The question brought before the
court on the demurrer of the administrators on the estate of the original defendant is, whether the causes of action set out in the first two counts of the amended declaration are such as survive under Pub. Stat. cap. 204, § 8.
The first count sets out in substance that the plaintiff's intestate, James Reynolds, was the owner of real estate mortgaged to the defendant, Hennessy, who has died since the commencement of this suit; that Hennessy sold the estate, under the power of sale in the mortgage, in May, 1872, in the lifetime of James Reynolds, to Patrick Reynolds, the highest bidder, for the sum of $4,950, a sum greatly in excess of the amount due under the mortgage, whereby it became the duty of Hennessy to deliver a deed of the estate for the full sum bid, and for no less sum; that Hennessy, under color of his right as mortgagee, executed and delivered a deed of said premises for the sum only of about the amount due on the mortgage, with the expenses of sale, and never accounted with said James Reynolds for the excess, or any part thereof; that in the lifetime of James Reynolds, before he had any knowledge of the facts, said Patrick sold to a bonafide purchaser; that said Patrick became insolvent, and unable to pay the balance of his bid; that so, by reason of Hennessy's wrongful conduct in conveying said estate for less than the bid, and his omission to account, the balance of the bid was wholly lost to said James in his lifetime.
The second count sets out the same general facts, and avers that Hennessy conveyed said premises to said Patrick with intent to enable said Patrick to acquire title to said premises in fee upon the payment only of what was due said Hennessy, and to defraud said James of the excess; and that he wrongfully concealed from said James the fact that he had so conveyed, but gave out that he had conveyed for the full sum bid by said Patrick, and had actually been paid said sum of $4,950; whereby, because of the sale to a bona fide purchaser and Patrick's insolvency, the equity of redemption became wholly barred and lost to said James.
When this case was before the court on the declaration as originally framed, 15 R.I. 513, it did not appear that Patrick Reynolds had transferred, and it was held that no cause of action was set forth, because it did not appear what the tort consisted of, nor how it affected an interest in the property; for, if the wrongful
conduct was simply the conveyance of the property under price, Patrick Reynolds being a party thereto, the conveyance was void beyond a transfer of the mortgage, and so James Reynolds had suffered no damage. Now the plaintiff sets out that Hennessy concealed the fact that he had conveyed the property for a less sum than the bid, and made false representations to the contrary, until after Patrick had sold it to a bona fide purchaser without notice.
The statute says: "In addition to the causes of action and actions which survive at common law the death of the plaintiff or defendant therein, the following causes of action or actions shall also survive: —
"Third. Causes of action and actions of trespass, and trespass on the case for damages to the person, or to real and personal estate." Pub. Stat. R.I. cap. 204, § 8.
The principal controversy under such statutes has been whether the damage must be to some specific property; and so, in cases where the damage was not immediate to such property, whether the action would survive. In Aldrich v. Howard,8 R.I. 125, where the defendant maintained a stable on his premises which became a nuisance to the plaintiff's adjoining estate, used for a hotel, it was held that the statute provided not only for cases of trespass, where the injury is not only the direct but the immediate effect of a wrongful act forcibly done, but for actions of the case where the damages are not immediate, but, to be recoverable, must be the natural and necessary consequence of the wrongful act alleged. That case did not controvert the rule that there must be damage in one of these ways to some specific property, and the decision was based upon the fact that such damage appeared. The controlling question before us, therefore, is whether the declaration discloses such a cause of action. What is the case presented? Hennessy gave the deed without receiving the full amount of the purchase-money. James Reynolds, as owner of the property and holding the relation of a grantor, to whom the surplus over Hennessy's debt belonged, was entitled to a lien for the unpaid purchase-money. Kent v. Gerhard, 12 R.I. 92. This was a valuable security, which might have been enforced while the title was in Patrick Reynolds, had he known that the whole amount had not been paid; but, being deceived by false representations on the part
of Hennessy, until after the estate had passed from Patrick Reynolds to a bona fide purchaser without notice, he thereby lost his lien and security for the surplus to which he was entitled. Here, then, is a tort coupled with damage to personal estate, if the lien or security is to be regarded as such within the meaning of the statute. Under the statute 4 Edw. III. cap. 7, it was held that if a sheriff suffers a person in his custody to escape, the executor of the party at whose suit he was in custody might maintain an action against him, because, the body of the prisoner being a pledge for the debt, the executor might be otherwise without any remedy; which is an injury to the goods. So, where to a fieri facias the sheriff made a false return that he had levied so much, when in truth he had levied more, the executor could sue; for, by levying on the goods, a right was vested in the testator. Bacon Abridg. *98; 2 Williams on Executors, *791, *792, and cases cited. In Paine v. Ulmer,7 Mass. 317, an action against a sheriff, for the default of his deputy in not returning an execution, was held to survive to the administrator of the judgment creditor. Dana v. Lull, 21 Vt. 383, was an action of trespass on the case against a sheriff for the default of his deputy in not keeping property attached. It was held that, under a statute similar to ours, the action survived, because, as the plaintiff's intestate, by the attachment, had an inchoate right or lien on the property, which the officer would hold in the right of the creditor and for his benefit, there was so far a damage to the personal estate of the plaintiff as to bring it entirely within the spirit if not within the very letter of the statute. Bellows v. Admr. of Allen,22 Vt. 108, went farther than this in holding that the action of trespass on the case survived against the executors of a sheriff for the default of his deputy in not paying over money collected on an execution in favor of the plaintiff against a third person.
