#### Wardell *against*Fosdick *&*Davis.

An action on tits case for a deceit lies for fraudulently selling land whi. h has no ■ real existence, notwithstanding any covenant? in the deed, which the plaintiff may treat as a nullity.

THIS was an action of trespass on the case for a deceit in selling to the plaintiff, for a valuable consideration, land which had no existence. *The*cause was tried before Mr. J. *Spencer,*at the *New-York*sittings, in *November,*1815.

The following are the material facts in the case:

*William S. Corlies,*of the city of *New-York,*and *Mary his wife,*by indenture dated the first of *January, 1309,*conveyed to the defendants, in consideration of the sum of five hundred and fifty dollars, a certain tract of land, described as lying in the township of *Moab,*in the county of *Luzerne,*and state of *Pennsylvania,*containing 450 acres, in lot No. 14, in the said township. The deed contained covenants of seisin, quiet enjoyment and warranty. Some time after the execution of the deed, Fosdick, one of the defendants, called on *Corlies,*and told him that he had been in the state of *Pennsylvania,*and had examined the records there, and could find no such town or land as were described in the deed, and said' that *Corlies*had broken the covenants in the deed, and threatened to prosecute him. Some time after this *Corlies*received a note from *Mr. Bostwick,*who then acted for the defendants as their attorney, informing him that he had been instructed by the defendants to bring a suit against him for the consideration money mentioned in the deed. *Corlies*again called upon *Bostwick,*in consequence of another note, who said that he must sue him, but offered, that if he would give a note for 125 dollars, with a good endorsor,he would give up the deed, but this *Corlies*said he was not able to do. *Cor-lies,*some time afterwards, met *Davis,*the other defendant, who told him that he had sold the land, and *Corlies*never heard any thing more from the defendants on the subject. After the conversation above mentioned between *Fosdick*and *Corlies, the**326defendants ,conveyed to. the plaintiff, by deed' dated the 25th *April-,*1811, for the consideration of 450 dollars,, the. tract of land lying ih the township of *Moab,*being the same as was conveyed to. them by. *Corlies,*ññ’d .covenanted .only that they had done no. acts to impeach the title. The defendants, on the same day, executed' an assignment to the plaintiff of the deed from *Corlies*to them. A-verdict" was found" for the-plaintiff, subject to the opinion Of the court. ,

Edwards, for the plaintiff,

contended, 1. That the defendants having themselves- examined and ascertained the fact. that there was no such land in existence-as they offered to sell to • the plaintiff, were bound to disclose that fact to him, apd the suppression ' of it was a . fraud and *deceit,*for which this action ■ properly lies.* The covenants in the deed were broken as soon: as they were mado.†

2d. That, if any objection-could have been made to the action, d cannot now be made., as the proof fully supported the third in thy declaration, and the defendants can only avail themselves bf the objection on a motion in arrest of judgment, or by writ of error.

*Baldwin,*contra,

The cases cited are those of sales of personal property, where there: is an implied warranty as to title. They do not apply to a sale of real estate, where the-purchaser must rely on his covenants as- to the title. The cases decided . in •chancery - are those'in which a party applies for the specific performance of an. agreement of sale, and the court will- not help, him.if he has. not acted, fairly. To support this action there" must have been an industrious concealment, by the vendor, of a-fact unknown to the purchaser; or the defect, must be latent. M the defect were *patent,*or could have been discovered by. a man, .equity will not help the purchaser, ‡. .The rule in regard t® the sale of land; *is caveat,*epiptor." The fact, whether there Was any such land in "existence, or not, must be regarded as *parent;*for, by a reference to the records,of the state of *Penn-*■ *sy'lvdnia,*it might have been easily ascertained whether there was" any such place or land as that described. ■ Again; how. can Davis, the • other defendant, 'be charged with fraud ? The e vidence of concealment, ór of false affirmation, applies only, if at all,-to *Fosdick.*

*327*Slosson,*in reply,

insisted, that the action was sustainable. "The principle laid down in the books is, that if a vendor practises deceit, or conceals a fact, which goes to the essence of the contract, an action lies. The cases which support this doctrine are numerous, and relate to the sale of lands.* In *Lynsey*v. Selby,† the court put their decision on .the ground of a concealment by the vendor of a matter of fact. Here the defendants had previously examined and ascertained the' fact of the nonexistence of. the land, or township, and to avoid responsibility they referred to Corlies, and exhibited Corlies’ deed with full covenants and warranty, , -

“ Silence,” in this case, as is said by *Roberts, lc*was treacherously expressive.‡ The non-existence of the township, or land, is not a *'patent*defect. Though the plaintiff might be bound to know the towns of this 'state, which are of record^ yet he is not under the same obligation in regard to towns in other states. - • ,

Can the. assignment of the covenants in Corlies’ deed, destroy the plaintiff’s right of action for the deceit? The.assignment is tantamount to the defendants’ own covenants; and it is settled, that the actionfor a *deceit*is collateral to the action On the covenants in the deed of the vendor. This action is for the damages caused by the deceit; the covenants are for the security of the title. The covenants were broken when they were assigned. The assignment was of a mere *chose in action,*or a lawsuit. - If a covenant is to be a bar to this action, it must be a perfect substitute. The case of *Lynsey*y. *Selby*shows, that this action lies, notwithstanding the covenant, in the deed of the vendor. And in Pitcherv. *Livingston,*Van Ness,' J;, seems, to take it for granted, that the action lies in such cáse. The action for a *deceit*is a distinct and substantive cause of action. One covenant cannot be pleaded in bar of an action on another covenant, for the damages recovered may be different.§

Several other points were raised and discussed by the counsel, but it is unnecessary to state them, as they were not noticed fey the court.

*

 1 Roll Abr. 90. *9 Hen.*V1. *53.b. Cro. Eliz. 44. 1 Fonb. Eq. 366. 1 Ves 96. Nels. Chan. Rep. 118. Seixas v. Wood, 2 Caines' Rep. 58. Spencer, J. Niven v. Belknap, 2 Jhons. Rep. 573.*

†

*Pitcher v. Livingston, 4 Johns. Rep.*1.

‡

*Sugd. Law*of V. 2. 195. 2 Ld. Raym. 1118, 1119. 1 Salk. 210. 3 Term Rep. 51. 56.

*

*Sugd. L. of V.*1—6. 1 *Lev.*102. 2 Caines' Rep. 103. 4 *Johns. Rep,*12, *Co.Litt.*384. *a.*n. 332. *ad finem.*1 *Com*Digo. 230. *Action on the case for a*deceit, (A. 8.) 1 *Sid,*146.

†

**Ld. Raym. 1118.

‡

 Rob.on *Frauds,*130. 2 *Johns. Rep,*589.

§

 2 *vent.*217. BEnnet v. Irwin. 3 Johns. Rep. 36.

*Per Curiam.*

The evidence is sufficient to support the allegation of fraud against both the defendants, and there appears no legal ‘objection to this form of action. Where the party hhs been induced, by such a fraudulent representation, t® *328pay his money, and accept a dééd, it is immaterial whether any, or what, cqvenánts are.contained In the.deed, .The purchaser so, defrauded, has’a right to treat the .deed as: a nullity, and may maintain An- action on the cá.sé for. the deceit. *'.(Frost*v. *Raymond,*2 *Caines'*Rep. *193.*Bostwick *v. Lewis,*1 *Day,*250. *Com. Dig. Action on the Case for Deceit,*(A. 8.)

-judgment’fot the,plaintiff.