The opinion of the court was delivered by
JOHNSTON, J.:Mary M. Wright brought an action against the Wichita & Valley Center Motor Railroad and Land Company, H. D. Heiserman, Color L. Sim, and J. T. Carpenter, to recover damages in the sum of $350, resulting from the alleged misrepresentation and fraud practiced by defendants in the sale of real estate to her. In her petition, she alleged *224that the defendants represented to her that the company was the absolute owner of a certain lot, and that it was held free and clear of incumbrances; that the representations were made to induce her to purchase the premises; and, relying upon them, she did purchase the lot,, and pay to the defendants therefor, the sum of $350. At the time of the purchase and payment, there was a mortgage incumbrance upon the lot of $11,013 in favor of John -Westfall, which mortgage was duly filed for record in the office of the register of deeds of Sedg-wick county. It was alleged that each of the defendants well knew that the premises- were incumbered, but that the fraud and deceit were practiced by them in order to obtain the money which she paid upon the lot. It is averred that John T. Carpenter was especially active in the transaction, and assured her that the title to the premises was good and unincumbered, notwithstanding the fact that he well knew that it was incumbered in the manner stated. She avers that she did not discover the fraud practiced upon her until about the time of the commencement of the action, when she requested the repayment of the money, and offered to convey all the title which she had received from the company. After the testimony of the plaintiff was submitted, the court held it to be insufficient to sustain a cause of action against Heiser-man and Sim, and sustained a demurrer to the evidence filed by each of them. Upon the whole testimony, the jury returned a general verdict in favor of the plaintiff and against the company and Carpenter, assessing her damages at $407.87. The following special questions and answers were returned with the verdict:
“What representations were made by the defendant J. T. Carpenter to the plaintiff concerning the title to the property described in the deed attached to plaintiff’s petition? Ans. The title was good.
“On what, if anything, did the plaintiff rely in purchasing the property described in the deed attached to plaintiff’s petition? A. Representations of J. T. Carpenter.”
Other answers disclosed that the Westfall mortgage was *225placed on record prior to the transaction complained of, on May 6, 1887, and that the plaintiff had no knowledge of the mortgage except constructive notice by the record, until June, 1888; and further, that the money paid by plaintiff upon the lot was received by the defendant company. The petition stated a cause of action against all of the defendants, and is sufficient to justify the judgment that was rendered.
feSnta«onn-ep' ft®«cov<ay?IS The contention that no recovery can be had because the incumbrance was a matter of record is not sound. A fraudulent representation by one who assumes to have personal knowledge to a purchaser of real estate that there is no incumbrance thereon, and upon which representation the purchaser relies and acts, to his injury, will sustain an action for the tort, although the purchaser might have discovered the fraud by searching the public records. (McKee v. Eaton, 26 Kas. 226; Curtis v. Stilson, 38 id. 302; Matlack v. Shaffer, 51 id. 208; David v. Park, 103 Mass. 501; Bristol v. Braidwood, 28 Mich. 195; Babcock v. Case, 61 Pa. St. 427; Linn v. Green, 1 McCr. 380.)
-• persorfmak-representatfon. Just what relation Carpenter bore to the company or to the other defendants does not appear, as none of the testimony is included in the record. But, presumably, the evidence was sufficient to sustain the verdict against Carpenter and the company. All of the defendants were charged with conspiring together to defraud Mrs. Wright out of the money which was obtained from her; and the fact that Carpenter did not personally receive the money, or the further fact that the testimony was insufficient to hold Heiserman and Sim, will not relieve Carpenter from liability. If he participated in the fraud from which an injury resulted, he may be held liable; and it is no defense that others are not brought in to share the liability. Mrs. Wright was entitled to a remedy, either upon the contract of warranty or in tort; and, from the averments of the petition, her action may be regarded as belonging to the latter class, as she bases her right to recover upon the fraud and *226falsehood which induced her to make the purchase. Although Carpenter may not have received any portion of the consideration, or been directly interested in the purchase, he may be held liable for fraudulent misrepresentation which caused the injury. In such a case, the party defrauded has a remedy by action of deceit for damages against the party who made the misrepresentations which induced the loss. (Bish. Non-Contr. Law, § 315; Kerr, Fraud & M. 331, 339.)
3' fn|s-suflffi-d' cient petition. We cannot review the errors which it is claimed occurred during the trial, for the reason that they have not been assigned in the petition in error; and in any event the special findings returned are sufficient to sus-L ° . tain the judgment against Carpenter. The charge was that he represented the title to be good and unincumbered, and the jury found that the misrepresentation was that “the title was good.” It is said that the title to real estate may be good and still be incumbered, and in one sense this may be true; but, from the way in which these terms are used in the record, it is not difficult to understand the finding of the jury. In the popular sense an incumbered title is not a good one, and this view was taken by the jury and the trial court. Treating the terms in the sense contended for by plaintiffs in error, there would still be no ground for reversal, as no specific finding was asked for or made with respect to the existence of incumbrances upon the property sold. In the absence of the testimony, we must assume that there was sufficient to sustain the general verdict.
The judgment of the trial court will be affirmed.
All the Justices concurring.