Rood v. Chapin

1 Walk. Ch. 79

• Court: Michigan Court of Chancery
• Decided: November 15, 1842
• Status: Published

Opinion

The Chancellor.

There can be no doubt that Mirza Chapin fraudulently misrepresented the lot in Wayne county, at the time of the trade, and his answer is but a lame attempt to plaster over and conceal the fraud. He says the representations made by him were stated, at the time, to be on the information of Brickford, of whom he had a .short time before purchased the land, and that he advised complainant to go and see the land, before the trade took place, and prepared to go and show it to him. If any such advice was given, or offer made, I have no doubt it was done with a view to throw complainant off his guard, and induce him to place greater reliance on the fraudulent representations of the defendant. The testimony shows that defendant’s representations were of an entirely different character from what he states them to have been.

Ziba Goff, who was called on to draw the writings, says, he understood Rood had never seen the land in Browns-town. Chapin said the land was something like that they were on, which was hazel brush land, and what would be called rather hard, but middling good wheat land. Chapin said he would pay ten dollars an acre for every acre of marsh on it, and that it was as good land as that they stood on, which was the land Rood sold to Chapin, the principal part of which was good tillable land. He thinks Chapin said it was on four corners, and that there was oak, and some black walnut on it. He called it oak openings.

George Goff testifies that Chapin said it was a good lot of land, located upon a turnpike on one side, and on the other side had a road, running the length of it, as much travelled as the Shiawassee road running to Byron. He said it was timbered with oak and black walnut, with hazel nut plains — no marsh upon it. He said it was near to the route of a canal. He told Mr. Rood he could depend upon its being such land as he represented. Witness thinks he said he had been on the sides of the land. Witness understood Mr. Rood had not been on the land or seen it, and depended on Chapin’s representations of it. Is positive Chapin said he had been on two sides of it. He said the man who had owned it had been offered ten dollars an acre for it, and it would bring that any time land would sell.

William R. Knapp states, that Rood inquired of Chapin about the timber and the quality of the land, and what was its situation, and whether there was a road near it, and Chapin said it was one of four corners of the public highway, &c. That the land was a black sandy soil, a part well timbered, and a part openings; the timber was black walnut, hickory and white oak. In reply to Mr. Rood’s question, “Is there any marsh upon it?” Chapin said he had crossed two sides, and there was not any marsh upon it; — that it was as good land as that on which we stood, (which, in witness’s opinion, was good land,) oías good as any land in Michigan.

From the deposition of Henry Park, United States deputy surveyor, who surveyed the lot, and made a diagram of it, which accompanies his deposition, it appears to be almost entirely marsh, and low wet land, covered with willow and alder, with some few sand ridges. Mr. Park says it is not worth over twenty-five dollars, and that, taking it as a whole, it is not susceptible of being in any way cultivated as a farm, and that no part of it affords an eligible site for building. That the dry land is of the poorest quality, and that there is no timber except a few scattering oaks. The nearest road lies from thirty to thirty-six rods from it, and has the appearance of being a road chiefly for the accommodation of the immediate settlers.

It does not appear from the testimony the representations of Mirza Chapin were based on information received from Brickford, or any one else, but the contrary; for he said he had been on two sides of the lot, that he would give ten dollars an acre for the marsh on it, that it was as good land as any in Michigan, and that the former owner (meaning Brickford) had been offered ten dollars an acre for it. The trade must, therefore, be set aside as fraudulent, and a reconveyance of the land be decreed, unless Merrick S. Chapin, the other defendant, is entitled to the protection of the Court, as a Iona fide purchaser without notice of the fraud.

The complainant was in possession of the premises, claiming them as his own, and insisting the trade between him and Mirza was not binding, in consequence of the fraud, when Merrick purchased of his brother, with full knowledge of complainant’s possession.

On the 21st of October, complainant notified Mirza he did not consider the trade binding, and, on the next day, Mirza conveyed the land to Merrick, who, on the following day, gave notice to complainant to quit the premises. The quick succession in which these acts followed each other, is, of itself, calculated to excite suspicion in the mind. But the fact that Merrick knew, when h.e purchased of his brother, that the complainant was in possession of the premises, makes him a purchaser with notice of complainant’s title.

A vendee who purchases real estate not at the time in the actual possession of the vendor, but of a third person, with a knowledge of that fact, takes it subject to all equities existing between the vendor and the person in possession, whether such person be in possession as tenant of the vendor, or otherwise. This is the principle to be deduced from the cases of Taylor v. Stibbert, 2 Ves. R. 437; Daniel v. Davison, 16 Ves. R. 249, and Grimstone v. Carter, 3 Paige R. 421.

Decree for complainant.