Browning v. Richardson , 181 Ga. 413 ( 1935 )

Hutcheson, Justice.

S. H. Browning filed his petition against Hugh Bichardson and Fulton National Bank, and alleged substantially as follows: About April 8, 1933, petitioner went to the office of Bichardson and talked to him about buying certain land fronting on the Chattahoochee Biver. Bichardson said he would not sell unless petitioner would buy the whole tract of 45 acres; he assured petitioner that the property extended to the river, and that he had clear title except for certain rights of the Georgia Power Company; that he had had the title examined, and it was unnecessary for petitioner to pay a lawyer to make any examination. A contract was entered into, and Bichardson executed his deed to petitioner, and he paid to Bichardson $1000 and executed his notes for $9000, secured by a loan deed. Bichardson transferred the notes and loan deed, without recourse, to Fulton National Bank. Petitioner paid $2500 to the lessee of the land in order to get prompt possession, and spent $9000 in improving the property. The deed made by Bichardson, which is attached to the petition as an exhibit, contains the following clause: “There is excepted from the above description that portion covered by deed of J. H. Power to F. W. Montgomery, dated February 12, 1902, and recorded in deed vol. GG, page 288, together with all the water rights and privileges mentioned in said deed.” About May 1, 1934, petitioner ascertained that Bichardson did not, when the deed was made, have title to the property along the river bank and to 12 acres owned by the Georgia Power Company. Petitioner was induced to purchase said property and to pay out the sums of money by the representations of Bichardson concerning his title, and he purposely concealed the facts from petitioner. Before this suit, petitioner demanded a rescission of the contract, a refund of his money, and a cancellation of his notes. The bank purchased the notes without knowledge of Biehardson’s misrepresentations and deficiency of title. The prayer is for judgment against Bichardson for all the money the petitioner has paid out; that Biehardson be made the primary obligor on the notes held by the bank; that he be enjoined from changing the status of any property he now owns; that all instruments be declared void and canceled; and for general relief.

Richardson filed general and special demurrers on numerous grounds. Petitioner amended by referring to a blueprint of the property, and by alleging that when he saw the above-quoted clause in the deed to him, he inquired about it, and Richardson told him that the deed excepted only land already covered by the waters of the Chattahoochee River; and that petitioner did not attach copy of the deed, because he was “not declaring upon said deed nor did he ever see said deed,” and relied solely upon the statements and assurances of Richardson. The demurrers were sustained, and the petition dismissed; and petitioner excepted.

We consider it necessary to discuss but one or two principles of law which are apparent from a reading of -the petition, in order to show that the judgment sustaining the demurrers was correct. As was said by Russell, C. J., in Feingold v. McDonald Mortgage & Realty Co., 166 Ga. 838 (145 S. E. 90), “it is well settled in Georgia that equity will grant no relief in favor of one who buys land, when he fails to exercise any diligence for his protection, and asserts that he blindly relied on the representations of the seller as to matters of which he could have informed himself. . . So it can not be said that the purchase originated in fraud so much as in the carelessness of the purchaser to exercise ordinary care for his own interest.” In the case at bar, the purchaser states in his petition that he relied upon the statements of the seller entirely, and bought property at a price of ten thousand dollars, without an examination of the title, or making inquiry as to the correct acreage or measurements-. He alleges further that he went to the office of the seller to talk to- him about purchasing the property, and he nowhere alleges that any fiduciary relation existed between them. “A court of equity will not relieve a vendor of land from his own negligence in not ascertaining facts which he could have ascertained by diligence, the vendee using no artifice or fraudulent scheme in order to prevent the vendor from ascertaining facts which might have prevented him from executing-the deed sought to be canceled on account of the alleged fraud on the part of the vendee.” Morrison v. Colquitt County, 176 Ga. 104 (167 S. E. 321). The same rule applies where the vendee, under similar conditions, seeks cancellation of an instrument. The rule was well stated in Arthur v. Brawner, 174 Ga. 477 (163 S. E. 604), where it was held that a petition seeking recovery for fraudulent misrepresentations was demurrable for failing to disclose an emergency or condition authoriz-' ing plaintiffs to rely upon the false representations without themselves examining the instruments purchased; that since they had opportunity to do so, and did not avail themselves thereof, they were not entitled to complain of the deception which they alleged was practiced upon them.

One other feature of the instant case is worthy of note, and that is succinctly stated in the court’s order, as follows: “The court does not consider that sufficient allegations of artifice are made to excuse the petitioner from examining the deed from Power to Montgomery, and without which the petition can not be maintained.” This deed was referred to specifically in the deed from the vendor to the vendee, as excepting certain portions of the property conveyed. Here we have a vendee accepting a deed with a reference therein to another deed, such reference giving the book and page where recorded, excepting part of the property he is buying; and if he does not examine the deed referred to, but accepts the representations of the vendor as to what it contains, he does so at his own peril. The court did not err in sustaining the demurrer and dismissing the petition.

Judgment affirmed.

All the Justices concur, except Gilbert, J., disqualified.