Pintard v. Martin

1 S. & M. 126

• Court: Mississippi Chancery Courts
• Decided: December 15, 1843
• Status: Published

Opinion

Chancellor.

This case was submitted on the demurrer of Smith, one of the defendants thereto. The object of the bill is to rescind a contract, made by the complainant, with three of the defendants, representing themselves and the other defendants as the owners of a steam, saw, and grist mill, situated in the town of Rodney. The grounds upon which a rescission is asked, are : 1. That the defendants had no title, whatever, to any part of the ground on which the mill is situated. 2. That they fraudulently represented as included within the boundary of the mill property, a piece or lot of ground, which is essential to its value and enjoyment, but which, in fact, is not so included. 3. That the defendants, from whom he bought, had no power to bind the other joint owners of the property. 4. That an action of ejectment is now pending against him, under a title adverse to that of his vendors. As to the objection for want of title, it is a sufficient answer to say, that the complainant appears to have accepted a mere quitclaim, by taking a conveyance simply for such title as the defendants had; he can have no relief, therefore, on that ground. As to the want of power, on the part of those who made the conveyance, to bind the other joint owners, even if authority was wanting, it- is apparent, from the statements of the bill, that the other owners, or partners, subsequently recognized the validity of such sale by acting under it, taking the benefit thereof, and performing such other acts of recognition, as would bind them, at least, in a court of equity. The complainant’s only claim to relief rests upon the allegation of fraud. In addition to the charge of fraud upon all the defendants, it is specially charged against the defendant Smith, that, although he was one of the joint-owners of the mill property, so purchased by the complainant, he afterwards set up a separate claim in himself, to a part of the land which had been falsely represented as included in said purchase. It appears, that the complainant then purchased the disputed portion from Smith, took from him a mere quitclaim deed, and gave his note for the amount agreed on, including also Smith’s share of the purchase-money agreed to be paid to him, under the first sale. The complainant now asks to rescind both contracts, and to enjoin the collection of the money due on the note. It is apparent from the bill, that he has been in the possession and use of the property since February, 1839 ; and it is quite clear, that, as early as February, 1840, when he was advised of Smith’s claim, and purchased the same, he must have then become acquainted with the nature and extent of the fraud, if any, which had been practised upon him in his first purchase ; and yet we find him, at that point of time, waiving any vice that may have infected the original contract, by renewing his obligation relating thereto, so far as Smith was concerned, and then remaining quiet for more than two years before filing his bill, or instituting any active measures for relief, against the alleged fraud. These facts appear from the bill, and accompanying exhibits, and are therefore proper subjects for notice under the demurrer. Whether they amount to a waiver of the alleged fraud, and a confirmation of the original agreement, is the question to be decided. I think it may be safely laid down as a rule of equity; that where one comes to the knowledge of a fraud practised upon him, in the sale of property, and afterwards continues for a series of years in the use, enjoyment, and occupation thereof, without taking any active measure for redress, or making known any dissatisfaction, until a change of times may have depreciated its value, he can have no relief in chancery. To extend relief, under such circumstances, would be to encourage one fraud, to the end of giving relief against another. As a general rule, a court of equity will never rescind a contract, unless the parties can be put in statu quo ; nor will it lend its aid to one, whose hands are contaminated with the very vice which he charges upon his adversary, as a ground of relief. M’Donald v. Neilson, 2 Cow. Rep. 139.

In this case, the complainant not only remained passive for years after he was advised of the alleged fraud, but, with a knowledge of all the circumstances, reaffirmed the contract, by voluntarily obligating himself anew to perform it. The authorities fully establish the position, that if a party, having knowledge that he has been defrauded, proceeds to do acts in confirmation of his agreement, by voluntarily entering into a new engagement concerning it, he will be held thereby, to have waived the fraud, and to have renounced that relief, which he might otherwise have had in equity. Fonbl. Eq. 129 (note (r), 3 Am. ed.) ; Chesterfield v. Jansen, 2 Ves. sen. 125 ; 1 Atkyns, 354 ; Morse v. Royall, 9 Ves. 364 ; Sadler v. Robinson’s heirs, 2 Stew. Rep. 520.

I am accordingly of the opinion, that the demurrer of Smith must be sustained, and the bill, as to him, dismissed.