CASES

IN THE

SUPREME COURT

RHODE ISLAND.

HUNT v. BARKER.

[22 R. I. 18, 46 Atl. 46.]

DECEPTION RESPECTING THE TITLE TO REAL PROPERTY.-Though the title to real property appears upon, and may be ascertained from an examination of, the public records of the county, an action may be maintained against one who knowingly misrepresents the condition of such title to another, who, in Ignorance of the title, relies upon such representation to his injury.

Trespass upon the case for deceit, heard on exceptions of the defendant to the rulings of the district court.

Terence M. O'Reilly, for the plaintiff.

John H. Flanagan, for the defendant.

19 MATTESON, C. J. This is an action of the case for deceit, brought originally in the district court of the sixth judicial district, in which decision was rendered for the plaintiff, and is now before us on defendant's exceptions to the rulings of that court.

The bill of exceptions sets forth that at the trial in the district court evidence was adduced in behalf of the plaintiff that the defendant falsely represented to him that the defendant was the owner of certain real estate; that the plaintiff did not know who was the owner of it, and, relying on the defendant's representation, was induced to enter into a contract with the defendant to furnish heating apparatus for a house situated on the real estate; that further evidence was introduced, in the form of certified copies of deeds, showing that on the date on which the defendant made the alleged false representation that

he was the owner of the real estate the title to it was in the defendant's wife, and that the deeds by which the real estate was conveyed to her had been recorded when the representation was made. The defendant requested the court to rule that the recording of the deeds of the real estate was constructive notice to the plaintiff as to who was the true owner of the real es tate; but the court refused to so rule, whereupon the defendant excepted.

As an abstract proposition, that contained in the request was doubtless correct (R. I. Gen. Laws, cap. 202, sec. 7); but, though correct, the court below was not bound to make the ruling unless it was pertinent to the case. The question 20 therefore, presented by the exceptions is whether one to whom a representation is made as to the ownership of land, who does not know the representation to be untrue, and who, relying on its truth, has acted to his loss, is precluded from maintaining an action for the deceit because the true state of the title to the land might have been ascertained by him by an examination of the land records.

The defendant's contention is that, as the record affords constructive notice to all persons of the true state of the title, it is incumbent on him to whom such representation is made to consult the record, and that if he fails to do so he is guilty of negligence, and so cannot recover.

The

We do not think that this contention can be sustained. cases relied on by defendant in support of it are not cases of constructive notice, but cases in which the representations made were affirmations of the seller of property as to quality, value, former offers, and the like, which involved not so much facts as matters of opinion and judgment, and which, as said in Brown v. Castles, 11 Cush. 348, it has always been understood the world. over are to be distrusted. On such statements a person has no right to rely, and hence, if he acts upon them without inquiry and is deceived, he is without remedy unless he has been prevented from making inquiry by the fraudulent conduct of the other. Where, however, the representation is a statement amounting to the positive assertion of an existing fact, the person to whom it is made has a right to rely upon its truth, and, having the right to rely upon it, is not put to his inquiry; and, therefore, if the representation be untrue and he is deceived thereby to his injury, negligence which will preclude his recovery cannot be predicated on his failure to make the inquiry. In Mead v. Bunn, 32 N. Y. 280, the court remarks: "Every

contracting party has an absolute right to rely on the express statement of an existing fact, the truth of which is known to the opposite party and unknown to him, as the basis of a mutual engagement; and he is under no obligation to investigate or verify statements to the truth of 21 which the other party to the contract, with full means of knowledge, has deliberately pledged his faith."

Accordingly, it was held in David v. Park, 103 Mass. 501, that a distinct statement of fact by a seller known to be false, with intent to deceive the buyer, on which the buyer acts to his injury, will sustain an action of deceit, even if the buyer might have discovered the fraud by searching the records of the patent office. So, too, it was held in Dodge v. Pope, 93 Ind. 481, that one who represents that a mortgage which he offers for sale is the only mortgage of record is bound by such representation, although an examination of the record would have disclosed the existence of a prior mortgage. See, also, to the same effect, Tyner v. Cotter, 67 Wis. 482, 30 N. W. 782; Evans v. Forstall, 58 Miss. 30; Fargo Gas etc. Co. v. Fargo Gas etc. Co., 4 N. Dak. 219, 59 N. W. 1066, in which the question is fully considered and numerous cases are collected. And see, further, Ward v. Wiman, 17 Wend. 193, in which it is held that case lies for deceitful and false representations respecting the title to land in the sale of it, and this, too, though the deed contains covenants of title, the purchaser having the right to treat the deed as a nullity and maintain his action for deceit.

We find no errors in the rulings of the district court upon the demurrer, which are also excepted to.

