No. 2,336.

#### S. C. HASTINGS, Appellant, *v.*ROGER O’DONNELL, (Administrator of the Estate of Hugh O’Donnell, deceased.) Respondent.

"Vendok and Vendee.— waebanty. — Where a tenant in possession by deed of bargain and sale conveys the premises occupied by him, for a valuable consideration and his vendee is subsequently ejected by the landlord, in the absence of warranty or with only special warranty against the acts of the vendor, the vendee is not entitled to relief either in law or equity against his vendor.

Idem. — Concealment.—Ekatjd.—Concealment of the fact by a vendor, of real property that he holds merely as tenant, does not constitute such fraud as will entitle his vendee to relief in equity.

*149Appeal from tbe District Court of tbe Twelfth District, City and County of San Francisco.

Tbe complaint alleges tbat on tbe 31st day of January, 1853, Hugb O’Donnell, tben in life, was in tbe occupancy of certain premises in tbe city of San Francisco as tbe tenant of James Lick, bolding over after tbe expiration of a verbal lease made to bim by Lick in 1849; tbat on said 31st day of January, 1853, Hugb O’Donnell, for tbe consideration of four thousand dollars, conveyed to plaintiff and one Isaac Thomas an undivided half of said premises which be claimed to bold under conveyance from Antonio Bajan, and on tbe 19th of January, 1853, conveyed to plaintiff and said Thomas tbe remaining undivided half of said premises for a like sum of four thousand dollars with a special warranty against all persons claiming by, through, or under bim; tbat Hugb O’Donnell was well aware at tbe time of said sales tbat be was tbe tenant of Lick, and tbat plaintiff and bis co-grantee Thomas were entirely ignorant of tbat fact, or tbat be occupied tbe premises otherwise than as tbe owner thereof in bis own right; tbat said Hugb O’Donnell fraudulently and . deceitfully concealed from plaintiff and bis co-grantee tbe fact tbat be was the tenant of Lick, for tbe purpose of defrauding them out of tbe purchase price of said premises to wit: tbe sum of eight thousand dollars; tbat, in 1857, Thomas conveyed to plaintiff bis interest in tbe premises; tbat in 1855, an action was instituted by James Lick against plaintiff and others for tbe recovery of tbe premises, and in 1887 judgment of eviction was rendered against plaintiff, after which plaintiff purchased from Lick bis title for tbe sum of seven thousand five hundred dollars; tbat after tbe judgment of eviction and tbe purchase by plaintiff of Lick’s title, be presented to tbe defendant Roger O’Donnell, administrator of tbe estate of Hugb O’Donnell — who bad died in tbe meantime, bis claims against tbe estate for two sums of four thousand dollars each, with interest on them respectively from tbe 31st of January and tbe 19th of February, 1853; which claims were rejected by said administrator; *150whereupon plaintiff brings this suit and prays that defendant may be decreed to pay bim in due course of administration of said estate tbe amount of said claims with interest and costs of suit.

To this complaint defendant demurred on tbe ground that tbe complaint does not state facts sufficient to constitute’ a cause of action.

Tbe demurrer was sustained, and tbe plaintiff baying failed to amend within tbe time granted by tbe Court, judgment was entered for defendant, from wbicb judgment and tbe order sustaining tbe demurrer plaintiff appeals.

*W. H. Patterson,*for Appellant,

In cases where a party is entitled to relief by reason of fraud in tbe sale of lands, both Courts of law and Courts of equity grant relief upon precisely tbe same legal principles; and tbe party defrauded has bis choice of remedies, either to sue for compensation in damages, or file bis complaint in equity as upon a recision of tbe conveyance ; pursuing tbe latter remedy, it must be possible to place tbe parties in *statu quo,*or so nearly so as not to mate a *substantial*prejudice to tbe party against whom the- fraud is alleged in respect of tbe subject conveyed. It must be a very special case wbicb will authorize tbe injured party to come into a Court of equity to have a contract partially rescinded, and it must be one in wbicb tbe Court can see that no possible injustice will be done.

