Westerman v. Corden

• Citation: 86 Kan. 239,119 P. 868
• Decision Date: 06 January 1912
• Docket Number: 17,351
• Parties: HENRY WESTERMAN, Appellee, v. KIZER CORDER et ux., Appellants
• Court: United States State Supreme Court of Kansas

119 P. 868

86 Kan. 239

HENRY WESTERMAN, Appellee, v. KIZER CORDER et ux., Appellants

No. 17,351

Supreme Court of Kansas

January 6, 1912

Decided January, 1912.

Appeal from Thomas district court.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. VENDOR AND PURCHASER--False Representations Innocently Made--Equitable Estoppel. Where false representations are made by a vendor in the sale of property the application of the doctrine of equitable estoppel does not necessarily depend upon the knowledge of the vendor of the falsity of the representations, but may rest upon the principle that one who by representing that a certain state of facts exists has misled another is precluded from denying the truth of such representations and from setting up a claim inconsistent with the facts as represented, where such claim would result in loss to the other and operate as a fraud upon him.

2. VENDOR AND PURCHASER--When Purchaser May Rely on Vendor's Representations. When a false representation is of a matter presumably within the knowledge of the person making it, not made in the way of commendation or as an opinion merely, but as a positive assertion of an existing fact to induce the other party to enter into the contract, such party having no knowledge to the contrary, may if he act in good faith accept the representation as true, and is not bound to make inquiries or examination for himself.

E. H. Benson, for the appellants.

Mahin & Mahin, for the appellee.

OPINION

BENSON, J.:

The defendants, Kizer Corder and wife, appeal from a judgment quieting the title to a tract of land in the plaintiff, Henry Westerman.

The appellants claim title to an undivided one-half of the tract under a quitclaim deed from The Kansas Town and Land Company. The appellee is in possession under a deed from the appellants, purporting to convey the land, made and delivered before the conveyance from the land company was executed, and contend that the appellants are estopped from asserting their after-acquired title, because of their previous conveyance to the appellee, and because of the representations of appellant Kizer Corder that he was the owner of the land.

The district court found that the conveyance by the appellants to the appellee was by quitclaim deed, and that it did not estop the grantors therein. The appellee contends that while the word quitclaim is used in the deed, it nevertheless purports to convey an indefeasible estate in fee simple in the land, and not the grantor's interest merely, and that it therefore works an estoppel as provided in section 1656 of the General Statutes of 1909. The language of the deed is quite similar to that of the deed referred to in Bruce v. Luke, 9 Kan. 201, which was held to create no estoppel. The district court found for the appellee on the other question presented, viz., that the appellants were estopped by their representations. The evidence of both parties shows, and the court found, that while negotiations were pending for the sale and purchase of the land appellant Kizer Corder stated that he owned the land by warranty deed from C. F. Jilson, except an interest therein held by one Tilden, and that a conveyance from the appellants would vest the absolute title, except that outstanding interest, which he advised the appellee to purchase. The appellee believed these representations to be true, and relying upon them entered into an agreement with the appellants for a conveyance of the land for $ 650, which sum he paid and received the conveyance as agreed, and also bought the Tilden interest, paying $ 500 therefor, all in reliance upon the truth of the representations so made.

When he made the representations, and when he delivered the deed, Corder believed that he owned the land (except the Tilden interest) and that his statements concerning the title were true, and intended that the deed by him and wife should convey a perfect title; but about ten months afterward he was informed by an abstracter that the Kansas Town and Land Company owned an interest in the land, and thereupon he obtained a quitclaim deed from that company of its title and interest for the sum of $ 2, and this is the interest adjudicated against him in the district court.

The only question that need be decided is whether the representations concerning the title so made and relied upon estop the appellants from asserting and holding adversely the interest so acquired after their conveyance to the appellee. While admitting that the representations were made and that they were untrue, it is contended that because they were made in good faith, believing them to be true, and no fraud was intended, therefore an estoppel was not created. It must be conceded that the effect is the same as it would have been if guilty knowledge had been shown. It does not repair the loss of the grantee to be told that the grantor supposed he was telling the truth.

It has often been held that false representations made and acted upon to the injury of another, although not known to be false by the party making them, may nevertheless in a proper case afford ground for the recovery of damages. Thus it was said in Holcomb v. Noble, 69 Mich. 396, 37 N.W. 497:

"Careful examination of the cases adjudicated in this state satisfies me that the doctrine is settled here, by a long line of cases, that if there was in fact a misrepresentation, though made innocently, and its deceptive influence was effective, the consequences to the plaintiff being as serious as though it had proceeded from a vicious purpose, he would have a right of action for the damages caused thereby either at law or in equity." (p. 399.)

The decision last cited was applied and followed in an action for damages on the sale of real estate, in Aldrich v. Scribner, 154 Mich. 23, 25, 117 N.W. 581.

The Nebraska supreme court in considering this subject, in Johnson v. Gulick, 46 Neb. 817, 65 N.W. 883, said:

"Whether, in an action for damages for false representations, it is necessary either to aver or prove the scienter, the authorities do not agree. The better rule, and the one adopted by this court, is, that the intent or good faith of the person making false statements is not in issue in such a case." (p. 821.)

"It is immaterial whether such statements are made innocently or knowingly. It is as fraudulent to affirm the existence of a fact about which one is in entire ignorance as it is to affirm what is false, knowing it to be so." ( Bullitt v. Farrar, 42 Minn. 8, 43 N.W. 566, syl., 43 N.W. 566, 6 L. R. A. 149.)

This subject is reviewed in a case note...