the road over the public lands; that the con- | court, or if the garnishee fail to appear and mined, applied, and that the appointment of a receiver by the circuit court was, under the circumstances, ineffectual to devest the control of the supreme court over the assets of the construction company, or defeat its right to enforce its judgment in the accounting. struction company failed to secure the lawful right of way as to a portion of the road; that the Missouri Pacific company should be al lowed a deduction for each and every mile so situated; and that the controversy in this regard depended upon a right construction of the act of Congress. It would seem that this dispute between the parties turned on whether the construction company had failed in its duty to the Missouri Pacific company, and not on any difference between them as to the proper 577] *meaning of the act, but it is sufficient to say that the validity of the act of Congress was not questioned, and that the decision of the state courts denied no right claimed under it. The finding of fact was that about 15 miles of road were laid out over government land, and that no maps were filed with the Secretary of the Interior, showing the lines of way thereon, though they were filed with the local land officers. In Real v. Hollister, 20 Neb. 112, it was decided that in an action for breach of the covenant for quiet enjoyment, the plaintiff must allege and prove that he has been turned out of possession, or has yielded to a paramount title, and, applying that doctrine in this case, the state courts held that the Missouri Pacific company could not maintain its claim for damages, because its possession had not been disturbed or its title questioned. 41 Neb. 451. 2. The answer and plea of the Missouri Pacific company to Mrs. Fitzgerald's petition for an order of revivor and the appointment of a receiver, filed January 29, 1895, set up that on December 24, 1888, which was the same day that he instituted this suit as a stockholder, Fitzgerald brought an action against the construction company to recover an amount alleged to be due him; that notice of garnishment was served on the Missouri Pacific company; that the cause was then removed into the circuit court, and there Fitzgerald recov ered judgment; and that control over the indebtedness of the Missouri Pacific company to the construction company and of the accounting between them was thus transferred to the circuit court. The matter of the garnishment proceedings was referred to in the original answer of the Missouri Pacific company, filed in this cause January 19, 1889, but the position now taken was put forward for the first time in the answer and plea to Mrs. Fitzgerald's petition in supreme court. Apart, however, from the objection that the course of proceedings could not be obstructed in this way at so late a date and in the court of appellate jurisdiction, the poion cannot be maintained, for it was not 578 made to appear but that the notice of garishment may have been issued and served after jurisdiction had attached in this suit; and, moreover, it did not appear that the garnishment process was prosecuted or that any order or judgment charging the Missouri Pacific company was rendered. Under Neb. Code, §§ 224, 225 (Neb. Comp. Stat. 1895, 1170, 1171), the garnishee must deliver the property of the defendant in the action or pay the money due, as disclosed on his examination, into court, or give bond that the amount shall be paid or the property be forthcoming, as directed by the answer, or his disclosure is not satisfactory, or he fail to comply with the order of the court, etc., the plaintiff may proceed against him by action and recover judgment as in other cases, defendant being substituted as plaintiff when plaintiff is satisfied. The supreme court of Nebraska disposed of this objection by saying "that the attachment proceeding was evidently abandoned in the circuit court, where the record shows an ordinary judgment for damages, unaccompanied by an order against the Missouri Pacific company as garnishee." We are unable to perceive that that court in declining to entertain the objection so passed upon a Federal question as to furnish ground for the interposition of this court. 