Oswald v. McGehee

28 Miss. 340

• Court: Mississippi Supreme Court
• Decided: October 15, 1854
• Status: Published

Opinion

Mr. Justice HaNdy

delivered the opinion of the court.

This was a bill filed in the southern district chancery court at Natchez, by the appellee against the appellant, to enjoin the collection of a promissory note executed by the former to the latter for the purchase-money of a tract of land, and to rescind the contract, on the ground of fraudulent representations made by the vendor to the purchaser.

The bill alleges in substance, that McGehee, the complainant, purchased a cotton plantation from Oswald, lying in Wilkinson county, and, there being some apprehension that there was on the place a very injurious growth called coco grass, that Oswald represented that only two or three spots of ground were infested with it, the garden, and one or two other small spots, and suppressed the fact that it was growing throughout the greater portion of the plantation, which he knew, and induced McGehee to believe that the grass was growing nowhere else on the lands but in the spots mentioned by him; that McGehee relied on the statements in relation to extent of the coco, and made no examination with reference to that matter, and only rode over the land on the day before the purchase, with a view to examine the quality of the land, the condition and .state of repair of the premises, and on that occasion coco grass could not have been discovered without very minute examination, owing to the prevalence of very cold weather in the month of January, which cut it down and rendered it imperceptible ; he therefore relied on the statements of the vendor; but on the approach of spring, it appeared that nearly all the land was overspread with it, whereby the plantation was not worth as much by two thirds as it would otherwise have been; that as soon as this state of things was discovered, he applied to the vendor to rescind the contract, which he declined to do; and that he would not have made the purchase if he had been aware of the true condition of the land, and the ruinous extent to which the coco grass existed in the land; that he could have inclosed and isolated the coco, as it was represented by the vendor, but it was impossible to do so, as it really existed over nearly all the plantation.

The answer denies all the material statements of the bill, and especially that the vendor knew of the coco overspreading the lands, and concealed the fact, or that he induced the vendee to believe that it was in only two or three spots, or that the vendee relied on his representations in making the purchase. On the contrary, he avers that the vendee and his brother made a full and close examination, and that the vendor informed him' that the coco was in three or four places, and might be in others unknown to the vendor. He denies that at the time of the sale' the plantation was less valuable on account of the coco, and also denies that the vendee made but one examination ; and states, that after he had made an examination with his brother, he made another full and minute examination with the vendor, and judged for himself in making the purchase.

Much testimony was taken by both parties upon the points in dispute.

On the part of the appellee, it was proved by Edward McGehee that he was privy to the purchase, and accompanied the appellee when he rode over the land, which was in the month of January, 1852, during a period of very cold weather, which cut down the coco, so that it could not have been discovered except upon a very minute examination; that they did not discover it, the object of the examination being to view the general character of the place, its general surface, how much worn, &c.; that Oswald told witness that there was coco in the garden and on one of the negro patches, and it might be in some other spot, but if so he did not know it; he left the impression on witness’ mind that it was confined to the places mentioned; that the purchaser relied on the statements of Oswald as to the coco, and not on his own examination, and he and witness, who was aiding him in making the purchase, were deceived by the statements of Oswald; that one half of the plantation proved to be scattered over with coco, which would in a few years render it valueless; that this grass is ruinous to a cotton plantation, and the appellee would not have purchased it at any price with a knowledge of the prevalence of the grass upon it, as he had recently sold a plantation on that account; that upon the discovery of the coco in the spring of 1852, the appellee proposed to Oswald to rescind the sale for that reason, when Oswald said he did not know that coco was on so many parts of the plantation when he made the sale; the witness further stated that Oswald could not have visited the place frequently for two or three years past without knowing the extent of the coco; that McGehee purchased the property for a full and fair price, as if no coco was upon it.

Young proves that the greater part of the land, about two thirds, was overspread with it, and that from its appearance in the spring of 1852, Oswald must have seen its extent when he visited the place in 1851.

McLane and Richardson, residing in the neighborhood, testify to the same effect, and that it was generally known in the neighborhood that coco was on the place; that Oswald resides five miles from it, and was in the habit of visiting it frequently before the sale, and he could not have rode over it and examined it without seeing it where it was growing. McLane states that it was scattered promiscuously over the plantation in the spring of 1852, and that it diminished the value of the property by two thirds.

