#### Monell and Weller *against*Colden.

rE?o ^aSrepreseDtatioQ that a certain privilege is annexed to the land, but which is not included in the deed, he may maintain an action on the case against the vendor.

. Where a person was induced to purchase and give a higher a of land upon a navigable river, by a fraudulent representation, that he would, as proprietor of the land, be entitled to a grant from the commissioners of the land office, of the land covered with water adjacent thereto, and the purchase being completed, the purchaser, on applying for a grant from the commissioners, discovered that the adjacent land under water had previously been granted, and that the title to it was out of the state; it was held that the purchaser might maintain an action on the case for the deceit.

*it*seems, that the measure of damages, in such case, is tbe differencé between, the value of the land conveyed, and the sum which the purchaser wa3 induced to pay by the fraudulent representation.

THIS was an action on'the case for a fraudulent representation in the sale of land. The declaration contained six counts. *396The first count stated that the defendant, on the first of June, 1610, claiming to be seised in fee of a certain lot of land, situate in the village of *Newburgh,*in the county of *Orange,*bounded, &c., (here the boundaries were set forth, one of which is the high-water markon the west side of the Hudson,) containing 146,206 and 1-2 square feet; that, on the same day, a conversation was had between the parties, of and concerning the sale of the said land, by the defendant to the plaintiffs, and of and. concerning the value of the land, and of the rights, privileges, and benefits appurtenant thereto, and of and concerning the amount demanded- -by the defendant for the sale of the land, and of the rights, privileges, and benefits appertaining thereto; and that the defendant, in the said conversation, and in order deceitfully and fraudulently to induce and persuade the plaintiffs to purchase, did falsely and fraudulently affirm, that in case the plain tiffs -became the purchasers of the land, they would, by virtue thereof, become entitled to make an application to the commissioners of the land office for the lands under the- water of *Hudson*river, adjacent to the said land, agreeable to the provisions of the laws of this state ; and the plaintiffs, giving faith to such affirmation, and not knowing, to the contrary thereof, agreed with the defendant to purchase the land, and give him therefor* the sum of 20,500 dollars ; that the defendant, on the same day and year aforesaid, in pursuance of the agreement, and in further prosecution of his said false and fraudulent intent, did fraudulently and wrongfully demand and receive from the plaintiffs the said sum, for the consideration money for the land, and thereupon did, by indenture of bargain and sale, bearing date the day and year aforesaid, executed by the defendant and his wife, grant to the plaintiffs, their heirs and assigns, the said land, together with all and singular the privileges, advantages, hereditaments, and appurtenances whatsoever, unto the said land belonging, or appertaining whereas, in fact, long before the making the agreement between-the parties, to wit, on the 25th of *■June,*1743, all the right and title of the king of *Great*Britain, then supreme lord and proprietor of the land under the water of all navigable rivers in this state, to all the land under the water of *Hudson*river adjacent to the before-mentioned and described premises, had been duly granted by letters patent, under die great seal of the then colony,, unto one *dlexander*Golden, *397and his heirs and assigns, and which the defendant, before, and at the time of making the agreement with the plaintiffs, well knew, whereby the plaintiffs were not entitled to make ápplication for such land under water, and could not obtain the same, and so the plaintiffs say, that by reason, &c., they were deceived, &c., and have lost all the use, benefit, and profit arising from the right and title to the said'land under water, and have sustained great damage. ■ -

' The second count stated that the defendant, on the first'of *June,*1810, was seised in fee of all that certain other lot, &c., and proceeded, in all respects, similar to the first count.

