Opinion
8 Div. 481.
April 10, 1924. Rehearing Denied May 15, 1924.
Appeal from Circuit Court, Marshall County; W. W. Haralson, Judge.
D. Isbell, of Guntersville, for appellant.
Walls having been deceived and misled by the Realty Company, complainant may maintain this bill. Cullum v. Bank, 4 Ala. 21, 37 Am. Dec. 725; Moore v. Clay, 7 Ala. 742; Hunter v. O'Neil, 12 Ala. 37; Greenlee v. Gaines, 13 Ala. 198, 48 Am. Dec. 49; Smith v. Robertson, 23 Ala. 312; Saltonstall v. Gordon, 33 Ala. 149; Baptiste v. Peters, 51 Ala. 158; Nelson v. Wood, 62 Ala. 175; Lindsey v. Veasy, 62 Ala. 421; 39 Cyc. 1996, 2018; 27 R. C. L. 374; Manning v. Carter, 201 Ala. 218, 77 So. 744; McKinnon v. Vollmar, 75 Wis. 82, 43 N.W. 800, 6 L.R.A. 121, 17 Am. St. Rep. 178; Howe v. Martin, 23 Okl. 561, 102 P. 128, 138 Am. St. Rep. 840. Complainant is entitled to relief against Walls. Code 1907, § 3212.
Rayburn, Wright Rayburn and C. B. Kennamer, all of Guntersville, for appellees.
In this transaction the parties possessed equal information, and relief will not be granted. Juzan v. Toulmin, 9 Ala. 662, 44 Am. Dec. 448; 18 C. J. (Deeds) § 141; May v. San Antonio Co., 83 Tex. 502, 18 S.W. 959; Dickson v. Van Hoose, 157 Ala. 459, 47 So. 718, 19 L.R.A. (N.S.) 719; Hill v. Bush, 19 Ark. 522.
It is clear, on elementary principles of law, that the complainant, Bain, has no right, as a purchaser of land from the respondent Walls, to maintain a bill for the cancellation or rescission of the sale of the land by the respondent realty company to Walls, on the ground that the realty company misrepresented to Walls the location of the northern boundary, and so deceived Walls into believing that the tract to be conveyed to him contained several acres of valuable land in the northwest corner, though in fact the deed of conveyance and the plat attached did not include such acreage.
In such a case, on proper allegation and proof, Walls might be entitled to relief in equity by rescission (Shahan v. Brown, 167 Ala. 534, 52 So. 737; Joseph v. Seward, 91 Ala. 597, 599, 8 So. 682), or in either law or equity by abatement of the purchase money. Bridges v. McClendon, 56 Ala. 332; Manning v. Carter, 192 Ala. 307, 68 So. 909.
The answer of Walls to Bain's bill of complaint "joins the complainant in praying" that, if the court decrees that the sale from Walls to Bain be rescinded, it will decree a rescission also of the sale from the realty company to Walls. This is not sufficient to make a cross-bill of Walls' answer, and would not authorize any relief in favor of Walls against the company.
But, even if the pleadings authorized such relief, we agree with the trial court that the evidence is not sufficiently strong and clear to show either misrepresentation to Walls by the realty company or actual mistake between them as to the boundaries in question. Indeed, it is difficult to understand how any observer of ordinary intelligence could have been misled by the alleged statements of the company's agent, in view of the plain showing made by the plat exhibited to Walls and attached to his deed, and in turn exhibited by Walls to Bain.
"The right to the rescission or cancellation of a contract, because of fraudulent misrepresentations, must be established by clear and convincing proof." Howle v. Land Co., 95 Ala. 389, 11 So. 15; 9 Corp. Jur. 1254, § 195; Johnson v. Rogers, 112 Ala. 576, 20 So. 929.
The evidence here falls far short of that requirement.
As to complainant's right to rescission against his immediate vendor, Walls, we think it is sustained by the undisputed evidence, including the testimony of Walls himself that he showed Bain the tract as including the disputed corner, and sold the tract to him that way.
Ordinarily, relief by rescission will not be granted to a vendee, in the absence of fraud, unless he has surrendered possession to his vendor before filing his bill — it not appearing that retention of possession is necessary to prevent loss. Parks v. Brooks, 16 Ala. 529, 539; Garner v. Leverett, 32 Ala. 410. That principle, however, is not applicable here, since complainant had already yielded possession of the land to the respondent realty company, as owner by title paramount. As for the rents collected by complainant, his offer to do equity is sufficient without actual tender.
On this branch of the case the decree of the circuit court will be reversed, and the cause remanded for such orders and decrees as are appropriate, including a decree for rescission, and for the payment by Walls to complainant of the amount of the purchase money received by Walls, with interest, less the amount of the rents received by complainant out of the land.
In other respects the decree of the circuit court will be affirmed.
Affirmed in part, reversed in part, and remanded.
ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur.