chaser of lots in a town that no liquor would ever be sold or given away in the town, unless the promise was made without intention of performance, Ayers v. Southern P. R. Co. (1916) 173 Cal. 74, L.R.A.1917F, 949, 159 Pac. 144;

representations by vendor that there would in the future be constructed by it and others, in the neighborhood of the property purchased, certain improvements which would result in materially enhancing its value, Manns v. Boston Harbor R. S. S. & Land Co. (1914) 82 Wash. 411, 144 Pac. 535;

representation, inducing sale of lot, that the vendee would erect a building thereon, thereby enhancing the value of the vendor's other property, Troxler v. New Era Bldg. Co. (1904) 137 N. C. 51, 49 S. E. 580;

representations by vendor that a hotel would be erected, a bridge built, and streets would be graded, Orr v. Goodloe (1896) 93 Va. 263, 24 S. E. 1014;

- representations by vendor that a hotel and factories would be constructed, and an electric railway would be built through the property, Dudley v. Minor (1902) 100 Va. 728, 42 S. E. 870;

representation by vendor that future improvements would be made, such as grading streets, laying water and gas mains, building houses, running belt line, etc., Slothower v. Oak Ridge Land Co. (1897) 2 Va. Dec. 506, 27 S. E. 466;

- representations by vendor that railroad depot would soon be built near the lots sold, which would great

ly enhance their value, Cooke v. Cook (1893) 100 Ala. 175, 14 So. 171;

- representation by seller of lots as to the future location of a railway depot, Ore City Co. v. Rogers (1916) Tex. Civ. App. 190 S. W. 226;

- representations by land company to purchaser of land from it that the company was constructing a belt line of railway which would run along the street in front of his property, would greatly enhance its value, and be permanently operated, Bradfield v. Elyton Land Co. (1890) 93 Ala. 527, 8 So. 383;

statement, inducing purchase of land, that while there was no railroad in that country at the time, a railroad was surveyed through the land, and "that it would be there in a year or so," the part quoted being merely a naked promise or expression of opinion, and inadmissible in evidence, Peterson v. McManus (1919) 187 Iowa, 522, 172 N. W. 460;

representation by sellers of property as to what they intended and would do, with regard to construction of a railway to the same, the court saying that no cause of action for fraud could be predicated on false representations as to what the parties intended to do in the future, Bay View Land Co. v. Myers (1895) 62 Minn. 265, 64 N. W. 816;

representation, inducing one to enter into contract for the purchase of property, that railway shops were to be moved from in front of it within a certain time, Mobley v. Quattlebaum (1915) 101 S. C. 221, 85 S. E. 585;

-promise by seller of property to purchaser that a certain street would be extended along the line of the property, Richter v. Irwin (1867) 28 Ind. 26 (the court saying that the alleged fraudulent representation was not a false statement of an existing fact, but merely a promise by the vendor that at a future date he would grant to the vendee and to the public an easement upon his land which would be of peculiar private advantage to the vendee);

- representations by vendor that he had reserved a certain strip of land, adjoining the tract sold, for a street, or that the purchaser could open up this street, the purchaser knowing that there had been no dedication or use of the strip for this purpose, Hanlon v. Nelson (1926) 140 Wash. 123, 248 Pac. 59.

68 Thus, the rule that fraud may be predicated on unfulfilled promises, made with an existing intention not to perform them, has been applied or recognized as applicable with regard to

-representation of intention to purchase land, inducing holder of option to forego his rights, Rogers v. Virginia-Carolina Chemical Co. (1906) 78 C. C. A. 615, 149 Fed. 1;

representation by land company, as an inducement to purchaser to buy land, that it would hold his notes for the purchase price until he had an opportunity to examine the property, it being held that such representation was actionable if, when it was made, the corporation had no intention of holding the notes, and the person so representing knew that the representation was false, Hansen v. Daniel Hayes Co. (1922) 152 Minn. 222, 188 N. W. 317;

-promise by grantee, upon receipt of deed for land the purchase price of which was to be paid in cash, that, as he did not have the cash in hand to pay the purchase price, he would pay the same the following day, Blackburn v. Morrison (1911) 29 Okla. 510, 118 Pac. 402, Ann. Cas. 1913A, 523;

--

agreement made in consideration of a conveyance of an interest in land that the grantee would act as agent and procure attorneys, without expense to the grantor, who would institute an action to set aside a partition decree and recover certain property for the grantor, Haggerty v. Key (1924) 100 Okla. 238, 229 Pac. 548;

