#### ISAAC SAUNDERS *vs*ABRAM HATTERMAN.

Where at the time of the saie of land a false and fraudulent affirmation of its value was made, yet an action on the case for deceit will not lie, as the vendee might, by reasonable diligence, have informed himself of its true value.

It *seems*such an action will lie, if a false affirmation be made of the rent of the land.

The case of *Fagan*v *Newsom,*1 Dev. 22, cited and approved.

This was an appeal from the judgment of the Superior Court of Law of Cabarrus County, at Fall Term, 1841, his Honor Judge Bailey presiding. It was an action on the case for deceit in the sale of land. It appeared in evidence that the defendant was the owner of a tract of land, in Davie County, containing 210 acres, and sold the same to the plaintiff for a certificate of land scrip on the Texian Government —that the contract of sale and the executing of the deed for the land took place in the county of Cabarrus. Before the deed was executed the defendant told the plaintiff the tract of land was worth about three dollars per acre, that it had sold for five or six hundred dollars, and that it was good land. It was also in evidence, that when the parties called upon the person who wrote the deed, the plaintiff stated to the draftsman that he was buying land he had never seen, that the de*33fendant had affirmed it to be good, and worth about three dollars per acre, and that it had sold for from five to six hun-_ dred dollars. The deed was then executed, and was offered in evidence on the trial. The plaintiff then proved by witnesses from Davie County, acquainted with the land, and one of whom had owned the land and sold it to the defendant, that the land was not worth what the defendant had represented it to be; that it was poor land, and had never been' sold for five or six hundred dollars to their knowledge, but had been sold for much less. It was further in evidence that the plaintiff, after seeing the land, became dissatisfied, and refused to perform a part of his contract, which was to iron a waggon for the defendant.

The defendant’s counsel insisted that the action would not lie in this case, admitting the representation to have been ¡ false and fraudulent, because it was the plaintiff’s own folly; not to inform himself of the truth of the matter.

The Court sustained the view taken by the defendant’s counsel, and remarked that an action could not be sustained for every act of immorality, however injurious it might be to another individual; that in this case, if the plaintiff could have informed himself as to the value of the land by going upon it, and there making an examination for himself, or if he^could, by making enquiries, have ascertained what amount it had sold for, as he might have done in this case, he could not maintain the action, although the affirmation was false ; that if he could have ascertained the truth by reasonable diligence, it was his own folly to trust to the misrepresentation of another.

In submission to this opinion the plaintiff suffered a non-suit and appealed to the Supreme Court.

*Boyden*for the plaintiff.

*Barringer*for the defendant,

in support of the Judge’s charge, cited and commented on the following authorities : 2 Kent’s Com. 487. 1 Story’s Eq. 206,207. Sugden on Yen-dors 2, 3, 4. *Fagan*v *Neivson,*1 Dev. 22. Yelv. Rep. 20. 2 Chan. Ca. 204. *Pasley*v *Freeman, 3*Term R. 53.

He also commented on the case of *Lysney*v *Selby, 2*Ld. *34Ray 1118, in which it is laid down that a false affirmation as to the *rent*would entitle the vendee toan action, andcon-tended that this was because the knowledge of the amount of rent was exclusivaly confined to the *landlord*and his tea-*ants,*and there might be collusion between them, so as to prevent the vendee from ascertaining the true value of the rent. That an action would not lie for a false representation of the value of the land *in gross,*he referred to the same case, and to 1 Salk. 211; 1 Keb. 510, 518, 522; 1 Levinz 102; and note in Sugden on Vendors p. 4.

Daniel, J.

The defendant (in the County of Cabarrus,) sold to the plaintiff a tract of land, lying in the neighboring County of Davie, which land the plaintiff had never seen. At the time of the contract and at the time of the execution of the deed’, the defendant said that the land was worth about three dollars per acre — that it had sold for five or six hun-| dred dollars, and that it was good land. It was alleged by the plaintiff that those assertions were all false, and known to be false by the defendant when he made them.,/ The Judge ' informed the Jury that an action of deceit would not lie, admitting that the representations were false and fraudulent, if it was the plaintiff’s own fault not to liave informed himself of the truth of the matter, if by reasonable diligence he could have done so-that if he could have informed himself, as to the value of the land, by going upon it and there making an examination for himself, or if he could, by making inquiries, have ascertained for what amount it sold, (as he might have done in this case,) he could not maintain the action, though the affirmation were false; that if he could have ascertained the truth by reasonable diligence; it was his own folly to trust to the representations of the vendor. We do not see any error in this charge of the Court. The true rule is stated to be, that the seller is liable to- an action of deceit, if he misrepresent the quality of the- thing sold, in some particularsNn which the buyer has not equal means of knowledge with himself; or if he do so in such a manner as to induce the buyer to forbear making the inquiries, which for his own security and advantage he would otherwise have made. *2*
      *35Kent’s Com. 487. The misrepresentation must be of a kind, the falsehood of which was not readily open to the other party. Per Taylor, C. J. *Fagan*v *Newsom,*1 Dev. 22. The cases have gone so far as to hold, that if the seller should ever falsely affirm, that a particular sum had been bid by others for the property, by which means the purchaser was induced to buy, and was deceived as to the value, no relief was to be afforded; for the buyer should have informed himself from proper sources of the value, and rit was his own folly to repose on such assertions, made by a person whose interest might so readily prompt him to invest the property with exaggerated value. *2*Kent’s Com. 486. (3d edit.) 1 Rolles’ Ab. 101. *Leakins*v *Clissel,*1 Sid. Rep. 146. 1 Lev. Rep. 102. *Lysney*v Selby, 2 Ld. Ray. 1118. If the false representation had been made of the *rent,*then *it seems*that it would sustain the action. *2*Kent’s Com. 487, (3d edit.,) in note, where all the authorities are collected. In this case the plaintiff might have had equal knowledge with the defendant of the value of the land, if he had used reasonable diligence.

We think that the judgment must be affirmed.

Per Curiam. Judgment affirmed.