Hill v. Wilson
Synopsis
Vendor and Purchaser — Fraud in Sale of Land — Misrepresentations as to Water Supply. — Misrepresentations by the vendor of land to the effect that the land was abundantly watered by means of forty-five shares in a timber ditch water company, and that there would be flowing in the timber ditch a specified amount of water, which would be ample to irrigate the whole land, and produce crops at all seasons of the year, are not mere expressions of opinion, but are statements of material and important facts as to an existing supply of water sufficient for the purposes stated.
Id. — Rescission — Reasonable Time. — An offer to rescind a sale of land on account of material misrepresentations as to the supply of water for irrigation is made within a reasonable time if made within two months after the discovery of the falsity of the representations.
Id. — Offer to Rescind — Tender — Reconveyance — Water Stock. —, Upon an offer to rescind the sale for fraudulent representations, the tender of a reconveyance of the land, with an offer to surrender the possession of the land, and to redeliver the certificates of water stock, which had been transferred to the purchaser by an indorsement in blank, is sufficient as to the land and water stock.
Id. — Pleading — General Allegation — Tender of Personalty — Support of Judgment. — A general allegation of an offer by the purchaser to rescind the entire contract of sale and purchase of the premises, and to restore to plaintiffs all and every part of the premises, is sufficient to support a judgment setting aside the sale, and requiring the purchaser to account for and return all property received under the contract, although the specific allegations as to tender of restitution do not include certain small items of personal property which had been thrown into the trade, and although the value of such items is not alleged.
The Court. The case ot Hill v. Wilson and wife was brought to foreclose a mortgage given by the defendants for a balance of purchase-money alleged to be due for the real estate described therein, sold by the plaintiff to the defendants. To this complaint the defendants pleaded that the plaintiff had induced them to purchase the land and execute the mortgage by certain false and fraudulent representations.
The action of Wilson and wife against Hill was one to rescind the sale of the land by Hill to them, and cancel the mortgage on the same grounds set up in their an[95]swer as a defense to the action to foreclose the mortgage; so that the issues in the two cases were substantially the same. There was a demurrer to the answer in the foreclosure suit, and to the complaint in the action to rescind, which presented the same question. By stipulation the two cases were consolidated and tried together, and are brought to this court in the same transcript. The evidence is the same in both cases, so far as it becomes material on this appeal. The court below found for the defendants in the foreclosure proceeding, and for the plaintiff in the action to rescind, and in the latter case decreed that the mortgage be delivered up by the defendant, and that he repay the purchase-money paid in cash, amounting to two thousand dollars. Hill appeals in both cases.
It is contended by the appellant that neither the answer in the first case, nor the complaint in the last, were good, because the representations alleged to have been made were not as to existing facts, but were mere opinions; that the offer to rescind was not made in time, and the tender made was not sufficient. The sale made by Hill was of the land, forty-five shares of stock in a certain water company, five cords of wood, and a cow, for the sum of six thousand dollars. The shares of stock entitled the holder to so much of the waters of a certain water-ditch, to be used for irrigation and domestic purposes, and was for that reason only valuable in connection with the land.
The allegation as to the fraudulent representations was as follows: “The said plaintiff, for the purpose of inducing the defendants to purchase the land and water right hereinabove described, did falsely, and fraudulently and deceitfully, represent to defendants, and did by such false, fraudulent, and deceitful representations induce defendants to believe, that the said land was well and abundantly watered by means of the said forty-five shares of said Timber Ditch Water Company, and the water to be
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