Let us apply this exceptional test to tbe case at bar. Tbe defendant’s intestate conveyed a pretended title to tbe plaintiff and bis associates, and represented that be was tbe owner of tbe fee wbicb be assumed to convey. Under this title tbe purchasers went into possession; ultimately by tbe judgment in tbe action brought by Lick, it was adjudged and determined that O’Donnell bad no title — and bis deeds conveyed none. Now, in order to entitle tbe plaintiff to come into equity and set up tbe fraud as upon a recision of tbe deeds, to recover tbe consideration in money, is be bound, as a preliminary condition, to surrender up tbe pos*151session to tbe party wbo bas defrauded him out of the consideration in money ? Why the necessity of a surrender to one who has no claim to the possession? The judgment in the ejectment determining all his rights, not alone to the title, but to the possession, as the tenant of Lick, as well. Without surrender, are not the parties substantially in *statu quo?*And will not a Court of equity protect the party who has been defrauded, so far as to permit him to buy the true title in order to save his improvements, which have been made on the faith of the false representations? We think the case of *Bradley*y. Bosley, (1 Barb. Oh. 125) and the authorities therein cited by the Chancellor, fully sustain this yiew.

That the yendor had an equitable title to the present use, as the tenant of Lick, when he conveyed to plaintiff and his associate, which passed to them, suggests no difficulty, because a promise to pay for the use and occupation cannot be implied from the deeds. *(Fletcher*v. *Button,*4 Comstock, N. T. R. 396 — affirming Sup. Ct. in 6 Barbour, 646.)

Therefore the plaintiff retains nothing which in equity he ought to restore — and is, as against all persons whomsoever, entitled to retain his possession under his after acquired and true title.

*Delos Lake,*for Respondent.

No representations whatever are charged to have been made by Hugh O’Donnell, respecting his title to the premises. In such cases the rule of *caveat emptor*applies as well to the purchase of real estate as of personal property. The plaintiff and Thomas, both of them lawyers, purchased on their own judgment of the title. They asked no questions of O’Donnell, and he volunteered no declarations as to the title. How can an action for fraud, under such circumstances, be maintained? In *Bedbody*y. *Bhelps,*(9 Cal. 213), it is held that an action for a false and fraudulent representation as to the naked fact of title, in the\ vendor of real estate, cannot be maintained by the purchaser, who has taken possession of the premises sold under a conveyance *152with an express warranty. And see, also, the authorities cited by the appellant’s counsel in *Peabody*v. *Phelps,*(on pages 217 *et seq).*Under these authorities, even if O’Donnell had represented in express terms of the strongest character, that he was the sole owner of the land, and that no relation of landlord and tenant subsisted between him and Lick, no action could be maintained. Parties purchasing real estate must, as they always do, examine the title for themselves, and rely upon their own judgment. And it is only when the representations of the vendor relates to something collateral to the title, that an action can, in any event, be maintained. And this is the distinction between the present case and the case of *Purdy & Millihen*v. *Bullard, et al.*now pending before this Court. It is very clear that the complaint makes out no cause of action.

As we have said, O’Donnell made no representations. He was in possession of the premises in question. The plaintiff and Thomas propose to buy — what? Why, the interest of O’Donnell in the premises, whatever that might be. In those days it was universally understood that the purchaser of real estate under a quit-claim deed, took just what interest his vendor had, no more.

Lands and tenements held by no stronger tenure than possession, may be the subject of sale and transfer; *(Johnson*v. *Pickett, 5*Cal., 2318; *Norton*v. *Jackson,*Id. 262; *Parker*v. *Grain,*6 Wend. 647.

It is the duty of a party about purchasing real estate, to investigate the title for himself; and where the vendor does not act, and says no words to interfere with such investigation, or to lead the vendee estray in his examination and search of the title, there is no principle of law or equity by which he can be held responsible to the vendee in a civil suit. The maxim in such case is always *caveat emptor.*

Sprague, *J.,*

delivered the opinion of the Court, Ceockett, J., Ehodes, C. J., and Temple, *J.,*concurring :

The facts stated in plaintiff’s complaint do not constitute a cause of action at law, nor do they present a proper *153ground for equitable relief. There i§ no pretense that plaintiff has a right to recover upon the covenants of the deeds of defendant’s intestate, nor are any facts stated upon which a Court of equity could grant the relief prayed for, or any relief whatever, as against Hugh O’Donnell, if living, or the defendant, as administrator of his estate.

Judgment affirmed,

Wallace, J., having been of counsel, did not participate in the decision.