Fretwell v. McGee

¶1 (dissenting) : McGee seeks to be relieved of his bid upon the ground that Major, who appears to have been his attorney throughout the whole matter, told him that Fretwell had told him (Major) that the tract of land in question came out to the public road, and that he bid upon the land under this misapprehension. The burden of establishing not only the fact that Fretwell made this alleged misrepresentation to Major, but that Major extended the misrepresentation to McGee as the agent of Fretwell, was clearly upon McGee. The conversation between Major and Fretwell was with reference to a purchase by McGee of Fretwell’s mortgage, and not with reference to a purchase; by McGee at the foreclosure sale. It was a verbal communication liable to be misunderstood and to have been altered in the transmission or misunderstood by McGee. Fretwell swears that he was familiar with the location of the tract and could not have stated to Major that it lay next to the public road. It appears also that McGee, while living 10 miles in the country, was frequently in the City of Anderson and could within 15 minutes have' *422 informed himself of the location of the land which was only three miles distant.

¶2 L,eges subveniunt zrigilantibus non dormientibus. It appears to me that McGee, with as large an amount as he had at stake, was culpably negligent in not ascertaining before he bought what he was buying.