We find no difference in opinion that damage to an interest in property, by way of lien or security, is a damage to personal estate within the meaning of the statute 4 Edw. III., and the similar statutes which have sprung from it; and where there is damage, by a wrongful act, attaching to something which is recognized as personal estate, the statute is plain that the action survives both for and against an executor or administrator. There has been
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The question brought before the
court on the demurrer of the administrators on the estate of the original defendant is, whether the causes of action set out in the first two counts of the amended declaration are such as survive under Pub. Stat. cap. 204, § 8.
The first count sets out in substance that the plaintiff's intestate, James Reynolds, was the owner of real estate mortgaged to the defendant, Hennessy, who has died since the commencement of this suit; that Hennessy sold the estate, under the power of sale in the mortgage, in May, 1872, in the lifetime of James Reynolds, to Patrick Reynolds, the highest bidder, for the sum of $4,950, a sum greatly in excess of the amount due under the mortgage, whereby it became the duty of Hennessy to deliver a deed of the estate for the full sum bid, and for no less sum; that Hennessy, under color of his right as mortgagee, executed and delivered a deed of said premises for the sum only of about the amount due on the mortgage, with the expenses of sale, and never accounted with said James Reynolds for the excess, or any part thereof; that in the lifetime of James Reynolds, before he had any knowledge of the facts, said Patrick sold to a bonafide purchaser; that said Patrick became insolvent, and unable to pay the balance of his bid; that so, by reason of Hennessy's wrongful conduct in conveying said estate for less than the bid, and his omission to account, the balance of the bid was wholly lost to said James in his lifetime.
The second count sets out the same general facts, and avers that Hennessy conveyed said premises to said Patrick with intent to enable said Patrick to acquire title to said premises in fee upon the payment only of what was due said Hennessy, and to defraud said James of the excess; and that he wrongfully concealed from said James the fact that he had so conveyed, but gave out that he had conveyed for the full sum bid by said Patrick, and had actually been paid said sum of $4,950; whereby, because of the sale to a bona fide purchaser and Patrick's insolvency, the equity of redemption became wholly barred and lost to said James.
When this case was before the court on the declaration as originally framed, 15 R.I. 513, it did not appear that Patrick Reynolds had transferred, and it was held that no cause of action was set forth, because it did not appear what the tort consisted of, nor how it affected an interest in the property; for, if the wrongful
conduct was simply the conveyance of the property under price, Patrick Reynolds being a party thereto, the conveyance was void beyond a transfer of the mortgage, and so James Reynolds had suffered no damage. Now the plaintiff sets out that Hennessy concealed the fact that he had conveyed the property for a less sum than the bid, and made false representations to the contrary, until after Patrick had sold it to a bona fide purchaser without notice.
The statute says: "In addition to the causes of action and actions which survive at common law the death of the plaintiff or defendant therein, the following causes of action or actions shall also survive: —
"Third. Causes of action and actions of trespass, and trespass on the case for damages to the person, or to real and personal estate." Pub. Stat. R.I. cap. 204, § 8.
