The opinion of the court was delivered by
Hebajid, J.
The plaintiff alledges, in his second count, in substance, that on or about the 23d day of August, 1838, the defendant, by his warr antee deed of that date, duly executed and delivered to the plaintiff, conveyed to the plaintiff, for the consideration of ten thousand dollars, one equal undivided half of fourteen eighty acre lots in Kallamo, in the state of Michigan, and that, after the delivery of said deed to the plaintiff, the plaintiff delivered the deed to the defendant for him to carry to the county clerk’s office for record, and that the defendant received the same, and faithfully promised the plaintiff that he would get it recorded. And the plaintiff then further alledges, that the defendant, with an intent to defraud the plaintiff and to cheat the plaintiff out of said ten thousand dollars, neglected to get said deed recorded, but wrongfully kept the same from the plaintiff, and refused to deliver the same to him, and thereby deprived him of dll benefit which he might have received from said deed, and of any title to said land, or any part thereof, and of all remedy on the covenants in said deed contained, and hath wholly lost the said sum of ten thousand dollars.
To this declaration in the county court there was a demurrer, and joinder in demurrer. The county court overruled the demurrer, and the cause has come here upon exceptions to that judgment. Much has been said in argument in relation to the form of the action, and some speculation has been indulged in, to ascertain whether it is assumpsit or whether it is ease. I think it might be either, without serious objection, so far as the remedy is concerned, provided there was any consideration for the promise to get the deed recorded, which is not the fact. But we, at least, think that the remedy may be sought in case, and that the declaration, though in many respects rather inartificially drawn, possesses, nevertheless, all the essential elements to constitute an action of that description.
[278]*278The causes of demurrer, as specified, are of two classes. One class of objections is to the insufficient quantity of matter and facts alledged in the declaration. The other class of objections is to the uncertain manner in which the facts are stated. A general remark may apply to the last class of objections. The same degree of certainty in stating facts is not required in all cases alike, and much depends upon the object for which the fact is brought forward. When an action counts merely upon a contract, and claims damages for the breach, or for the non-fulfilment, of such contract, the precise terms of the contract become important, and must be set out. But when the contract is merely referred to as matter of inducement, and the failure to fulfil the contract is not the ground of damage, it is sufficient to allude to it in general terms.
' It then becomes of little importance what fourteen lots of land the defendant conveyed to the plaintiff; — the sufficiency of that conveyance is not questioned, nor does the identity of the lots in any way become material, except when inquiring as to the amount of the damage, — and that is strictly matter in pais.
Another objection of this class is, that the declaration does not state how it became material to have the deed recorded in the clerk’s office. Perhaps it was not material, and perhaps the laws of Michigan did not require deeds to be recorded in order to perfect the title. Still, for this purpose, it is enough to say that the plaintiff might choose to have it recorded. But this is not the gravamen of the complaint. The plaintiff complains that the defendant not only neglected to get the deed recorded, as he agreed to do, but that he refused to deliver it back to the plaintiff, and thereby deprived him of all the benefit which he might have derived from the deed, if it had been recorded. It is not the neglect to get the deed recorded of which the -plaintiff complains, so much as it is the defendant’s subsequent wrong act, and the consequences that resulted from both.
Another cause for demurrer, set down by the defendant, is, that the declaration does not state what part of the land the defendant did own. This is answered and met by other facts which the plaintiff has alledged. He complains, that, by the defendant’s refusing to let him have the deed, and neglecting to put it upon record, he is deprived of the title to such lands as the defendant really owned, and as are conveyed by the deed, and is deprived of the means of prosecuting his claim upon the covenants in the deed for such of the [279]*279land as the defendant did not own, — so that the consequence to the plaintiff is the same, and the rule of damage would be the same, whether the defendant owned any of the land described in the deed, and, if any, which, or how much.
