contain; that the thirty acre meadow-field was worth about $90.00 per acre, and indeed the plaintiff had a short time before paid to said Currence above that sum for seven acres off the same field and that the residue of the cleared land was well worth $30.00 per acre."

He claimed he was damaged at least $600.00, and prayed an injunction against the collection of said judgment, wdiich was granted.

In May, 1879, Currence answered the bill denying the, representation alleged in the bill, but admitting that he told said Wamsley, that in his opinion, if the meadow was surveyed, it would be found to contain thirty acres, and that he told him, that in his opinion the residue of the improved land was about seventy or seventy-five acres. He avers that he told said Wamsley, that he did not know how much land there was in said tract, but he thought there was about 200 acres in all, and about 100 acres improved land. He denies that Walmsley relied on anything he said about the land, because he was as well acquainted with it as the respondent, having been raised close by and owning land adjoining.

The plaintiff filed an amended bill, in which he charges, that Currence represented to him before and at the time of the sale," that there were thirty acres in one field of improved land, embracing the first bottom, whilst in fact there is only twenty-six acres," &c. He does not give any reason for this different charge; the evident object of filing the amended bill was to enlarge his claim for damages or abatement from $600.00 to $960.00.

Mary J. Crouch answered both the bill and amended bill and in her answers says, she was induced to purchase the $640.00 note by Wamsley's representation to her, that it was "all right and just;" that a short time before she brought her action against him, he promised to pay the same, if she would take cash paper and cattle therefor, which she declined, &c.

Currence answered the amended bill denying all the material allegations thereof affecting his good faith and charging him with misrepresentation.

Numerous depositions were taken mostly on the value of the land and the quantity of bottom and improved land and the...