Exceptions overruled, and case remitted to the district court with direction to enter judgment for the plaintiff on its decision.

A Fraudulent Representation as to the Title of land renders the one making it responsible the same as if made in regard to some thing collateral: Culver v. Avery, 7 Wend. 380, 22 Am. Dec. 586. When such representations are made by a vendor, they are grounds for the rescission of the contract of sale, although the title is of record: Campbell v. Whittingham, 5 J. J. Marsh. 96, 20 Am. Dec. 241. If he conceals defects in the title to land, which do not appear in the face of the title deeds, the vendee may either bring an action on the case, or file a bill in equity for relief: Bryant v. Boothe, 30 Ala. 311, 68 Am. Dec. 117.

CROWELL v. PARKER.

[22 R. I. 51, 46 Atl. 35.]

NEWSPAPER, WHAT IS NOT FOR THE PURPOSE OF PUBLISHING LEGAL NOTICES.-"A real estate and rental guide," which, as its name imports, is taken up largely with transactions concerning real property and has never been employed as a medium for advertising notices of mortgage sales or other legal notices, is not such a newspaper as is contemplated by a power of sale contained in a mortgage of real estate, and a purchaser under a notice published in such guide will not be compelled to perform his contract.

Suit in equity for specific performance. A decree of bill dismissed was entered upon the pleadings, and the complainant appealed.

Cooke & Angell, for the appellant.

E. S. Hopkins, for the respondent.

51 MATTESON, C. J. This is a bill for specific performance brought to compel the purchaser at a mortgage sale of real estate to take a deed to the property sold.

The only question raised is whether "The Real Estate Register and Rental Guide" is a public newspaper within the meaning of the power of sale in the mortgage. The powers of sale contained in mortgages of real estate in this state were framed many years ago, when the only newspapers were newspapers in the ordinary acceptation of the term, to wit, publications issued periodically, containing what is known as the general or current news, or news of the day 52 designed to be read by the public generally; or, in other words, for general circulation. These being the only publications in the form of newspapers, the practice grew up, and has continued, to publish notices of mortgage sales and legal notices generally in the ordinary newspapers for general circulation, and we think that publicity is more likely to be secured by such publication than by publication in a newspaper like the one in question, which is primarily devoted to the interests of a limited class of readers, and which, though taken up largely, as its name imports, with transactions concerning real estate, has never been employed, so far as appears, as a medium for advertising notices of mortgage sales or other legal notices, and which, for that reason, is not likely to be consulted by those interested in mortgage sales. Our opinion, therefore, is that it is not such a newspaper as

is contemplated by the power of sale, and hence that notice of the sale published in it was not a compliance with the power: Beecher v. Stephens, 25 Minn. 146.

In Kerr v. Hitt, 75 Ill. 51, Railton v. Lauder, 126 Ill. 219, 18 N. E. 555, Maass v. Hess, 140 Ill. 576, 29 N. E. 887, Kellogg v. Carrico, 47 Mo. 157, Benkendorf v. Vincenz, 52 Mo. 441, and Lynch v. Durfee, 101 Mich. 171, 45 Am. St. Rep. 404, 59 N. W. 409, to which our attention has been called by complainant's counsel, the newspapers, though devoted primarily to the interests of particular classes of readers, had either been extensively used for the publication of notices of sales and other legal notices, or were newspapers or had been found by lower courts to be newspapers of general circulation, in which respect they were unlike the newspaper under consideration. Hull v. King, 38 Minn. 349, 37 N. W. 792, also cited by complainant's counsel, apparently rested on the authority of the Illinois and Missouri cases referred to, although the publication in this last case was unlike those in the former, in that it did not appear to have been employed for the advertising of legal notices or to have been of general circulation. We do not deem it of sufficient authority for us to follow it.

Legal Notices.-What are newspapers within the meaning of statutes providing for the publication of legal notices is discussed in Lynch v. Judge of Probate, 101 Mich. 171, 45 Am. St. Rep. 404, 59 N. W. 409; Hanscom v. Meyer, 60 Neb. 68, 83 Am. St. Rep. 507, 82 N. W. 114.

CONNOLLY v. DOLAN.

[22 R. I. 60, 46 Atl. 36.]

A SURETY IS ENTITLED TO CONTRIBUTION FOR COSTS AND EXPENSES IN DEFENDING A SUIT, INCLUDING COUNSEL FEES, if the defense was prudent; and it must be so regarded when it greatly reduces the claim made against the surety.

Bill in equity by one surety for contribution from another. Samuel T. Douglas and Frederic A. Greene, for the complainant.

McGuiness & Doran and Arthur Cushing, for the respond

ents.

60 MATTESON, C. J. This is a motion on behalf of Mabel Dolan, an infant respondent, to modify the decree here