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Attorney(S)
  • J.F. Galloway and J.L. Taylor, both of Gulfport, for appellant. In an action for the price of land sold, the purchaser may set up in defense the fact that the vendor defrauded him by false representations as to the quantity, quality, condition, boundaries, or other matter injuriously affecting the subject matter of the contract; and no offer to rescind the contract is necessary to entitle him to defend to the extent that he has suffered by the fraud. Myers v. Estell, 47 Miss. 4, 54 Miss. 174; Lundy v. Hazlett, 112 So. 591, 147 Miss. 808. It is immaterial whether actual fraud be imputed to appellant. The result is the same, if the transaction was the result of a mutual mistake. Allen v. Luckett, 94 Miss. 868, 48 So. 186; Oswald v. McGehee, 28 Miss. 340; Rimer v. Dugan, 39 Miss. 477; Davis v. Hurd, 44 Miss. 50; Lizana v. Edwards Motor Sales Co., 141 So. 295; Corley et al. v. Reed et al., 145 So. 341. In modern times the courts have given away to a more sensible rule that the ancient rule; that the more sensible rule is to give effect to the intention of the parties, if practicable, when no principle of law is thereby violated; and that the intention of the parties is to be ascertained by taking into consideration all of the provisions of the deed, as well as the situation of the parties to it. Carrere v. Johnson, 115 So. 196, 149 Miss. 105, It is nothing more than good sense to say that the more accurate parts of a deed shall control the indefinite or inaccurate parts thereof. But it so happens here that the only definite and accurate part of the deed is the plat of Pitcher's Point which is complete in itself and was actually located on the ground by appellees through their agent, Mr. Stratton. Ford, White Morse, of Pascagoula, for appellees. Where there is sufficient certainty in the conveyance, and afterwards an additional description which fails in point of accuracy, the latter should be rejected as surplusage. Ladner v. Cuevas, 138 Miss. 502, 103 So. 217; Carrere v. Johnson et al., 149 Miss. 105, 115 So. 196. The statute of limitation applies in this case to the appellant, for the reason that the deed executed to him was dated September 16, 1925, and in the absence of any action on the part of the appellees to lull the appellant into a sense of security, or to keep him from making a survey of the land, and the record in this case shows no such action on their part, the statute of limitation applies, and began to run when the deed was delivered to the appellant. Argued orally by J.L. Taylor, for appellant.
Judges
  • Cock, J., delivered the opinion of the court.
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Citation Codes
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citation codes
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Attorney(S)
  • J.F. Galloway and J.L. Taylor, both of Gulfport, for appellant. In an action for the price of land sold, the purchaser may set up in defense the fact that the vendor defrauded him by false representations as to the quantity, quality, condition, boundaries, or other matter injuriously affecting the subject matter of the contract; and no offer to rescind the contract is necessary to entitle him to defend to the extent that he has suffered by the fraud. Myers v. Estell, 47 Miss. 4, 54 Miss. 174; Lundy v. Hazlett, 112 So. 591, 147 Miss. 808. It is immaterial whether actual fraud be imputed to appellant. The result is the same, if the transaction was the result of a mutual mistake. Allen v. Luckett, 94 Miss. 868, 48 So. 186; Oswald v. McGehee, 28 Miss. 340; Rimer v. Dugan, 39 Miss. 477; Davis v. Hurd, 44 Miss. 50; Lizana v. Edwards Motor Sales Co., 141 So. 295; Corley et al. v. Reed et al., 145 So. 341. In modern times the courts have given away to a more sensible rule that the ancient rule; that the more sensible rule is to give effect to the intention of the parties, if practicable, when no principle of law is thereby violated; and that the intention of the parties is to be ascertained by taking into consideration all of the provisions of the deed, as well as the situation of the parties to it. Carrere v. Johnson, 115 So. 196, 149 Miss. 105, It is nothing more than good sense to say that the more accurate parts of a deed shall control the indefinite or inaccurate parts thereof. But it so happens here that the only definite and accurate part of the deed is the plat of Pitcher's Point which is complete in itself and was actually located on the ground by appellees through their agent, Mr. Stratton. Ford, White Morse, of Pascagoula, for appellees. Where there is sufficient certainty in the conveyance, and afterwards an additional description which fails in point of accuracy, the latter should be rejected as surplusage. Ladner v. Cuevas, 138 Miss. 502, 103 So. 217; Carrere v. Johnson et al., 149 Miss. 105, 115 So. 196. The statute of limitation applies in this case to the appellant, for the reason that the deed executed to him was dated September 16, 1925, and in the absence of any action on the part of the appellees to lull the appellant into a sense of security, or to keep him from making a survey of the land, and the record in this case shows no such action on their part, the statute of limitation applies, and began to run when the deed was delivered to the appellant. Argued orally by J.L. Taylor, for appellant.
Judges
  • Cock, J., delivered the opinion of the court.
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Smart Summary

