some of which showed nothing, but others of which showed a large phosphate. vein, at one place 15 feet in depth. The defendant affected to have no faith in these developments, and was rarely around the place where the experiments were being made, but Mrs. Horne, the wife of the defendant, followed the matter closely, and testified that they were greatly encouraged, and we have no doubt that the defendant was fully informed of the extent of the discoveries made by Garrett.

Now the defendant failed to inform his sisters of the activities in phosphate that had grown up between the appraisal of June 10, 1910, and the date of their deeds in March and April, 1911. He also failed to inform them of the various applications for leases and options made during this interval, and permitted them to make their deeds relying on his statement made on January 1, 1910, in his letter which we have quoted, and in absolute ignorance of the activities mentioned.

It should be stated that the defendant purchased the land without any valuation of the phosphate whatever, but simply on its valuation as farming land at the price per acre previously mentioned, which aggregated something like $16,000, or $17,000. As stated subsequently, he sold in September, 1911, 252 acres for $40,000, carrying out the option contract which he made within a day or two of receiving the deeds from his sisters.

On these facts the complainants have brought their bill, praying in the alternative for a rescission, or that the defendant be held their trustee to the extent of their interest in the $40,000.

A rescission cannot be granted because the part of the land mentioned has been sold to an innocent purchaser, but the defendant can be declared a trustee as prayed. We think it is clear, under the facts stated, that the defendant practiced a fraud upon his sisters. He well remembered that inquiry had been made of him as to the existence of phosphate, and that he had made an answer which had completely silenced all further inquiries on that subject. While this answer was true at the time, the facts which it purported to represent was displaced by the subsequent developments mentioned, and it was the defendant's duty to inform his sisters of these developments. He cannot escape this conclusion by his statement that he did not really know whether there was any phosphate in paying quantities on the land, and that he does not even now know that there is a grade of phosphate that will pay for working, since the persons to whom he has sold have not yet developed the field. He knew that his sisters had inquired of him as to offers of leases and options; that he had informed them that there had been no such application since the one made by Mr. Fry eighteen years before. He well knew that, if he should inform them of the great activity that had arisen between June, 1910, and March, 1911, it would make them dissatisfied with the price which had been fixed by the appraisers. It was his duty to inform them and permit them to decide for themselves whether they would let the land go at the price named in view of the prospects disclosed as stated. He could not justly say that he himself had no faith in these indications, and therefore he would not inform his sisters. They had a right to judge for themselves.

It is insisted for the defendant, however, that he had already purchased the land under the appraisal contract, which purported to mature on June 15, 1910, that the land was thenceforward his, and that his sisters were not concerned with future developments. This is a

mistaken view. He well knew that this contract was not legally binding on his sisters; that they could act in protection of their rights in absolute disregard of it. In fact, as between them, for the purposes of this transaction, it must be treated as if the whole matter were verbal, culminating in the deeds of March and April, 1911. So treating it, there can be no doubt that an intending purchaser making similar representations to a distant vendor relying on him for the truth as to the value of the land or its contents would have devolved on him the duty of informing such vendor of the new facts countervailing the former representation. How much greater would this duty be when the vendors dealing with him were his sisters, residing in distant states, who had informed him by letters how wholly they trusted him and relied on him?

It is insisted on behalf of the defendant that, the reliance by the complainants upon the voidability of their deeds being a mere techni- ́ cal claim, although one sound in law, the defendant should not be onerated with the duty of making disclosures to them of matters that occurred in the interim, because it is really a breach of moral obligation on their part, an inequitable thing in fact, for them to depart from the appraisal agreement entered into in 1910. We do not think this is a correct view. Even if the complainants had discovered no new facts, it would have been in their power, at any time before the deeds were made, to withdraw from the supposed contract of 1910, since under our law it was absolutely within their discretion. It cannot be that this writing of 1910 would debar them from raising the equity that accrued to them under cover of the trust reposed by them in their brother. The controversy between them and their brother would be simply whether he had violated such trust and procured their deeds through suppression of facts which he should have communicated to them. He cannot bring up in opposition to this relief the fact that they had signed papers which were not really binding on them.

It is insisted in behalf of the defendant that his agency was ended when the appraisal contract became consummate by the filing of the appraisals in June, 1910, in the bank at Pulaski, by the notification made. by the cashier to the complainants immediately thereafter, and by the defendant's letters to them stating that he would take the land at the price fixed by the appraisers. The case does not turn upon the law of agency, but upon the ground that there was a relation of trust and confidence existing between the parties arising out of the fact that they were so closely bound by the ties of blood, together with the express notice to defendant that they, as his sisters, trusted him, and were relying upon him to deal truly and fairly with them, and that they believed that he would do everything rightly. He accepted these protestations of confidence, trust, and affection, and permitted his sisters to remain in that state of mind. This could not be dissolved in the manner indicated. The defendant remained clothed with the duty thus devolved until the very end of the transaction. That end was inequitably produced, as we have just held. It is the duty of the court of chancery to right the wrong inflicted.