- promise by vendor under contract for the sale of land, calling for payments on a specified date in a certain county, and providing for forfeiture if the payments were not made, that he (the vendor) would go to another county different from the one specified in the contract, and would there accept the payments, causing the purchaser not to comply with the contract provisions, Haddaway v. Smith (1923) Tex. Civ. App. 256 S. W. 965; Haddaway v. Burford (1922) Tex. Civ. App. - 239 S. W. 625;

- representations, made to induce purchaser to bid for property, that possession thereof would be given to the purchaser within three months from the date of sale, the court saying that if this were fraudulently made to induce the purchaser to bid, and he

was injured thereby, he would be entitled to recover for the fraud, Lamm v. Ft. Deposit Homestead Asso. (1878) 49 Md. 233, 33 Am. Rep. 246;

promise made by parties with whom a house and lot were listed for sale that, if the owner traded the lot through their agency for a certain farm, they would sell the farm within a specified time for a certain sum of money, or, if they failed to do so, that they would give back to him the house and lot, Roman v. Lorence (1925) 162 Minn. 198, 202 N. W. 707.

It was held in Notley v. Notley (1917) 23 Haw. 724, that a case calling for equitable relief by cancelation. of the deed on the ground of fraud was shown, where a father obtained from his children a conveyance of property which they had inherited from their mother, on his promise to form a corporation, to which he would convey the property, and in which their interests, respectively, would be represented by shares of stock, which promise was made without intention of performance. The court does not place its decision upon the ground of confidential relations between the parties, but upon the existing intent to defraud.

False representations made to a person of weak intellect by one who had acquired a great influence over him, to the effect that parties with whom he was having trouble were about to institute legal proceedings by which his property was likely to be taken from him, and that unless he made some disposition of it he would lose it, advising him to convey the property to the representor, who promised that he would reconvey it after the trouble was settled, inducing a conveyance to the promisor without consideration, were held in Oakey v. Ritchie (1886) 69 Iowa, 69, 28 N. W. 448, ground for the cancelation of the deed, as obtained by fraud and undue influence. See IV. supra.

And it is held in Cearley v. May (1914) 106 Tex. 444, 167 S. W. 725, that fraud warranting cancelation of the deed is shown where it was obtained by means of a representation or promise by the grantee, relied on by the grantors, that he would execute and deliver to them a written agreement to reconvey the land when his use of it for a particular purpose was ended, a promise which he did not at

relates to improvement or development of the tract or neighborhood.69 In those jurisdictions in which fraud may not be predicated on an unfulfilled promise, even though it was

the time intend, and which he failed, to perform.

In Gustafson v. American Land Co. (1921) Tex. Civ. App. —, 234 S. W. 244, affirmed in (1923) Tex. -, 249 S. W. 189, the court said that it seemed to be settled in that case that representations and promises of the vendor, relating to matters to occur in the future, such as a definite promise to do certain things which, if done, would greatly enhance the value of the property to be conveyed, are actionable, and that if the promises were made with the design of cheating and defrauding the purchaser, and the vendor had no intention at the time he made them of performing the promises, but used them merely as false pretenses to induce the purchaser to enter into the contract, and the purchaser was thereby misled into making the contract, then such conduct, coupled with the subsequent total failure to perform the promises or assurances, constitutes such fraud as will entitle the purchaser to rescind or to recover damages.

And in Long v. Calloway (1920) Tex. Civ. App. 220 S. W. 414, the court regarded it as well settled that a grantor may rescind an executed conveyance of land granted in consideration of a representation or promise on the part of the grantee to perform some act in the future which the grantee refuses to perform, provided the representation and promise were made for the purpose of defrauding and deceiving the grantor, and without any intention at the time the same was made of performing, and the failure to keep the promise is wholly without excuse.

In Martin v. South Bluefield Land Co. (1917) 81 W. Va. 62, 94 S. E. 493, it is said that if a promise is made with a secret and fraudulent purpose to mislead and deceive the vendee, who in reliance thereon is induced to accept a conveyance of land which otherwise he would not accept, equity will rescind, or compel specific performance of the agreement, where no insuperable difficulty prevents the execution thereof. The court points out that it is the motive underlying the

made without intention of performance, this doctrine has been applied in various cases involving conveyances of real estate or of an interest therein.70

promise, the actual fraud which permeates and vitiates it, that determines the right to relief. Contrary, on principle, to the view here taken, seems to be the earlier case of Love v. Teter (1884) 24 W. Va. 741, under note 75, infra.