' • The third count stated, that, by the 11 th section of the act; entitled, “ an act concerning the commissioners of the; land office, and the settlements of land,” passed the 24th of *March,*1801, it is enacted, “ That it shall be lawful lor the said com* missioners to grant so much of the lands under" the waters of navigable rivers, as they shall deem necessary, to promote the commerce of this state, provided, always, that no such grant shall be made to any person whatsoever, other than the proprietor, or proprietors, of the adjacent land-; and provided, also; that every applicant for such grant shall, previous to his, or her, application, give notice thereof, by advertisement; to be published in one of the- newspapers printed in this state, for six weeks successively, and shall cause a copy of such advertisement to be put up at the court-house of the county in which the lands lay, so intended to be applied for, and if there be no court-house in the county, then at such place as the commissioners direct;” that, on the 1st of *June,*1810, a certain other conversation was had betwmen the parties, of and concerning a . certain other lot, lying, &c., containing, &c., which lay adjacent to, and was in extent, along the *Hudson*river, (a certain navigable river in this state,) 264 feet; that the defendant, in order to induce the plaintiffs to- purchase the said last-mentioned lot, did affirm, and represent, that the defendant was -the owner of the lot in fee ; and did, also, falsely, fraudulently, and deceitfully, affirm and represent, that whosoever was the owner, in fee, of the tot, would, by an application to the commissioners of the land office, under-the act aforesaid, receive a grant of so much land, under the water of the *Hudson,*as lay adjacent to the said lot, and that he, the defendant, would assist the plaintiffs in pro* *398curing such grant, in case the. plaintiffs became the purchasers of the lot from the defendant; and that the plaintiffs, giving. faith to such affirmation, and not knowing to the'contrary thereof, agreed to purchase, &e., and by an indenture of .bargain and sale, the defendant and his jvife granted, &c., together with all and singular, &e.; whereas, in fact, the commissioners of the-land office could not grant any land, under water, adjacent to: the said lot, the saíne having bee;n long before, to wit, more than twenty years before that time, duly granted.to one *Alexander Golden,*and all the right of the people of the state was vested in the said *Golden,*his heirs and assigns, all which premises the defendant, at the time of making the. false and fraudu-. lent affirmation, well knejv, and the defendant; had no"right or. title from *Golden,*his heirs or assigns, which he well knew, aiid so the plaintiffs say,.&c., concluding as in the first count. ; „ ■;

The fourth count,, after, setting; forth- the act of the legislature, the conversation between the parties, sale arid conveyance, as in the third count, stated, that the plaintiffs, On the l.st.of *Janitary,*1813, at *Albany,*applied to the commissioners of the land5 .pffice for a grant of the land under water, which application was.-refused by the commissioners, they having no right to grant the same, which the: defendant well knew ; and, that the said land; under water, had long before, to, wit, on the ,25 th of *June,*1748, been drily. granted to one *Alexander Golden,*his heirs and assigns, which the defendant well knew; arid that the right and title' to the same was out of the people of the state, and .fiot vested in them,'which the defendant well knew, > And so, &c. ,

’The fifth count stated, that the defendant was seised in fee, of, &c., bounded, &c.; and that, by the eleventh section of an act concerning the commissioners of the land office,'and the settle, ment of lands, passed, &c., it is enacted, &c.; (as in the third count;) that the' *Hudson*river is; a navigable river, and the owner, in fee,- of the said lot, was, by virtue of the said act, entitled, by; an application, to the eommissionei-s of the land office,.and by conforming to the directions of the,act, to a. grant of- the land under water, adjacent to the lot, provided the same had not been before granted by the 'Commissioners,-or by other legal authority, to some former owner of the land adjacent thereto, pr other person; that,'off the 25th of *June,*1743, a .patent wastssued-by the colony of *New-York,*under, the -then existing laws, to *Alexander Golden,*then being proprietor of the *399land above'high water, adjacent thereto, in fee, for a certain space of ground under the water of *Hudson*river, 100 feet into the same, from hiajh-water marie-; the whole length of the lands-, held by *Colden,*in a certain tract in *Ulster*county, beginning. on the north side of *Quassaick*cheek, and extending northerly up *Hudson’s*river, upon a straight line, 219 chains, being part and parcel of the space of ground and soil of *Hudson’s*river, so granted to *Alexander Colden,*and being the land under water adjacent to the lot granted by the defendant to the plaintiffs, by reason whereof the right and title to, the said land under water was vested in *Alexander Colden,*his heirs and assigns, and was out of the people of this state, and could not be grant- • ed by the commissioners of the land Office; that at the time of the grievance hereinafter mentioned, the title to the same was vested in *Cadwallader R. .Colden,*and not in the defendant, or any other person under him; that the piece Of land before described was worth 500 dollars, but in case the land under the water, adjacent thereto, had still been vested in the people of the state, it would have been Worth the sum of 30,000 dollars ; that the plaintiffs, believing that the land Under water had not been granted to any person, but Was still vested in the people of the state, and not knowing to the contrary thereof, and being desirous of purchasing the lot of land, principally with intent to obtain, from the commissioners Of the land office a grant of the land under water adjacent thereto, in order to improve the same by the: erection of docks, stores, houses, and other buildings thereon, afterwards, to wit, on the 1st of *June,*1810, applied to, the defendant to purchase the lot of land from him, and informed him that they intended, in casé they purchased the land, to apply to the commissioners of the land office; for a grant of the land under water adjacent. thereto, with intent to improve the same, by'the erection of docks, stores, houses, and other buildings; and that thereupon a conversation was had between the parties of and concerning the said land under water, the defendant well knowing the object of the plaintiffs in making the purchase; and that the land, exclusive of the right to obtain a grant of the land Under water, was of little value; and that the land under water had been granted to *Alexander Colden,*and did not belong to the people of the state, nor to the defendant, and that the plaintiffs could not obtain a grant thereof; the defendant, in order, fraudulently, to procure *400to'himself the moneys, of. the plaintiffs, .and to 'defraud them pf thé same, and fraudulently to induce, them to purchase; the. lot'of. land for a larger sum than the same5 was.truly worth, and in order to have the plaintiffs to believe., *that*they, by the purchase, would be enabled to obtain a grant of; the land under water,, fn the said conversation did fraudulently .conceal from the plaintiffs the fact that the land under water had been granted to. *Alexander Colden,*and did not. belong to the people of the state, nor to the defendant; whereas, in fact, the said, land under water had,,on the 1st of *June,,*1743,' .beep .duly granted to *Alexander Colden,*and the right thereto was out of .the people of the state, and was not vested in them, nor in the defendant, but in *onc Cadwalilader R. Colden.,*And; So, .«fee. .

