Perkins v. Farmers & Merchants Savings Bank

BARNARD, P. J. On March 23, 1929, the defendant loaned $15,000 to one S. W. Miller, taking a note secured by a mortgage on certain real property near Santa Ana, which was then under lease to the Orange County Fair Association. On April 23, 1929, the defendant sold this note and mortgage to the plaintiff, who resided in the state of New York but occasionally visited in Santa Ana. In making this sale one of the defendant’s officers represented to the plaintiff that the land covered by this mortgage contained 18 acres. In April, 1933, the plaintiff discovered for the first time that the tract contained but 15.344 acres, or 14.771 acres exclusive of streets. In this action for rescission, which was .brought on June 26, 1933, the court found in all respects in favor of the plaintiff and entered a judgment from which this appeal is taken.

It is first contended that this action is barred by the statute of limitations. It is argued that the complaint failed to set forth the times and circumstances under which the facts constituting a fraud came to the knowledge of the respondent so that the court might determine from the allegations of the complaint whether the discovery was made within the statutory period. The complaint alleges that knowledge of the true facts first came to the respondent on April 9, 1933, and the circumstances under which he acquired such knowledge are particularly set forth.

It is also urged that the respondent could have ascertained the true acreage of this land on June 17, 1929, because the county surveyor then made a survey of the same, at the request of the owner and lessee, and reported the correct acreage to them, and that the statute runs from that date. It is not claimed that this information was given to the respondent then or at any other time, but it is argued that it must be presumed that the county surveyor complied with sections 4218 to 4220 of the Political Code and that his records were available to the respondent. Assuming that the county surveyor complied with these sections we know of no law making these records a sufficient constructive notice to the respondent, and it seems to be admitted that he had no actual notice thereof. The respondent lived in another state, the [498]interest on the mortgage was paid up to March 22', 1932, and there is an entire absence of evidence of any facts which would reasonably have put the respondent on inquiry. In Victor Oil Co. v. Drum, 184 Cal. 226 [193 Pac. 243], the court said: “Taking up the first point, the evidence amply sustains the finding that the plaintiff did not have actual knowledge of the fraud until December, 1913. The defendants claim, however, that it should have had such knowledge prior to that time and more than three years prior to the commencement of the action, and rely upon the well-established rule laid down in Lady Washington etc. Co. v. Wood, 113 Cal. 482 [45 Pac. 809], that discovery is different from knowledge, that where a party defrauded has received information of facts which should put him upon inquiry, and the inquiry if made would disclose the fraud, he will be charged with a discovery as of the time the inquiry would have given him knowledge. (See, also, Bancroft v. Woodward, 183 Cal. 99 [l90 Pac. 445].) . . . The courts will not lightly seize upon some small circumstance to deny relief to a party plainly shown to have been actually defrauded against those who defrauded i him on the ground, forsooth, that he did not discover the fact that he had been cheated as soon as he might have done. It is only where the party defrauded should plainly hqve discovered the fraud except for his own inexcusable inattention that he will be charged with a discovery in advance of actual knowledge on his part."