Handrahan v. O'Regan

Adams, J. There is no averment that the plaintiff owned land adjoining the leased land. There was, therefore, no right of way by necessity. Indeed the defendant relies solely upon the' subsequent agreement. The plaintiff denies such agreement, but the court below found that it was made, and as the evidence is conflicting, except as to consideration, the finding of the court below cannot be disturbed unless it .appears that the agreement was without consideration. On this point the appellee’s counsel say: “1st. The promisor was benefitted by such agreement, because it would put the promisee in the way to pay rent, which he could not do without the road; 2d. The promisee was not only troubled and inconvenienced by the promise in putting in his crops, which he could have done if he had not been promised a road, but he was also greatly damaged by the agreement because relying upon it he proceeded to cultivate the place, having to steal. in when opportunity afforded, and was thus too late in planting, while if no such agreement had been made he might have procured (if bound to do so) a right to pass over other land immediately adjoining, and thereby gotten his crop planted in proper season.” [300] i contract: promisefeonsíueration. [299] To our mind, if such were the facts, no consideration would [300] appear therefrom. If a person should buy a tract of land to which there is no road, and take a conveyance leaving a part or all of the purchase money unpaid, and afterward the grantor, believing that he could procure a road for the grantee, should promise to do so, but should fail to fulfill his promise, would it be a sufficient consideration to support the promise that with the road the grantee would have been able to pay for the land, and was not able without it? No one would claim that it would. Yet we can see no difference in principle between a sale and lease of land so far as this question is concerned. There are doubtless many things, which, if a landlord were to furnish his tenant, would facilitate him in paying his rent, if he was otherwise unable to do so. But such fact would not be a sufficient consideration to support a promise to furnish them. 2.. — : -: toSpromlsee®6 We proceed now to consider the second ground. Briefly stated, it seems to he this: The defendant relied upon plaintiff’s promise, and omitted to procure a road for himself as he otherwise might have done, and was thereby delayed, and failed to get in his crop in season. Now it is true that a disadvantage accruing to the promisee may constitute a consideration for a promise., but to have that effect it must appear that the disadvantage, was suffered at the request of the promisor, expressed or implied. There is no evidence of such fact in this case. „ •______ meaos of aecess. It is contended by the defendant that the plaintiff defrauded him by leasing to him land to which there was apparently a road, there being some marks of travel. If the pMintiff induced the defendant to enter into the lease by fraud, the defendant could in a court of equity ’have procured its cancellation. Again, if after the fraud was discovered he had agreed to waive the fraud, and did waive it by reason of the plaintiff’s promise to procure him a road, such waiver would constitute a consideration for the promise. But the evidence shows clearly that nothing was said between plaintiff and defendant in regard to a road until after the lease was executed. There was then no fraud on the part of the plaintiff. Whoever buys, or takes a lease [301] of land, must inquire and ascertain for himself in regard to the means of access. If access is yet to be procured, the value of the premises is supposed to be estimated accordingly. Neither a purchaser nor a lessee would be justified in assuming that there is an established road to the premises because there may be marks of travel. If a grantor or lessor makes no representations upon the subject, he will not be guilty of a fraud. His silence will not be fraudulent. There having been no fraud in this case there was no waiver of fraud, and no consideration by reason thereof. We are of the opinion that the judgment of the District Court must be Reversed.