Credle v. Swindell

An. action on the case fov deceit, will not lie for the Tendee against the vendor for false representations by the latter as to the quantity of land sold he should have had a survey, or taken a covenant as to the quantity sold, Note. — Judge Rodman did not sit in this case, having formerly beentof? counsel therein.

Case, before Warren, J., -upon a demurrer to tbe declaration, at Spring Term 1868 of the Superior Court of Hyde. The plaintiff declared that the defendant being seized of two certain pieces of land in said County, describing them by metes and bounds, for a valuable consideration sold them to Mm by deed, <fcc., and that at various times before and at the time of the sale he falsely and deceitfully, &c., represented to the plaintiff that there were in the former tract 870 acres and in the latter 40 acres, whereas the former contained only 106 acres, and the latter only twelve acres; all of which the defendant well knew at the time, &c.; that the plaintiff could not by any reasonable means, or without excessive costs have ascertained the falsity of the representations thus made;, and that he believed and relied upon them in making the purchase, &c. The defendant filed a general demurrer. His Honor sustained the demurrer, and the plaintiff appealed. None of the former cases in this State settle the special question raised here, as to the competency of an action of deceit in case of a fraudulent misrepresentation in the sale of land. Such form of action is not unfrequent in England.. Rawle on Cov. for Title, pp. 458 to 480, and notes. The rule here seems to be that where the defect being knowm to the vendor, might by an examination have been discovered; by the vendee, no action will lie. Lytle v. Bird, 3 Jon. 222; Bagan v. Newsom, 1 Dev. 20; Sanders v. JLatterman, 2 Ire. 32; Bao. Ab. 1, p. 80.