It is not necessary in this case to decide, whether an action will lie for a false and fraudulent representation by the vendor of real estate that he has title to the property; for that question seems not to have been made on the trial. And besides, the representation of which the defendant complains related to the extent of the demised premises, rather than the landlord's title to the property. The conveyance was of all the plaintiff's right to a wharf, without specifying its boundary or extent; and the complaint is, that the plaintiff said he owned the whole wharf, which is three hundred feet in length, when in truth he owned only one half of it.
Actions have been sustained where the deceit was in relation to some collateral thing, as the rents or other profits derived from the land, things appurtenant to it, the incumbrances upon it, the location, quality or condition of the land, what the vendor paid for it, and the like. (Ekins v. Tresham, 1 Lev. 102; 1Keb. 510, 518, 522, S.C., by the name of Leakins v. Clizard;Lysney v. Selby, 2 Ld. Raym. 1118; 1 Salk. 211, S.C., bythe name of Risney v. Selby; Dobell v. Stevens, 3 B. C. 623; Bowring v. Stevens, 2 C. P. 337; Pilmore v.Hood, 5 Bing. N.C. 97; Holbrook v. Burt, 22 Pick. 546;Monell v. Colden, 13 John. 395; Culver v. Avery, 7Wend. 380; Ward v. Wiman, 17 id. 193; Early v.Garret, 9 B. C. 928; Sandford v. Handy, 23 Wend. 260;Van Epps v. Harrison, 5 Hill, 63.) Some of these cases are open to observation; but it is enough for the present to say, that in none of them was the false representation upon the naked fact of title. In Wardell v. Fosdick, (13 John. 325,) the defendants fraudulently sold and conveyed land which had no real existence; and it was held that the purchaser might treat the deed as a nullity, and have an action on the case for the deceit. In *Page 314 Bostwick v. Lewis, (1 Day, 250,) there was a combination to defraud the purchaser in relation to the quality of the land, as well as the title to it; and it may fairly be inferred from the report, that the recovery was on the ground of fraud in relation to the quality alone. Although evidence was given that the title to a part of the property was out of the vendor, it was admitted for the sole purpose of showing that the residue of the tract was of no value. In Wade v. Thurman, (2 Bibb, 583,) it was held that the vendee might have an action against the vendor for falsely representing that the title to the land was in a third person, who would convey at any time. If this case does not go too far to prove any thing, it is sufficient to say that it is not the case of a fraudulent representation by the vendor of title in himself; and I do not find that such an action has ever been maintained. The learned judge who delivered the opinion of the court in Leonard v. Pitney, (5 Wend. 30,) evidently thought that such an action would not lie; and the case ofRoswell v. Vaughan, (Cro. Jac. 196,) as understood by Lord Holt and Powell, J. in Lysney v. Selby, (2 Ld. Raym. 1119,) tends to the same conclusion. It is a strong argument against the action that no precedent for it has been found.
In the usual course of business men insert covenants in their conveyances of real estate where it is intended that the vendor shall answer for the goodness of the title; and it is easy to see that bad consequences may follow if the vendee shall be allowed to lay aside his deed, and have an action founded upon conversations about the title pending the bargain. In Dobell v.Stevens, (3 B. C. 623,) where the vendee of a public house was allowed to recover in an action for the deceitful representations of the vendor in relation to the amount of business done in the house, Chief Justice Abbott said, the representation was not of any matter or quality pertaining to the thing sold, and therefore likely to be mentioned in the conveyance, but was altogether collateral to it; as was the rent in the case of Lisney v. Selby. And in Monell v. Colden, (13 John. 403,) Thompson, Ch. J. remarked, that the false representation was not respecting any thing to be included in the deed, but with *Page 315 respect to a privilege which the plaintiffs were to acquire in consequence of owning the land on the shore adjoining the river. The intimation in both of these cases is, that had the fraud related to the title, or any thing else which is usually provided for in the conveyance, the action could not have been maintained.
I do not intend to express a definitive opinion on the point; and have only said enough to show that it is a grave question, which, as it is not necessarily before us, should not be regarded as settled by our decision.
A present interest in the term passed by the lease: (Allaire v. Whitney, 1 Hill, 484:) and as the contract was not wholly executory when the defendant discovered the fraud, the question which was considered in The Saratoga R.R. Co. v. Row, (24Wend. 74,) does not arise.
The defendant called his agent, White, as a witness, who gave the conversation between himself and the plaintiff about hiring the wharf; the defendant was then allowed to ask him what he understood from the statement made by the plaintiff on that occasion; and the witness answered that he understood from the conversation that the plaintiff owned the whole wharf from Water-street to the end of the pier. The plaintiff was not answerable for the manner in which the witness understood the conversation, unless he had a right so to understand it; and how it should be understood was a question for the jury. It was for them, and not the witness, to draw the proper inference from what the plaintiff said. I see no principle on which the evidence could be properly received, and on that ground I think the judgment should be reversed, and a venire de novo be awarded.
WRIGHT, J. was also for reversal on the same ground; but on the other questions he concurred with GARDINER, J.
JONES, J. orally delivered an opinion for reversal on the same ground with BRONSON, J.; also on the ground that the defendant, by taking and enjoying the possession after the discovery *Page 316 of the alleged fraud, had elected to affirm the contract, and therefore had no legal cause of complaint. He also thought the rule of damages was improperly laid down at the trial.
GRAY, J. concurred with JONES, J.
JEWETT, C.J., RUGGLES, J. and JOHNSON, J. concurred in the opinion of GARDINER, J.
Judgment affirmed.