The record-union., 1891-02-28
SUPREME COURT DECISIONS.
Filled February 16. 1891. 1


IN BANK.
Hull, Appellant, -oo
WILSON ET AL, Respondents.
WILSON EFT AL, Respondents,
VS.. fNo. I3,Doi
HILL, Appellant.
BY THE COURT.
The case of Hill VS.. Wilson and wife
was brought to foreclose mortgage
given by the defendants for a baiance an. on
purchase money alleged to De due lof the
real estate described therein, sole by the
plaintiff to the defendants. To this COM
plant the defendants pleaded that The
plaintiff had induced them TO purchase
the land and execute the mortgage py
certain false and fraudulent representa-
tionS.
The action of Wilson and wife against
Hill was one to rescind the sale of the
land by Hill to them, and cancel the
mortgage on the same grounds set up IN
their answer as defense to the action to
foreclose the mortgage. So that the
issues in the two cases were substantially
the same. There was a demurrer TO the
answer in the foreclosure suit, and to the
complaint in the action to rescind, Whlch
presented the same question. by stlpu-
lation the two cases We're consolidated
and tried together. and are brought TO
this court in the same transcript. The
evidence is the same in both cases so tar
as it becomes material on this appeal.
The coart below found for the defendants
in the foreclosure proceeding, and for the
plaintiff in the action to reSclnd, ana IN
the latter case decreed that the mortgage
be delivered up by the defendant ana
that he repay the purchase money PAID
in cash, amounting to $1,000. Hill ap-
peals in both cases.
is contended by the appellant that
neither the answer in the first case, nor the
complaint in the last, were good, because
the representations alleged to have been
made were not as to existing facts, but
We're mere opinions; that the otler to re-
scind was not made in time, and the ten
der made was not sufficient. The sale
made by Hill was of the land, forty-liye
shares of stock in certain
water company, five cords of wood
and COW, for the sum OF
six thousand dollars. The shares of
stock entitled the holder to so much Of
the waters of certain water ditch, to be
used for irrigation and domestic pur-
poses, and was for that reason only valu-
able in connection with the land. The al
legation as to the fraudulent representa-
tiOns was as follows:
'',The said plaintiff, for the purpose Of
inducing the defendants to purchase the
land and water right herein above de-
scribed, did falsely and fraUdulently and
Geceitfully represent to defendants, and
did by such false, fraudulent and deceitful
REPRESENTATIONS Induce QtlciCGtiiiS 10 DG-
iieve that the said land was well and abun-
dainty watered by means of The said forty
five shares OF said Timber Ditch Water
Company, and the water to be furnished
for use on said land by the said ditch that
the said timber ditch would carry, and
that there would be flowing therein dur
ing all the dry and irrigating season Of
the year from two TO three hundred
inches of water. measured under Il four
inch pressure, which was and would be
sufficient and ample to irrigate the whole
of said land so that the same would pro-
duce large and valuable crops of alfalfa
and other grasses. And the defendants,
relying upon and believing said rep
reSentationS to be true, entered into
the contract for and made the pur-
chase Of said land and premises as
hercinaboye stated without making any
other or further inquiry or examination
as to the water supply aforesaid, beliey-
ing and relying upon the statements and
representations of said plaintiff with
reference to the said water supply and be-
ing entirely unacQuainted with that por
ton Of the country, entered into said con-
tract and made said purchase Of the said
land and water right solely and eX-
clUsively upon the representations
and statements of the plaintiff that
the said land was well and abund-
antlv supplied with water for the
purpose of irrigation during all the
dry and irrigating season, which was the
sole and only inducement to defendants
TO purchase said premises. That the soil
OF said lands is dry and sandy III ch2rac-
ter, which. without an abundant supply
ofSwater for irrigation is absolutely un-
fit tor farming or agricultural purposes of
any character whatever, which was well
known to plaintiff"
These were not mere expressions of
opinion. They were statements of very
material and important facts, and such as
,,,1.s of To ind Ip1,
chase. il was not a statement that there
would be water from certain stream or
ditch, but that the ranch was well sup
piled with water. This was statement
of an existing supply of water. Nor
could it be construed as mere statement
made it was supplied with sufficient
water. To say that the ranch was well
watered, was equivalent to a statement
that ii had a supply of water sufficient to
irrigate and produce crops at all proper
seasons of the year. And this was eX-
pressly stated. The allegations were suf-
ficient in this respect. The allegation was
that the Vendees discovered, by the fail
ure of the water supply on the Goth OF
June, that the representations We're false,
and they offered TO rescind, anG rendered
a reconveyance Of the land and TO return
the certificates of stock on the Goth OF Au-
gust. This, we think, was q reasonable
time within which to offer to rescind, and
the cause cannot be reversed on this
ground,
1t is insisted that the tender on the
offer to rescind was not sufficient, because
the cordwood and the cow We're not ten
dered. and the certificates OF stock were
not rendered in such form as TO vest the
title III Hill if the tender had been ac-
copied. The allegation as to the tender
is as follows:
Defendants further allege and aver
that as soon as they discovered and be-
came convinced of the falsity of the afore-
said representations of plaintiff in regard
10 the water belonging to and with said
land, they offered in good faith to rescind
the entire contract of sale and purchase OF
the said premises between plaintiff and
the defendants made on the 10th day OF
March, 1883. as aforesaid, and for that
purpose defendants made, executed and
acknowledged good and sufficient deed
for the reconyeyance to plaintiff by them
OF the land and premises aforesaid; and on
or about the Goth day of August, 1883 and
before the commencement of this action,
they rendered said deed to plaintiff and
offered to give and surrender to him the
full, peaceable and quiet possession OF said
premises, and every part thereof, to-
gether with the said certificates for
the forty-tiVe shares of stock i'll the
timber ditch water company, being tn
identical certificates thereupon indorsed
and delivered, by the plaintiff TO the de-
tendants as aforesaid, and defendants
then and there demanded Of the plaintiff
a full rescission of the said contract of
sale and purchase by and between the
said plaintiff and defendants, and offered
10 restore to plaintiff all and every part of
the sad premises in as good state and
condition as they were when defendants
received the same, save and except such
damage as the trees and other crops have
Ss-1tfn Of 1t-afa of, IL