In 1862, Thomas Johnson died intestate, being at the time seized in fee of the tract of land which gives rise to this litigation, leaving him surviving, his widow, Rebecca Johnson, and the appellee, his only child, then an infant. Rebecca Johnson, his widow, and the mother of the appellee, in the year 1869, conveyed the land to one J. D. Brown in consideration of $150.
Xn 1881 Brown mortgaged the premises to R. G. Atkinson & Co., and the mortgage was, in the same year, assigned to the appellant’s ancestor, (L. C. Gammill), and default having been made in the condition of the mortgage, he, in 1883, prepared to foreclose, and then for the first time ascertained that the appellee had title to the land. Upon ascertaining this fact, and fearing that Brown might seek to take advantage of it, Gammill proceeded to the state of Texas, where the appellee then resided, and obtained a quit claim deed from her to the land. To set aside and cancel this deed for fraud, the appellee brought her suit in the circuit court of Lincoln county in chancery, making Brown a co-defendant with Gammill. No relief was sought or had against Brown, and he did not appear to the suit. The decree finds that' Gammill obtained the conveyance through fraud, and directs its cancellation. Gammill appealed, and his death having been suggested, his heirs are prosecuting the appeal.
It appears, from a preponderance of testimony, that when Gammill visited Miss Johnson at her home in Texas to procure the deed, he falsely represented himself as the owner of the land by conveyance from Brown, and appealed to her to confirm her mother’s act in selling the’land, assuring her it had always been considered, and that he was now advised by counsel, that she had no title to the land, but saying that as matters stood his title might be doubted by a would-be-purchaser when he should desire to sell. Brown’s wife was Miss Johnson’s cousin; the two families had been intimate and her mother had enjoyed the proceeds of the unauthorized sale.
From these considerations, she expressed a ready willingness to confirm the sale made by her mother and to perfect the Brown title without consideration, and accordingly executed the deed Gammill had already prepared for the occasion. She was not altogether ignorant of her title, and her intention in executing the deed was, not to confer a bounty upon Gammill, but to perform what she conceived to be an act of justice to Brown, and this determination was brought about by Gammill’s statement that he stood in Brown’s shoes, or was at least the innocent purchaser of Brown’s rights.
Gammill knew that his statement as to the ownership of Brown’s rights, whatever they might be, was false. It is apparent that it was believed to be true by Miss Johnson, that it was made with the design of effecting a conveyance of the land and was in fact the main inducement to the accomplishment of that end. / These are the elements that control courts in declaring a misrepresentation a fraud for which a contract may be rescinded. 2 Pomeroy's Eq., sec. 876; Fitzhugh v. Davis, 46 Ark., 337.
But it is argued that Miss Johnson had the opportunity to inform herself of the falsity of the statement, from the fact that .she testifies that when Gammill informed her that he was the owner of the land, he held in his hand a paper which he averred was his deed of conveyance from Brown and wife.
1. Fraud:— represen-
It is true, that when the means of information are open to ’ ^ both parties alike, so that with ordinary prudence and vigilance each may be informed of the facts and rely upon his own judgment in regard to the thing to be performed ór the subject matter of the contract, if either fails to avail himself of his opportunities he will not be heard to say he has been deceived. A court of equity will not undertake to relieve a party from the consequences of his own inattention and carelessness. Yeates v. Pryor, 11 Ark., 66. But when the representation is made of a fact that has nothing to do with opinion, and is peculiarly within the knowledge of the person making if, the one receiving it has the absolute right to rely upon its truthfulness, though the means of ascertaining its falsity were fully open to him. It does not lie in the mouth of declarant to say it was folly in the other party to believe him. 2 Pom. Eq., sec. 895; Mead v. Bunn, 32 N. Y., 275; David v. Park, 103 Mass., 501; Kiefer v. Rogers, 19 Minn., 32; Matlock v. Todd, 19 Ind., 130; Keller v. Equitable Fire Ins. Co., 28 Ib., 170; Reynell v. Sprye, 8 Hare (32 Eng. Ch. R.), 222.
The appellee was not guilty of negligence in believing Gammill’s statement as to his title.
Affirm.