
    [Philadelphia, February 17, 1838.]
    LEE against DEAN.
    IN ERROR.
    1. Although the acceptance of a deed in pursuance of articles of agreement is prima facie and generally an extinguishment of the agreement, yet if the vendor fraudulently induce the vendee to accept a deed by making him believe that the whole of the land contracted for is included in the deed, the agreement is not merged, and the vendee may maintain an action upon it.
    2. And such action may be maintained, although the vendee has paid the full amount of the consideration money to the vendor.
    
      8. The vendee in such ease may maintain an action of assumpsit for the non-performance of the contract, and is not obliged to bring an action for deceit: nor would an action of covenant be proper.
    4. In an action on an agreement to convey land, where the plaintiff had paid the consideration money, and the defendant had fraudulently omitted in the deed of conveyance part of the land contracted for, it was held not to be error, that the judge told the jury, that though, as a general rule, the value of the property was the measure of damages, yet they were not imperatively restricted to that standard, but might include in their verdict the necessary expenses of the plaintiff, if they deemed it prudent and reasonable to do so.
    On a writ of error to the District Court for the City and County of Philadelphia, the case was as follows:
    John Dean brought an action on the case, in that Court against William Lee, and filed the following declaration. '
    “ William Lee, late of the county aforesaid, yeoman, was attached *to answer John Dean of a plea of trespass on the case, &c., and thereupon the said John, by George A. Graham, his attorney, complains, that whereas, heretofore, to wit, on the twenty-eighth day of February, in the year of our Lord one thousand eight hundred and twenty-eight, at the county aforesaid, in consideration of one thousand dollars, to be paid as is hereinafter mentioned to the said William by the said John, he the said William did promise and agree to sell and convey to the said John a certain tract of land situate on Timber Creek, in the state of New Jersey, supposed to contain seventy-two acres, more or less, clear of all incumbrances, being the same tract which he the said William had purchased from a certain Mr. Priestman; and the said John agreed to pay for the same to the said William the aforesaid price or sum of one thousand dollars, as follows, to wit: five hundred dollars payable on the first day of April, one thousand eight hundred and thirty, and five hundred dollars payable on the first day of April, one thousand eight hundred and thirty-one, with interest; the said payments to be secured by a bond and mortgage, to be given by the said John on his homestead place to the said William; and the said John in fact saith, that he hath well and truly performed all and singular the promises and agreements on his part to be fulfilled and performed, and did execute and deliver to the said William the bond and mortgage for the security of the said purchase money or sum of one thousand dollars, payable at the times and in the manner aforesaid, and has in all respects complied with his agreement as aforesaid, yet the said William, his promises and undertakings in form aforesaid made not regarding, did not nor would on the day and year aforesaid, at the county aforesaid, nor at any other time, sell and convey to the said John the said tract of land, although then • and there and often afterwards required so to do, but to sell and convey a large part of tbe said tract, to wit, one acre and one hundred and four perches or thereabouts, wholly neglected and refused, and still doth neglect and refuse.
    And whereas, also, afterwards, to wit, on the twenty-eighth day of February aforesaid, at the county aforesaid, the said William, in consideration that the said John did promise and agree to pay to the said William the further sum of one thousand dollars, in two payments, to wit, five hundred dollars on the first day of April, A. D. one thousand eight hundred and thirty, and five hundred dollars on the first day of April one thousand eight hundred and thirty-one, with interest, and to execute and deliver to the said William a bond and mortgage on the homestead place of him the said John, to secure the payment of the said last mentioned sum of one thousand dollars in manner and form aforesaid, he the said William did then and there promise and agree to and with the said John, to sell and convey to the said John, a certain other tract of land situate on Timber Creek, in s*a^e of New Jersey, supposed to contain *seventy-two acres, more or less, with a clear title, being the same tract of land which he the said William had purchased from a certain Mr. Priestman. And the said John in fact saith, that all and singular the promises and agreements last mentioned on his part to be observed, he the said John hath performed and kept; and although the said William afterwards, to wit, on the twenty-second day of March, A. D. one thousand eight hundred and twenty-eight, did sell and convey to the said John a part of the said tract of land, to wit, seventy-one acres, more or less thereof, yet the said William his promises and undertakings in form aforesaid made not regarding, another part of the said tract of land, to wit, one acre and one hundred and four perches thereof or thereabouts, did not nor would on the day and year aforesaid, at the county aforesaid, nor at any other time, sell and convey to the said John, although then and there, and often afterwards, required so to do, but to sell and convey to the said John the said last mentioned one acre and one hundred and four perches or thereabouts, of the said tract of land, hath wholly neglected and refused, and still doth neglect and refuse.
