Reusche v. Berling

NOURSE, J.

Plaintiff sued for damages for fraud growing out of the purchase of real property from the defendants. The trial court held that the right of action was barred by the statute of limitations and gave judgment to the defendants. The plaintiff has appealed on a typewritten transcript.

The sale was made under a written deed of conveyance executed on June 28, 1919. The deed described the land as containing about 240 acres, which was sold for the lump sum of $10,000, including some personal property situated on the premises. It afterward developed that the tract owned by the defendants and conveyed to the plaintiff contained but 173.42 acres and the claim of fraud is based upon the alleged misrepresentations of the defendants as to the acreage. In an effort to avoid a plea of the statute of limitations the plaintiff alleged that he did not discover these misrepresentations until August 13, 1924, when he had the lands surveyed as a result of a notice which he received from the county tax collector on April 22, 1924, stating the belief of the tax collector that the tract of 66.58 acres belonged to others.

The defendants answered denying the allegations of misrepresentations ; alleging that they had no knowledge of the acreage included in the tract and so informed the plaintiff at the time of the sale; that they had purchased the tract from the former owner through a deed purporting to convey 240 acres and had paid taxes on that basis for a number of years; that, at the time of the sale, they showed plaintiff the land which they proposed to convey as included within a fence which was pointed out to plaintiff; and that, at the time of the sale, defendants warned plaintiff that the acreage mentioned in the deed was doubtful, that they were conveying what was included within the fence only, and that plaintiff should have the land surveyed to determine the matter of the acreage. It was then alleged that, before the sale was completed, defendants caused an abstract of title to the premises to be delivered to plaintiff and warned him that he should make his own examination

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of title; that this abstract disclosed the true acreage of the tract conveyed; and that from this and other information plaintiff had knowledge, or the means of knowledge, of the true acreage more than three years prior to the commencement of this action on September 3, 1924. On these facts the defendants then set up the special pleas of the statute of limitations as found in sections 337 and 338 of the Code of Civil Procedure.