Westbrook v. Beusse

Court of Appeals of Georgia

Westbrook v. Beusse

54 S.E.2d 693, 79 Ga. App. 654, 1949 Ga. App. LEXIS 716

CourtCourt of Appeals of Georgia

DecidedJune 28, 1949

Docket32372.

StatusPublished

Cited by9 cases

This text of 54 S.E.2d 693 (Westbrook v. Beusse) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Westbrook v. Beusse, 54 S.E.2d 693, 79 Ga. App. 654, 1949 Ga. App. LEXIS 716 (Ga. Ct. App. 1949).

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Opinions

Gardner, J.

1. There is but little we can add profitably to the opinion of the trial judge, which we think is a correct application of the law to the issues here involved. We might state, however, in addition to the principles of law to which the trial judge calls attention in his judgment, certain other principles of law not specifically pointed out. Code § 37-116 provides: “Ignorance of a fact, due to negligence, shall be equivalent to knowledge in fixing the rights of the parties.” Again, Code § 29-302 provides: “In a sale of land there is no implied warranty of title.” There appear no allegations whatsoever that the silence of the defendant prevented the plaintiff from inspecting the land to see whether or not the timber had been cut. There were other provisions of the security deed obligating the defendant as follows: That the defendant Beusse was “to keep the premises in repair and properly terrace and maintain terraces on said premises and to maintain $2,000 fire insurance on the property with loss payable to the defendant [plaintiff here].” We might here suppose that the defendant did not repair the premises'—did not keep the property terraced; and the property burned without the property being covered by insurance; all of these obligations of the defendant, had he not complied with them, could have easily been discovered by the plaintiff with the slightest diligence. When the plaintiff did not exercise diligence before he accepted a warranty deed in satisfaction of his debt, under the Code, § 37-116, he was chargeable with the knowledge that the timber had been cut. That the timber had been cut was patent and not *658 latent. And in the sale of real estate (this was a sale), and where there were no confidential relations alleged, the law will not protect a party in his own negligence. In the purchase and sale of real estate there is an underlying principle of law to the effect that one can not be permitted to claim that he has been •deceived by false representations about which he could have learned the truth of the matter and could have avoided damage. The above is the general rule. There are only two exceptions to this general rule. One is where the purchaser was prevented by the fraud of the seller or vendor from making an examination of the premises. The other is where an inspection of the premises would not have disclosed the falsity of the misrepresentation. Neither of these exceptions appears in this case. The Supreme Court, in Stone v. Moore, 75 Ga. 565, said: “Where to a suit on certain promissory notes a plea was filed, alleging that the notes were given for the purchase-money of land, and that the consideration had wholly failed, because the vendor represented the land to be fertile, to have a spring on it, and to be covered with hickory wood, all of which was false, such plea was properly stricken on demurrer, there being no plea of damages in abatement of the purchase money, and no offer to annul the contract, and it not appearing that the purchaser was deprived of the opportunity of inspecting the land for himself by the fraudulent acts or conduct of the vendor. Such things as the soil, timber or springs on land are open to inspection, and the purchaser is wilfully negligent if he fails to look and see for himself, and neither law nor equity will relieve him from his own want of diligence.” See also, to the same effect, Walton v. Avera Loan & Invest. Co., 28 Ga. App. 56 (110 S. E. 333); Dean v. Merchants’ & Farmers’ Bank, 24 Ga. App. 485 (101 S. E. 196); Newbern v. Milhollin, 31 Ga. App. 247 (120 S. E. 637); Elliott v. Dolvin, 34 Ga. App. 788 (131 S. E. 300). Regarding the kind of misrepresentations for which the court may afford relief to the purchaser are those which an examination of the premises would not have disclosed. In this connection we call attention to Brannen v. Brannen, 135 Ga. 590 (69 S. E. 1079); Wilkes v. Rankin-Whitten Realty Co., 65 Ga. App. 341 (16 S. E. 2d, 170). The general rule in purchases and sales of real estate is operative on vendors and vendees alike. Morrison v. Colquitt *659 County, 176 Ga. 104 (167 S. E. 321). In Hardin v. Baynes, 198 Ga. 683 (2-d), (32 S. E. 2d, 384), the Supreme Court held: “No other confidential relationship was shown, nor was it alleged that the defendant made any misrepresentation of fact or used any artifice to prevent the plaintiff from ascertaining the quan-. tify and value of her own property. ‘A court of equity will not relieve a vendor of land from his own negligence in not ascertaining facts which he could have ascertained by diligence, the vendee using no artifice or fraudulent scheme in order to prevent the vendor from ascertaining facts which might have prevented him from executing the deed.’ Morrison v. Colquitt County, 176 Ga. 104 (167 S. E. 321).”

