Samuel Nelson

“ They were never furnished, and neither Patton nor his heirs ever took any steps to get the title from the heirs of Southcombe.
But it would not be a sufficient answer, even if true in fact, that Taylor might, by inquiry, have discovered the misrepresentation. Equity will not tolerate a party to say to his vendee, 'Though I have told you a falsehood as to the title, believing which, you bought the land, still you ought not to have believed me; you should have suspected, not confided.' It would be a strange rule of equity, that would permit fraud to escape on such a ground. ”

“ Having thus shown that the complainant's case, as set forth in his bill, is not sufficient in law for the rescission of an executed contract, and that, if it were, it is not supported by requisite proof, we would now ask the attention of the court to a position taken by the other side, in the printed brief, though not disclosed by the pleadings.
It is, that the proof presents a clear case of actual fraud, such as courts of equity have always recognized as sufficient in itself for the setting aside of any contract. ”

“ If this is to excuse from the effect of false representations with regard to title, it would obviate the consequences of fraud in nearly all landed controversies, as all our titles are matters of record. Indeed, men prudent and cautious will examine them before they purchase, as the title papers are the safest guide. But we know that, in many cases, the credulous and confiding dealers do not do so, but act on seeing how the possession is held, and the representations of the vendor. ”

“ Gaskins, you sent me nothing to show how the title had passed to you. The land is listed on the auditor's books for taxes in the name of Thomas Southcombe, and for a number of years I have paid the taxes in his name for you. When your son, Hugh M. Patton, your agent, was here, I inquired of him how you derived your title from Southcombe, and whether he had a regular conveyance from Gaskins. ”

“ This embraces every material averment of the bill and amendment. A purchase, conveyance with general warranty, defect of title, ignorance on the part of the vendee of such defect, and the insolvency of the vendor, compose the gravamen of the complainant's allegations. There is no charge, either technically or substantially, of fraud, artifice, misrepresentation, or circumvention of any sort, actual or constructive. ”

“ That a misrepresentation, in order to constitute a fraud relievable in equity, must be of something material, constituting an inducement or motive to the act or omission of the other, and by which he is actually misled to his injury ”

“ There may be relief in equity of some sort, as by arresting the payment of the purchase-money, or a part thereof, in case of eviction and the insolvency of the warrantor, or the appropriation of the purchase-money to remove an incumbrance, where the warrantor is insolvent and unable to remove it, but not a rescission of the contract. ”

“ The circumstances, however, that Taylor was, at the time, and for several years before had been, the general agent of Patton in Kentucky to take charge of his lands in that State, including the premises in question, to pay the taxes, and negotiate sales to purchasers, lead to the conclusion, that he must himself have had some knowledge of the title, and that he was willing to risk it, on receiving a warranty deed from Patton, who was supposed to be a man of wealth. Where the truth of this matter lies, it is not material to inquire ”

“ Hugh M. Patton stated, that, as the agent of his father, he went to Kentucky to pay off a decree, which had been obtained by Bledsoe's heirs, and assigned to Talbott, an attorney at law, in satisfaction of a debt to Witherspoon and Muirhead; that he received from Taylor $600 on the first note, and then drew upon him, in favor of Talbott, a draft, which he would not accept; and that he afterwards assigned the notes to Talbott, without having heard of any objection by Taylor to the title of the land. ”

“ The taxes had been paid on the land at the seat of government, as Southcombe's. Patton assured him he had a chain of title and conveyances complete to himself. He had no opportunity of knowing that this was untrue. Patton knew this, and that as to the title Taylor would, as he did, repose upon his statements. Patton's title, if he had one, would not necessarily appear upon record in the county in which the land was, even if Taylor had visited it. The record of a deed is not necessary to its operation ”

“ Gaskins for military services, by him sold to William Forbes, by Forbes sold to Robert Campbell, of Richmond, (once Hicks & Campbell,) and by Robert Campbell and Ann, his wife, conveyed to Thomas Southcombe; which last deed is in my possession. All Southcombe's matters have been settled long ago, when this land was rated at $2, and paid for by me. And there is not a human being has a shadow of claim to this land but myself; and I have secured it to you by my conveyance. We have long been acquainted; we have long been friends. You have acted as my agent much to my satisfaction ”

“ He holds and legally owns the debts which Taylor seeks to enjoin. He should have sued at law in his own name as assignee; and his use of the name of Patton as plaintiff was in some sense a fraud, to give the Circuit Court jurisdiction, or perhaps designed to enable him to be a witness. Had Taylor appeared in the action at law, he might have successfully pleaded the assignment to Talbott in bar. Neyfong v. Wells, Hardin, 562.
May an assignee, by suing in the name of his assignor, make himself a competent witness? ”

“ On the 13th of May, 1845, the Circuit Court decreed a perpetual injunction against Patton, rescinded the sale and conveyance of the land, and gave directions for placing the parties in the condition they were in at the time of the contract. ”

“ Talbott for collection, and was largely in advance for your taxes in this State and Ohio. The times, as to a good circulating medium, are truly embarrassing; but, had I been sure the title to the land sold me had been secure, I could have made sales to have met the payments, or nearly so; but I have been deterred from selling one acre, although offered the specie funds for a considerable purchase. Taking the whole transaction together, I must confess it is not such as I expected from Mr. Robert Patton of Fredericksburg. ”

“ That there is no logical or legal connection between the falsehood of one party and the belief of the other party in that falsehood. It is a non sequitur, as well in law as in morals, that a man must be ignorant of the truth because another man has uttered an untruth in his presence.
2d. Because this letter was written six months after the time when the bargain was concluded by the acceptance of Patton's previous offer.
The amended bill alleges (Record, p. 8) that the complainant agreed to the purchase by a letter dated 30th January, 1818, and exhibits a copy of the letter ”

“ There is something in the extended delay of your answer which I do not like, nor do I think it right; but I am anxious to avoid all misunderstanding, and, during my whole life, have never stood on trifles. You may, therefore, have the land at 17s. ”

“ In answer to the first ground, it is sufficient to say, that judgments had been recovered by default in the suits at law in favor of Patton. And to the second, that, according to the deposition, Talbott had no interest whatever in the result of the suit. ”

“ Without any contract whatever, he states that he expected to charge five per cent. commission whenever he should collect the debt of his clients. This has never been held a disqualification of itself alone. An agreement for a sum contingent on success might perhaps affect his competency.
3d. Talbott executed a bond, as surety for Patton, to pay the costs in the action at law against Taylor. ”