Richardson testifies that he told Edward McGehee of the existence of coco on the place and its extent, a few days after the purchase, and went at his request to point it out, but that the weather was then and had been so cold that it had been killed down, and he could not then perceive it, though he examined the place where he had seen it the previous summer. He states that it could not have been discovered in riding over the place in January, 1852.

It appears that the purchaser resided at a considerable distance from the place before the purchase.

On the part of the appellant, it was proved by Jeter that he was overseer for Oswald, and present when the appellee and’ his brother Edward McGehee came to make the purchase; that Oswald told them the coco was in three or four places, and perhaps more; that the two McGehees rode over the plantation-by themselves, and Edward McGehee then left, and the appellant and A. McGehee rode over it again, and there was further conversation between them about the coco, and Oswald said that he did not regard the coco, but ploughed through it, and' stated to appellee that he (McGehee) knew more about the place then-than the overseer; that Oswald made no concealment as to the coco. He states that the coco could be seen at the time they rode over the place, and that he saw a considerable quantity of it in places; that the severe cold weather was after this time. He states that if all the land containing coco had been put together, it would not have made more than fifteen acres; but it. was much scattered, and would probably cover fifty acres.

H. M. Smith states that he was agent for Oswald in 1851, and visited this plantation and rode over it twice; saw coco in three places, and expects it could have been found in other places, from the fact that it had been ploughed through; could discover it in summer in riding over the place; cold weather kills the tops in winter, but it can be easily distinguished from other grass; it may, however, be so covered over with other grass as not to be seen in riding over the land; that what he noticed of the coco when he rode over the place, could not have spread over half the plantation by the time of the sale, but does not intend to say that it existed only in the places where he noticed it. He states that if coco was scattered over half the plantation, it would be worthless.

Paxter was overseer on the place from 1849 to October, 1851; there were three or four patches of coco in 1851, about the dwelling-house, yard, and garden, the furthest not extending more than one hundred yards from the dwelling-house; there were not more than ten solid acres of it at that time. He states that it can be easily discovered in the winter; it was notorious in the neighborhood that coco was upon the place.

Woods and Sims state that it can be detected in the winter by examination by one riding over the land. Sims visited the place in the summer of 1851, in Oswald’s absence, and at his request; saw coco in a large patch, about a hundred yards through, but noticed no more; but the way it was worked, it would in a short time ruin the plantation. It can be distinguished in winter by one acquainted with it.

On the final hearing, the chancellor decreed a rescission of the sale ; and from that decree this appeal is prosecuted.

This case depends principally upon the facts, the principles of law applicable to it in any point of view being well settled.

The evidence sufficiently shows that the purchase was made by the appellee upon the faith of the representations of the vendor, and not upon his own judgment. If these representations were material, and were made either with or without an actual fraudulent intent, and really did mislead the purchaser and induce him to make the bargain, relying upon them, the contract cannot stand. Story’s Eq. Jur. § 191-193; Hazard v. Irwin, 18 Pick. 95; Halls v. Thompson, 1 S. & M. 443. Let us, then, examine the extent of the representations, and the- circumstances under which they were made.

It appears, that pending the bargain, the vendor stated to McGehee that there was coco “ in the garden and in one of his negro men’s patches, and that it might be in some other spot, but he did not know it;” and the purchase was thereupon made without examination as to the coco, in reliance upon this statement, the impression created by it being that the grass was confined to the two places mentioned. This is the account of the representations deposed to by Edward McGehee, who was a party to the transaction and was aiding his brother in making the purchase, and must be presumed to have a more accurate knowledge and recollection of what transpired than the overseer, who merely casually heard what took place; and doubtless this account is true, for the witness states that he acted upon it in advising the purchase.

There can be no doubt, from the evidence, that this grass extended over a very large portion of the plantation. And here the question arises, whether the appellant was aware of the extent of it beyond the points he mentioned; for if he was ignorant of it, his representations were not such as to justify the purchaser in acting upon them beyond the places specified, although the impression were conveyed to him that it did not extend beyond the places mentioned. It is also clear that if he knew that it extended beyond the points stated by him, he was guilty of a false representation in law in stating that “ it might be in some other spot, but he did not know it.”

