Claggett v. Crall

1. False Representations; Title to Lands. Prior to tlie statutes of 1868 a party, who acted with ordinary prudence, might rely on the representations of a vendor of real estate as to the condition of his title, even though a prior deed of such vendor was on record at the time, and if such representations were false and fraudulent and the title failed, might maintain an action for such fraud. 2. Limitation oe Action ; Discovery of Fraud. The cause of action on such fraud would not accrue until the discovery of the fraud, and might be brought at any time within two years thereafter.

Error from Atchison District Court. Action for relief on the ground of fraud, brought by Claggett against Crall. The petition, after the caption and title, is as follows: “The plaintiff complains of the defendant, and says, that on or about the 24th of May, 1864, he purchased of the defendant, and defendant sold and conveyed to him by deed of general warranty of that date, (a copy of which is hereto attached as part hereof,) at the price of $300, cash in hand then paid by plaintiff to said defendant, the following described parcels and tracts of land, to-wit, [describing 120 acres in Jackson county, state of Kansas;] that at the time of said purchase, and at the time of the execution of said-deed of conveyance, said defendant was not'the owner of the said land, and had no right or title whatever to the same, he the said defendant having on or about the 5th of March, 1861, sold and conveyed said tract of land by deed of warranty (a certified copy of which is hereto atttached and filed as part hereof,) to one G. W. Gillespie, of which fact plaintiff had no knowledge, and did not learn the same until as hereinafter stated; and said defendant, well knowing that he had no right or title to said land, and for the purpose of cheating and defrauding plaintiff, fraudulently concealed said fact from plaintiff. And plaintiff says, that at the time of said purchase, and at the time of the execution and delivery of said deed of conveyance by defendant to plaintiff, the defendant, for the purpose of inducing plaintiff to purchase said land and take said deed of conveyance for the same as aforesaid, did then falsely and fraudulently represent that he was the owner in fee-simple of the same, and had the legal title thereto, when he well knew that he was not the owner of said land, and had no right or title Avhatever to the same, and well knew that he had already conveyed said land by deed of warranty to the said Gillespie as hereinbefore stated; and plaintiff says, that, relying upon said statements he did purchase said land, believing, as defendant stated, that he had the title thereto, and did take said deed of conveyance as before stated and paid defendant the $300, as hereinbefore stated, and as recited in said deed. And plaintiff further shows to the court, and say?, that he was at the time of said purchase, and execution and delivery of said deed, and still is, a citizen and resident of Washington county, state of Maryland; and relying on defendant’s statements and warranty aforesaid, and believing that he was the owner in fee-simple of said land he has paid the taxes on said land as follows,-to-wit, [stating payments from 1864 to 1869, amounting to $80;] and that in the spring of 1871 the plaintiff for the first time discovered that defendant had practiced a fraud upon him, and then first learned that defendant had no title to said premises at the time of plaintiff’s purchase of the same and of the execution and delivery of said deed to him, and then first discovered that defendant’s representations and warranty made at the time of said purchase and execution of said deed were false and fraudulent, and then learned that defendant had conveyed said land to said Gillespie before the sale and conveyance made by him to plaintiff. And plaintiff says that said land has been wholly lost to plaintiff; that one Wyatt, the vendee of said Gillespie, now claims to be the owner in fee-simple of said land, and to have the legal title thereto, and is in-possession of the same; and plaintiff says that by reason of the fraudulent representations of defendant, as herein stated, and the fraud and deception practiced on him by defendant, he has been damaged in the sum of f600. Wherefore,” etc. To this petition Orall filed an answer setting up several defenses, one of which was a general denial, and one was the statute of limitations. At the November Term 1872 of the district court, a jury was impanneled to try the case. Orall objected to the introduction of any testimony under the petition. The court sustained the objection, directed the jury to return a verdict* for the .defendant, and gave judgment"in favor of defendant for costs. Plaintiff Claggett brings the case here. 1. Plaintiff’s action was not barred until two years after discovery of the fraud which induced the action. Civil Code, § 18, clause 3; Voss v. Bachop, 5 Kas., 69. 2. Plaintiff living abroad, and from year to year paying the taxes without objection through an agent, could have no notice to put him upon inquiry. If he had a right to buy upon defendant’s representations, he had a right to so rest until put on inquiry. In no case does the rule of caveat emptor apply to transactions, predicated on fraud. In this case, the fraud was “secret and concealed” within case of Martin v. Smith, 9 Am. Law Reg., 694. Defendant secured plaintiff’s confidence by exhibiting his title, which would have been perfect but for the fact of a subsequent conveyance to Gillespie, then known to defendant, and by him concealed from plaintiff. 3. The court also erred in directing a verdict for defendant, against plaintiff's objection, without any trial, and then refusing a new trial. His case thereby has become res adjudicata, without trial. 1. The plaintiff was bound to take notice of the prior deed and the contents thereof to Gillespie, placed on record March 11th, 1861. Gen. Stat., 187, § 20. 2. This cause of action is not an action for relief on the ground of fraud, or to set aside a conveyance, but an action in damages for breach of warranty. The cause of action set up alleges fraudulent conveyance on the 24th of May, 1864, (no pretense that any representations were made since,) and seeks to recover damages therefor; and the cause of action accrued the moment the bargain was completed by conveyance of the premises to the plaintiff. Angelí on Lim., 190; 20 Johns., 33; 5 Wend., 30; 17 Wend., 202, 3. It does not matter that the alleged fraud was not discovered. It was the act of misrepresentation, and not the resulting damages, which constitutes the cause of action. (9 Am. Law Reg., 694; Northrop v. Hill, 61 Barb., 136.) The case cited from 61 Barb., is specially in point, being under similar statute to our own state. Fraud must be secret and concealed to prevent the statute from running. There was no concealment in this case; the facts were of public record. 4. When the petition shows the action is barred by the statute, it does not state facts sufficient to constitute a cause of action, which may be taken advantage of by objection to the admission of evidence. (5 Kas., 134.) The cause of action accrued to plaintiff, according to petition and exhibits, on the 24th of May, 1864, and was barred by the statute in five years from that date.