Boyce's Executors v. Grundy

Mr Justice Johnson delivered the opinion of the Court.

This is an appeal from the decree of the circuit court of West, Tennessee, rendered in a case in which the appellee was complainant.

The bill was filed to obtain the rescisión of an agreement entered into on the 3d of July 1818, between James Boyce, the appellants’testator and devisor, and the complainant,'for the sale of a tract of land lying on the Homochito river, in the state of Mississippi.

The grounds set forth in the bill are, fraudulent misrepresentations.

1. As to the testator’s title to the land. 2. As to the locality of the land. 3. As to the liability of the land to inundation. 4. As to the general description of the character and quality of part of the land not examined by complainant.

We have weighed the allegations of fraud contained in the bill, and are well satisfied that they are material, and such as entitle the complainant to relief if substantiated.

We have also considered the evidence introduced by the, complainant, and compared it with the rebutting testimony *215 introduced by the appellants, and are of opinion that the testimony in support of complainant’s allegations is full to the purpose of sustaining his bill, and the credibility of his witnesses fully established, wherever it has been necessary; so that in those points in which it has been contradicted by the appellants’ witnesses, we cannot avoid giving credit to that of the complainant.

The decree below must therefore be sustained, unless the appellants can prevail upon some legal ground which,will except this case from the general rules on this subject. The' first and principal ground taken is, that the court of law was competent to give relief, and that this court should refuse relief, as well on the general principle as affirmed in the judiciary act, as because:

1. That the complainant was not prompt in insisting upon the fraud as soon as discovered; and

2. Because he did not avail himself of it in a plea to the action .at law.

This court has.been often called upon to consider the sixteenth section of the judiciary act of 1789, and as often, either expressly or by the course of its decisions, has held, that it is merely declaratory, making no alteration whatever in the rulés of equity on the subject of legal remedy. It is not enough that there is a remedy at law; it must be plain and adequate; or in other words, as practical and as efficient to, the ends of justice and its prompt administration, as the remedy in equity.

In Hie case before us, although the defence of fraud might have* been resorted to, and ought- to have been sustained in that particular suit, and I will add, would have greatly aided, the complainant in a bill to rescind, yet it was obviously not a» adequate remedy, because it was a partial one. The complainant would still haye been left to renew the contest upon a series of suits; and that probably after the death o.f witnesses.

That he was bound to be prompt in communicating the fraud when discovered, and consistent in his notice to the opposite party of the use he proposed to make of the discovery, cannot be questioned. But we cannot concede to the *216 appellants’ counsel, that the complainant was chargeable with delay or inconsistency in the particulars.

In his bill he alleges that the fraud did not come to his knowledge until 1321, and that he forthwith gave notice to James Boyce, that he might resume possession of the premises, and receive the rents and profits, for that he would not comply with the contract; which notice he repeated to the appellants after Boyce’s death.

It has been argued that the testimony establ’shes. an earlier notice, and even a contemporaneous notice of the facts which the complainant alleges were concealed or misrepresented.

The misrepresentations relied upon are of two classes : those which relate to the land, and those which relate to the title.

As to the title; the case furnishes no ground for imputing to. the complainant contemporaneous notice of the involved state it was in. The evidence of the fact of representation on this subject, rests chiefly on the deed- and the letters from Port Gibson. From these it clearly appears, that so far as relates to the two hundred acres purchased from Ellis, the complainant could not, even at the time of sale, have been put on inquiries respecting the title. For the deed expressly imports that the whole land sold was comprised within the grant to Davis. With regard to the land actually comprised within the grant to Davis, if the agreement to make a present sale of land, for which there was to be made present and successive payments to a large amount within four years, does -not imply a present title or a. present power to sell, it certainly amounts'to a representation, that at the end of four years the seller would be able to make a clear title.