.Thé sixth- count, stated, .that the defendant claimed to be seised,, in fee, of a certain lot, situate, &c„ bounded, ¿fee,, and that, in a conversation, &c., (ás. in the first count,) the defendant, 'to induce 'the plaintiffs to purchase the said lot, did affirm and represent, that he was the owner of the lot in fee, and did, - also, fraudulently, affirm and represent, that whosoever was the owner of the, lot, would, by-an application to the commissioners of the land office, receive a grant for so much land under ; the. water of the *Hudson*river, as lay adjacent to the lot, to wit, 264 feet in extent, ahd that he would assist the plaintiffs in procuring such grant,, in case they became the purchasers, of the ipt, and , the plaintiffs giving-faith, &c», agreed to purchase, &c., and the defendant granted, &c., together with all arid singular, 'Sic.; that the plaintiffs, dp the is-t *ol'January;,*1815,.did apply to the com»» missioners of the land office, for a grant of the land under.water,' according to the provisions of the act iri such case made, find the applieatioVwas refused, the- commissioners having tip -right to grant the same, which tiic defendant well knew; that, it had, pro the 1st of-Jnne,-1743,• be.efi duly *granted to Alexander Qol*dm,.his. heirs and assigns, which the defendant well knew ;. that the. right to the same was out of the people of the state, and whs not vested in them, which the defendant well knew ; and, that all the right pf *Alexander'Colden*was vested in *Cadwalla* dor ll. Colden,*and not in the defendant, nor any person under him, which the defendant well knew. - And so; &e.. The plaintiffs’ damages were laid at 30^0.00 dollars. .

- There was la. generaldemurier to the whole declaration, and a joinder: ip deinúrrér¿.''1; , '■ ■"

*401*P. Buggies,*in support of the demurrer,

contended, 3. That 'the false affirmation, and fraudulent concealment, alleged in the plaintiffs’ declaration, related wholly to property which formed no part of the subject matter of the contract set forth, and coujd not, therefore, be a ground of action. There was no averment of want of value, or deficiency in quality of the land sold. If the' land covered with water was an appurtenant, it passed with the land sold ; if not, there was no fraud. '

2. The affirmations charged to be false and fraudulent, were nothing more than a statement of a public act of the legislature, equally known to both parties. •

3. The' transfer of the title from the state was a matter of. public notoriety, and had ever been a matter Of record, and about which there could not be that kind of concealment which, in contemplation ■ of law, amounts to fraud. The vendee must take care.to have a warranty; otherwise, he buys at his peril. , The maxim is, *caveat emptor.****

4. The alleged concealment consisted in an omission merely to inform the plaintiffs, whether the state or an individual owned the land under water, which, in either case, could only be obtained by the plaintiffs, by purchase, if at all; and there is no averment that they could not obtain it from the present owner, with equal ease, and on.as good terms, as from the state, nor is it averred that they have not already obtained it.

5. The declaration affords no rule for estimating the damages, in case the plaintiffs are entitled to recover.

6. The -whole contract, both as to the subject to be conveyed, and the consideration, was reduced to writing and contained in . the deed, which cannot now be varied by any parol evidence,†

*Burr,*contra.

The court must take into consideration all the proof that can be given, in evidence under the averments. A grant, or patent, for land, on recordáis not notice to a purchaser.

Though a false affirmation as to the value of the thing sold, may not afford ground for an action, yet a false .representation of facts, which has led the purchaser to make an erroneous estimate of the value, does furnish foundation for an action by the purchaser. Thus, in case of a false affirmation as tQ the *402rent, which lies within the.knowledge of the vendor, a jjes aga¡nst him for the fraud.* . .

