APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF WEST VIRGINIA.
MR. JUSTICE BREWER, after stating the case, delivered the opinion of the court.
This is a suit for the rescission of a contract of purchase, and to recover the moneys paid thereon, on the ground that it was induced by the false and fraudulent representations of the vendors. In respect to such an action it has been laid down by many authorities that, where the means of knowledge respecting the matters falsely represented are equally open to purchaser and vendor, the former is charged with knowledge of all that by the use of such means he could have ascertained. In Slaughters' Administrator v. Gerson, 13 Wall. 379, 383, this court said: "Where the means of knowledge are at hand and equally available to both parties, and the subject of purchase is alike open to their inspection, if the purchaser does not avail himself of these means and opportunities, he will not be heard to say that he has been deceived by the vendor's misrepresentations. If, having eyes, he will not see matters directly before them, where no concealment is made or attempted, he will not be entitled to favorable consideration when he complains that he has suffered from his own voluntary blindness, and been misled by overconfidence in the statements of another. And the same rule obtains when the complaining party does not rely upon the misrepresentations, but seeks
from other quarters means of verification of the statements made, and acts upon the information thus obtained." See also Southern Development Co. v. Silva, 125 U.S. 247; Farrar v. Churchill, 135 U.S. 609. In Ludington v. Renick, 7 West Va. 273, it was held that "a party seeking the rescission of a contract, on the ground of misrepresentations, must establish the same by clear and irrefragable evidence; and if it appears that he has resorted to the proper means of verification, so as to show that he in fact relied upon his own inquiries, or if the means of investigation and verification were at hand, and his attention drawn to them, relief will be denied." In the case of Attwood v. Small, decided by the House of Lords, and reported in 6 Cl. and Finn. 232, 233, it is held that "if a purchaser, choosing to judge for himself, does not avail himself of the knowledge or means of knowledge open to him or to his agents, he cannot be heard to say he was deceived by the vendor's representations." And in 2 Pomeroy's Equity Jurisprudence, section 892, it is declared that a party is not justified in relying upon representations made to him -- "1. When, before entering into the contract or other transaction, he actually resorts to the proper means of ascertaining the truth and verifying the statement. 2. When, having the opportunity of making such examination, he is charged with the knowledge which he necessarily would have obtained if he had prosecuted it with diligence. 3. When the representation is concerning generalities equally within the knowledge or the means of acquiring knowledge possessed by both parties."
But if the neglect to make reasonable examinations would preclude a party from rescinding a contract on the ground of false and fraudulent representations, a fortiori is he precluded when it appears that he did make such examination, and relied on the evidences furnished by such examination, and not upon the representations.
It becomes necessary now to state some facts appearing in the record, facts that are undisputed, and coming from the lips of plaintiff and his witnesses. Matthew Duffner, the son of plaintiff and one of the three parties in the contract and deed, was in partnership with a man by the name of Wood.
This partner informed him that he had a cousin, one Colonel Wood, living near Oakland, Maryland, who had lands for sale. A few weeks after receiving this information Duffner called on Colonel Wood, and was shown by him a map of this land, located within a few miles of Buckhannon, in Upshur County, West Virginia. By arrangement the three Duffners met Colonel Wood at Clarksburg, and went with him to Buckhannon with a view of examining the land. Soon after their arrival Colonel Wood became intoxicated and took no further part in the transaction. While there they met the two appellants and Jackman Cooper (and this was the first interview or communication between the parties) and entered into the contract of April 24, 1883, with them as a committee on behalf of all the owners. Prior, however, to this they had gone on to the land in company with Watson Westfall, who was, or had been for years, the surveyor of the county, spending the time from Saturday morning until Tuesday night in going to, examining, and returning therefrom. After executing this contract the Duffners returned to Cleveland. Having been advised that the deed was executed and ready for delivery, and in July following, this plaintiff, with a lawyer from Cleveland -- Mr. Fish, a gentleman who had been acting as his counsel for fifteen or twenty years, a lawyer of experience, sixty-four years of age -- went to Buckhannon. He took Mr. Fish with him for the purpose of having him examine the title and the deed. On arriving at Buckhannon, Mr. Fish proceeded to make such investigation as he deemed sufficient; and after three days passed in an examination of the records and a study of the statutes of the State, he advised Mr. Duffner to take the deed; and on the giving of such advice Mr. Duffner received the deed and paid the balance due on the contract. After this, having missed the train, Mr. Fish remained another day in Buckhannon, and continued his examination of the records; and on his way home stopped at the State capital to see if proper returns had been made to the State auditor's office. The result of all his investigations was satisfactory; and, as both plaintiff and Mr. Fish testify (and their testimony is corroborated by many witnesses, and contradicted by none), it
was after Mr. Fish advised him to take the deed that he took it and paid his money.
But one conclusion can be deduced from these facts -- and that is, that the plaintiff did not rely upon any representations made to him by the defendants, but through his own counsel made investigation of the title, and purchased on the strength of that counsel's opinion thereof. Within settled rules, he is, therefore, now precluded from rescinding this contract on the ground of such representations.
But the case does not rest on this alone. Thus far we have considered only such facts as are disclosed by the testimony of the plaintiff, his son, and his counsel. Let us look at some of the testimony produced by the other side. Frederick Brinkman, an apparently disinterested witness, testifies that he met plaintiff on his several visits to West Virginia; and, hearing from him that he was coming there to buy land, cautioned him against West Virginia land titles, calling them "polecat" titles, and advised him before purchasing to consult some of the local lawyers, naming three or four of them. To which plaintiff replied that he would be careful, and that before purchasing he would bring his own counsel from Cleveland; and added that he was a good lawyer, and one in whom he had confidence. Again, while Mr. Fish was making his examination of the records in the county office, three or four of the defendants were present; and some one or more of them said to him, in the presence of the plaintiff, that some people called their title a wildcat title; and they wanted him to make a full examination, and be satisfied that it was good, "for they wanted no after-claps or further trouble about the land thereafter." So we have not only equal means of knowledge, but also an actual examination by the purchaser through his counsel; a completion of the contract when, and only when, his counsel ...