3. By the amended petition filed May 4, 1891, the appointment of a receiver was prayed, but the judgment of the district court was rendered December 28, 1891, for $429,573.43, to be paid to the clerk of the court to abide its further order, execution to issue on failure of payment. The cause having been taken to the supreme court by appeal, judgment was there rendered, June 26, 1894, for $764.942.08, with interest from December 24, 1893, and the cause remanded to the district court, with instructions to enforce the collection of said judgment, and to appoint a receiver to collect and pay out the proceeds thereof and of such other assets of the construction company as might be within the jurisdiction of the court. December 30, 1894, pending an application for a rehearing, Fitzgerald died, and Mrs. Fitzgerald, having been appointed special administratrix *of his estate, filed, January 15, 1895, [579 her petition for an order of revivor, and also that a receiver be appointed by the supreme court. January 5, 1895, a rehearing was granted, and on April 4 the supreme court entered the order of revivor, and modified its former judgment by reducing the amount to $300,906.33. And on April 6, 1895, the court appointed a receiver, having reviewed and overruled the Pacific company's objections thereto presented by its answer and plea to Mrs. Fitzgerald's application. 44 Neb. 463. July 2, 1891, the Kansas & Colorado Pacific Railway Company brought its action in the state district court against the construction company with garnishee notice to the Missouri Pacific company, which cause was removed into the circuit court on July 3, 1891. January 12, 1895, the Kansas company filed an amended and supplemental complaint, and a receiver was appointed by the circuit court, the district judge presiding. As the state courts had been in possession of the res for years before January 12, 1895, when, pending the modification by the supreme court of its judgment of June 26, 1894, the circuit court permitted the amended and supplemental complaint to be filed by the Kansas company against the construction company, and thereupon appointed a receiver, the supreme court of Nebraska held that the rule that the court which first acquires jurisdiction of the subject-matter of an action will retain it until the controversy is finally deter In our opinion the supreme court in so holding denied no Federal right of the Missouri Pacific company. 4. It is contended that by its judgment the supreme court affirmed the order of the state district court denying the application to remove, and that that order was erroneous. But as the Missouri Pacific company, notwithstand580] ing such denial, *filed the record in the circuit court, and the cause proceeded in that court to final hearing, when it was remanded, and as the state court in the meantime awaited the action of the circuit court, the order worked no prejudice, and if any error were committed in that regard, it became wholly immaterial. 5. We are thus brought to the remaining and most important question arising on this motion. Under the act of Congress of March 3, 1887 (24 Stat. at L. 552, 553, chap. 373), as re-enacted for the purpose of correcting the enrol ment, by the act of August 13, 1888 (25 Stat. at L. 433, 435, chap. 866), is the order of the circuit court remanding the cause to the state court open to review on this writ of error? If not, then we cannot take jurisdiction to These provisions were referred to by Mr. Chief Justice Waite in Morey v. Lockhart, 123 U. S. 56, 57 [31:68], and the Chief Justice said: "It is difficult to see what more could be done to make the action of the circuit court final, for all the purposes of the removal, and not the subject of review