though the partition under the statute of frauds is required to be in writing, if one of the cotenants relying on a parol partition, enters into possession and makes extensive improvements on the part alloted to him, in a subsequent action for partition, the court would probably confirm the parol partition, instead of making a new one.2 When the partition is made the parties cease to be tenants in common, and each is vested with an estate in severalty in the part and parcel allowed to him.3 But even after partition, one cotenant cannot acquire by purchase a superior title, which he could enforce against his former cotenants ; * and although each cotenant has an unrestricted power to alienate his estate,5 if one of two cotenants conveys his undivided interest in the land held in common to one person, and his undivided interest in a mine thereon to another, it has been held that neither of these grantees could compel the original cotenant to make partition. erty, § 260 and cases cited. See as to claims on public land, Hughes v. Devlin, 23 Cal. 501. 1 Statutes at Large; Gardner M. Co. v. Heald, 5 Me. 384; Wood v. Fleet, 30 N. Y. 501; Pratt v. Hubbels, 5 Ohio, 243. 2 420 Mining Co. v. Bullion Min. Co., 3 Saw. 634; Morely v. Pettel, 38 Ill. 128; Jackson v. Harder, 4 Johns. 202; Gregg v. Blackmore, 10 Watts, 192; Corbin v. Jackson, 14 Wend. 619. 3 Tiedeman on R. P., supra; 1 Washb. on R. P. 689; Feather v. Strohecker, 3 Pa. St. 505; 25 Mich. 382. Tiedeman on R. P. 252; Hussey v. Blood, 29 Pa. St. 319; Picot v. Page, 26 Mo. 398; Butler v. Porter, 13 Mich. 292. 5 Tiedeman on R. P., § 260, p. 172. Adam v. Briggs Iron Co., 7 Cush. 361; Boston &c. Co. v. Condit, 4 C. E. Green's Ch. (N. J.) 395. "And so partition of land containing an ore bed, the extent and richness of which was not known, has been refused." De Witt v. Harvey, 4 Gray, 486; Conant v. Smith, 1 Aik. (Vt.) 67. CHAPTER VIII. FRAUD IN THE SALE OF MINES. SECTION 102. Elements of actionable fraud. 103. Mis-statement as to value. 104. Matters of opinion. Purchase after examination.. 106. Continued-Agent cannot make secret profit. 107. Same-False prospectuses of projected companies. 109. Confirmation of fraudulent transaction. § 102. Elements of actionable fraud. —To sustain an action for fraud in the sale of mining property it has been said that the representations should not only be groundless and not believed to be true by the party making them, but of such a character as to impose upon an ordinarily prudent man, and lead him to rely on the representations and not on his own means of observation. If the representations go to the nature and character of the property offered for sale, as affecting its value, and are discovered to have been false, to the knowledge of the party making them, the foundation is laid for an action for the deception practiced, and a court of equity would set aside the contract of sale. But representations which will entitle a 1 Page v. Parker, 43 N. H. 47; s. c. 43 Id. 363. "If persons make assertions of facts as to which they are ignorant whether such assertions are true or untrue, they become, in a civil point of view, as responsible as if they had asserted that which they knew to be untrue. (Per Lord Cairns.)" In re Reese River M. Co.; Smith's case, L. R. 4 H. L. 64; M. M. D. 116. "A flse affirmation of a material act, though innocently made, is ground for rescission if the other party was misled by it." Smith v. Richards, 13 Pet. 39; M. M. D. 116; Cooper v. Lovering, 106 Mass. 77. But see, contra, Poag v. Charlotte Oil Co., 61 S. C. 190; Boddy v. Henry, 113 Iowa, 462. 2 Atwood v. Small, 6 C. & F. 395; reversing Small v. Atwood, 1 Young, 407. "Misrepresentations to constitute sufficient grounds for party to recover on the ground of fraud must be both false and fraudulent, and such as tend to induce and result in actually inducing the purchaser to make the trade. It must appear affirmatively that the representations were brought home to the plaintiff's knowledge and that he relied thereon and was injured as a consequence therefrom. It is not necessary, however, that the representations, inducing the purchase, were the sole inducement to such purchase.3 § 103. Mis-statements as to value. - False and fraudulent representations and statements as to the value of the setting aside a purchase must be material, as being of such a nature as, if true, to add to the value, must not be evidently merely conjectural statements, and must be made without a belief in their truth, or without reasonable grounds for such a belief." Jennings v. Broughton, 5 De G. M. & G. 126; affirming 17 Beav. 234. M. M. D. 116. 1 McAleer v. McMurray, 58 Pa. St. 126. "Where advertisements for the sale of shares in a mine had been issued containing unfounded statements, but the purchaser had not relied upon them, and had had opportunities of judging of their accuracy: Held, that he was not entitled by reason of them to have the contract rescinded." Jennings v. Broughton, 5 De G. M. & G. 126; affirming s. c. 17 Beav. 234. M. M. D. 116. The mis-statement must be of a past or present fact. Morris v. McMahon, 75 Mo. App. 494. 