Lundy v. Hazlett , 147 Miss. 808 ( 1927 )

^* Corpus Juris-Cyc. References: Evidence, 22CJ, p. 1219, n. 85; Fraud, 26CJ, p. 1114, n. 58; p. 1199, n. 97; p. 1200, n. 11; Limitation of Action, 37CJ, p. 975, n. 41; p. 978, n. 66; p. 979, n. 71; As to whether fraudulent representation by vendor as to area within boundaries correctly pointed out actionable, see annotation in 23 L.R.A. (N.S.) 487; 12 R.C.L. 385; 2 R.C.L. Supp. 1422; 5 R.C.L. Supp. 642; On statutory exceptions as to running of statute of limitation in case of concealed fraud, see 17 R.C.L. 852, 3 R.C.L. Supp. 741; 4 R.C.L. Supp. 1157; 6 R.C.L. Supp. 1037. J.I. Lundy appeals from a judgment of five thousand eight hundred ninety-eight dollars and sixty-seven cents recovered against him by the appellee, Mrs. Lillie M. Hazlett, as damages in an action of deceit for false representation by Lundy that a certain tract of land contained three hundred sixty-six acres, which he sold to appellee for eighty dollars per acre, whereas the tract was about fifty acres short of the acreage represented by the seller, Lundy, to the purchaser, Mrs. Hazlett.

The suit is not one to recover upon the warranty deed, but is an action in tort for deceit of the seller in falsely representing to the purchaser that he was selling to her three hundred sixty-six acres of land, when, in fact, there were only three hundred sixteen acres in the tract, and that, consequently, the purchaser suffered the loss of fifty acres of land at eighty dollars an acre, and interest thereon from August, 1918, the date when the purchase money was paid. The suit was not filed until September, 1925, more than six years after the date of the alleged deceit.

The appellant presents several grounds for reversal, but we think none of them has sufficient merit to justify discussion, except the point that the cause of action was barred by the six-year statute of limitations, and, possibly, one other contention. The other questions raised by the appellant have been settled by this court in numerous cases. For instance, the contention is made that the action will not lie, and that parol testimony is inadmissible, because the rights of the purchaser must be determined by the terms of the written deed alone, and that since the deed herein does not specify the number of acres sold, the purchaser is precluded from showing that a false representation as to the acreage was made by the seller. This view has been held to be unsound by this court. Alexander v. Meek, 132 Miss. 298, 96 So. 101; Vincent v. Corbett, 94 Miss. 46, 47 So. 641, 21 L.R.A. (N.S.) 85; Hines v. Lockhart (Miss.), 105 So. 449;McNeer v. Norfleet, 113 Miss. 611, 74 So. 577, Ann. Cas. 1918E, 436; and Oldham v. Memphis Stone Gravel Co.,111 So. 357. These cases clearly hold that damages may be recovered for deceit in cases like the one at bar. Therefore we shall omit further discussion of this question; nor do we think it will be of any benefit to notice the other points urged for reversal, except as to whether the action was barred by the six-year statute of limitations.

It is urged that the court erred in refusing an instruction that the representations by Lundy as to the amount of the acreage must have been false and fraudulent before appellee could recover. This view is not maintainable, because, if the representation was false, though honestly made, the damaged party can recover. Oldham v. Memphis Stone Gravel Co., supra;Alexander v. Meek, supra, where false representations were made by one Garnett, a real estate agent, who was the agent of the vendor of the land, and the court held that the vendor was liable for the false representation made by his real estate agent, even though they were not fraudulently made, and said, "We do not think that Garnett was trying to practice a fraud upon the appellants, but he merely made representations as to a fact which were false and about which fact he had no knowledge;" and inVincent v. Corbett, supra, where it was again held that, although the false representations were not fraudulently made, the vendor was liable if he assumed to make representations about a matter as to which he was supposed to have knowledge, and should have had knowledge, when, as a matter of fact, he had no such knowledge.

The suit was not instituted until more than seven years after the cause of action accrued, but appellee answers this proposition by the contention that the cause of action was fraudulently concealed by the appellant, by reason of which the bringing of the suit was delayed for several years. The appellant replied to this contention of the appellee that the evidence in the case was insufficient to show that the appellant fraudulently concealed the cause of action.

We cannot see that it would serve any good purpose to set out the testimony in detail which tended to prove or disprove this issue of fact. The testimony on this question was in conflict, but the jury decided that the appellant, by his affirmative conduct, and declarations to the appellee, through her husband and agent, so deceived her that she was lulled into security, and consequently delayed in bringing the suit.

The verdict of the jury is well supported by testimony. The proof shows that Lundy knowingly represented, through his selling agents, that the land contained three hundred sixty-six acres, when he knew that it contained fifty acres less than that amount; that after the sale, he continued to falsely represent to the purchaser that the tract contained three hundred sixty-six acres of land, which he knew was untrue, and the purchaser, relying upon his statement did not take steps to find out the amount of land in the tract by having it surveyed or otherwise; that the husband of the purchaser, who lived in a northern state, while on a visit to the land, was told by Lundy that the section was a large section, meaning that it contained more than six hundred forty acres, and that the total amount of acreage in the tract sold was three hundred sixty-six acres, and that Lundy purported to point out to Mr. Hazlett the direction in the woods where the corners of the land were supposed to be located, but there was nothing definite in what he said whereby the purchaser could know the acreage in this large tract of land.

The record contains ample testimony showing that Lundy affirmatively concealed from the purchaser the fact that the tract of land was fifty acres short. These representations by him not only lulled the purchaser into security, and prevented her from investigating as to the number of acres in the tract, but constituted an express, fraudulent representation, which was calculated to conceal, and did conceal, the true fact from the purchaser, and thus, under section 2473, Hemingway's Code, did "fraudulently conceal the cause of action from the knowledge of the person entitled thereto."

We think the verdict of the jury was supported by the evidence in deciding that the purchaser, Mrs. Hazlett, did not fail to use reasonable diligence in ascertaining or discovering the true acreage of the land she bought. Buckner v. Calcote, 28 Miss. 432; State v. Furlong, 60 Miss. 839; 17 R.C.L. p. 859; 37 C.J. 975-977, 978. The jury was also well warranted in finding against Lundy on the question of deceit as to the false representation of the number of acres contained in the tract of land sold by him to the appellee, Mrs. Hazlett.

The judgment of the lower court is affirmed.

Affirmed.