in this court. First, it is declared that there shall be no appeal or writ of error in such a case, and then, to make the matter doubly sure, the only statute which ever gave the right of such an appeal or writ of error is repealed." It was subsequently decided in the case of Ex parte Pennsylvania Co. 187 U. S. 451, 454 [34: 738, 740], that the power to afford a remedy by mandamus when a cause, removed from a state court, is improperly remanded, was taken away by the acts of March 3, 1887, and August 13, 1888. Adverting to the clause just quoted from § 2 of those acts, Mr. Justice Bradley said: "In terms, it only abolishes appeals and writs of error, it is true, and does not mention writs of mandamus; and it is unquestionably a general rule that the abrogation of one remedy does not affect another. But in this case, we think it was the intention of Congress to make the judgment of the circuit court remanding a cause to the state court final and conclusive. The general object of the act is to contract the jurisdiction of the Federal courts. The abrogation of the writ of error and appeal would have had little effect in putt revise the proceedings of the state court. Noring an end to the question of removal, if the can the inquiry be affected by the fact that a motion to remand had been previously made and denied. That order was subject to reconsideration, as the question of jurisdiction always is, until final judgment, and, indeed, it was the duty of the circuit court under the statute, if it appeared at any time that juris diction was lacking, to dismiss or remand as justice might require. 18 Stat. at L. 470, chap. 137, § 5. writ of mandamus could still have been sued out in this court. It is true that the general supervisory power of this court over inferior jurisdictions is of great moment in a public point of view, and should not, upon light grounds, be deemed to be taken away in any case. Still, although the writ of mandamus is not mentioned in the section, yet the use of the ❘ words 'such remand shall be immediately car. ried into execution,' in addition to the prohibition *of appeal and writ of error, is [582 strongly indicative of an intent to suppress further prolongation of the controversy by what Prior to the passage of the act of March 3, 1875, just cited, an appeal or writ of error would not lie to review an order of the circuit court remanding a suit which had been re-ever process. We are therefore of opinion that moved because such an order was not a final judgment or decree. This was expressly held in Chicago & A. R. Co. v. Wiswall, 90 U. S. 23 Wall. 507 [23: 103], decided at October term, 1874, and it was also ruled that the remedy was by mandamus. But by the last paragraph of § 5 of the act of March 3, 1875 (18 Stat, at L. 470, chap. 137), it was provided that "the order of said circuit court dismissing or remanding said cause to the state court shall be reviewable by the supreme court on writ of error or appeal as the case may be." By § 6 of the act of March 3, 1887, however, this paragraph was expressly repealed, and by the last paragraph of § 2 it was enacted that "whenever any cause shall be removed from any state court into any circuit court of the United States, and the circuit court shall decide that the cause was improperly removed 581] and order the same to be *remanded to the state court from whence it came, such remand shall be immediately carried into execution, and no appeal or writ of error from the decision of the circuit court so remanding such case shall be allowed." the act has the effect of taking away the remedy by mandamus as well as that of appeal and writ of error." We see no reason for reconsidering these conclusions and it may be regarded as settled that an order of the circuit court remanding & cause cannot be reviewed in this court by any direct proceedings for that purpose. If a state court proceeds to judgment in a cause notwithstanding an application for removal, its ruling in retaining the