[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 297
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 298 The principal question, upon which this case seems to have been determined, was whether the present action was barred by the judgment in the equity action which was set forth in the complaint. An examination of this subject is rendered unnecessary, as our determination of another question *Page 301 disposes of the case. That question is as to plaintiff's claim for damages, for even if it may be assumed that, in a proper case, an action might be maintained to recover damages, caused by reason of the fraudulent and wrongful acts and conduct of a party in obtaining a conveyance of lands from another, it is difficult to see what legitimate damages were shown upon the trial which entitled the plaintiff to a judgment. The damages which were assessed by the jury, and which were included in the verdict directed by the court, consisted of the difference between the amount of the loans and the interest thereon from the time of making the same, and the time when the defendant refused to reconvey, and the market value of the lot at the latter time, and the counsel fees incurred by the plaintiff in the equity suit brought by him against the defendant and others. Plaintiff was thus allowed to recover, as damages, for the depreciation of the real estate. Neither of the items mentioned was the necessary and legitimate result of the wrongful acts of the defendant, and the plaintiff was not entitled to recover for the same, as damages, in this action. He might have brought an action of ejectment to recover the land after tendering the amount due on the mortgage, and, as parol evidence is admissible to prove that an instrument, absolute on its face, was intended as a mortgage, if this was established the plaintiff would have been entitled to recover, and the damages would have been the value of the use of the premises and not the depreciation of the land. He might also have recovered for waste or trespass, but there is no principle upon which depreciation of the value of land constitutes an item of damages in such a case.
The same rule is applicable to the case now considered, and no authority is cited which sustains a recovery for depreciation under circumstances like those which are here presented. It is difficult to see upon what ground any such rule can be upheld. If the plaintiff had held the property when it was at its highest value, it is by no means certain that he would or could have sold the same. If he had not sold it at the time of its highest value the depreciation could not have injured him, and he would not have sustained any loss by reason thereof. To uphold *Page 302 the rule of damages which prevailed in this case we must assume that, if the plaintiff had held the property at the time when it was of greatest value, he would have had an opportunity to sell, and would have sold the same at the highest price. This is not the legitimate inference to be derived from the facts presented, and the assessment of damages in this case arising from a depreciation of the value of the land was clearly unauthorized and erroneous.
In regard to the costs or counsel fees, if the action had been in ejectment to recover the land, all the costs the plaintiff would be entitled to would be the costs of the action, and no reason is shown why the same rule should not apply in this case. Costs usually are but an incident of the litigation, and to be disposed of therein, and not generally recoverable as damages in another action.
Without passing distinctly upon the question as to whether such an action as is here presented could be maintained where actual damages are shown, it is very clear that the damages claimed and allowed were unauthorized and without precedent.
It follows that the order of the judge setting aside the verdict at the Circuit in favor of the plaintiff, and the judgment of the General Term affirming the same should be affirmed.
All concur.
Judgment affirmed.