But since, upon the discovery made at Port Gibson, the notice given by the complainant was not of an intention to rescind, but of a claim for a deduction pro jrata, and since .time is expressly given to the extent of four years to make title to. the whole tract; we will not affirm that, in the absence of any proof of positive loss from want of title in the interval, if the party had been able to make title when the bill was filed, and had so answered, and duly set out the title *217 tobe tendered, that it would have been a case for relief. But the defendants in their answer go into an exposition of the only title they can offer, and that is so involved and imperfect, that a court of equity would not even refer it. If then the appellants were now before this court, under a bill for a specific performance, it is clear that they must be turned out of court, being incompetent on their part to fulfil the contract. The rules of law relating to specific performance and those applied to the rescisión of contracts, although not identically the same, have a near affinity to each other.

Again, if the object of the complainant’s bill had been confined to obtaining an injunction until he could receive from defendant a good title to the land; can it be doubted that where the cause of action at law is a covenant in the same deed which stipulates for such a title, that he would be injoined until he made a title And if so, how long is this state of suspense to be tolerated The title was to be made in four years; this certainly amounts to a. representation that he would be able to make title at that time ; but twelve years have now elapsed, and still it is not pretended that a clear legal estate has been acquired.

In excuse for this, it is urged that the complainant committed the first fault; that had he been punctual in his payments, Boyce would have been able to procure to be executed to himself, a title that would - have enabled- him to comply with his agreement. But the state of his title is before us, and a mere tender of money was not sufficient to give him a legal estate. He must still have passed through the delays and casualties incident to a suit in equity, before he could have acquired such an estate as would have satisfied the just claims of the complainant. The case, however, furnishes a more conclusive answer to this argument. The two hundred acres not included in Davis’s grant, valued at the average which complainant would have paid for all the good land actually contained within his purchase, would have satisfied every payment that fell due within the four years. This deduction he informed Boyce he would insist upon, and there is no evidence in the cause to make it clear that Boyce did not acquiesce in this agreement.

*218 It is argued, that of the defects in Payee’s title the court could not be informed; that the complainant did not ask for a specific performance, and the defendants were not therefore called upon to set but their title. But by referring to the bill it will be seen that they are expressly called, upon to set out their title, and in their answer undertake tó do so, and in the effort, exhibit a titlb which he cannot deny is defective, but instead of setting out ai title free from defects, content themselves, with showing that the defects are not incurable.

With regard to the misrepresentations relating to the land, the only evidence by which it is attempted to fasten on the complainant a want of promptness and consistency in availing himself of the discovery when .made, is that by which a knowledge at the time of the contract is supposed to be established. Of the witnesses from, whom this evidence has been obtained, it is enough to say, that with the exception of Mr Poindexter, it is impossible to avoid putting their testimony out of the case. And Mr Poindexter’s testimony, even without his subsequent examination, may, without any forced construction, be reconciled with that of the witnesses who testify to the representations made by Boyce at the time of the sale. It relates exclusively to the subject of inundation, and when the complainant spoke to this witness of the island’s overflowing, he accompanied it with the assertion that the. overflowing could be prevented by a. levée at a small expense. This may well be confined to the representations received from Boyce-, and doe§ not necessarily imply a knowledge of its being subject to general inundation. Nor was the information received from Mr Poindexter on this subject of such a full and decided character as to amount to a communication of knowledge. It is said that it ought to have put him on inquiry; but he was in possession of Mr Boyce’s positive assurances to the contrary, and had a right to rely, upon that assurance without inquiry. The bill alleges the time of coming to his knowledge to have been that of the communication authorising the party to take possession, and the evidence is not sufficient to prove notice at any previous time.

The second ground on this head of the appellants’argument *219 has been partly answered by the doctrine laid down upon the construction of the judiciary act, on the subject of the remedy at law. And so. far as it relies on the adjudication quoted from Merivale, we think it unsustained. The position is, that an injunction to restrain proceeding on a judgment at law, will be refused by the court of equity to a party who had a defence at law and neglected to plead it. The doctrine of the case quoted, we conceive, has no bearing upon the present. The question there was upon a point of practice, whether a special injunction should issue instead of the common, injunction; there was no question about the right to the latter, but the circumstances of the case were such, that the common injunction did not afford full relief to the party. The rule of practice as laid down by the court is, that the'special injunction goes only in those cases in which, from their nature, the defendant can make no defence ; such as judgments on warrants of attorney. This was not such a. case, but the party went for an exception in his favour, grounded' upon a state of facts which brought him within the reason of the rule. And it was in fact granted.