case will be reviewable here after final judgment, under U. S. Rev. Stat. § 709. Stone v. South Caro lina, 117 U. S. 430 [29:962]. If a case be removed to the circuit court and a motion to remand be made and denied, then, after final judgment, the action of the circuit court in refusing to remand may be reviewed here on error or appeal. Graves v. Corbin, 132 U. S. 571 [33: 462]. If the circuit court and the state court go to judgment respectively, each judgment is open to revision in the appropriate mode. Meyer v. Delaware R. Const. Co. ("Removal Removal Cases") 100 U. S. 457 [25: 593]. But if the circuit court remands a cause and the state court proceeds to final judgment, the action of the circuit court is not reviewable on writ of error to such judgment. A state court cannot be held to have decided against a Federal right when it is the circuit court and not the state court which has denied its possession. The supreme court of Nebraska rightly recognized the courts of the United States to be the exclusive judges of their own jurisdiction and declined to review the order of the circuit court. As under the statute a remanding order of the circuit court is not reviewable by this court on appeal or writ of error from or to that court, so it would seem to follow that it cannot be reviewed on writ of error to a state court, the prohibition being that "no appeal or writ of error from the decision of the circuit court re583] manding such cause shall be *allowed." And it is entirely clear that a writ of error cannot be maintained under § 709 in respect of such an order, where the state court has rendered no decision against a Federal right but simply accepted the conclusion of the circuit court. We regard this result as intended by Congress, in effectuation of the object of the act of March 3, 1887, to restrict the jurisdiction of the circuit court and to restrain the volume of litigation which, through the expansion of Federal jurisdiction in respect of the removal causes, had been pouring into the courts of the United States. Smith v. Lyon, 133 U. S. 315 [33: 635]: Ex parte Pennsylvania Co. 137 U. S. 451 [34:738]; Fisk v. Henarie, 142 U. S. 459, 467 [35: 1080, 1082]. So far as the mere question of the forum was concerned, Congress was manifestly of opinion that the determination of the circuit court that jurisdiction could not be maintained should be final, since it would be an uncalled-for hardship to subject the party who, not having sought the jurisdiction of the circuit court, succeeded on the merits in the state court, to the risk of the reversal of his judgment, not because of error supervening on the trial, but because a disputed question of diverse citizenship had been erroneously decided by the circuit court; while as to applications for removal on the ground that the cause arose under the Constitution, laws, or treaties of the United States, that this finality was equally expedient, as questions of the latter character, if decided against the claimant, would be open to revision under § 709, irrespective of the ruling of the circuit court in that regard in the matter of removal. It must be remembered that when Federal questions arise in causes pending in the state courts, those courts are perfectly competent to decide them, and it is their duty to do so. As this court, speaking through Mr Justice Harlan, in Robb v. Connolly, 111 U. S. 624, 637 [28: 28: 542, 542, 546], said: "Upon the state courts, equally with the courts of the Union, rests the obligation to guard, enforce, and protect every right granted or secured by the Constitution of the United States and the laws made in pursuance thereof, whenever those rights are involved in any suit or proceeding before them; for the 584] judges of the state courts *are required to take an oath to support that Constitution, and they are bound by it, and the laws of the United States made in pursuance thereof, and all treaties made under their authority, as the supreme law of the land, 'anything in the Constitution or laws of any state to the contrary notwithstanding.' If they fail therein, and withhold or deny rights, privileges, or immunities secured by the Constitution and laws of the United States, the party aggrieved may bring the case from the highest court in the state in which the question could be decided to this court for final and conclusive determination." Writ of error dismissed. FRANK P. DICKSON, Appt., V. RICHARD C. PATTERSON ET AL. (See S. C. Reporter's ed. 584-592.) Setting aside conveyance for fraud-accounting. 