Bartlett v. Drake

100 Mass. 174

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1868
• Status: Published

Opinion

Wells, J.

The acknowledgment of the deed by the demand-ant’s husband, with his name subscribed thereto, although written by his wife in his absence, was a recognition and adoption of the signature as his own. Greenfield Bank v. Crafts, 4 Alen, 447. The jury have found that he did so acknowledge the deed and adopt the signature.

The evidence tended to show that the contract between the parties was for a sale of only two parcels of land for six hundred dollars; and that the tenant fraudulently substituted a deed including, with those two parcels, other land belonging to the demandant, and by false representations induced her to sign, and her husband to execute and acknowledge the deed, upon the belief that it contained only the two parcels which they had agreed to sell. The court ruled that the question of misrepresentation and fraudulent substitution was not open, because the demandant had not returned or offered to return the consideration paid and received for the deed.

So far as the action is prosecuted for the recovery of the two parcels of land agreed to be sold, this is undoubtedly the rule of law. The general rule that a party who seeks to rescind a contract must restore the consideration received, or put the other party in statu quo, applies as well to a rescission on the ground of misrepresentation and fraud as to other cases. Kimball v. Cunningham, 4 Mass. 502. Thurston v. Blanchard, 22 Pick. 18. Perley v. Balch, 23 Pick. 283. Thayer v. Turner, 8 Met. 550. Masson v. Bovet, 1 Denio, 74. The exceptions grow out of and are founded on the deficient capacity of the party who seeks to be relieved from the contract! Gibson v. Soper, 6 Gray, 279. Chandler v. Simmons, 97 Mass. 508. In Bartlett v. Cowles, 15 Gray, 445, the general rule is said, by the learned judge who gave the opinion, to apply to the case of infants seeking to avoid their executed contracts on the ground of infancy. And some color of authority is given for that opinion by two or three of the citations made in its support. But the weight of argument, and we think also of authority, is the other way. See Price v. Furman, 27 Verm. 268. The case of Bartlett v. Cowles did not require any decision of that question. It was entirely sufficient for the decision of the case, that the cutting and sale of the timber by the defendant had been done under an agreement, which, at the time, was an existing valid contract. The subsequent avoidance of the contract under which it had been done could not convert those acts of the defendant into a tort. This consideration removes the statement of the rule above referred to into the class of obiter dicta; and we think it is contrary to the whole theory of the laws of infancy. The question was directly raised in the more recent case of Chandler v. Simmons, and this court are unanimously of the opinion there expressed.

As to the parcels of land not sold, but alleged to have been included in the deed by fraud of the defendant, the case stands differently. In a writ of entry the demandant may recover any part of the premises demanded, though less than the whole. Gen. Sts. c. 134, § 10. If the plaintiff can establish the facts that those parcels were so included by fraud, and that no part of the consideration was paid and received on account thereof, she may set up the fraud and avoid the conveyance of those lands, without rescinding the actual sale or setting aside the entire deed. The avoidance applies to the grant of the title, and not to the instrument by which it is made. Walker v. Swasey, 2 Allen, 312.

The question whether the evidence was sufficient to prove that the conveyance of such other parcels was procured by misrepresentation and fraudulent substitution, or fraudulent insertion in the deed, is not before us. It tended to prove it; but, by the ruling of the court, the jury were precluded from passing upon it. The exceptions must therefore be sustained.