Nor was it material for the plaintiff to state in what manner he was damnified, — whether the defendant deeded the land to some other person, and thus put the title beyond the reach of the plaintiff, — or whether the creditors of the defendant interposed their claims, and appropriated the land in satisfaction of their debts,— or whether the defendant still retains the title, — if it be true, as the plaintiff has alledged, that he has been deprived of all benefit from said deed. This the plaintiff alledges, and he further alledges, that, by the means before stated, he has lost all title to the land, and all remedy on the covenants in the deed, and has lost the money that he paid for the land. This is sufficiently stated ; — the damage and loss go to the whole title to the land, and of course its whole value, and it is not therefore objectionable that the allegations are in those general terms, as it is apparent from the whole declaration, that, if he recovers anything, it must be for the whole.
But there is one further objection to this declaration that I consider of more importance than the others. The question which this objection raises is,""did the defendant undertake to do that, the neglecting to do which will lay the foundation for damages in this form of action ? Or whether he has in fact done that, irrespective of his undertaking, that will subject him to da,máges in this action? The undertaking and promise of the defendant to get the deed recorded was entirely gratuitous and without consideration, and the neglect of the defendant to fulfil that promise was- a nonfeasance merely, for which this action will not lie. So that, if the action is1 sustained, it must be for some malfeasance of the defendant, and not for mere passive neglect.
We are now to inquire of what tortious act, the defendant is guilty, and we shall have the answer, when we ascertain what the plaintiff has charged upon him; for the defendant by his demurrer has admitted all the facts alledged, according to their legal effect. The demurrer not only admits the substantive facts charged, but it also admits the consequences and results which are charged, provided such consequences and results may be fairly considered to be [280]*280the legitimate results of such facts. Nor is the motive, with which the act is charged to have been done, to be entirely
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The opinion of the court was delivered by
Hebajid, J.
The plaintiff alledges, in his second count, in substance, that on or about the 23d day of August, 1838, the defendant, by his warr antee deed of that date, duly executed and delivered to the plaintiff, conveyed to the plaintiff, for the consideration of ten thousand dollars, one equal undivided half of fourteen eighty acre lots in Kallamo, in the state of Michigan, and that, after the delivery of said deed to the plaintiff, the plaintiff delivered the deed to the defendant for him to carry to the county clerk’s office for record, and that the defendant received the same, and faithfully promised the plaintiff that he would get it recorded. And the plaintiff then further alledges, that the defendant, with an intent to defraud the plaintiff and to cheat the plaintiff out of said ten thousand dollars, neglected to get said deed recorded, but wrongfully kept the same from the plaintiff, and refused to deliver the same to him, and thereby deprived him of dll benefit which he might have received from said deed, and of any title to said land, or any part thereof, and of all remedy on the covenants in said deed contained, and hath wholly lost the said sum of ten thousand dollars.
To this declaration in the county court there was a demurrer, and joinder in demurrer. The county court overruled the demurrer, and the cause has come here upon exceptions to that judgment. Much has been said in argument in relation to the form of the action, and some speculation has been indulged in, to ascertain whether it is assumpsit or whether it is ease. I think it might be either, without serious objection, so far as the remedy is concerned, provided there was any consideration for the promise to get the deed recorded, which is not the fact. But we, at least, think that the remedy may be sought in case, and that the declaration, though in many respects rather inartificially drawn, possesses, nevertheless, all the essential elements to constitute an action of that description.
[278]*278The causes of demurrer, as specified, are of two classes. One class of objections is to the insufficient quantity of matter and facts alledged in the declaration. The other class of objections is to the uncertain manner in which the facts are stated. A general remark may apply to the last class of objections. The same degree of certainty in stating facts is not required in all cases alike, and much depends upon the object for which the fact is brought forward. When an action counts merely upon a contract, and claims damages for the breach, or for the non-fulfilment, of such contract, the precise terms of the contract become important, and must be set out. But when the contract is merely referred to as matter of inducement, and the failure to fulfil the contract is not the ground of damage, it is sufficient to allude to it in general terms.