In Smith v. Countryman, 30 N. Y. 655, it is held that a vendor of property may put upon the purchaser the responsibility of informing him correctly as to the market value, or any other fact known to him affecting the market price of the property, and, if the purchaser answers untruthfully, the purchase will be void by reason of fraud; that

the purchaser is not bound to answer in such case, but, if he does, he is bound to speak the truth. Likewise it was held in Shaeffer v. Sleade, 7 Blackf. (Ind.) 178, that, if a person desires to purchase property the value of which is entirely within the knowledge of the owner, without means of knowledge on the part of the intending purchaser except to rely on the statements of the seller, a statement of the value will be binding on the seller upon the ground that, if one party to a contract places all his trust and confidence in the other party, and acts upon his opinion, any misrepresentation by the party confided in in a material way by which an undue advantage is taken of the other is a fraud against which equity will relieve. In Stebbins v. Eddy, 4 Mason, 417, Fed. Cas. No. 13,342, it was held that the affirmation of belief is an affirmation of fact, that is, the fact of belief; and, if it is fraudulently made to mislead or cheat another, to abuse his confidence, or to blind his judgment, it is in law and morals just as reprehensible as if any. other fact was affirmed for a like purpose. In Cullen v. Hernz, 13 N. Y. St. Rep. 334, it was held that, while it is true that a mere opinion expressed by one person to another as to the value of property is not actionable, although it proves to be mistaken, yet the law will not exonerate the one making it, if he resorts to that mode of expression, knowing the opinion to be unfounded, with the object of deceiving the person to whom it may be expressed to his or her prejudice. In Montgomery Southern R. Co. v. Matthews, 77 Ala. 357, 54 Am. Rep. 60, it was held that, if an opinion is falsely expressed with intent to deceive, and does deceive, this constitutes such an opinion or representation a false statement of fact, and vitiates a contract thereby procured, unless the representation relates to a matter equally open to both parties.

In Elliott on Contracts, § 84, it is said: "If the parties sustain a fiduciary relation, one to the other, expressions of opinion or prediction on the part of the dominant party may be ground for avoiding a contract induced thereby. Thus, representations as to value made by an agent to his principal, an attorney to his client, or where trust and confidence are in fact reposed, although there is no special relation of trust and confidence, are considered as representations of fact and may be relied on."

In Pomeroy's Equity Jurisprudence, § 888, it is said: "Where an untrue statement is made, in the honest belief of its truth, so that it is the result of an innocent error, and the truth is afterwards discovered, by the person who has innocently made the incorrect representation, if he then suffers the other party to continue in error, and act on the belief that no mistake has been made, this, from the time of discovery, becomes in equity a fraudulent representation, even though it was not so originally.'

Our own cases are in accord. Perkins v. McGavock, Cooke, 415; White v. Flora, 2 Overt. 426; Harris v. Williamson, 4 Hayw. 124, 125; Walker v. Dunlop, 5 Hayw. 271, 272, 9 Am. Dec. 787; Lewis v. McLemore, 10 Yerg. 206; Phillips v. Hollister, 2 Cold. 269; Coffee v. Ruffin, 4 Cold. 487, 507, 517. The subject is quite fully discussed and illustrated in the case of Keith v. Kellam (C. C.) 35 F. 243, in an opinion by Judge Brewer.

We are of the opinion that the decree of the learned chancellor is erroneous, and that it should be reversed, and that a decree should be entered here to the following effect: Let a decree be entered in favor

of each of the complainants for one-seventh of the $15,000 cash received by the defendant in the sale made by him to Ragsdale & Co., less a credit as against each of the complainants for one-seventh of the value of the 252 acres at the rate of $35.833. On this sum interest will be allowed from the filing of the bill. The decree will also declare that the defendant holds the $25,000 in notes subject to a trust in favor of each of the complainants for an undivided one-seventh interest

therein.

The defendant will pay all the costs of this cause, for which execution will issue.

CHAPTER X

Section

1.

2.

3.

Introduction.

CONVEYANCES

Definiteness of Description.

Delivery and Acceptance of a Deed of Conveyance. 4. Covenant Restrictions in Deeds of Conveyance.

SECTION 1.-INTRODUCTION

A conveyance of land may be by will or by deed.

Where a conveyance is by will, it takes effect with the death of the person making the will, who is known as the testator; and this effect must be confirmed in a judicial proceeding, known as probate.

A deed of conveyance is usually a warranty deed or a quitclaim deed, or it may be, in some states, a deed of a particular form, provided for by statute, which form, however, does not generally exclude the use of the old common-law forms.

When A. sells and conveys land to B., the usual form of conveyance is the warranty deed, which not only conveys, but also covenants that he has title, that he has the right to convey, that there are no incumbrances, quiet enjoyment, and further that he warrants to the grantee, his heirs and assigns, that they shall enjoy the property without interruption by virtue of the paramount title of a third person.1

SECTION 2.-DEFINITENESS OF DESCRIPTION

FOSTER v. ROBERTS et al.

(Court of Appeals of Kentucky, 1918. 179 Ky. 752, 201 S. W. 334.)

Suit to quiet title by Sarah Roberts and others against John Foster and others. From a judgment, the named defendant appeals, and plaintiffs prosecute a cross-appeal.

CLAY, C. Alleging that they were the owners and in possession of a tract of land consisting of about 50 acres and covered by a patent issued by the commonwealth to Stephen Owens in the year 1830, Sarah Roberts and others, the widow, heirs, and successors in title of Henry T. Roberts, deceased, brought this suit against John Foster and others to quiet their title. The defendants denied the ownership and possession of plaintiffs, and pleaded title to a portion of the land, consisting of

1 The above text follows, in part, Burdick on Real Property, p. 801 et seq.