Dillon, J.
i. vendou and iand ex-' change: fraudulent representations: char-relief. This cause was very fully argued at bar, and the voluminous testimony has been carefully examined and considered. The result of this examinatiou on the part of the court is that, with res- . . _ pect to the finding ot tacts, it concurs m the x ' 0 .. . ... report ot the reteree, with one exception, but that exception is the vital question m the case.-
[282]*282• Taking the whole evidence together, it is plain beyond reasonable controversy, that the defendant, George Purdy, acting for himself and wife, and with the knowledge of the wife, misrepresented in material respects, the quality and character of the Wisconsin land.
It is not disputed that the defendants were acquainted with the real character of this land. And it cannot well be made a question that the defendants’ representation of the character and value of the Wisconsin land were relied upon by the plaintiff, and were operative with him in obtaining his consent to make the exchange.
While there is some conflict of testimony on the point, yet upon the whole evidence it very satisfactorily appears that the Wisconsin land fell far short of what it was represented to be, and that -the plaintiff was grossly deceived with respect thereto.
If the plaintiff’s case had not been made to rest wholly upon the alleged written guarantee of July 30, 1861, (referred to in the report of the referee above) its decision would have been attended with no difficulty whatever.
Put the plaintiff, in the pleadings, staked his whole case upon the genuineness of this disputed writing; and on this issue the referee found for the 'defendants.
We have deemed it our* duty, attentively to consider the large mass of testimony on this point, but do not deem it profitable to incumber the reports with an extended review and discussion of it.
It is our opinion that the evidence establishes, with reasonable certainty, that the disputed paper was executed by the defendant, George Purdy.
We state, without elaboration, some of the reasons upon which this opinion rests. ■ .
1. The intrinsic evidence. This, on the whole, favors the view we take. The general character of the writing strongly resembles Purdv’s. The experts, as usual, differ, [283]*283but if weight can be predicated of their testimony, it is in favor (considering the character and experience of the witnesses) of the plaintiff.
2. The extrinsic evidence. This clearly preponderates in the plaintiff’s favor.
a. Thus, defendants admit that a written statement of the quality of the Wisconsin land was agreed to be made, of the same general character with the one in controversy. They admit that such a writing was made, but deny that the one produced by the plaintiff is the one actually executed.
b. Three genuine instruments were executed on the night of the trade, July 30th, viz.: the order for the hay, the order on Gregory, and the memorandum as to the furniture. That all of these are in the handwriting of Purdy, is admitted by him, and shown by the whole evidence. Now, the disputed instrument is upon paper (narrow note paper)' precisely like the admitted instruments, and bears the same general appearance.
c. Again, it is worthy of notice, although not of controlling significance, that Purdy does not, m express terms, deny that the body of the disputed paper is in his handwriting, but denies that his genuine signature is attached thereto. It is plain that the person who wrote the body wrote also the signature.
d. Plaintiff and his wife positively and clearly fix and identify the disputed paper to be the very one which Purdy delivered to them on the evening the trade was concluded. If this is not so, they are both guilty of perjury, and, at least, one of them of forgery also. On the other hand, defendants’ witnesses, with perhaps the exception of Purdy himself, base their opinion against the genuineness of the disputed paper, mainly if not wholly upon their recollection of its contents.
When it is remembered how very closely the instrument [284]*284produced by the plaintiff corresponds with the one which Purdy says he executed, no conclusive weight should be attached to evidence which impeaches an instrument solely upon recollection, long afterward, of its exact phra seology. The human memory unassisted by memoranda, is too treacherous to be thus implicitly trusted. Defendants’ witnesses may be mistaken as to the • instrument, without any crime, much less two crimes being imputed to any of them.
In our judgment, the plaintiff has established his right to a recovery from the defendants, for the difference between what the Wisconsin land was actually worth in 1861, and what it would havfe been worth had it been as represented.