So, a.fraudulent concealment is ground for an action by the party injured; and the'rule is the same, in regard to fraud, in as in equity, †

*

*Sugd. L. of Vend. 195. Cro. James, 196.*

†

*3 Johns. Rep. 506.*

*

**1 *Salk, 211. 2 Ld. Raym 1118. 1 Sid*146.

†

 1 *Vessy,*127. 3 *Atk.*383. 6 *Mod.*34. 3 *Johns. Rep.*71.

Thompson^ Ch, J,,

delivered the‘opinion of the court. The declaration in this case contains six counts, varying in some-' small, and mostly immaterial, circumstances, the plaintiffs5' cause of action. To this declaration there is a general demurrer, which admits the facts therein stated. If, therefore, any of the counts. se!: forth facts sufficient to make out a cause of action, the plaintiffs are entitled to judgment. Without noticing each count separately, it will be sufficient to state, generally, that the facts alleged are, substantially, that, a conversation was had between the parties relative to., the purchase, by the plaintiffs, of the defendant, of a certain piece of land at *New burgh,*adjoining the *Hudson,*river, upon which, conversation, the defendant, *for the purpose of inducing*the plaintiffs to purchase the same, and to enhance the value thereof, fraudulently represented, that he was the owner of land, and, as such,.had, by the laws pf the state, the. privilege gf having a grant or patent for the land- under the water, adjoining to the land so-to bo sold; add that, if the plaintiffs would purchase the land, he would aid and assist them in obtaining a grant for the land under the water. The-declaration states t-hat, upon-such conversation, an agreement for the purchase was made, for the .land, described by metes and bounds, and all the privileges' and-appurtenances to the same belonging. It is t-hemaverred that, many years .before,, á patent for the land under, the water had been granted to one *Alexander C olden,*and was then vested in one *Cadwallader’ R. Coldén,*and was not in the people of this state; or in; the defendant, *and that all this-was well known-to the defendant.*It is also, averred, that the principal inducement with the plaintiffs to purchase the land, was to obtain the water privilege, for the purpose of l erecting-storehouses and’docks, andfhat the value of the land, without this privilege, was very greatly diminished; and that the plaintiffs had, pursuant to the directions of the act for that purpose, made application to the commissioners of the land Office, for a grant of the land under the water, opposite to the *403land so sold, and were refused the same by reason of the previous grant to *Alexander Colden.*

These facts being admitted by the demurrer, aSvtrue, I cannot see why they do not show a good causé of action. They. show a most palpable fraud practised upon the plaintiffs, in the sale of the land, and by which fraud they have been essentially and materially injured. If no representation had been made on the subject, by the defendant, both parties would have been equally chargeable with a knowledge of the law, and the publie -records of the state. But, according to the declaration, the defendant, knowingly and falsely, misrepresented the fact, with respect to the-situation of the land under the water, and, if so, he is chargeable with all the damages resulting from such false representation. That a deed hasbéen given, cannot affect the plaintiffs’claim for the fraud. The false representation was not respecting any thing to be included in the deed, but with respect to a privilege which the plaintiffs were to acquire, in consequence of owning the land on the shore adjoining the river. The law, which is a public statute, prohibits the granting a patent for land under the water, except to the owner of the land on the shore adjoining thereto. And it is a fact of public notoriety, that .such grants are made almost as matter of course, and without any consideration, except- the mere patent fees. One count in the declaration contains an averment that the land, without this privilege, would not be worth more than 500 dollars, but that, with'the privilege, it would be worth 30,000. The declaration gives a rule of damages as certain as any declaration in such case, founded upon fraud, can give.. It states the facts, and the damages arising therefrom are matter of inquiry upon the trial. What is the value of the privilege of which the plaintiffs are deprived, may be matter of uncertainty; but the value of the land sold, independent of this privilege, may be easily ascertained, and the difference between that, and the price paid, ought, at all events, to be refunded. But the extent of the damages, or the rule by which they are to be ascertained, are not now subjects of inquiry. If the action can be sustained under such a state of facts, that is sufficient for the present; and, in my judgment, it can be maintained. The facts, as stated, clearly show, that by the false and fraudulent misrepresentations of the defendant, the plaintiffs haye been deceived, and materially *404injured. *(6 Johns. Rep.*182. *13 Johns. Rep.*226. 4 *Taunt.*786.) I am; accordingly,, óf opinion, that thó plaintiffs aré entitled' to judgment.. -< ’ ~. *" r*..... • .*

'Judgment forffhé plaintiffs»,.'.