Thompson v. Boyce

Blandford, Justice. We think the court below erred in striking the plea offered by the plaintiff' in error to the foreclosure of the mortgage in this case. While the facts therein set up may not have authorized a cancellation of the contract between these parties and a setting aside of the same, yet we think they did, or probably would have authorized, as the jury may have found the facts to be, an abatement or defence to the notes which were sued in this 502 ease by the defendant in error to foreclose the mortgage given as security for the same. We are of the opinion that the allegations in the plea set up as a defence to the foreclosure, if they are true, would prevent a recovery of so much of the land as was embraced in the tract lying beyond the branch. In the case of Tindall v. Harkinson, 19 Ga. 448, this court decided that “ A contract for the sale of land will not he vitiated by a mere false assertion of the vendor as to the quality and value thereof; where the buyer has full opportunity of forming a correct judgment, and is not prevented by the artifice of the seller from making the necessary examination ; especially where the rescission is not applied for within a reasonable time after the injury is discovered.” The plea in this case distinctly asserted that the defendant in error represented the land lying beyond the branch to be good hammock land, and that the fifty acres embraced in the tract was worth more than five hundred dollars, and he had been ofiered that sum for the same; and that the plaintiff in error was, by the artifice or contrivance of the defendant in error, prevented from examining the land by reason of the fact that the branch was Avet and she did not have the proper shoes to go through.the same; and that therefore she relied wholly and exclusively upon the statements of the defendant in error, which statements were false. We think the principle recognized in the case cited is correct, and are willing to adhere, to the same. In the case of Allen v. Gibson, 53 Ga. 600, this court held : “ That a defendant paid too much for land is no defence to notes given for the purchase money, where he had opportunity of examination, even though he acted upon the representations of the plaintiff and another.” To the same effect, see Collier v. Harkness, 26 Ga. 362. See also Stone v. Moore, 75 Ga. 565 ; Fuller v. Buice, 80 Ga. 395. We think the principle to be adduced from 503 these decisions of this court is, that where one purchases land from another, and has an opportunity to examine it,'the contract will not be rescinded or set aside, unless there has been some fraud or artifice practiced by the vendor to prevent such examination. But we think, taking the plea in this case to be true, that hoth artifice and fraud were practiced by the defendant in error, and while it may not be sufficient to authorize a rescission of the whole contract, it may be sufficient to authorize an abatement of the purchase money as to that portion of the land which the plaintiff in error was not enabled to examine. Judgment reversed.