1. Where two persons have purchased land to be sold on joint account, a claim by one against the other for his share of the proceeds of sales, made without knowledge that a conveyance by the latter to a third person was fraudulent, will not constitute such an election by the former as to preclude him, on discovering the fraud, from suing to set aside such conveyance and asserting his rights in the property. NOTE.-As to estoppel in pais, see note to Stowe v. United States, 22: 144. As to when vendee is estopped from disputing the title of his vendor, -see note to Watkins v. Holman, 10: 873. Actionable fraud; elements necessary to constitute; rescission of deeds or contracts for fraud; false representations. In order to render fraud actionable in any case, the following essential elements should be present: 1. The misrepresentation must be of a matter of fact, and not of law. Upton v. Tribilcock, 91 U. S. 45, 49 (23: 204, 205); Seeley v. Reed, 25 Fed. Rep. 361; Clodfelter v. Hulett, 72 Ind. 137; Dillman v. Nadlehoffer, 119 Ill. 567; Fish v. Cleland, 33 111. 238; Jordan v. Stevens, 51 Ме. 78, 81 Am. Dec. 556: Gormely v. Milwaukee Gymnastic Asso. 55 W18. 350. 2. The misrepresentation must be of a fact, as distinguished from a mere expression of opinion. Reynolds v. Palmer, 21 Fed. Rep. 433; Buckner v. Street, 15 Fed. Rep. 365; Bristol v. Braidwood, 28 Mich. 191; Hubbell v. Meigs, 50 N. Y. 480, 189; Sawyer v. Prickett, 86 U. S. 19 Wall. 146 (22:105). 3. The misrepresentation must be of a fact at the time or previously existing, and not a mere promise for the future. Fenwick v. Grimes, 5 Cranch. C. C. 439; Long v. Woodman, 58 Me. 49; Burt v. Bowles, 69 Ind. 1; Fouty v. Fouty, 34 Ind. 433; Bethell v. Bethell, 92 Ind. 318; Bigham v. Bigham, 57 Tex. 238; Wilson v. Eggleston, 27 Mich. 257; Dowd v. Tucker, 41 Conn. 197; Gross v. McKee, 53 Miss. 536; Farrar v. Bridges, 3 Humph. 566; Miller v. Howell, 2 Ill. 499, 32 Am. Dec. 36; Higgins v. Higgins, 57 N. Η. 224. 4. The misrepresentation must be of a material matter. 2 Pom. Eq. Jur. § 898; Hall v. Johnson, 41 Mich. 286; Clark v. Everhart, 63 Pa. 347; Yeates v. 5. The misrepresentation must be relied upon by the person to whom it is made or whose action it is intended to influence. Nye v. Merriam, 35 Vt. 2. One who joins with another in purchasing land | Garrett, 34 Ala. 558; Wilson v. Higbee, 62 Fed. under an agreement that they are to pay equally for the land and subdivide and sell it, and share equally in all sales, is not entitled, on discovering that, from the misrepresentations of the other as to the purchase price, he has been led to pay all that was paid for the land, to claim the whole property and all the proceeds of the sales, but his remedy is by an accounting in which he shall be credited for what he has paid and one half of such proceeds. [No. 15.] Rep. 723. The fraud practised by Patterson upon Dick. son was so gigantic as to beggar belief. It was so monstrous that a court of chancery cannot say that Dickson acquiesced in it. Complainant offered to repay the supposed purchase money received from Patterson, and there is nothing to indicate that this offer was not made within a reasonable time. Clough . London & N. W. R. Co. L. R. 7 Exch. 35; Wicks v. Smith, 21 Kan. 412, 30 Submitted October 15, 1895. Decided January Am. Rep. 433; Marston v. Simpson, 54 Cal. 6, 1896. A PPEAL from a decree of the Circuit Court of the United States for the District of