2. The plaintiff contends (a) that it was a fraud for the defendant to remain silent under the circumstances alleged, and he cites in support of such contention Code §§ 105-304 and 37-704; also Reeves v. B. T. Williams & Co., 160 Ga. 15 (1) (127 S. E. 293); Brown v. Benson, 101 Ga. 758 (29 S. E. 215); Brinsfield v. Robbins, 183 Ga. 258 (188 S. E. 7); Young v. Hirsch, 187 Ga. 1, 9 (199 S. E. 179); Marietta Fertilizer Co. v. Beckwith, 4 Ga. App. 245 (61 S. E. 149); Oliver v. Oliver, 118 Ga. 362 (45 S. E. 232); Gordon v. Irvine, 105 Ga. 144 (1) (31 S. E. 151); and Code, § 96-203 (3). These Code sections and cases are not applicable to the issue here for decision for the reasons, set out in the first division of this opinion.

(b) Counsel for the plaintiff argues and cites many decisions and Code sections to the effect that but for the fraud of the defendant the deed from Beusse to Westbrook would have been an accord and satisfaction. This is a correct principle of law in the abstract, but has no application to the pleadings here.

(c) The plaintiff contends that the doctrine of caveat emptor does not apply in this case. -For the reasons given in the first, division of this opinion, we do not think that this contention is tenable. The court did not err in sustaining the demurrers and dismissing the petition.

This case was considered by the whole court as provided by the act approved March 8, 1945 (Ga. L. 1945, p. 232).

Judgment affirmed.

Sutton, C. J., and Worrill, J., concur; MacIntyre, P. J., concurs specially; and Felton and Townsend,. JJ., dissent.

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Gardner, J.

