Crist v. Fife

KERRIGAN, J.

This suit is one for the rescission of a contract for the purchase of certain residence property, the cancellation of a note and mortgage given as part payment therefor, and the recovery of money paid thereon.

The complaint charged that respondents had falsely and knowingly and with intent to deceive appellants represented that the title to the property was free and clear of all encumbrances of every kind, and that appellants relied upon these representations, whereas there were in fact certain building restrictions against the property. The trial court found that the claimed representations were not made, and judgment went in favor of defendants.

[510]

[1]

It is first claimed as ground for reversal that this finding on the alleged representations is not supported by the evidence. There was a conflict upon this subject, and the finding is conclusive here.

As a further ground for reversal it is urged that notwithstanding this question, the facts found by the trial court necessitate a reversal of the judgment. These facts, in substance, are as follows: On the twenty-eighth day of August, 1911, the respondents sold to appellants the residence property for the sum' of $6,850, receiving one thousand dollars on account thereof, with a mortgage for $5,850, upon which appellants subsequently paid four thousand four hundred dollars. On May 28, 1917, appellants discovered that the property was burdened with certain building restrictions. The restrictions provided:

1. That the building should be used only as a residence;

2. That no building should be erected on the premises to cost less than three thousand dollars, nor nearer than twenty feet to the street frontage;

3. That no saloon or mercantile business should be maintained or conducted thereon.

These restrictions were to remain in force until the twenty-ninth day of November, 1917, and in the case of any violation thereof the property was to revert to the original grantor. There was also a sewer right of way across the property. Appellants first learned of the existence of the restrictions and conditions above set forth on May 28, 1917. None of them were contained in the deed from respondent to appellants. The former had purchased the property at a foreclosure sale, and they too knew nothing concerning their existence at the time of the conveyance to appellants. The form of deed adopted by the respondents in making the conveyance of the property to appellants was one of grant, bargain, and sale.