Viewing the whole testimony on this point, and averaging the different values given, we find this difference to be two dollars per acre, or $332 in all. Against whom should this recovery be had ? Defendants’ counsel deny that there can be any recovery against Mrs. Purdy, inasmuch as the instrument was signed by Purdy alone. Certain it is, that she was cognizant of the representations made by her husband, and has reaped and still •retains the benefits of them. This cause is in equity, and in that court there is no difficulty in rendering a proper judgment or decree.
2. pbacticb: forum. And this brings us to the question whether the plaintiff has any remedy in equity. Under our present system plaintiff is not to be denied relief, if thereto entitled, because he has addressed his petition to the wrong side of the court. Besides, we think the plaintiff in his petition and by the testimony makes a case properly cognizable in equity. He seeks a vendor’s lien and general relief.
His ground for such a lien is, that he has not been fully paid for the property he sold. He supposed he was paid, [285]*285but he was not, Had the Wisconsin lands been as represented, the plaintiff would have been fully paid; but they were not. They were worth, as above found, $332 less than they would have been had they conformed to the representations made concerning them. Yiewed in its substance and essence, it is clear, that to this extent, viz., $332, the plaintiff has not been paid for the property conveyed to Mrs. Purdy.
It is just the same as if he had been paid this amount in counterfeit or worthless bills. There would be a semblance of payment, but none in reality; and if none in reality, then none in equity.
s vendor and wivCTobtotaed by fraud. And in equity, an unpaid vendor who has not waived will be entitled to a lien, and no waiver obtained by fraud will be effectual to destroy tile ]ien>
Therefore, we are- of opinion, that for the $332, with six per cent interest from July 30th, 1861, the plaintiff is entitled to a vendor’s lien upon the tavern and lot in La Motte, conveyed to Mrs. Purdy. That equity will, in such a case as the present, enforce a vendor’s lien, see Bradley v. Bosley, 1 Barb. Ch. 125.
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Dillon, J.
i. vendou and iand ex-' change: fraudulent representations: char-relief. This cause was very fully argued at bar, and the voluminous testimony has been carefully examined and considered. The result of this examinatiou on the part of the court is that, with res- . . _ pect to the finding ot tacts, it concurs m the x ' 0 .. . ... report ot the reteree, with one exception, but that exception is the vital question m the case.-
[282]*282• Taking the whole evidence together, it is plain beyond reasonable controversy, that the defendant, George Purdy, acting for himself and wife, and with the knowledge of the wife, misrepresented in material respects, the quality and character of the Wisconsin land.
It is not disputed that the defendants were acquainted with the real character of this land. And it cannot well be made a question that the defendants’ representation of the character and value of the Wisconsin land were relied upon by the plaintiff, and were operative with him in obtaining his consent to make the exchange.
While there is some conflict of testimony on the point, yet upon the whole evidence it very satisfactorily appears that the Wisconsin land fell far short of what it was represented to be, and that -the plaintiff was grossly deceived with respect thereto.
If the plaintiff’s case had not been made to rest wholly upon the alleged written guarantee of July 30, 1861, (referred to in the report of the referee above) its decision would have been attended with no difficulty whatever.
Put the plaintiff, in the pleadings, staked his whole case upon the genuineness of this disputed writing; and on this issue the referee found for the 'defendants.
We have deemed it our* duty, attentively to consider the large mass of testimony on this point, but do not deem it profitable to incumber the reports with an extended review and discussion of it.
It is our opinion that the evidence establishes, with reasonable certainty, that the disputed paper was executed by the defendant, George Purdy.
We state, without elaboration, some of the reasons upon which this opinion rests. ■ .
1. The intrinsic evidence. This, on the whole, favors the view we take. The general character of the writing strongly resembles Purdv’s. The experts, as usual, differ, [283]*283but if weight can be predicated of their testimony, it is in favor (considering the character and experience of the witnesses) of the plaintiff.
