Defendants’ counsel urgently asks our re-consideration of the rule acted upon in this state, that it is not an actionable fraud for a vendor to falsely represent to his vendee the price paid by himself for the property sold. Holbrook v. Connor, 60 Maine, 578; Bishop v. Small, 63 Maine, 12; Suite v. Paul, 69 Maine, 215.
It is to be admitted that much may be said on either side of the question. No better evidence of that can exist than the fact that courts have differed among themselves about the expediency of the rule. In many cases the rule may operate harshly. But generally, the effect of it is rather salutary. We do not feel that we should upset a rule so recently resolved upon after careful argument and consideration.
The very fact, however, that the rule is disagreed to by reputable courts, is a reason why it should be strictly, rather than liberally, construed. Its application should be properly guarded. And there may be exceptions to the rule. The present case, however, seems to be one of the common instances where the principle is applicable.
*393The point that the note is invalid for failure of consideration, i 3 not good. The maker was to have a certain share represented by equitable ownership in real estate. The deed to the trustee provides for such ownership.
Nor can the point taken prevail that the owner of the note became estopped by a representation that he would give the note up. The purchaser of the land mortgaged should not roly upon a promise made without consideration to do something in the future. The defendant contends that the proof amounts to an admission that the mortgage note ivas worthless, and that the real plaintiff is estopped from recovering the land against an after purchaser, before whom the admission was made. But no such admission was made. On the contrary, what was said was a clear affirmation that the note was due, but that for personal reasons, the holder would probably surrender it to the maker.
The action is a writ of entry in the name of an assignee of a mortgage, but prosecuted, it is admitted, wholly for the benefit of the assignor. There was no evidence of any delivery of the assignment to the assignee, except that the plaintiff’s attorney of record produced the mortgage and the assignment thereon at the trial. It is the opinion of a majority of the court that the attorney’s possession of the papers is prima facie evidence of delivery from the assignor to the assignee, notwithstanding the admission that the assignor is the real party in interest in the suit.
Exceptions overruled.
Daneorth, Virgin, Emery, Foster and Haskell, JJ., concurred.