Hutchinson v. Bozeman

BRICKEN, J. The question presented by the record is not whether the plaintiff has a good cause of action, but whether such a cause has been properly stated in her complaint. The trial court held each of the *170 four counts subject to some of the demurrers interposed, not stating the grounds on which the judgment was based. Plaintiff thereupon took a nonsuit, and seeks here tó review the rulings mentioned. [1] The first count fails to state many of the essential elements of a cause of action for deceit in the sale of land. Wall v. Graham, 192 Ala. 396, 68 South. 298; King v. White, 119 Ala. 429, 24 South. 710; Einstein v. Marshall, 58 Ala. 153, 29 Am. Rep. 729; 20 Cyc. 102; Code 1907, § 2468. [2] Counsel for appellant treats the second count of the complaint as for money had and received. We cannot so treat it. Rather it is an attempt to declare for breach of a contract to convey land; the breach alleged being a failure to deliver a deed, and an eviction of plaintiff. Eor aught that appears, the contract may be void under the statute of frauds, and not enough is stated to authorize a recovery for an eviction by paramount title. [3] The third count is difficult to classify. While it declares upon a false'and fraudulent representation as to the lots sold, it further declares that the plaintiff was put in possession of the lots purchased by her, and for which she paid the consideration agreed upon, but that she has been .evicted, and so has lost the use and possession of same. It fails to charge that defendant falsely or fraudulently represented that he had title to said lots, and is silent as to the recitals in the deed, if deed there was. [4] While count 4 is not artfully drawn, it does in effect and legal substance state a cause of action for fraud and deceit in the sale of the property in question, and was not subject to any grounds of the demurrers assigned. 12 Ruling Case Law, p. 271, § 37 20 Cyc. 87 (C); Journey v. Hunt, 1 N. J. Law, 235, 1 Am. Dec. 202; Sherwood v. Salmon, 5 Day (Conn.) 439, 5 Am. Dec. 167. For the error in sustaining the demurrers to count 4, the judgment of the lower court is reversed, and the cause remanded. Reversed and remanded.