This point is not free from doubt upon the facts stated by the witnesses. It appears by the testimony that the vendor resided about five miles from the plantation in controversy and had cultivated it for several years before the sale, during which time the coco grass was upon it and he knew it; that it had during that time been ploughed through in cultivating the plantation, which would inevitably cause it to spread over other parts of the land than where it first appeared; that he was in the habit of going to the place frequently, and could not have rode over and examined the plantation without seeing it where 'it was growing. Four witnesses on the part of the vendee .state, that from the great extent to which it appeared spread over the land shortly after the sale, the vendee must have known of it at the time of the sale. The depositions for the appellant do not go to show a substantially different result. The overseer on the place in 1851, states that there were three or four patches about the dwelling-house, yard, and garden in 1851, extending probably to ten acres at that time. In the same year, Smith saw it in three places on the plantation, and expects it could have been found in other places from the fact that it had been ploughed through, and Jeter states that the appellant told Mc-Gehee that it was in three or four places, and perhaps more.

In regard to the statements of this witness, there is a discrepancy between them and the witnesses for the appellee in .several material respects; as to the coco being perceptible in aiding over the plantation at the time of the sale; as to the -coldness of the weather at that time, and also as to the extent to which the appellant stated the coco to exist on the place. As to this last particular, it is not probable that McGehee would have purchased the plantation if it had been admitted by the appellant that this grass prevailed to an indefinite extent, he having recently sold a plantation to get rid of the same nuisance ; nor is it at all probable that he would have made the purchase if the coco had easily been observed when he rode over the land. But this witness proves that it was much scattered over the place, and would probably embrace fifty acres at the time of the sale.

From the testimony, we are constrained to come to the conclusion that the appellant must have been aware of the existence of the coco beyond the extent stated by him to the appel-lee. He is shown to be a shrewd and attentive man to his business, and it would be beyond the bounds of all probability that such a man could be ignorant of the condition of his property, infested with such a pest as that here complained of, the rapid spread and ruinous effects of which are shown to have been well known and dreaded by the community in which he lived. Nor is it less improbable that the appellee, having just sold a plantation for the same cause, could have purchased another liable to the same grievance, without assurances to remove his fears or a personal examination ; and we think the evidence shows that he did not make the latter.

It is insisted, in behalf of the appellant, that the existence of the coco was a patent vice in the property, and that the purchaser was bound to take notice of it.

This is met by the evidence which shows that it was at least doubtful whether the grass was perceptible at the time. The preponderance of the proof goes to establish, that owing to the great severity of the cold at that particular season, the coco could not have been detected without a very close and minute examination. Other witnesses state, that generally it may be distinguished from other grass in the winter season; but they do not refer specially to this season, which is shown by witnesses of standing and intelligence to have been unusually cold. It appears that, although the appellee was acquainted with the nature of this grass, yet having no reason to suppose that it extended further than was represented by the appellant, and knowing that its further spread could be prevented by ditching and isolating the spots where it prevailed, he made no particular examination with reference to the coco. From all the testimony it cannot be said that the prevalence of the coco was so obvious to the senses as to destroy the legal effect of the representations made by the appellant in regard to it, and to hold the purchaser bound under such doubtful circumstances, on the ground of gross neglect, when he acted upon the assurances of the vendor. The rule in such case is, that, although the purchaser may by close inspection detect a vice in the thing sold, yet if the vendor makes representations upon which he relies, and which prevent him from making a proper examination and which prove to be unfounded, it is good ground to avoid the contract. In the absence of all representations of the vendor, the purchaser is held to strict diligence in examining and judging for himself; but where representations are made as to doubtful matters, material in the transaction, the purchaser may protect himself by relying on the good faith of the vendor, and in breach of that, he will not be bound by the contract. Halls v. Thompson, 1 S. & M. 482.

In view of all the circumstances of the case, we are of opinion that the decree is correct; and it is, therefore, affirmed.