The principal controversy under such statutes has been whether the damage must be to some specific property; and so, in cases where the damage was not immediate to such property, whether the action would survive. In Aldrich v. Howard,8 R.I. 125, where the defendant maintained a stable on his premises which became a nuisance to the plaintiff's adjoining estate, used for a hotel, it was held that the statute provided not only for cases of trespass, where the injury is not only the direct but the immediate effect of a wrongful act forcibly done, but for actions of the case where the damages are not immediate, but, to be recoverable, must be the natural and necessary consequence of the wrongful act alleged. That case did not controvert the rule that there must be damage in one of these ways to some specific property, and the decision was based upon the fact that such damage appeared. The controlling question before us, therefore, is whether the declaration discloses such a cause of action. What is the case presented? Hennessy gave the deed without receiving the full amount of the purchase-money. James Reynolds, as owner of the property and holding the relation of a grantor, to whom the surplus over Hennessy's debt belonged, was entitled to a lien for the unpaid purchase-money. Kent v. Gerhard, 12 R.I. 92. This was a valuable security, which might have been enforced while the title was in Patrick Reynolds, had he known that the whole amount had not been paid; but, being deceived by false representations on the part
of Hennessy, until after the estate had passed from Patrick Reynolds to a bona fide purchaser without notice, he thereby lost his lien and security for the surplus to which he was entitled. Here, then, is a tort coupled with damage to personal estate, if the lien or security is to be regarded as such within the meaning of the statute. Under the statute 4 Edw. III. cap. 7, it was held that if a sheriff suffers a person in his custody to escape, the executor of the party at whose suit he was in custody might maintain an action against him, because, the body of the prisoner being a pledge for the debt, the executor might be otherwise without any remedy; which is an injury to the goods. So, where to a fieri facias the sheriff made a false return that he had levied so much, when in truth he had levied more, the executor could sue; for, by levying on the goods, a right was vested in the testator. Bacon Abridg. *98; 2 Williams on Executors, *791, *792, and cases cited. In Paine v. Ulmer,7 Mass. 317, an action against a sheriff, for the default of his deputy in not returning an execution, was held to survive to the administrator of the judgment creditor. Dana v. Lull, 21 Vt. 383, was an action of trespass on the case against a sheriff for the default of his deputy in not keeping property attached. It was held that, under a statute similar to ours, the action survived, because, as the plaintiff's intestate, by the attachment, had an inchoate right or lien on the property, which the officer would hold in the right of the creditor and for his benefit, there was so far a damage to the personal estate of the plaintiff as to bring it entirely within the spirit if not within the very letter of the statute. Bellows v. Admr. of Allen,22 Vt. 108, went farther than this in holding that the action of trespass on the case survived against the executors of a sheriff for the default of his deputy in not paying over money collected on an execution in favor of the plaintiff against a third person.
We find no difference in opinion that damage to an interest in property, by way of lien or security, is a damage to personal estate within the meaning of the statute 4 Edw. III., and the similar statutes which have sprung from it; and where there is damage, by a wrongful act, attaching to something which is recognized as personal estate, the statute is plain that the action survives both for and against an executor or administrator. There has been
some diversity of decision upon the question whether it is enough to show damage to the rights and credits or a loss to the estate. For example, Bellows v. Admr. of Allen, 22 Vt. 108, holds that right and credits are embraced in the term "personal estate;" while Read v. Hatch, 19 Pick. 47, and later oases in Massachusetts, hold that there must be damage to some specific property. See, also, 3 Williams on Executors, 6th Amer. ed. *793, Perkins's Notes, n. g. 1-4.
Read v. Hatch was an action for fraudulently recommending a trader as in good credit, whereby the plaintiff was induced to sell him goods on credit. There the tortious act did not relate to any specific property, but the damage was the indirect and remote result of it. Henshaw v. Miller, 17 How. U.S. 212, was a similar action, and it was held that the action did not survive. So, also, Leggate v. Moulton, 115 Mass. 552. Whether oases like these necessarily conflict with those which include rights and credits within the term "personal estate" we need not now consider; but we think it is clearly deducible from all the cases that, where there is simply a tort, not otherwise affecting the estate itself than by an indirect loss, an action ex delicto does not survive. Winhall v. Sawyer's Estate, 45 Vt. 466; Aldrich v.Howard, 8 R.I. 125; Moies v. Sprague, 9 R.I. 541. The difficulty, generally, is in drawing the line between tortious acts which must be held to damage one's personal estate and those which do not. Without attempting to define such a line in the present case, we think it sufficiently appears that James Reynolds had a lien on the property sold for the unpaid balance of the purchase-money; that he was deprived of this lieu by the false representation that it had been paid, until the lien was lost by a transfer of the property. We therefore decide that this lien, being security for a debt, was personal estate, within the meaning of the statute, and consequently the tortious conduct alleged was damage to specific property, and not a mere tort which simply occasioned loss. In this view the declaration sets forth a good cause of action. The first count sets out the breach of duty by Hennessy in the sale of the estate, whereby the interest of James Reynolds therein as security for the surplus was lost; and the second count adds the averment of false representations. The essential elements of tort coupled
with damage to property appear in each. It is proper to add, however, that the second count contains the same averment in regard to concealment until after the cause of action had become barred by the statute of limitations, which was considered by the court on the former demurrer. Such a concealment affects a right of action simply, and not an interest in property. As a good cause of action is set forth in loss of lien in the property, and the count is not specially demurred to for duplicity, it is sufficient. We therefore overrule the demurrers to each count.
Demurrers overruled.
The defendant then filed special pleas in bar, to which the plaintiff demurred.
The defendant also pleaded the statute of limitations, to which the plaintiff replied, alleging a fraudulent concealment of the cause of action until within six years before the action was brought. To this replication the defendant demurred.
December 19, 1891.