DUNN v. DENT et al.

1. FRAUD.

Action of deceit will lie for false representation as to acreage in tract sold, though representation was made in good faith.

2. LIMITATION OF ACTIONS.

Where false representation as to acreage of tract is not fraudulently concealed by vendor after sale, purchaser's right of action for deceit accrues upon completion of sale induced by false representation (Code 1930, section 2312).

3. LIMITATION OF ACTIONS.

In suit by purchaser for false representations as to acreage of tract sold, evidence failed to establish that vendor fraudulently concealed false representations after sale, and hence suit begun more than seven years after sale was barred (Code 1930, sections 2292, 2312).

Cock, J., delivered the opinion of the court.

This suit, which was originally filed in the circuit court of Harrison county, is an action of deceit for alleged false representations by the grantors in a warranty deed as to the amount of land conveyed. By an order of the circuit court the cause was transferred to the chancery court, and the pleadings were there reformed to conform to the practice of the chancery court. Upon the final hearing of the cause, a decree was entered dismissing the bill of complaint, and from this decree the complainant appeals.

The proof shows that on September 16, 1925, the appellees executed and delivered to the appellant a warranty deed purporting to convey to him a tract of land having a frontage of five hundred fifty feet on the Gulf of Mexico, at a basic price of one hundred fifty dollars per front foot. Afterwards, by separate suits filed by the appellant herein against the owners of adjoining property on the east and west respectively, the eastern and western boundary lines of the property purchased by appellant were finally and definitely established. Dunn v. Stratton, 160 Miss. 1, 133 So. 140; Dunn v. Moorman (Miss.), 142 So. 469.

By surveys of the property made in accordance with the lines established by these decisions, the fact was definitely established that when measured on a line east and west there was a shortage of about eighty-three feet in the beach frontage of the tract of land purchased by the appellant; hence this suit which was filed on December 6, 1932.

An action of deceit will lie for a false representation as to the acreage or the number of feet in a tract of land sold, although the representation was made in good faith, Lundy v. Hazlett, 147 Miss. 808, 112 So. 591; and the purchaser's right of action for such deceit accrues upon the completion of the sale induced by such false representation, or upon the consummation of the fraud, and will be barred if suit therefor is not filed within six years thereafter, unless the grantor "fraudulently conceal the cause of action from the knowledge of the person entitled thereto." Section 2312, Code 1930; 37 C.J. 935. In the case of Lundy v. Hazlett, supra, it was held that by reason of continued false representations after the sale whereby the purchaser was lulled into security and deterred from investigating, the cause of action was fraudulently concealed, and consequently, since the suit was filed within six years after the discovery of the fraud, it was not barred by the statute of limitations.

In the case at bar, the record is barren of any such proof. It affirmatively shows that, after the delivery of the deed, the appellant had no communication with the appellees, and it fails to show that they did anything that could be construed as a concealment of the falsity of the representation as to the amount of land conveyed, or a concealment of the cause of action. This suit was not filed until more than seven years after the cause of action accrued to the appellant, and therefore it was barred. Section 2292, Code 1930.

Affirmed.

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DUNN v. DENT
(Apr 23, 1934)