Nebraska in favor of Richard C. Patterson et al., defendants, dismissing a suit in equity brought by Frank P. Dickson to procure a decree rescinding certain sales of real estate on the ground of fraud. Reversed, and cause remanded for further proceedings. The facts are stated in the opinion. Messrs. Westel & Morsman and Chas. Offutt, for appellant: The facts upon which the trial judge based his conclusions of law utterly fail to constitute a ratification of the sale by Dickson, because Dickson did not then possess full knowledge of the fraud. Anderson's Appeal, 36 Pa. 496; Reaves v. 189; Williamson v. New Jersey S. R. Co. 29 Ν. J. Eq. 311. Appellees having failed to plead the alleged acquiescence and election of appellant as a defense, the trial court could not grant any relief based upon this theory, even though the evidence had established such acquiescence and election. Philadelphia, W. & B. R. Co. v. Howard, 54 U. S. 13 How. 307 (14:157); Mabury v. Louisville & J. Ferry Co. 60 Fed. Rep. 645; Wood v. Ostram, 29 Ind. 179; Robbins v. Magee, 76 Ind. 390; Cole v. Lafontaine, 84 Ind. 448; Stewart v. Beck, 90 Ind. 458. Messrs. Jno. L. Webster and H. D. Estabrook, for appellees: Complainant is estopped from insisting upon the frauds charged for the reason that he ratified the sales by his conduct; failed to rescind 438 Hagee v. Grossman, 31 Ind. 223; Taylor v. Where false representations of the character indicated are so made for the purpose of being acted upon, and are so acted upon, the party to whom and for whom they are made may ordinarily maintain an action for such damages as proximately result from the deception. Cooley, Torts, 475; Pollock, Torts, 240; Endsley v. Johns, 120 110.469, 60 Am. Rep. 572; Sellar v. Clelland, 2 Colo. 532; Byard v. Holmes, 34 N. J. L. 296; Busterud v. Farrington, 36 Minn. 320. It is sufficient to constitute actionable fraud, so far as the question of knowledge is concerned, if the person making the misrepresentations had no knowledge and no belief upon the subject, and recklessly made them with intent to deceive; or even if he supposed his representations to be true, but had no reason therefor, and nevertheless made them as of positively known facts, and thereby induced the person to whom they were made to act upon them to his damage. Hammatt v. Emerson, 27 Me. 308, 46 Am. Dec. 598; Weed v. Case, 55 Barb. 534: Ormrod v. Huth, 14 Mees. & W. 652; Munroe v. Pritchett, 16 Ala. 785, 50 Am. Dec. 203: Taylor v. Ashton, 11 Mees. & W. 401: Beebe v. Knapp, 28 Mich. 53: Fisher v. Mellen. 103 Mass. 503; Litchfield v. Hutchinson, 117 Mass. 195; Frenzel v. Miller, 37 Ind. 1, 10 Am. Rep. 62; Bennett v. Judson, 21 N. Y. 238; Allen v. Hart, 72 III. 104; Bethell v. Bethell, 92 Ind 318; West v. Wright, 98 Ind. 335; Humphrey v. Merriam. 32 Minn. 197; Cooper v. Schlesinger, 111 U. S. 48 (28:383). Generally, no one but the party to whom they are made is entitled to rely on representations of another intended for him. Ashuelot Sav. Bank v. Albee. 63 N. H. 152, 56 Am. Rep. 501; Carter v. Harden, 18 Me. 528. fluencing the latter, and not the former, there is no actionable fraud as to the former; but there may be actionable fraud as to the party to whom they were intended to be communicated. Wells v. Cook, 16 Ohio St. 67, 88 Am. Dec. 436; McCracken v. West, 17 Ohio, 16; Eaton, C. & B. Co. v. Avery, 83 N. Y. 31, 34; Langridge v. Levy, 2 Mees. & W. 519; Carvill v. Jacks, 43 Ark. 454. And where representations are made for the express purpose of influencing the public generally, and inducing any individual members thereof that may be so influenced, as one of the public, to act upon them, whoever so receiving and relying upon them does act in the manner intended may, if deceived thereby to his damage, treat them as a fraud upon himself. Holmes v. Harrington, 20 Mo. App. 661; Carvill v. Jacks. supra; Gerhard v. Bates. 