2 McAleer v. McMurray, supra: "The fact of defendant examining a mine before taking lease, and having it examined by others, considered as evidence that he had taken such lease on his own or his friends' judgment, and not on the representations of the lessor." Haywood v. Cope, 25 Beav. 140. M. M. D. 116. 3 Clarke v. Dickson, 6 C. B. N. S. 453: "The sale of mining stock upon false representation of material facts in regard to which the purchasers may be presumed to have trusted the vendors, is void Whether the vendors knew such representations to be false or not, and whether made with a fraudulent intent or not." Crump v. U. S. M. Co., 7 Gratt. 362. M. M. D. 116. Mixing silver with samples of ore from a mine, to induce sale, is a fraud upon the purchaser. Mudsill Min. Co. v. Watrous, 61 Fed. Rep. 163. For suit to recover purchase money, because of a "salted" gold mine, see Bearden v. Jones (Tenn.), 48 S. W. Rep. 88. 3 mine or subject-matter of the sale, whether made by the vendor1 or vendee,' constitute a sufficient ground for release from the contract of sale, and particularly if the party to whom the statements are made is not equally informed as to the value of the property. Reckless statements of the capacity of a mine, made with a view to influence parties to take shares, and not put forth upon a fair and reasonable belief of the truth of the statements made, has been held to be a fraud upon the purchaser, and a statement that land, sought to be purchased, was " only fit for a sheep pasture," when known to contain a valuable iron bed, has been held a fraud on the vendor, who resided at a distance and was unacquainted with the nature of the land.5 Fraudulent statements as to the value of a mine, made by the seller to the purchaser, may either be used to avoid the sale, or given in evidence under a proper state of the pleadings, to defeat the collection of the purchase price; and statements of the value and richness of a mine, and its nearness to wood and water, are not mere matters of opinion or information, but are facts upon which the purchaser has a right to rely. But false and fraudulent statements by the vendor of land that it contained large deposits of oil "of great value for boring and manufacturing," accompanied with the statement that the land had not yet been tested, are in their very nature, but matters of opinion, for which no action would lie; and 1 Gifford v. Corville, 29 Cal. 589. 8 2 Tate v. Williamson, L. R. 1 Eq. 528; L. R. 2 Ch. 25. But see Harris v. Tyson, 24 Pa. 347. 3 Bispham's Prin. of Eq., § 232, and cases cited. 4 Glamorganshire I. & C. Co. v. Irvine, 4 F. & F. 947. As to evidence of value, see Henry v. Everts, 29 Cal. 610. 5 Livingston v. Peru Iron Co., 9 Wend. 513; s. c. 2 Paige Ch. 390. 6 Gifford v. Corville, 29 Cal. 589; Renton v. Maryatt, 21 N. J. Ch. 123. 7 Gifford v. Corville, supra. 8 Holbrook v. Connor, 60 Me. 578. 6 statements that an oil well is "paying" and that the oil is of a "superior quality" are matters of opinion rather than assertions of facts.1 § 104. Matters of opinion Purchase after examination. In the sale of mines, or other species of property, the seller has the right to "puff" it in extravagant terms, so far as statements of his opinion of the value and quality of the property is concerned, for it is optional with the purchaser to act on his own judgment or that of the seller.2 Wherever the facts show that the purchaser relied on his own judgment instead of that of the seller, as where he personally examines the property before purchase, he cannot then be heard to say that he was influenced by the misrepresentations of the vendor, unless the latter was an expert in regard to his knowledge of the property sold, in which case the parties do not 1 Kimmons v. Wilson, 8 W. Va. 584. Mere statements of opinion that mine is rich in silver and would pay large dividends will not authorize rescission of sale of stock. Croker v. Manley, 164 Ill. 282; 45 N. E. Rep. 577; Belmont Min. Co. v. Rogers, 10 Ohio C. C. 305. Representations of the money value of property, open to inspection, are mere expressions of opinion, for which no action will lie. Cornwall v. McFarland Real Est. Co., 150 Mo. 377; 51 S. W. Rep. 736. 2 Tuck v. Downing, 76 Ill. 71; Renton v. Maryatt, 21 N. J. Ch. 123. See as to false statements of cost of property, Holbrook v. Connor, 60 Me. 578; Hemper v. Cooper, 8 Allen, 334; Mooney v. Miller, 102 Mass. 220; Cooper v. Lovering, 106 Mass. 79; Noltling v. Wright, 72 Ill. 390. But see as to false statements of value, Simon v. Canaday, 53 N. Y. 298; Cruess v. Fessler, 39 Cal. 336; Gifford v. Carville, 29 Cal. 589; Davis v. Jackson, 22 Ind. 233; Niel v. Cummings, 75 Ill. 170; Morehead v. Eades, 3 Bush, 121; McAleer v. Horsey, 35 Md. 439. 66 3 Tuck v. Downing, 76 Ill. 71; Smith v. Richards, 13 Pet. 39; Clarke v. Dickson, 6 C. B. N. S. 453. In Tuck v. Downing, supra: Alleged representations of defendant that C. & S. had each paid $5,000 for a share, such persons being near neighbors of complainant, and the verification or contradiction of the representations easy and practicable: Held, not such representations as could have influenced, the complainant being a man of business and experience.'" M. M. D. 125. |