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The first exception to the admissibility of any evidence to establish the fraud, is sought to be sustained upon two grounds: 1. That the fraud relates to the title to lands. 2. Because the matters given in evidence are not embraced within the lease; as the plaintiff did not demise the wharf, but expressly limited it to his right to the wharf.
For more than thirty years it has been the settled doctrine of the courts of this state, that fraudulent representations in reference to the title of real estate, accompanied with damage, is a good ground of action, and that it is immaterial whether any or what covenants are contained in the deed of conveyance. This was held in Wardell v. Fosdick, (13 John. 325,) where the defendant fraudulently sold without any title, but in effect with full covenants. In Monell v. Colden, (13 John. 402, 3,) the representation was that the vendor, as riparian owner, had the pre-emptive right to a grant of land under water in the Hudson river, and opposite the purchased premises. In Ward v. Wiman,
(17 Wend. 193,) the declaration was that the premises were free from incumbrance, and an action for the fraud was sustained although the deed contained a covenant to the same effect. InCulver v. Avery, (7 Wend. 386,) the affirmation was that the premises were clear of any other incumbrance than the mortgage under which the sale was effected, and that the purchaser would acquire a perfect title. In the first case cited, the fraud pertained to the title of the land conveyed. In the second, to a privilege annexed to the land; in the third, to an incumbrance upon the title; and in the last, both to the title
and to incumbrances. Such has been the adjudication of our state during the period mentioned.
The distinction between representations as to the title to land, and matters collateral to the land, was taken in Culver
v. Avery, and repudiated, (7 Wend. 386,) and I think with reason. There is no middle ground of principle, between excluding evidence of fraudulent representations in all cases of the conveyance of land, or admitting them when they refer to the title. They all are or may be equally obnoxious to objections arising from the statute of frauds, and in each case the vendee can protect himself by appropriate covenants. The rule thus settled, affecting as it does the right of property, should be upheld unless its maintenance would conflict with established principles. No such conflict is perceived. On the contrary, it harmonizes with the law in relation to personal property, requires fair dealing from the vendor in each case, and permits the vendee, without a penalty upon his credulity, to trust to declarations of material facts within the knowledge of the other party. In a word, to treat with the vendor upon the presumption that he is an honest man.
2. There is no force in the objection that the plaintiff did not demise the wharf, but only his right to the wharf, and therefore the representation did not relate to a matter within the lease. The question in all these cases is not what passed by the conveyance, but what would have passed to the vendee, had the representations been true. The plaintiff fraudulently represented himself as the owner of three hundred feet of wharf, and the defendant would have acquired that quantity by his lease, had the statement been true. The lessor, however, knew at the time that he was the owner of one hundred and fifty feet only, and the falsehood as to the extent of his right, was at once the inducement to the contract, and the reason why it was inoperative. (Monell v. Colden, supra; Dobell v. Stevens, 3Barn. Cress. 623.)
The question put to White, as to his understanding of the extent of the plaintiff's interest from his statement to him, was objectionable; but it could not have affected the verdict of the
jury. The witness had previously sworn, without any objection, "that the plaintiff told him that the wharf on the east side of Market-slip was his, and from this, witness supposed that the wharf was his, and so informed the defendant." His "understanding," derived from the plaintiff's statement, was therefore a part of the evidence before the jury, and its repetition could not have affected the plaintiff injuriously.
A more important question arises under the exception to that part of the charge in which the jury were told that the discovery of the fraud, and the subsequent entry of the defendant upon and the enjoyment of the demised premises, would not bar his right to damages.
In support of this exception it was argued, 1st. That until the discovery of the fraud, the defendant was not bound by the memorandum signed by him, and then only at his election: that prior to his adoption, the writing was in the nature of aproposition, and being adopted with a full knowledge of all the material facts, there could be no fraud, because no deception
when the contract had its inception.
This hypothesis is rather specious than solid. The agreement when executed was binding upon both parties, and could be repudiated by neither without the assent of the other, except by an action. If the defendant had discovered the fraud the day after the contract was made, he could have no relief short of a court of equity. In the mean time he would lose the advantage of a sale of his interest, would be in form legally responsible on his covenant, and subject to the doubtful chances of a litigation as the only means of reinstating himself in his former position. He made, as he had a right to suppose, an advantageous bargain, when in truth he had only purchased a lawsuit as a means of deliverance from a bad one. Now the very gist of the fraud consists in placing a man in this situation. It was an injury for which the supreme court have adjudged an action would lie, when the contract was consummated. I see no reason to doubt the correctness of their conclusion. Every one must perceive the distinction between a mere proposition, and an agreement requiring an action to avoid it; between the
right to annul a contract by the mere volition of one of the parties, and a right to resort to a court of justice for the same purpose.