1. There is but little we can add profitably to the opinion of the trial judge, which we think is a correct application of the law to the issues here involved. We might state, however, in addition to the principles of law to which the trial judge calls attention in his judgment, certain other principles of law not specifically pointed out. Code § 37-116 provides: “Ignorance of a fact, due to negligence, shall be equivalent to knowledge in fixing the rights of the parties.” Again, Code § 29-302 provides: “In a sale of land there is no implied warranty of title.” There appear no allegations whatsoever that the silence of the defendant prevented the plaintiff from inspecting the land to see whether or not the timber had been cut. There were other provisions of the security deed obligating the defendant as follows: That the defendant Beusse was “to keep the premises in repair and properly terrace and maintain terraces on said premises and to maintain $2,000 fire insurance on the property with loss payable to the defendant [plaintiff here].” We might here suppose that the defendant did not repair the premises'—did not keep the property terraced; and the property burned without the property being covered by insurance; all of these obligations of the defendant, had he not complied with them, could have easily been discovered by the plaintiff with the slightest diligence. When the plaintiff did not exercise diligence before he accepted a warranty deed in satisfaction of his debt, under the Code, § 37-116, he was chargeable with the knowledge that the timber had been cut. That the timber had been cut was patent and not *658 latent. And in the sale of real estate (this was a sale), and where there were no confidential relations alleged, the law will not protect a party in his own negligence. In the purchase and sale of real estate there is an underlying principle of law to the effect that one can not be permitted to claim that he has been •deceived by false representations about which he could have learned the truth of the matter and could have avoided damage. The above is the general rule. There are only two exceptions to this general rule. One is where the purchaser was prevented by the fraud of the seller or vendor from making an examination of the premises. The other is where an inspection of the premises would not have disclosed the falsity of the misrepresentation. Neither of these exceptions appears in this case. The Supreme Court, in Stone v. Moore, 75 Ga. 565, said: “Where to a suit on certain promissory notes a plea was filed, alleging that the notes were given for the purchase-money of land, and that the consideration had wholly failed, because the vendor represented the land to be fertile, to have a spring on it, and to be covered with hickory wood, all of which was false, such plea was properly stricken on demurrer, there being no plea of damages in abatement of the purchase money, and no offer to annul the contract, and it not appearing that the purchaser was deprived of the opportunity of inspecting the land for himself by the fraudulent acts or conduct of the vendor. Such things as the soil, timber or springs on land are open to inspection, and the purchaser is wilfully negligent if he fails to look and see for himself, and neither law nor equity will relieve him from his own want of diligence.” See also, to the same effect, Walton v. Avera Loan & Invest. Co., 28 Ga. App. 56 (110 S. E. 333); Dean v. Merchants’ & Farmers’ Bank, 24 Ga. App. 485 (101 S. E. 196); Newbern v. Milhollin, 31 Ga. App. 247 (120 S. E. 637); Elliott v. Dolvin, 34 Ga. App. 788 (131 S. E. 300). Regarding the kind of misrepresentations for which the court may afford relief to the purchaser are those which an examination of the premises would not have disclosed. In this connection we call attention to Brannen v. Brannen, 135 Ga. 590 (69 S. E. 1079); Wilkes v. Rankin-Whitten Realty Co., 65 Ga. App. 341 (16 S. E. 2d, 170). The general rule in purchases and sales of real estate is operative on vendors and vendees alike. Morrison v. Colquitt *659 County, 176 Ga. 104 (167 S. E. 321). In Hardin v. Baynes, 198 Ga. 683 (2-d), (32 S. E. 2d, 384), the Supreme Court held: “No other confidential relationship was shown, nor was it alleged that the defendant made any misrepresentation of fact or used any artifice to prevent the plaintiff from ascertaining the quan-. tify and value of her own property. ‘A court of equity will not relieve a vendor of land from his own negligence in not ascertaining facts which he could have ascertained by diligence, the vendee using no artifice or fraudulent scheme in order to prevent the vendor from ascertaining facts which might have prevented him from executing the deed.’ Morrison v. Colquitt County, 176 Ga. 104 (167 S. E. 321).”

2. The plaintiff contends (a) that it was a fraud for the defendant to remain silent under the circumstances alleged, and he cites in support of such contention Code §§ 105-304 and 37-704; also Reeves v. B. T. Williams & Co., 160 Ga. 15 (1) (127 S. E. 293); Brown v. Benson, 101 Ga. 758 (29 S. E. 215); Brinsfield v. Robbins, 183 Ga. 258 (188 S. E. 7); Young v. Hirsch, 187 Ga. 1, 9 (199 S. E. 179); Marietta Fertilizer Co. v. Beckwith, 4 Ga. App. 245 (61 S. E. 149); Oliver v. Oliver, 118 Ga. 362 (45 S. E. 232); Gordon v. Irvine, 105 Ga. 144 (1) (31 S. E. 151); and Code, § 96-203 (3). These Code sections and cases are not applicable to the issue here for decision for the reasons, set out in the first division of this opinion.

(b) Counsel for the plaintiff argues and cites many decisions and Code sections to the effect that but for the fraud of the defendant the deed from Beusse to Westbrook would have been an accord and satisfaction. This is a correct principle of law in the abstract, but has no application to the pleadings here.

(c) The plaintiff contends that the doctrine of caveat emptor does not apply in this case. -For the reasons given in the first, division of this opinion, we do not think that this contention is tenable. The court did not err in sustaining the demurrers and dismissing the petition.

This case was considered by the whole court as provided by the act approved March 8, 1945 (Ga. L. 1945, p. 232).

Judgment affirmed.

Sutton, C. J., and Worrill, J., concur; MacIntyre, P. J., concurs specially; and Felton and Townsend,. JJ., dissent.

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54 S.E.2d 693, 79 Ga. App. 654, 1949 Ga. App. LEXIS 716, Counsel Stack Legal Research, https://law.counselstack.com/opinion/westbrook-v-beusse-gactapp-1949.

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