69 See annotation in 27 A.L.R. 343.

See also cases under V. supra, where purchases of real estate were induced by promises of improvements, combined with misrepresentations of existing facts.

It is held in Braddy v. Elliott (1908) 146 N. C. 578, 16 L.R.A. (N.S.) 1121, 125 Am. St. Rep. 523, 60 S. E. 507, that, while a mere failure by one party to an exchange of land to comply with his agreement to construct buildings on the land granted by him is not sufficient to justify a rescission of the entire contract by a court of equity, yet, if the promises are made without intent on the part of the promisor to fulfil them, there is such fraud as will en title the other party to a rescission.

If there is no intention of perform ance, fraud may be predicated on representation by the seller of lots, a an inducement to purchasers, that he would build and maintain a magnificent boulevard and parks near the lots, and also build a suburban depot and erect a handsome residence on the boulevard (Thrasher v. Cobb Real Estate Co. (1913) 12 Ga. App. 718, 78 S. E. 254), or on a representation by a seller of lots that a street car line would be built and permanently maintained through the lots which were being offered for sale, and that arrangements had been made for the erection of a manufacturing plant in the immediate vicinity. Printup v. Rome Land Co. (1892) 90 Ga. 180, 15 S. E. 764 (see statements regarding this case in Thrasher v. Cobb Real Estate Co. (Ga.) supra, to the effect that the decision must have rested on future promises).

70 An unperformed promise to pay money as a consideration for a conveyance, even though it is made without the intention of performance, has been held to constitute merely a breach of the contract, and not a ground for setting aside the deed.

But, as already suggested, the ordinary rules regarding inability to predicate fraud on statements of a promissory nature have not seemingly been regarded as applicable, or at least have frequently not been considered, where their application might have resulted in enabling the grantee to retain property and at the same time refuse to carry out his agreement to do something in the future. Of course, Murphy v. Murphy (1901) 189 Ill. 360, 59 N. E. 796, where the rule obtained that fraud may not be predicated on an unfulfilled promise, even though it is made without intention of perform

ance.

It was held in Miller v. Sutliff (1909) 241 Ill. 521, 24 L.R.A. (N.S.) 735, 89 N. E. 651, that the grantor was not entitled, on the ground of fraud, to cancelation of a conveyance of a half interest in coal and minerals underlying the grantor's lands, made on the faith of the grantee's representation that he would locate manufacturing plants on or near the property and secure railroad communication therewith, a promise which the grantee did not intend should be, and was not, performed.

And in Farris v. Strong (1897) 24 Colo. 107, 48 Pac. 963, the court applied the rule that to constitute actionable fraud the representation must relate to a past or existing fact, and that fraud cannot be predicated upon an unfulfilled promise, even though it is made with the intention not to perform the same, to a case where one obtained an interest in a mine through false representations that he would assist in negotiations for a sale of the mine.

And the doctrine that failure on the part of a promisor to perform a promise made by him to do something in the future which he does not intend to do, and subsequently refuses to do, cannot constitute a ground of action for fraud, was applied in Girard v. Jerry (1921) 95 Vt. 129, 113 Atl. 533, where the defendant had conveyed premises to the plaintiff by warranty deed, reserving therein a room during his lifetime, and on a subsequent sale of the premises by the plaintiff to a third party, the defendant stated that he would make no claim to the premises, or to any right therein, and would confirm the sale to such third person, thereby inducing the plaintiff to make a conveyance without reservation.

failure of consideration might be invoked in some cases, but the Statute of Frauds would often prove an insurmountable difficulty unless the unfulfilled promise or misrepresentation is regarded as a sufficient basis on which to predicate fraud. And notwithstanding the general rule as to predicating fraud on promissory statements, the courts have frequently granted relief in such cases. 71

71 See VI. supra, discussing rule in equity.

Among other cases which do not discuss the subject under annotation, but have granted relief, attention is called to Kinkaid v. Rossa (1913) 31 S. D. 559, 141 N. W. 969, Ann. Cas. 1915D, 1098, in which the court held that an execution sale of real estate should be set aside because it was obtained by fraudulent promises, inducing the owner, who was advanced in years and of little education, to refrain from defending an action brought against him and permitting judgment to go against him by default, resulting in the sale, where the promises which were broken consisted in a representation by the plaintiffs in the action that if it was not defended they would take judgment for a less amount than that claimed, and would not issue execution thereon for three years, the defendant having relied on this promise and not having become aware of its violation until several years after the sale, and the land being sold for about 2 per cent of its value. The court said merely that it was immaterial whether the alleged promise was void because within the Statute of Frauds; that the promisee relied upon it, and was lulled by the promisor into a sense of security; and that violation of the agreement was unconscionable.

