Diggs v. Kirby

Smith, J. The plaintiff filed his bill March, 1882, for foreclosure of a vendor’s lien, alleging that on the 12th, day of October, 1881, he was seized in fee simple of eighty acres of land, and had then sold, and conveyed the same with covenants of general warranty, to the defendant, for the price of $700, of which $500 had been paid to him, and for the residue he held the past due obligation of the defendant. The answer, which is made a cross-bill, denied that the plaintiff was seized of forty acres of the premises, which included all the improvements and tillable land of the tract, and formed, as we may suppose, the main inducement to the purchase. It averred that this lot of forty acres had been the property of John Clanton, who died, leaving a widow and thirteen heirs at law; that the plaintiff had acquired the estate of the widow and five heirs, but that the title of the other eight remained outstanding in the hands of those upon whom the law had cast the inheritance, some of them being infants; that the plaintiff, being well aware of the true state of the title, had fraudulently represented to the defendant, who was a stranger in the country, having no knowledge, nor source of information upon the subject, except what he derived from the plaintiff, upon whose statement he implicitly relied, that these five whose conveyances he held, were the sole heirs of Clanton; and by means of such misrepresentations, had inveigled the defendant into a purchase of the property; and that the plaintiff was an insolvent person, out of whom no money could be made, if he should be forced to pay his money and be remitted to the covenant of warrantry contained in his deed. He therefore offered to reconvey the premises to the plaintiff, and prayed for a rescission of the contract, that his note might be cancelled and the $500 which he had already paid might be charged on the plaintiff’s interest in the land. To this answer the Circuit Court sustained a demurrer, and, the defendant refusing to plead further, decreed according to the prayer of the bill. We think the Court below, and the counsel who has argued here in support of its decree, have misapprehended the law and the effect of the previous decisions of this Court upon the rights and remedies of the vendee under the circumstances disclosed in the answer. The general rule is that a purchaser who has accepted a deed can not detain the purchase money, nor recover it if already paid, unless there has been a breach of the covenants, either special or statutory, contained in his deed. If there be no covenants, express or implied, of seisin, good right to convey, or freedom against incumbrances, the grantee has no cause of action, nor legal excuse to hold back his payments until he has been evicted.' But there is one exception. Fraud taints all that it touches. If there has been concealment of material facts, or misrepresentation affecting the title or situation of the property, amounting to fraud, the fact that the contract has been executed by delivery of the deed does not deprive the purchaser of his right to”relief, nor is it materia] whether the covenants for title do or do pot extend to the particular defect. Rawle on covenants for title, fourth ed. pp. 565 et seq; Yeates v. Pryor, 11 Ark., 58; McDaniel v. Grace, 15 Ark., 487; Hoppes v. Cheek 21 Id., 585; Tune v. Rector, lb. 285; Alexander v. McCauley, 22 Id. 555; Busby vs. Treadwell, 24 Id. 456. If the answer shall be proved to be true in substance and in fact, the defendant will be entitled to a rescission of the contract and an equitable lien upon the plaintiff’s share of the land for the money advanced upon it; Cooper v. Merritt, 30 Ark., 686; Felkner v. Lighe, 39 Ark., 357; unless at or before the final hearing the plaintiff shall acquire the outstanding interests of the remaining heirs of Clanton, so as to be able to tender a perfect title, -in which case the decree should be for the plaintiff. But he must pay the costs. Kimbell v. West, 15 Wallace, 377. The decree of the Crawford Circuit Court is reversed and the cause remanded with directions to overrule the demurrer to the answer, and to proceed in other respects in conformity to this opinion.