' It then becomes of little importance what fourteen lots of land the defendant conveyed to the plaintiff; — the sufficiency of that conveyance is not questioned, nor does the identity of the lots in any way become material, except when inquiring as to the amount of the damage, — and that is strictly matter in pais.
Another objection of this class is, that the declaration does not state how it became material to have the deed recorded in the clerk’s office. Perhaps it was not material, and perhaps the laws of Michigan did not require deeds to be recorded in order to perfect the title. Still, for this purpose, it is enough to say that the plaintiff might choose to have it recorded. But this is not the gravamen of the complaint. The plaintiff complains that the defendant not only neglected to get the deed recorded, as he agreed to do, but that he refused to deliver it back to the plaintiff, and thereby deprived him of all the benefit which he might have derived from the deed, if it had been recorded. It is not the neglect to get the deed recorded of which the -plaintiff complains, so much as it is the defendant’s subsequent wrong act, and the consequences that resulted from both.
Another cause for demurrer, set down by the defendant, is, that the declaration does not state what part of the land the defendant did own. This is answered and met by other facts which the plaintiff has alledged. He complains, that, by the defendant’s refusing to let him have the deed, and neglecting to put it upon record, he is deprived of the title to such lands as the defendant really owned, and as are conveyed by the deed, and is deprived of the means of prosecuting his claim upon the covenants in the deed for such of the [279]*279land as the defendant did not own, — so that the consequence to the plaintiff is the same, and the rule of damage would be the same, whether the defendant owned any of the land described in the deed, and, if any, which, or how much.
Nor was it material for the plaintiff to state in what manner he was damnified, — whether the defendant deeded the land to some other person, and thus put the title beyond the reach of the plaintiff, — or whether the creditors of the defendant interposed their claims, and appropriated the land in satisfaction of their debts,— or whether the defendant still retains the title, — if it be true, as the plaintiff has alledged, that he has been deprived of all benefit from said deed. This the plaintiff alledges, and he further alledges, that, by the means before stated, he has lost all title to the land, and all remedy on the covenants in the deed, and has lost the money that he paid for the land. This is sufficiently stated ; — the damage and loss go to the whole title to the land, and of course its whole value, and it is not therefore objectionable that the allegations are in those general terms, as it is apparent from the whole declaration, that, if he recovers anything, it must be for the whole.
But there is one further objection to this declaration that I consider of more importance than the others. The question which this objection raises is,""did the defendant undertake to do that, the neglecting to do which will lay the foundation for damages in this form of action ? Or whether he has in fact done that, irrespective of his undertaking, that will subject him to da,máges in this action? The undertaking and promise of the defendant to get the deed recorded was entirely gratuitous and without consideration, and the neglect of the defendant to fulfil that promise was- a nonfeasance merely, for which this action will not lie. So that, if the action is1 sustained, it must be for some malfeasance of the defendant, and not for mere passive neglect.
We are now to inquire of what tortious act, the defendant is guilty, and we shall have the answer, when we ascertain what the plaintiff has charged upon him; for the defendant by his demurrer has admitted all the facts alledged, according to their legal effect. The demurrer not only admits the substantive facts charged, but it also admits the consequences and results which are charged, provided such consequences and results may be fairly considered to be [280]*280the legitimate results of such facts. Nor is the motive, with which the act is charged to have been done, to be entirely overlooked; and if the motives, with which the acts are alledged to have been committed, are such as may be reasonably supposed to have influenced the acts, the demurrer admits, not only the acts themselves, and the legitimate results which flow from them, but it also admits the motives with which the act was done.