In the second place, it was insisted that if there was an agreement, it was executory when the fraud was discovered; and in such a case, whatever might be the rule as to contracts wholly or partially executed, the defendant, if he affirmed the contract, waived all right to damage for the fraud. In the first place, the contract was not executory, if by that is meant that until entry, the lease was a chose in action. A lease to commence in futuro
is grantable. (Shep. Touch. 241.) The interest vests presently, although it does not take effect in possession until a future time. (Comyn's Dig. tit. Assignment; Taylor's Land. and Ten. 207.) The defendant, therefore, upon delivery of the lease, acquired an interest in the term which he could assign, and for which he could maintain ejectment without any further act upon his part, if possession was withheld after his right of entry became complete. (Taylor's Land. and Ten. 132; Adams on
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The first exception to the admissibility of any evidence to establish the fraud, is sought to be sustained upon two grounds: 1. That the fraud relates to the title to lands. 2. Because the matters given in evidence are not embraced within the lease; as the plaintiff did not demise the wharf, but expressly limited it to his right to the wharf.
For more than thirty years it has been the settled doctrine of the courts of this state, that fraudulent representations in reference to the title of real estate, accompanied with damage, is a good ground of action, and that it is immaterial whether any or what covenants are contained in the deed of conveyance. This was held in Wardell v. Fosdick, (13 John. 325,) where the defendant fraudulently sold without any title, but in effect with full covenants. In Monell v. Colden, (13 John. 402, 3,) the representation was that the vendor, as riparian owner, had the pre-emptive right to a grant of land under water in the Hudson river, and opposite the purchased premises. In Ward v. Wiman,
(17 Wend. 193,) the declaration was that the premises were free from incumbrance, and an action for the fraud was sustained although the deed contained a covenant to the same effect. InCulver v. Avery, (7 Wend. 386,) the affirmation was that the premises were clear of any other incumbrance than the mortgage under which the sale was effected, and that the purchaser would acquire a perfect title. In the first case cited, the fraud pertained to the title of the land conveyed. In the second, to a privilege annexed to the land; in the third, to an incumbrance upon the title; and in the last, both to the title
and to incumbrances. Such has been the adjudication of our state during the period mentioned.
The distinction between representations as to the title to land, and matters collateral to the land, was taken in Culver
v. Avery, and repudiated, (7 Wend. 386,) and I think with reason. There is no middle ground of principle, between excluding evidence of fraudulent representations in all cases of the conveyance of land, or admitting them when they refer to the title. They all are or may be equally obnoxious to objections arising from the statute of frauds, and in each case the vendee can protect himself by appropriate covenants. The rule thus settled, affecting as it does the right of property, should be upheld unless its maintenance would conflict with established principles. No such conflict is perceived. On the contrary, it harmonizes with the law in relation to personal property, requires fair dealing from the vendor in each case, and permits the vendee, without a penalty upon his credulity, to trust to declarations of material facts within the knowledge of the other party. In a word, to treat with the vendor upon the presumption that he is an honest man.
2. There is no force in the objection that the plaintiff did not demise the wharf, but only his right to the wharf, and therefore the representation did not relate to a matter within the lease. The question in all these cases is not what passed by the conveyance, but what would have passed to the vendee, had the representations been true. The plaintiff fraudulently represented himself as the owner of three hundred feet of wharf, and the defendant would have acquired that quantity by his lease, had the statement been true. The lessor, however, knew at the time that he was the owner of one hundred and fifty feet only, and the falsehood as to the extent of his right, was at once the inducement to the contract, and the reason why it was inoperative. (Monell v. Colden, supra; Dobell v. Stevens, 3Barn. Cress. 623.)
The question put to White, as to his understanding of the extent of the plaintiff's interest from his statement to him, was objectionable; but it could not have affected the verdict of the
jury. The witness had previously sworn, without any objection, "that the plaintiff told him that the wharf on the east side of Market-slip was his, and from this, witness supposed that the wharf was his, and so informed the defendant." His "understanding," derived from the plaintiff's statement, was therefore a part of the evidence before the jury, and its repetition could not have affected the plaintiff injuriously.
A more important question arises under the exception to that part of the charge in which the jury were told that the discovery of the fraud, and the subsequent entry of the defendant upon and the enjoyment of the demised premises, would not bar his right to damages.
In support of this exception it was argued, 1st. That until the discovery of the fraud, the defendant was not bound by the memorandum signed by him, and then only at his election: that prior to his adoption, the writing was in the nature of aproposition, and being adopted with a full knowledge of all the material facts, there could be no fraud, because no deception
when the contract had its inception.
