Weber v. Weber

• Decision Date: 25 January 1882
• Citation: 47 Mich. 569,11 N.W. 389
• Court: Michigan Supreme Court
• Parties: WEBER v. WEBER.

11 N.W. 389

47 Mich. 569

WEBER v. WEBER.

Supreme Court of Michigan

January 25, 1882

A wife acting as agent for her husband in the sale of real estate and making fraudulent representations in regard to any encumbrances thereon, may be held personally liable in an action against her individually for such representations although the encumbrances complained of are matter of record and it is not alleged that she was interested in the property.

Error to superior court of Detroit.

M.E. Dowling, for plaintiff in error.

D.C Holbrook, for defendant in error.

CAMPBELL J.

Plaintiff sued defendant in case for making false representations to him concerning the freedom from encumbrance of certain land which she sold to him as agent for her husband Henry Weber. The declaration contains full averments showing the purchase and payment to have been made in reliance on these representations--their wilful falsehood, and the loss of the entire premises by sale under the mortgage which existed, and which defendant had said did not exist, by declaring that there was no encumbrance whatever. Defendant demurred to the declaration on the grounds--First, that defendant was Henry Weber's wife and that he should have been made co-defendant; second, that defendant is not averred to have been interested in the property; third, that it does not appear the representations were made at Henry Weber's request and by his authority; and, fourth, that the mortgage being recorded was notice. The court below sustained the demurrer, and gave judgment for defendant.

It is not now claimed that the fact that the mortgage was recorded was of any importance. Where positive representations are made concerning a title for fraudulent purposes, and are relied on, it can hardly be insisted that what would be merely constructive notice in the absence of such declarations will prevent a person from having a right to rely on statements which if true would render a search unnecessary. And it is not necessarily true that a recorded mortgage is unpaid, merely because not discharged. Neither is it true that an agent is exempt from liability for fraud knowingly committed on behalf of his principal. A person cannot avoid responsibility merely because he gets no personal advantage from his fraud. All persons who are active in defrauding others are liable for what they do, whether they act in one capacity or another. No one can lawfully pursue a...