What, then, are the facts charged l — 1st, that the plaintiff purchased of the defendant, one half of fourteen eighty acre lots, for which he paid ten thousand dollars, and that the defendant gave him a good warrantee deed of the same; 2nd, that the plaintiff delivered the deed to the defendant, for him to carry to the county clerk’s office to be recorded, and that he neglected to do so, although he promised to do it; and, 3d, that he afterwards neglected and refused to deliver the deed to the plaintiff. These are the substantive facts charged, and they are admitted by the demurrer. •
The plaintiff then alledges, as a consequence resulting from these facts, that he thereby was deprived of all benefit which he might have received from said deed, and of any title to the land, and of all remedy upon his covenants, and hath wholly lost his ten thousand dollars. If these are consequences that would naturally flow from those acts, then they are admitted. The only title that the plaintiff had to the land was by that deed. He could neither safely possess or dispose of it without the deed, and without the deed he could have no action upon the covenants for any failure of title; and therefore it may reasonably be inferred that all these consequences have followed.
The plaintiff has also alledged that the motives, by which the defendant was influenced, were corrupt, that he committed those acts with the intention of deceiving mi defrauding the plaintiff, and fraudulently to cheat and extort the said ten thousand dollars out of him.
If the acts themselves, and the consequences that would naturally result from such acts, are not the legitimate offspring of'such motives, then the defendant, by admitting the acts, does not admit the motives. If the defendant had been a stranger to the deed, and to the title to the land, the same acts would not have been as expressive of the motive eharged, as they may now be supposed to be-[281]*281But as the title to the land, unless by the deed it vests in the plaintiff, remains in the defendant, and, if there was a failure of title to any part of it, lie screened himself from liability upon his covenants by withholding the deed, he may have a motive to defeat the plaintiff’s title for his own benefit; and as this charge, as to the motives by which he was influenced, and the acts and consequences, by which the motives are evidenced, are admitted by the pleadings, they are all to be taken as true; and, all being taken together, we think enough is alledged to sustain the action.
But it is further objected, that, if this action is case and not assumpsit, it still is not the appropriate action. It may not be the most appropriate, and still the action be sufficient to effect the remedy. The plaintiff has set forth what he considers the tortious acts of the defendant, the consequences that have resulted from them, and the motives by which he was actuated, and the damages which the plaintiff has sustained, and the defendant admits all to be true, without putting the plaintiff to the proof. It does not, therefore, become the defendant to dictate to the plaintiff, which of his remedies he shall pursue, to recover for the wrongful acts of the defendant, for which he attempts to give no explanation, and for which he offers no excuse. Perhaps the action of trover would have been the appropriate action. Still the plaintiff could not anticipate the particular facts that might develope themselves. The deed must have been the foundation of the action, and the thing converted, and supposing, before a demand and refusal, the title to the land had passed in another direction, the value of the deed being the rule of damages, it would at least be doubtful, whether, in that case, the action of trover would afford an adequate remedy.
It may be also that a bill in chancery might have afforded an ample and equitable remedy in the case. Still I think the present action better fitted and adapted to the end of justice between the parties than either. It presents the whole subject in a free and unembarrassed state, setting forth the facts upon' which the plaintiff rests his claim for damage, in a manner that gave the defendant full notice of what facts were relied upon, which he might traverse if he chose, leaving the damage to be estimated according to the equity of the case.
This disposes of all the objections to the declaration, arising out [282]*282of the sufficiency of the facts alledged, the manner of stating therein, and to the form of the action. A further objection has been urged, on the ground that some of the dates and sums are expressed by figures instead of words. That point was fully considered and settled in State v. Hogeden, 3 Vt. 481.
There is a single remaining objection to the charge of the court in relation to the rule of damages. But, if our conclusion is correct in relation to the other parts of the case, there was no error in this charge. The plaintiff has lost the whole of his land; he is therefore entitled to his pay for the whole of it, and it makes no difference that he lost a part of it in one way, and a part in another. The two parts, put together, make the whole, and it is of no importance that they should be estimated' separately. The rule of damage for both parts would be the value of the land, and this was what he recovered under the charge of the court.
The judgment of the county court is affirmed.