This hypothesis is rather specious than solid. The agreement when executed was binding upon both parties, and could be repudiated by neither without the assent of the other, except by an action. If the defendant had discovered the fraud the day after the contract was made, he could have no relief short of a court of equity. In the mean time he would lose the advantage of a sale of his interest, would be in form legally responsible on his covenant, and subject to the doubtful chances of a litigation as the only means of reinstating himself in his former position. He made, as he had a right to suppose, an advantageous bargain, when in truth he had only purchased a lawsuit as a means of deliverance from a bad one. Now the very gist of the fraud consists in placing a man in this situation. It was an injury for which the supreme court have adjudged an action would lie, when the contract was consummated. I see no reason to doubt the correctness of their conclusion. Every one must perceive the distinction between a mere proposition, and an agreement requiring an action to avoid it; between the
right to annul a contract by the mere volition of one of the parties, and a right to resort to a court of justice for the same purpose.
In the second place, it was insisted that if there was an agreement, it was executory when the fraud was discovered; and in such a case, whatever might be the rule as to contracts wholly or partially executed, the defendant, if he affirmed the contract, waived all right to damage for the fraud. In the first place, the contract was not executory, if by that is meant that until entry, the lease was a chose in action. A lease to commence in futuro
is grantable. (Shep. Touch. 241.) The interest vests presently, although it does not take effect in possession until a future time. (Comyn's Dig. tit. Assignment; Taylor's Land. and Ten. 207.) The defendant, therefore, upon delivery of the lease, acquired an interest in the term which he could assign, and for which he could maintain ejectment without any further act upon his part, if possession was withheld after his right of entry became complete. (Taylor's Land. and Ten. 132; Adams onEject. 2d ed. 33, 161.) The interest of the defendant cannot be distinguished from the sale of a chattel to be delivered at a future period, to be paid for subsequent to delivery. The property would pass by the contract of sale, and replevin might be maintained by the purchaser after the time stipulated for the delivery. (2 Sumn. R. 211.) But if the agreement was executory, it would not, it is believed, change the right of the parties. It is conceded that if the contract had been partly executed, even in the most trifling particular, the defendant would have the right to rescind and bring his action for the deceit, or affirm the contract and have his remedy by way of recoupment when sued for the rent. Why should he not have the same remedies when the contract is executory? In neither case, according to the assumption of the plaintiff, could there be a contract until ratified with a knowledge of the fraud. And if an adoption under such circumstances, of the agreement, is an abandonment by the person defrauded, of his claim to damages for the deceit in the one case, it must be in both. In neither will repudiation of the contract alone, as I have attempted to
show, relieve the party defrauded from his responsibility, and restore him to his rights as they existed prior to the agreement. No such distinction is recognized by the authorities. It is true, that if a party affirms a contract with knowledge of the fraud, he affirms it wholly, and this whether it is executory, or partially executed. But in neither case does he affirm it as a contract made in good faith. He consents to be bound by the provisions of the agreement, but does not thereby release or waive his claim for damages arising from a fraud collateral to the agreement. The case 5 Mees. Wels. R. 83, is consistent with this doctrine, and the cases referred to in the opinion of the supreme court cannot otherwise be reconciled with each other or first principles.
The last question relates to the damages. The rule given to the jury was as favorable as the plaintiff had a right to require. The measure of damages in an action upon a warranty, and for fraud in the sale of personal property, are the same. In either case they are determined by the difference in value between the article sold, and what it should be according to the warranty or representation. (Sherwood v. Sutton, 5 Mason, 1; Clare v.Maynard, 6 Adol. Ellis, 519; 4 Hill, 625.) The same rule obtains, I apprehend, upon the sale of real estate, where the action is for deceit; although a different one is applied when the suit is brought upon a certain class of covenants, such as that of warranty, quiet enjoyment, seisin, c. which is founded upon considerations of public policy, without reference to the actual damages sustained by the party.
In 13 John. 395, supra, it was held that the defendant was chargeable with all the damages resulting from the false representations. In Van Epps v. Harrison, (5 Hill, 69,) this rule was applied to an action upon a bond given for the purchase money of land, and where the defendant was suffered to recoup damages on occasion of the fraud of the vendor. Bronson, J. remarks, that the jury must inquire how much less the land was worth for building purposes than it would have been had the representations of the vendor been true.
This rule of compensation is founded upon sound principles of
morality. It compels the fraudulent vendor to make good the representations, upon the faith of which the vendee entered into the contract. This is but just. Applied to this case, it will at least justify the charge, and the verdict of the jury. The judgment should be affirmed.