Akers v. Martin

61 S.W. 465, 110 Ky. 335, 1901 Ky. LEXIS 90

Opinion

Opinion of the court by

JUDGE BURNAM

reversing on the original AND CROSS APPEAL.

The appellee, Josephine Martin, inherited from her father, Daniel Akers, a tract of land in Floyd county, Ky. In 1895 she sold and conveyed this land to her brother, Jacob Akers for $800 cask. On the 8th of May, 1896, she insti(i*i- ¿ this suit against him, .in which she alleges that she was married and left Kentucky in the year 1875, and had since lived in the State of Missouri, never having returned to Kentucky; that several years before the institution of this suit her father died, and a portion of the real estate belonging to him was allotted to her; that she had never seen the piece so allotted to her, .and was unacquainted with its value, and did not know anything about the quality, character, or extent of the timber growing thereon ; that, after the land had been daid off to her, appellant, who is her brother, and resided in the neighborhood, without her knowledge or consent contracted to sell all of the poplar timber standing -on the land at an agreed price of $5.00 per tree; that after making this contract sale he came to her home in Missouri'for the purpose of buying the land; that before agreeing to sell she asked him about the timber, growing thereon, and its value, and that, to deceive and defraud her, he falsely .stated, in answer to her inquiry, that there were only about 50 small trees on the land, and they were worth nothing, and he represented to her that $800 was about the salable value of the land; that he fraudulently concealed from her that there were about 210 poplar trees, which he had already contracted to sell at $5.00 per tree; that she. was induced to make the sale by these false and fraudulent representations of her brother; that the land in reality was worth more than twice as much as the sum realized therefor. And she ■asked judgment for $1,050, the value of the timber contracted to be sold from the land by defendant, and for all proper relief. Appellant, in his answer, in substance admitted that he had contracted to sell the 210 poplar trees on the land of appellee at $5.00 per tree before he went to Missouri for the purpose of buying it, and that he did not disclose this fact to his sister. In the second paragraph of his answer he says that he purchased the land for himself and for his brother, George Alters, who was jointly interested with him in the sale of the standing trees thereon, and to whom he had since conveyed one-lialf of the land by deed; and he makes his answer a cross petition against George Akers, and asks that he be compelled to come in and make defense, and that, if plaintiff recovers anything from him, George Akers be adjudged to pay one-half of the amount recovered. The defendant, George Akers, admitted in his answer that he had agreed with his brother Jacob to purchase the land in partnership, and that his brother went to the State of Missouri to carry out the agreement, and that he furnished $400 of the purchase money, and that Jacob had subsequently made him a deed for one-half of the property. Subsequently appellant, Jacob Akers, filed his amended'answer, in which he alleged that appellee had forfeited any right which she had to maintain this suit, for the reason that she had made a champertous contract with her brother, Floyd Akers, whereby she had agreed to give to him one-half of all the money which might be recovered by suit or compromise on account of the alleged deceit practiced upon her in the sale of the land, and that Floyd Akers had agreed to pay all of the costs growing out of the institution of any suit that might be necessary. Floyd Akers filed an answer in which he admitted that he had made the contract, but said that it had been subsequently rescinded, and the suit was prosecuted alone for the benefit of his sister.

Mrs. Martin and her two sons, Henry and William, all testify to the facts stated in their original petition; and she also testifies that, but for these fraudulent representations made by her brother, she would not have sold the land to him at all. Appellant, -when interrogated upon this point, admitted that before he bought the land he had contracted to sell the timber growing thereon to one Adkins, and that he afterward realized from that sale $950, and that he did not communicate the fact of the sale to his sister, but denied that he represented to her that there were only fifty small trees growing on the land, and claimed that previous to that time his sister had offered to' sell the land for $800. It can not be doubted that appellant deceived and overreached his sister in this transaction. By his own admissions, he fraudulently concealed from her the value of her property; and, by the testimony of herself and her two sons, he did not stop at this, but made false statements to her of the value and amount of the timber growing thereon. And these statements were relied on by her, and induced her to make the sale of her property. “The law is well settled that the purchaser of property does not commit fraud by failing to communicate to the seller the knowledge of existing facts of which the seller is ignorant, and the purchaser informed, although such facts, if known, would operate directly to enhance the value of the property. Whatever moralists may think of this doctrine, the jurist is bound thereby.” “Whilst decisions generally admit these propositions, they are agreed, on the other hand, that it is only silence which is permitted. If, in addition to the party’s silence, there is any statement, word, or act on his part which tends affirmatively to a suppression of the truth, to covering up or disguising the truth, or to a withdrawal or distraction of the party’s attention from the real facts, then the line is overstepped, and the concealment becomes fraud. The maxim is, ‘Aliud est celare, alAud tacere.’” See Pom. Eq. Jur. 901; Williams v. Beazley, 26 Ky. 580; Bowman v. Bates, 5 Ky. 50. In other words, while a party may keep absolute silence, and violate no rule of law or equity, yet if he volunteers to speak, or to convey information which may influence the conduct of the other party, he is bound to tell the whole truth; and a false or fraudulent misrepresentation of a material fact which would be important for the vendor to know affords ample ground for the interposition of a court of equity to relieve against the consequences of such fraud. In this case the poplar timber growing upon the lands of appelleeconstituted its chief value, and, while appellant might have maintained absolute silence with regard to the timber without committing a legal fraud, when he went further, and falsely misrepresented that there was no timber of this character on that land of any value, he committed a fraud against which a court of equity will relieve. From his own testimony, after deducting every possible source of expense to which he was subjected,he realized at least $750 from hisunconscientious and fraudulent misrepresentations. While appellee, George Akers, was not present when the purchase was made, and did not participate in the false representations made to induce appellee to part with her property, yet he got the fruits of the purchase. He furnished one-half of the money to pay for it, and was bound by and responsible for the fraudulent misrepresentations of his partner and agent, and must share his part of the liability. Wo think, therefore, that the judgment should be reversed upon the cross appeal of appellee, and that she is entitled to a judgment for $750 against Jacob Akers, and that he is entitled on his cross petition to a judgment against George Akers for one-half of this sum.

This is a proceeding by a vendor of land to recover damages for deceit practiced upon her by the vendee, and, under section 215 of tlie statute, is exempted from the forfeitures declared by section 212, even if the testimony authorized the application of that principle. For the reasons indicated, the judgment-is reversed, and the cause remanded for proceedings consistent with this opinion.