That parties who purchase property at a judicial sale, under a promise which by reason of the Statute of Frauds cannot be enforced, cannot hold the bargain obtained by such a promise, since permitting them to do so would be a fraud, see also, for example, Fairy v. Kennedy (1904) 68 S. C. 250, 47 S. E. 138. The court does not discuss the question under annotation, but says merely that having escaped from the promise because of the Statute of Frauds, and because the promise was not sufficiently definite for legal enforcement, the defendants could

d. Purpose for which realty is purchased.

In various cases in which the alleged false representations related to the purpose for which the vendee desired the real estate purchased, the courts have applied or recognized the general rule that fraud cannot ordinarily be predicated on unfulfilled promises or statements as to future events.72 And the doctrine that even though there is intentional deceit an action will not lie, because of the promissory nature of the representa

not hold the bargain obtained by the promise, for that would be a fraud.

72 Stackpole v. Hancock (1898) 40 Fla. 362, 45 L.R.A. 814, 24 So. 914; Brown v. Honiss (1907) 74 N. J. L. 501, 68 Atl. 150.

In Barrow v. Nashville & C. Turnp. Co. (1848) 9 Humph. (Tenn.) 304, where a grantor sought rescission of a deed conveying land to a turnpike company on the ground of fraud in representing to him that the land was desired for the erection of a tollgate, to be permanently located there, when such was not the real intention of the company, the court, in holding that the complainant was not entitled to relief, said that although it was true he doubtless believed that the gate was to be permanently kept at that place, yet that it did not appear that the company did or said anything to induce this belief, except the mere fact of its proposal to purchase for that particular purpose and the knowledge of the complainant that it had no right to hold land for any other purpose. There was the further circumstance in the case that, before the deed was executed, the complainant was aware that the gate would probably be moved, and attempted unsuccessfully to insert in the deed a condition with reference thereto.

Oral representations as to the kind of improvements which will be erected on land by purchaser thereof will not constitute a basis for fraud so as to avoid the contract of sale, in a suit by the purchaser for specific performance. Lescher v. Baird (1927) - Ark. —, 294 S. W. 17.

--

Misrepresentation on the part of a purchaser of real estate as to the purpose for which the land was desired was held in Lucas v. Long (1915) 125 Md. 420, 94 Atl. 12, not such a fraud, even though the representation was

tion, finds illustration in this class of cases, in a jurisdiction in which the view obtains that, even though there is an intention on the part of the promisor not to perform the promise, fraud cannot be predicated thereon.73

But it seems that if the purchaser intentionally misrepresents the purpose for which, or the person for whom, he is purchasing the property, this will be a misrepresentation of fact which may constitute actionable fraud.74

false, as would prevent enforcement of the contract against the vendor, the ground of the decision being that the latter had not relied on such representation, and that it was immaterial. The alleged fraud consisted in the purchaser's representation that the land was to be used as a dairy farm, and in his concealment of the fact that improvements and developments were pending in that vicinity which would greatly enhance the value of the land. 73 It was held in Harriage v. Daley (1915) 121 Ark. 23, 180 S. W. 333, that representations by purchasers of land, for part payment of which the vendor accepted stock in a coal company, that the land was to be held for and developed by the company of which the purchasers were officers, being promissory in character, could not form the basis of an action for deceit and fraud brought by the vendor, even if false and made with intent to deceive.

See also Miller v. Fulmer (Pa.) notes 39, 55, supra.

74 Where, as an inducement for one to sell land at a reduced price, representations were made to him by the agent of the purchaser that a foundry and machine shop would be immediately erected on the property, which would greatly enhance the value of the vendor's remaining land, which representations were false and were made for the purpose of obtaining the land for other parties and for other purposes than as represented, it was held in Williams v. Kerr (1893) 152 Pa. 560, 25 Atl. 618, that the case was a proper one for a decree for reconveyance because of the fraud.

See also Adams v. Gillig (N. Y.) note 26, supra.

Among possibly other cases not discussing the present question, in which it was held that fraudulent representations by the purchaser as to the use ·