Babcock v. Case

The opinion of the court was delivered, May 12th 1869, by Thompson, C. J. The plaintiff in error, Babcock, sold the land which gave rise to this controversy to the defendant in error, at the distance of some thirty-five or forty miles from its alleged location. There was testimony to show that he represented the title as good; that it was a tax title; that he had bought from Mr. Falconer, and had been to Tideout, where the land lay, and looked it up, and found it all right. Of course, this was equivalent to saying that the land was unseated and subject to be sold for taxes at the time the taxes for which it was sold had been last assessed. There was also testimony that the defendant in error said, if he bought the land he would have to take his (Babcock’s) word for it, that the land and title were as he represented, and that on these terms the sale took place. The jury believed this evidence, and found against the defendant below on the ground that he misrepresented the true state of the land, when he was bound in good faith to represent it exactly as it was, the plaintiff below declaring himself a stranger to it, and relying on his representations. Under such a state of facts, there was a relation of trust and confidence between the parties, and the seller was bound to exhibit the truth of the case as it existed, whether he knew them or not. That is to say, his ignorance of them, having undertaken truly to state them, would not redeem a falsehood in regard to them in any material matter, from being a fraud, and a fraud that would avoid the contract. All this was sufficiently explained to the jury by the learned judge below. The plaintiff’s case below depended on showing the worthlessness of the defendant’s conveyance. This he succeeded in doing. But it is alleged that the • plaintiff was not entitled to try that question until after a reconveyance made or tendered to the defendant. As a general rule, in the cases of executed contracts, this is true. Rescission on the ground of fraud, failure of consideration and the like, is a right in equity subject to a restoration of the consideration ; consequently, in order to obtain equity, it lies on the party seeking it to do equity; that is to say, he must return the property obtained, or reconvey the title. If this be the equitable requirement, a failure in that particular would ordinarily be fol [431] lowed by a denial of tbe equity demanded. But if tbe thing, the consideration for which is sought to be recovered back, be entirely worthless, there would be no duty to return it. This we held in Flynn v. Allen, a case from Potter county, 7 P. F. Smith 482. We decided that the return of the worthless township orders bought by the plaintiff from the defendants, was not essential to the plaintiff’s right of recovery. As nobody can have an equity in a thing worthless in itself, it must follow that the restoration of such a thing will not be required in equity. Wherever the question of restoration arises, it is an equitable question, and is to be dealt with on equitable principles. If there be no value in a conveyance, for instance, and no right of recourse on any one on a re-conveyance, would the want of such a reconveyance having been tendered outweigh a plaintiff’s equity to have his money back, who had been egregiously defrauded ? If it would not, a reconveyance would not be required. It is only required in order to prevent the party holding the thing paid for, and recovering the price, also, that a return is essential in equity. If the thing be worth nothing, of what consequence is a reconveyance or return of it ? The defendant below did not show that a reconveyance by the plaintiff to him would be of any value. What equity had he to have it therefore ? It must be remembered that if the plaintiff was defrauded, it avoided the conveyance, and his right was complete to his money. It never lawfully passed out of him. The right to have it again depended on what might appear in the defence. He could not know that the defendant would insist on a reconveyance of a worthless title, and was not bound to make a reconveyance, or tender one. If any value appeared in it, however, a condition to reconvey in the verdict would effectually do equity in the premises. Indeed, after verdict, if it should come to light that a reconveyance ought to be made, it is within the equitable power of the court to restrain execution until it be made. In all cases, therefore, the equity of the defendant is to be judged of and administered, if it be an equity at all, and if it be not, the claim goes for nothing. If equity requires a reconveyance to precede suit, it will be so administered; if it can be protected on the trial as it may in almost every possible case, it will be so administered. If there be no equity in the case, but only an assumption of it, it ought to be disregarded. That was the category, it seems to us, in which the defendant’s claim to equity stood.. Should the court below be of opinion, however, that justice demands a reconveyance to be made to the defendant, it might restrain the execution until it be made. The action is at common law, but still it is an equitable action; contemplating it in this light, the rights and duties of the parties are more easily perceived, and as they strike us, we have stated them. We do not impinge on the case of Pearsoll v. Chapin, 8 [432] Wright 12. That case was well decided on its facts. We think there was, therefore, no error in the ruling of the learned judge upon the defendant’s 1st and 2d points. Nor do we consider there was error in the answer to the third point of the defendant. It was true in law, if the fact were so, that if there was no land unseated to which the treasurer’s deed was applicable, the conveyance may have been regular, but it operated on nothing. The court committed no error in telling the jury so. It was their business to say how the fact was, and they have said so. The other branch of the point was affirmed. There are several errors to which no arguments were addressed, but we have considered them, as requested in the oral argument, and see nothing whatever to correct in the rulings of the learned judge in regard to them. It was proposed to prove on the part of the defendant that the price at which the land was sold, was so inadequate to its value, if oil territory, that an inference ought to have been drawn by the jury, that the plaintiff took the risk of the title. Such was by no means a legitimate inference. It was not known to be oil territory, and the risk of this may have been the inducement to offer it at so low a figure. The testimony would be ineffectual unless it would raise a presumption contrary to the express facts, and sufficient to overturn them as proved by the witnesses, that the defendant represented the title as good, and he knew it, and that the plaintiff said he would rely on his word and take it. The proposed testimony was susceptible of other inferences, and not necessarily those claimed; in fact not possible, in view of the evidence in the case. There was no error therefore in this, nor in any other part of the case, and the judgment is affirmed.