Shopbell v. Boyd
Before: Shaw
Synopsis
Rescission for Fraud in Exchange of Land—Appeal from Judgment-fob Plaintiff—Sufficiency of Complaint—Finding not Considered.—In an action to rescind an executed contract for the exchange of land, for fraud in its procurement, upon an appeal taken on the judgment-roll from a judgment for plaintiff, when the appellant relies upon insufficiency of the complaint, as against a general demurrer, all of its allegations must be taken as true for the purposes of the demurrer, and a finding of fact against the plaintiff that he had waived an alleged misrepresentation as to the value of defendant’s property cannot be considered in determining the sufficiency of the complaint.
Id.—False Representations by Defendant’s Agent.—The complaint is not rendered insufficient as against the defendant because it shows that the false representations were made by another person, when the pleading distinctly alleges that such person acted in the transaction of effecting the exchange as the agent of the defendant, who-cannot be heard to disclaim responsibility for his acts while retaining the benefits accruing therefrom.
3b.—Passage of Title—Remedy upon Covenants for Damages—Election of Remedy to Rescind for Fraud.—The fact that the title was passed, and that there might be a remedy for damages upon the covenants contained in the deed from the defendant to the plaintiff, cannot affect the right of the plaintiff to rescind the exchange promptly upon the discovery of the fraud practiced in procuring the exchange.
Id.—Support of Judgment—Aside from the finding against plaintiff as-to waiver of the misrepresentation as to value, the judgment for the plaintiff is sufficiently supported by findings that the alleged misrepresentation as to a lease of the property, and as to encumbrances thereupon, were made as alleged, and were knowingly false, and induced the exchange, and that the truth was fraudulently concealed from the plaintiff until the exchange was fully effected, and that plaintiff was damaged thereby.
Id.—Fraud and Damages—Relative Importance.—The fraud' practiced in effecting the exchange is the essential thing; and while it must be coupled with loss, injury, or damage, the precise amount of such damage is of secondary importance.
SHAW, J.
This is an action to rescind a contract for the exchange of real estate and compel a reconveyance of property granted pursuant to the terms of said contract.
The defendants appeal upon the judgment-roll from a judgment rendered in favor of plaintiff.
It appears from the complaint that defendant Boyd was the owner of certain property situated in Los Angeles, subject to a deed of trust held by the Continental Building and Loan Association. The defendant Bunch, who was the agent of Boyd in the transaction, represented to plaintiff that Boyd’s property was of the value of $4,000; that it was leased to a good responsible tenant for a term of one year at a monthly rental of $25, and that her title to said property was free and clear of all encumbrances except the deed of trust; that plaintiff believed said representations to be true and relied upon the same, and was by reason thereof induced to enter into an agreement to exchange certain property situated in Chicago, Illinois, and then owned by plaintiff, for the real estate of Boyd. The agreement provided that plaintiff and defendant Boyd should execute deeds to their respective properties, which should be delivered to and held by defendant Bunch, as per terms of the agreement. At the request of Bunch, plaintiff executed and left with him her deed to be by him held until the titles to the said properties were examined. Plaintiff then caused an examination of Boyd’s title to be made, and
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thereby learned that the property had been sold for taxes, and also sold under an assessment levied for street improvement. It is also alleged that the property was not leased as represented, and that the only rental obtainable for the property was $15 per month; that instead of the value of the property being $4,000, as represented to her by Bunch, its value was $2,500. Plaintiff alleges that she depended wholly upon the representations made by Bunch, and, believing them' to be true, was thereby induced to enter into said agreement and execute and deliver to Bunch the said deed whereby she conveyed her property to defendant Boyd; that defendants made the representations with the purpose and intent to cheat and defraud her; that upon the discovery that said representations were false she tendered to defendants a deed re-conveying the property deeded to her by defendant Boyd, together with $15 alleged to be the rental value of the property for the time she had held the same, together with notice of rescission, and demanded a return of her deed placed with defendant Bunch; that defendants refused to accept such tender and refused to return her deed, but caused the same to be filed for record in the recorder’s office of the county wherein the property described is located.
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