2 El. & Bl. 476; Peck v. Gurney, L. R. 13 Eq. Cas. 79,1 Eng. Rep. (Moak's ed.) 567; Terwilliger v. Great West. Teleg. Co. 59 Ill. 249; Booth v. Wonderly, 36 N. J. L. 250; Morse v. Swits, 19 How. Pr. 275; Denton v. Great Northern R. Co. 25 L. J. Q. B. 129. Where a party can protect himself by ordinary care and prudence, he must do so; and if, with full means of knowledge, being equally able to judge of a matter for himself, he relies upon the repreFentations of another with whom he stands on equal footing, without exercising the means of knowledge open to him, veither the courts of law nor courts of equity will relieve him from the effects of such foily. 1 Story, Eq. Jur. (3d ed.) $$ 199, 200; Ætna Ins. Co. v. Reed, 33 Ohio St. 283; Slaughter v. Gerson, 80 U. S. 13 Wall. 37920: 627); Brown v. Leach, 107 Mass. 364; Long v. Warren, 68 N. Y. 426; Parker v. Moulton, 114 Mass. 99, 19 Am. Rep. 315; Vincent v. Berry, 46 Iowa, 571; Cbrysler v. Canaday, 90 N. Y. 272, 43 Am. Rep. 166; Mamlock v. Fairbanks, 46 Wis. 415, 32 Am. Rep. 716; Poland v. Brownell, 131 Mass, 138, 41 Am. Rep. 215: Schwabacker v. Riddle, 99 ILL. 343; Redgrave v. Hurd, L. R. 20 Ch. Div. 1. Where representations are made to one to be Where the parties stand on an unequal footing, communicated to another for the purpose of in-and the one making the representations is an ex upon the discovery of the alleged fraud; failed to put the defendant in statu quo; and acquiesced in the sale with knowledge of the facts. Where a party intends to abandon or rescind a contract on the ground of fraud he must do so promptly and decidedly on the first information of such fraud. If with full knowledge, or with sufficient notice or means of knowledge of his rights and all the material facts, he lies by for a considerable time, or abstains from impeaching the transaction, this will be construed as an acquiescence; and the transaction, although originally impeached, ceases to become so in equity. Grymes v. Sanders, 93 U. S. 62 (23: 802); Wood v. Carpenter, 101 U. S. 141 (25: 809); Dickey v. Lyon, 19 Iowa, 547; Cambridge Valley Bank v. Delano, 48 N. Y. 340; Merrill v. Wilson, 66 Mich. 232; Paine v. Harrison, 38 Minn. 346; Bailey v. Fox, 78 Cal. 389; Bell v. Keepers, 39 Kan. 105; Estes v. Reynolds, 75 Mo. 563; Bigelow, Fraud, 288. willing to return it, and now offers to do so, is insufficient. Van Trott v. Wiese, 36 Wis, 439; Masson v. Bovet, 1 Denio, 69; Cobb v. Hatfield, 46 Ν. Υ. 533; Latham v. Hicky, 21 La. Ann. 425; Wilbur v. Food, 16 Mich. 40; Woodbury v. Woodbury, 47 N. H. 11, 90 Am. Dec. 555; Downer v. Smith, 32 Vt. 1, 76 Am. Dec. 148; Evans v. Gale, 17 N. H. 573, 43 Am. Dec. 614; Young v. Arntze, 86 Ala. 116; Thompson v. Peck, 115 Ind. 512. The rescission must be in toto, and property received under the rescinded contract must be returned and the adverse party put as far as possible in statu quo, whatever may be the ground of rescission. Conner v. Henderson, 15 Mass. 319. 8 Am. Dec. 103; Carneal v. May, 2 A. K. Marsh. 587, 12 Am. Dec. 453; Durrett v. Simpson, 3 T. B. Mon. 517, 16 Am. Dec. 115; Southern L. Ing. & T. Co. v. Lanier, 5 Fla. 110, 58 Am. Dec. 448; Perley v. Balch, 23 Pick. 283, 34 Am. Dec. 56; Kimball v. Cunningham, 4 Mass. 502, 3 Dickson cannot maintain this bill because he | Am. Dec. 230; Fay v. Oliver, 20 Vt. 118, 49 Am. did not return or offer to return the purchase money received by him, to wit, the $1,500 and the $112.50. An action to rescind a sale of land on the ground of fraud will not lie unless the consideration paid is returned or tendered before suit; and an election that the vendor is able and pert in the matter in hand, or has means of knowledge not open to the other, such representations, if false, will be fraudulent in many cases in which there would be no actionable fraud if the parties stood on the same footing. Clough v. Adams, 71 Iowa, 17; Fishback v. Miller, 15 Nev. 428; Schwenk v. Naylor, 102 N. Y. 683; Jackson v. Armstrong, 50 Mich. 65: Haygarth v. Wearing, L. R. 12 Eq. 320; Allin v. Millison, 72 III. 201; Eaton v. Winnie, 20 Mich. 156, 4 Am. Rep. 377; Mitchell v. Zimmerman, 4 Tex. 