It has been farther argued for the appellants, that reducing the agreement to writing precludes a’recurrence to all representations; and to establish this doctrine, a passage from Sugden has been quoted. It cannot be doubted that, in the language of the author, reducing an agreement to writing is, in most cases; an argument against fraud. But it is very far from a . conclusive argument, as is previously shown by the same author on the same page. The doctrine will not be contended for, that a written agreement cannot be relieved against on the ground of false suggestions; and.yet if the doctrine of this quotation, were the rule, instead of an incident to it, such would be the consequence.

There is no ^attempt made here to vary the written agreement; the relief is sought uptfn the ground, that by false suggestions and immoral concealment, the party séeking relief was entrapped into an agreement in which be would not otherwise have involved himself. This is not denying that the agreement in the record, was the agreement entered into, *220 but insisting that it was vitiated by fraud, which vitiates every thing.

It has been further argued, that the misrepresentation, if at all established, was but of a personal character, and susceptible of compensation or .indemnity, to be assessed by a jury-

On this there may be made several remarks; and first, that if the facts made out such a case, yet the law, which abhors fraud, does not incline to permit it to purchase indulgence, dispensation, or absolution.

Secondly, that although, locally, a misrepresentation may be partial, yet it may be vital in its effects upon the views and interests of the party affected by it. Such was the case of Fulton vs. Roosevelt.

But lastly, the evidence makes out a case very far removed from one of merely a partial character. North, south, east, and west, we find the misrepresentations influencing the estimate of the va ue of these premises. Indeed, if we are to believe the testimony of Randel M’Garvick; and its clearness, fulness and fairness speaks its own eulogium; a case of more general or more vital misrepresentation, can seldom’ occur, or- a case of more absolute devotion to misplaced confidence. Not only for the qualities and incidents, but also for the lines, the representations of the seller were implicitly relied on, and certainly to the most important results as to the value of the property. M’Garvick proves that they w'ere carried to a certain fence, which fence excluded a large knob, as it is called in that country, containing a considerable body of untillable and worthless land, and expressly told by Boyce that the fence was his line. Thus explicitly declaring that that body of bad land was not included in the land sold him,..whereas in fact it was included; and in another direction where the land was fine, as if to make up the deficit in quantity to an experienced eye, he represents the land in view as being included within his survey, when in fact it was not all included. And suppose the utmost effect be given to the testimony of thé appellants relative to the actual extent to which the island was subject to inundation; still it leaves wide ground for the charge of misrepresentation.

*221 The testimony is full to establish that, in several years, the whole has been overflowed. And the most favourable state, of facts will leave from pne hundred to one hundred and fifty acres, instead of fifteen or twenty, subject to this casualty in ordinary years. This, although partial in one sense, is total as to the diminution of the value of the whole. Compared with the representation proved, it certainly annihilates the very material consideration that it admitted of being prevented at a small expense, more especially as the chief injury was to be expected from the waters of the Mississippi.

In a purchase of nine hundred and fifty acres at twenty dollars an .acre, such a discrepancy between facts and representations as would add thirty-three and a-third, or perhaps fifty per cent per acre to the cost, is not a base for mere compensation. And, if not a case for mere compensation, there was no controlling necessity to send the cause to a jury.

The decree must be affirmed with costs.

' This, cause came on to be heard on the transcript of the record from the circuit court of the United States for the eastern district of West Tennessee, and was argued by counsel ; on consideration whereof, it is ordered, and decreed by this court, that the decree of the said circuit court in this cause be, and the same is hereby affirmed with costs.