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HAYS et al. v. MCGINNESS et al.
Injunction. Before Judge McClure. Catoosa Superior Court. August 6, 1951.
ATKINSON, Presiding Justice.
A sale of land will not be vitiated by false representations of the seller as to the quality or condition of the land, where the purchaser had sufficient opportunity to examine the subject of the representations but made no examination or investigation, and was not prevented from so doing by any artifice of the seller; and where, as here, the representations relate to the volume of water in a well and its daily flow, the purchasers will not be heard to complain, as they were wilfully negligent in not exercising the slightest diligence to ascertain this question themselves, nor do they allege that they were prevented from doing so by any artifice of the seller.
Richard H. McGinness and his wife, Sylvia D. McGinness, filed a petition in equity against D. L. Hays and his wife, Beatrice B. Hays, to enjoin a sale of a house and lot and thirteen acres of land then being advertised under a power contained in a security deed given to secure a balance on the purchase price.
The plaintiffs sought to set the deed aside on the ground of fraud, in that the defendants fraudulently and knowingly misrepresented the sufficiency of the water supply of the well on the premises. The specific allegations as to fraud will be set out in the opinion.
The plaintiffs alleged that the consideration for the sale was $5000, and the actual value of the property was $3750; that, after making a cash payment, they executed a note for the balance of $886.38, upon which $16.67 was paid. They alleged damage of $1250, being the difference between the actual value and the sale price, and they seek judgment for the difference between the actual value of the property and the amount paid and agreed to be paid, to wit, $380.29.
The prayers were for process, injunction; cancellation, and judgment.
General and special demurrers were interposed to the petition, and to the adverse ruling there on exceptions pendente lite were taken. On the trial the jury found in favor of the injunction and for cancellation of the security deed, but awarded no damages. On the exceptions pendente lite and to the overruling of an amended motion for new trial exceptions were taken to this court.
(After stating the foregoing facts.) The sufficiency of the allegations of fraud is challenged by the general demurrer. The petitioners alleged: that the defendants represented that there was on said land an unfailing supply of water, that the defendants had lived there for six of the hottest months of the year, kept eight hogs there on with no shortage of water, and that the well was adequate for all household and farm needs; that the supply of water was a material factor in fixing the value of the land, and immediately upon moving upon said land they found the well practically dry; that there is connected with the electric pump in the well a storage tank with a capacity of 30 gallons, and there was never enough water in the well to more than fill this tank; and that, after moving upon the premises, they have been compelled to haul water from other sources. By amendment it was further alleged: "Petitioners show that the land purchased by petitioners from defendants consists of a farm of approximately 15 acres; that petitioners' family consists of themselves and two small children (a family of four), and that petitioners were desirous of purchasing said land as a home for themselves and family, which fact was known to defendants. Petitioners show that defendants, both personally by D. L. Hays, and through their agent, E. H. Norwood in presence of defendant Mrs. Beatrice Hays, represented to petitioners that the well on said land (which was the only water supply on said land) would at all seasons of the year furnish a sufficient supply of water for the usual domestic purposes of a family of four; for household use, cooking, drinking, bathing, and laundry and for the maintenance of such livestock as is usual on a small farm of 15 acres, as one cow, one mule, two hogs and 50 chickens. Petitioners show that a reasonable and adequate supply of water for household, domestic, and farm purposes for a family of four (including two small children) is from 75 to 100 gallons per day. Petitioners show that said well did not at any time furnish a supply of water sufficient for domestic and household use; that the water in said well was seepage water only, and that said well at no time contained more than thirty gallons of water, nor furnished more than 30 gallons of water a day. Petitioners show that they complained to defendants of the shortage of water within three or four days after going into possession of said land . . . Petitioners show that there has at no time been sufficient water in said well for household and domestic purposes; at no time have petitioners been able to obtain more than 30 gallons per day from said well . . . Petitioners show that defendants knew at the time of making the representation set out in said petition that the said well would not furnish sufficient water for household and domestic purposes, and said representations were false, known to defendants to be false, were made to deceive petitioner and for purpose of inducing them to purchase said property and did deceive petitioners and induce them to purchase same."
Assuming without deciding that the foregoing representations were not mere expressions of opinion, but were statements of facts fraudulently made--such would not vitiate the sale. The volume of water in the well, and its daily flow, were facts that could have been determined by the exercise of the slightest diligence on the part of the purchasers, and the petition contains no allegation that the purchasers were prevented by the artifice of the seller from making the necessary examination. It has long been the rule of law in this State that, in the sale of land, the purchaser contracts with his eyes open; and, if he is not in some way deprived of the opportunity of inspecting the land for himself by the fraudulent acts or conduct of the vendor, he will not be heard to complain. As to such things as quality and condition which are open to inspection, he is wilfully negligent if he fails to look and see for himself, and he cannot be heard, either in law or equity, to complain of the conduct of the seller, the effects of which could have been averted by slight diligence on his part. Stone v. Moore, 75 Ga. 565; Martin v. Harwell, 115 Ga. 156, 162 (41 S. E. 686); Brannen v. Brannen, 135 Ga. 590 (1) (69 S. E. 1079); Grant v. Maxwell, 160 Ga. 612 (1) (128 S. E. 803); Morrison v. Colquitt County, 176 Ga. 104 (1) (167 S. E. 321); Edge v. Winters, 208 Ga. 196 (66 S. E. 2d, 57).
Accordingly, the trial judge erred in overruling the general demurrer, and all further proceedings were nugatory.
Judgment reversed. All the Justices concur.
Shaw & Shaw and McClure & McClure, contra.
Gleason & Painter and A. W. Cain Jr., for plaintiffs in error.
Saturday May 23 05:25 EDT

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