75, 51 Am. Dec. 717; Hanger v. Evins, 38 Ark. 334. Suppressio veri or concealment will amount to fraud where the concealment is of material facts which one party is under some legal or equitable duty to communicate to the other, and which the latter has a right, juris et de jure, to know. Damb. mann v. Schulting, 75 N. Y. 55, 62; Bench v. Sheldon, 14 Barb. 66; Fox v. Mackreth, 2 Bro. C. C. 420; 1 Story, Eq. Jur. (3d ed.) § 207; Hadley v. Clinton County Importing Co. 3 Ohio St. 502, 82 Am. Dec. 454; Juzan v. Toulmin, 9 Ala. 662, 44 Am. Dec. 448; Conover v. Wardell, 22 N. J. Eq. 492. Where parties deal "at arm's length" on equal terms, and no particular relation of trust or confidence exists between them, there is usually no obligation to speak, and either may remain silent and be safe. Archbold v. Lord Howth, L. R. 2 Ir. C. L. 608; People's Bank v. Bogart, 81 N. Y. 101, 108, 37 Am. Rep. 481; Law v. Grant, 37 Wis. 548; Fisher v. Budlong, 10 R. I. 525; Laidlaw v. Organ, 15 U. S. 2 Wheat. 178 (4: 214); Ward v. Packard, 18 Cal. 391; Barnett v. Stanton, 2 Ala. 181; Kerr, Fraud & Mistake (Bump'sed.) 100; Allen's Appeal, 99 Pa. 196, 14 Am. Rep. 101; New York C. & H. R. R. Co. v. Fraloff, 100 U. S. 24 (25: 582). But where one party knows that the other places a peculiar trust and confidence in him, or where they occupy a fiduciary relationship, there is usually an obligation to disclose all material facts; and silence or concealment thereof will, in such cases, constitute fraud. Emmons v. Moore, 85 Ill. 304: Young v. Hughes, 32 N. J. Eq. 372; Brown v. Montgomery, 20 N. Y. 287, 75 Am. Dec. 404; Pilling v. Armitage, 12 Ves. Jr. 78; Pidcock v. Townsend, 3 Barn. & C. 605; 2 Pom. Eq. Jur. § 902. Dec. 764; Jennings v. Gage, 13 Ill. 610, 56 Am. This rule is so stringent that even a married woman cannot avoid a sale of property made So, when one "stands by" and hears false representations made about a matter in which he is interested, without correcting them where it is his duty to do so, or remains silent while another asserts rights which he knows are his own, to the prejudice of a third person whom he thus allows to incur liability on the faith thereof, which would not have been incurred except for such silence, he will be estopped on the ground of fraud from afterwards setting up such rights as against that person. Michigan Paneling Mach. & Mfg. Co.v.Parsell, 38 Mich. 475; Kent v. Quicksilver Min. Co. 78 N. Y. 159; Storrs v. Barker, 6 Johns. Ch. 166, 169, 10 Am. Dec. 316; Wendell v. Van Rensselaer, 1 Johns. Ch. 344; Thompson v. Sanborn, 11 N. H. 201, 35 Am. Dec. 490: Olliver v. King, 8 DeG. M. & G. 118; Pickard v. Sears, 6 Ad. & El. 474; Shepherd v. Sharpe, 4 L. T. 270; Davies v. Davies, 6 Jur. N. S. 1322; Lee v. Munroe, 11 U. S. 7 Crauch, 366, 368 (3: 373, 374); 1 Story, Eq. Jur. (3d ed.) § 384. And there are numerous cases in which the rule is applied where there are latent defects or circumstances materially affecting the subject-matter of a sale, known to the seller and incapable of being discovered by the purchaser, who has not equal means of knowledge. Mellish v. Motteux, Peake, 156; Smith v. Harrison, 26 L. J. Ch. 412; Prout v. Roberts, 32 Ala. 427; Turner v. Huggins, 14 Ark. 21; Glasscock v. Minor, 11 Mo. 655; Cecil v. Spurger, 32 Mo. 462, 82 Am. Dec. 140; Lunn. v. Shermer, 93 N. C. 164. One who buys on credit without evil design is not bound to volunteer a statement of his financial condition where no questions are asked. Talcott v. Henderson, 31 Ohio St. 162, 27 Am. Rep. 501; Ex parte Whittaker, L. R. 10 Ch. App. 446; Nichols v. Pinner, 18 N. Y. 295; Redington v. Roberts, 25 Vt. 686; Klopenstein v. Mulcahy, 4 Nev. 296; Garbutt v. Prairie du Chien Bank, 22 Wis. 884; Belding v. Frankland, 8 Lea, 67, 41 Am. Rep. 630; Mears v. Waples, 3 Houst. (Del.) 581. But where one who is insolvent buys on credit, with the intention or preconceived design of not paying for what he buys, he is guilty of fraud. Ayres v. French, 41 Conn. 142; Donaldson v. Far |