Etheridge v. Vernoy

ByNüm, J. In contracts for the sale of land, it is the duty of purchasers to guard themselves against defects of title, quantity, encumbrances and the like; if they fail to do so, it is their own folly, for the law will net afford them a remedy for the consequences of their own negligence. But if representations are made by the bargainor, which may reasonably be relied on by the purchaser, and they constitute a material inducement to the contract, and are false within the knowledge of the party making them, and they cause damage and loss to the party relying on them, and he has acted with ordinary prudence in the matter, he is entitled to relief. Walsh v. Hall, 66 N. C. 233. The maxim of eaveat emptor is a rule of the common law, .and applies as well to contracts of purchase of real as personal property, and is adhered to in Courts of Equity as well as of law, in the absence of fraud. The purchaser’s only right of relief .is to be found in the covenants in his deed where there is no fraud. Rawle 459. If he has taken no covenants and there is no fraud vitiating the contract, he has no relief for defects in quantity,-quality or incumbrances, for it was his own folly to accept such a deed when he could, and it was his duty to protect himself by covenants. In Lytle v. Bird, 3 Jones 222, it was held that an action of deceit would not lie for a fraudulent representation upon the sale of a tract of land, as to where certain lines run, and as to particular lands being in- • eluded in the deed. There Nash, 0. J., says, “ if the plaintiff, by using reasonable diligence, could have ascertained the truth, if was his own folly to trust to the representations of the vendor.” The same principle is announced in Fagan v. Newsom, 1 Dev. 20, and in Saunders v. Hatterman, 2 Ired. 32. Another case in point is Credle v. Swindell, 63 N. C. 305, where it was held that an action for deceit would not lie for the vendee against the vendor for false representations by the latter, as to the quantity of land sold. There he falsel/y as [725] serted the tract to contain four hundred and ten acres, when in fact there were two hundred and eighteen acres only,. In delivering the opinion of the Court, Settle, J., says, “ if the plaintiff has sustained loss, it is by his own negligence ; he has not exercised that diligence which, the law expects of a reasonable and careful person, but was wilfully ignorant of that which he ought to have known. He might have ascertained the fact by an actual survey or taken a covenant as to quantity. Vigilantilus non dormient/ibus ju/ra subvenmnt.” It is thus seen that even fraud in the misrepresentation will not entitle the vendee to relief, unless that fraud is such that the plaintiff could not have reasonably provided against it under the maxim, caveat einptor. It is admitted in our case, that no fraud was intended or used, but that the vendor fully, believed his statements as to the quantity of land, to be true. So, according to the entire current of decisions in our State, the defendant is entitled to no abatement in the price, for a deficiency in quantity. There must be fraud and damage. Adams’ Eq. 176 ; 2 Rent’s Com. 486-7. Bond, the vendor in this case, at the timg the contract of sale was made, stated that the quantity of land in each tract was a thousand acres, and the trade was made on that basis. It turned out, according to the finding of the jury, that one tract contained 1124 acres, and-the other 714 acres, and the two tracts together showed a deficiency of 162 acres. It is not set up in the answer or shown by any evidence that quantity was the material or any inducement to the trade, and the fact that the defendant-occupied and used the lands, without complaint or enquiry, for eight years succeeding his purchase, and nntil he was sued for the purchase money, affords a strong presumption that the quantity was not the material consideration with him. As we hold that the defendant is not entitled to the abatement and sum found by the jury, it is unnecessary to consider the other questions presented in the exceptions. [726] The judgment is reversed and judgment rendered here for the plaintiffs. It is referred to the Clerk to ascertain the balance due on the bond. Pub Cueiam. Jungment reversed and judgment for the plaintiffs.