Opinion
4 Div. 879.
February 10, 1921.
Appeal from Circuit Court, Coffee County; A. B. Foster, Judge.
W. O. Mulkey, of Geneva, and Simmons Yarbrough, of Enterprise, for appellant.
For reference to one aspect of the case, see 202 Ala. 632, 81 So. 574; 202 Ala. 622, 81 So. 564. The facts found by the court do not show actionable fraud. 12 Ala. App. 464, 67 So. 754; 121 Ala. 450, 25 So. 995; 195 Ala. 186, 70 So. 141; 11 Ala. App. 670, 66 So. 954; 14 Ala. App. 152, 68 So. 593; section 2469, Code 1907. A party asserting fraud or a false representation must have had the right to rely thereon. 9 Ala. 662, 44 Am. Dec. 448; 16 Ala. 785, 50 Am. Dec. 203; 12 R. C. L. § 113, note 5. Glenn should have offered White the money back, requesting of White a reconveyance. 126 Ala. 172, 28 So. 86; 152 Ala. 545, 44 So. 556.
W. W. Sanders, of Elba, for appellees.
The facts found by the court constituted a fraud in the law. 56 Ala. 375; 162 Ala. 327, 50 So. 254; 197 Ala. 136, 72 So. 410; 201 Ala. 218, 77 So. 744; section 4298, Code 1907. The court had the witnesses before them, and the testimony was ore tenus. 200 Ala. 613, 76 So. 972; 201 Ala. 309, 78 So. 85, L.R.A. 1918D, 858; 16. Ala. App. 648, 81 So. 140.
The trial court exonerated the appellant of fraud in fact, or fraud mala fide, and properly so, upon the evident idea that he was sincere in representing to the appellee Glenn the removal of the restrictive clause as to the use of the lot in the former deed by virtue of a release procured by him and his lawyer from Treadwell and Mrs. Harrison, but found that he was guilty of fraud as matter of law in procuring from the defendants a warranty deed upon representing to them that the impediment to a good title, to wit, the restrictive clause in the old deed, had been legally and properly annulled, and thereby inducing them to make a warranty deed to said lot, which said fact was not true, though appellant may have thought at the time that he had procured a valid release, or removal of the restrictive clause.
Section 4298 of the Code of 1907:
"Misrepresentation of a material fact, made willfully to deceive, or recklessly without knowledge, and acted on by the opposite party, or if made by mistake and innocently, and acted on by the opposite party, constitutes legal fraud."
See Bethea Co. v. Mayben, 192 Ala. 542, 68 So. 814; Dean v. Brown, 201 Ala. 468, 78 So. 966.
The appellant, having represented to Glenn the procurement of the release and thereby induced him to make a warranty deed to the lot, cannot now recover of Glenn for a breach of warranty resulting from the validity, or insufficiency, of the release which he had previously assured Glenn was sufficient. Prestwood v. Carlton, 162 Ala. 327, 50 So. 254. True, White may have told Glenn the release was on file in the probate office and suggested that he inspect same, but the evidence also shows, and as found by the trial court, that he assured Glenn that it not only had been obtained but also informed him as to the contents and effect of same, and the defendant had the right to rely upon said assurance without being required to make an independent investigation. Prestwood v. Carlton, supra, and cases there cited.
It is next suggested that the defendant Glenn could not have been deceived by the appellant's representation for the reason that Harrison was dead, and his widow could not validly release the restrictive clause in the old deed, as the title in part vested in certain minor children of said Harrison. These facts may be true, but White undertook to procure the release through the aid and advice of his lawyer, which fact was known to Glenn, and he had the right to act and rely upon the assurances of White not only as to the purpose and contents of the release but as to the legal effect of same.
The judgment of the circuit court is affirmed.
Affirmed.
McCLELLAN, SOMERVILLE, and THOMAS, JJ., concur.