By the Court,
Mullin, J.It is not necessary to cite authorities to show that a purchaser of personal property cannot defeat a recovery for the price by showing that the property is owned by another, unless he has been-ousted, or there has been a recovery by the true owner. But there is this important qualification of the rule—that if the seller has been guilty of fraud 'or deceit in the sale, proof of the fraud will defeat an action for the price, although there has been no ouster nor recovery had by the true owner. (Case v. Hall, 24 Wend. 102, and cases cited.) The plaintiff’s counsel has not referred us to any case holding that the rulé is not as I have stated it. But he complains that the cases referred to by me do not sustain the proposition in support of which they are cited. Let us examine them, and see whether they do not fully sustain it. In Case v. Hall, (24 Wend. 102,) the proposition is stated in the head note, by the reporter, as having been decided in it. It is true the facts proved did not make out a case of fraud, yet the counsel argued it on the theory that facts were proved which authorized the inference of fraud. And the court is called upon to declare its opinion upon the legal question involved. Bucker v. Vrooman, cited in the preceding case, holds that fraud or -deceit on the sale may be insisted on by way of defense *268to an action for the price. (See also Sill v. Rood, 15 John. 230; Reab v. McAlister, 8 Wend. 109.) In these cases the fraud is admitted, by way of defense; to avoid circuity of action. In Early v. Garrett, (9 Barn. & Cres. 928,) the action was by a purchaser of land, to recover of the vendor the purchase money, because of concealment, by the latter, of a fact which ought to have been communicated. There was some evidence to show that the defendants did not know of the existence of the fact which it was alleged they had concealed, and hence it was. not fraudulent; and the court held, that without fraud, they were not liable to refund. In thus holding, they must have held the converse of the proposition, that if they had known the fact and fraudulently omitted to communicate it, they would have been liable.. The remarks of Bayley and Littledale, Justices, were entirely appropriate to the case then in hand, and which applies directly to this. In Early v. Garrett, the possession of the land had been taken, by the landlord, from the plaintiffs, but that fact had no bearing on the question decided by the court. There being no warranty by the defendants, express or implied, there could be no recovery, except for the fraud. The eases cited in the note, Williamson v. Allison, (2 East, 448,) are expressly in point, and are recognized by this court in Case v. Hall, (cited supra,) as authority. In addition to these cases, "the cases cited by the counsel distinctly recognize the same principle. In Tallmadge v. Wallis, (25 Wend. 107,) the chancellor distinguishes the case from one in which the vendor had been guilty of fraud or deceit in representing the title to be different from what it was in fact. In Lattin v. Vail, (17 Wend. 188,) the court held that it is no defense to an action on a note given on the purchase of land covenanted to be free from incumbrance, that it was incumbered by a mortgage. But they say that they thus hold, there being' no fraud in the" case. In Whitney v. Lewis, (21 Wend. 131,) it is held that it is no defense to an action on a bond *269given for the price of land, in the deed of which the vendor covenanted for quiet enjoyment, that the grantor was not seised in fee and had no right to convey, if there be no allegation of any fraudulent representation on the part of the plaintiff in respect to the title.
I think we may assume, for the purposes of this case, that if the vendor of the logs fraudulently concealed from the defendant the want of title, this concealment is a complete defense to the action. But it is said by the counsel that if it is true that the defendants might repudiate the sale, by reason of the fraud, they could only do so upon returning what they have obtained through the sale. Assuming, for the purposes of the argument, that fraudulent representations or concealment, in regard to the title, stand on the same footing with fraud committed by a vendor having a perfect title, there is this answer to the suggestion in this case. The defect of proof was not suggested on the trial, and we cannot say but that, if made, the proof would have been supplied.
But it seems to me that where the vendor is not the owner of the property sold, he is not entitled to have it returned, when he has been guilty of a fraudulent concealment of representation as to his title, as he would be if he were owner, and had been guilty of some other fraud in reference to the property; and one very conclusive reason is, that the purchaser is himself liable to the true owner for the value of the property, having had it in his possession and use. It is not uncommon that the property purchased may have been sold or consumed, so as to render it impossible for the vendee to return it; and if he cannot recover'his purchase money of his vendor without a return, he is compelled to trust to the solvency of the seller, and at the same time be subject to an action for the value, to the true owner. I am free to say, I find .no case authorizing the exception, yet it seems to me to be a reasonable and just one. It is true that the injured party *270is at liberty, in such ease, to sue for the damages actually sustained, without returning the property, and he may, on being sued, reduce the recovery for the price by the amount of damages sustained. But when there is no title in the vendor suing for the price, the damages to the vendee are the whole purchase money and its interest. Why, then, stand on a question of pleading ? If the purchaser, by reason of the fraud, may sue for his damages without returning the property, and those damages can be no less than the money paid, why not permit him to recover the money thus paid, or to bar the action for the price, on proof of the fraud. Whatever may have been the rule under the old system, of pleading, it should now be held that fraud, as to title in the seller, should bar his recovery of the price. It is said that great hardship will result from the rule applied in this case; that property purchased conditionally, for a small sum, may be so increased in value by the labor of the purchaser that if a sale by him for the enhanced value may be defeated because the small sum agreed to be paid by him has not been paid, injustice would be done him, and particularly so when no recovery over by the-true owner has been had.
The answer to all this is, that the injury is the result of his own wrong. Had he acted in good faith, it would' not have occurred. Again, by his unlawful act he has led the purchaser from him into a position where he is liable to the full value of the property to the true owner, even in its improved condition.
It is also objected by the plaintiff’s counsel, that the matter of defense now insisted on was not set up in the answer. In granting the motion for a new trial, I held that, on the facts set out in the answer and proved, deceit in the sale was made out. The agreement between Klotwig and LeBay was, that Klotwig should pay $3.00 per thousand feet for the trees, standing, and the logs were to remain LeBay’s until paid for. Klotwig was- to call on *271Stewart and have them measured, and instead of doing so he sold them to the defendants. On these facts there is no room for misunderstanding. Klotwig knew he was not the owner; he concealed • the fact, and sold them as his own. There is no conflict of evidence. What was there for the jury ? Had they found that there was no fraud, would not their finding be against evidence ?
[Onondaga General Term, April 1, 1862.Mullin, Morgan and Bacon, Justices.]
But there is still another ground on which it was my duty to have set aside the verdict. The jury was instructed that if LeRay asserted his title to the logs and forbade the defendants’ paying Klotwig, because he (Le Ray) was the owner, the plaintiff could not recover. On each and all of these points there was no dispute, and it was the duty of the jury to have found for the defendants; and omitting to -do so, there is no remedy but to set aside the verdict. It was not, perhaps, proper to have submitted the question to the jury, but it should have been disposed'of as a question of law; yet that does not relieve the jury from its duty to conform to the instruction. It may be that the legal proposition laid down to the jury, was not correct. With that it had nothing to do; it must take the law from the court, and cannot disregard its instruction, however erroneous it may be.
It is for these reasons, mainly, that the new trial was granted.
Order affirmed, on the ground that the verdict was against the instruction of the court.