The majority opinion seems to convey the impression that the outstanding BTNB mortgage was not disclosed to the Nevetts either at the time of the contract or at the time of closing. It is clear, however, that the mortgage was disclosed at the time of closing, because the closing statement and the title binder both included reference to that mortgage.
The majority also indicates that the fraud was in failing to list the BTNB mortgage on the deed. As a general proposition, failing to note an outstanding mortgage on the deed indicates that the seller intends to pay off that mortgage out of the proceeds of the sale. I would affirm on the basis that the jury was authorized to find under the evidence that fraud occurred at closing when Mrs. George represented in the closing statement that $25,000 was to be held in escrow to pay off the mortgage if the jury found that, in fact, she had no intention of releasing that money to pay off the mortgage. *Page 732