2. The extrinsic evidence. This clearly preponderates in the plaintiff’s favor.
a. Thus, defendants admit that a written statement of the quality of the Wisconsin land was agreed to be made, of the same general character with the one in controversy. They admit that such a writing was made, but deny that the one produced by the plaintiff is the one actually executed.
b. Three genuine instruments were executed on the night of the trade, July 30th, viz.: the order for the hay, the order on Gregory, and the memorandum as to the furniture. That all of these are in the handwriting of Purdy, is admitted by him, and shown by the whole evidence. Now, the disputed instrument is upon paper (narrow note paper)' precisely like the admitted instruments, and bears the same general appearance.
c. Again, it is worthy of notice, although not of controlling significance, that Purdy does not, m express terms, deny that the body of the disputed paper is in his handwriting, but denies that his genuine signature is attached thereto. It is plain that the person who wrote the body wrote also the signature.
d. Plaintiff and his wife positively and clearly fix and identify the disputed paper to be the very one which Purdy delivered to them on the evening the trade was concluded. If this is not so, they are both guilty of perjury, and, at least, one of them of forgery also. On the other hand, defendants’ witnesses, with perhaps the exception of Purdy himself, base their opinion against the genuineness of the disputed paper, mainly if not wholly upon their recollection of its contents.
When it is remembered how very closely the instrument [284]*284produced by the plaintiff corresponds with the one which Purdy says he executed, no conclusive weight should be attached to evidence which impeaches an instrument solely upon recollection, long afterward, of its exact phra seology. The human memory unassisted by memoranda, is too treacherous to be thus implicitly trusted. Defendants’ witnesses may be mistaken as to the • instrument, without any crime, much less two crimes being imputed to any of them.
In our judgment, the plaintiff has established his right to a recovery from the defendants, for the difference between what the Wisconsin land was actually worth in 1861, and what it would havfe been worth had it been as represented.
Viewing the whole testimony on this point, and averaging the different values given, we find this difference to be two dollars per acre, or $332 in all. Against whom should this recovery be had ? Defendants’ counsel deny that there can be any recovery against Mrs. Purdy, inasmuch as the instrument was signed by Purdy alone. Certain it is, that she was cognizant of the representations made by her husband, and has reaped and still •retains the benefits of them. This cause is in equity, and in that court there is no difficulty in rendering a proper judgment or decree.
2. pbacticb: forum. And this brings us to the question whether the plaintiff has any remedy in equity. Under our present system plaintiff is not to be denied relief, if thereto entitled, because he has addressed his petition to the wrong side of the court. Besides, we think the plaintiff in his petition and by the testimony makes a case properly cognizable in equity. He seeks a vendor’s lien and general relief.
His ground for such a lien is, that he has not been fully paid for the property he sold. He supposed he was paid, [285]*285but he was not, Had the Wisconsin lands been as represented, the plaintiff would have been fully paid; but they were not. They were worth, as above found, $332 less than they would have been had they conformed to the representations made concerning them. Yiewed in its substance and essence, it is clear, that to this extent, viz., $332, the plaintiff has not been paid for the property conveyed to Mrs. Purdy.
It is just the same as if he had been paid this amount in counterfeit or worthless bills. There would be a semblance of payment, but none in reality; and if none in reality, then none in equity.
s vendor and wivCTobtotaed by fraud. And in equity, an unpaid vendor who has not waived will be entitled to a lien, and no waiver obtained by fraud will be effectual to destroy tile ]ien>
Therefore, we are- of opinion, that for the $332, with six per cent interest from July 30th, 1861, the plaintiff is entitled to a vendor’s lien upon the tavern and lot in La Motte, conveyed to Mrs. Purdy. That equity will, in such a case as the present, enforce a vendor’s lien, see Bradley v. Bosley, 1 Barb. Ch. 125.
The decree dismissing petition is reversed, and the cause remanded to the District Court, with directions to enter a decree in plaintiff’s favor for the above sum, with interest, against George Purdy, and to make the same a lien as against both defendants upon the house and lot in La Motte conveyed by plaintiff to Mrs. Purdy.
Reversed and remanded.