    And whereas, also, afterwards, to wit, on the twenty-eight day of February aforesaid, at the county aforesaid, in consideration that the said John undertook, and then and there promised the said William to pay him the further sum of one thousand dollars, in two payments, to wit, five hundred dollars on the first day of April, A. D. one thousand eight hundred and thirty, and five hundred dollars on the first day of April, A. D. one thousand eight hundred and thirty-one, with interest, he the said William then and there undertook and faithfully promised the said John to sell and convey to him the said John, when he the said William should be thereunto afterwards required, a certain other tract of land situate on Timber Creek in the state of New Jersey, supposed to contain seventy-two acres more or less, with a clear title, being the same tract of land which he the said William had purchased from a certain Mr. Priestman. And the said John in fact saith that he hath well and truly performed his said last. mentioned promises and undertakings, and hath well and truly paid to the. said William the said last mentioned sum of one thousand dollars, with interest, in manner and form aforesaid; and although the said William afterwards, to wit, on the twenty-second day of March, A. D. one thousand eight hundred and twenty-eight, did sell and convey to the said John a part of the said last mentioned tract of land, to wit, seventy-one acres thereof more or less, yet the said William his last mentioned promises and undertakings in form aforesaid made not regarding, another part of the said tract of land, to wit, one acre and one hundred and four perches thereof or thereabout, did not nor would, on the day and year last aforesaid, at the county aforesaid, nor at any other time, sell and convey to the said John, although then and there, and often afterwards required so to do, but to sell and convey to the said John the said last mentioned *one acre and one hundred and four perches or thereabouts of the said tract of land, he, the said William, hath Avholly neglected and refused, and still doth neglect. and refuse.
    And whereas also the said William afterwards, to wit, on the day and year last aforesaid, at the county aforesaid, was indebted to the said John in the sum of five hundred dollars lawful money of the United States of America, for so much money by the said William before that time had and received to and for the use of the said John. And being "so indebted, the said William, in consideration thereof afterwards, to wit, on the same day and year last aforesaid, at the county aforesaid, undertook and faithfully promised the said John to pay him the said last mentioned sum of money, when he, the said William should be thereunto afterwards requested. Nevertheless, the said William, his said last mentioned promise and undertakings not regarding, hath not as yet paid the said last mentioned sum of money, or any part thereof to the said. John, although often requested so to do, but to pay the same hath wholly neglected and refused, and still doth neglect and refuse, to the damage of the said John five hundred dollars, and therefore he brings his suit.”
    The defendant pleaded non assumpsit and payment with leave, &c.; and on these issues the ease came on for trial on the 10th of May, 1837, before Pettit, President, when the facts appeared to be as follows :
    An agreement was made between the plaintiff and defendant in writing, dated the 28th day of February, 1828, as follows :
    “It is agreed as follows, between John Dean, of New Jersey, and William Lee, of Philadelphia, whereas the said William Lee purchased from Mr. Priestman, last summer, a small tract of land on Timber Creek, state of New Jersey, which he hereby sells and disposes of to the said John Dean, for the sum of one thousand dollars, payable as follows: Five hundred dollars payable on the first day of April, 1830, and five hundred dollars payable on the first day of April, 1831, secured by a bond and mortgage' on his homestead place, where he now lives. The land is supposed to contain seventy-two acres, more or less, but one of the lines is not yet closed. But the title is clear. There is an old saw-mill and house with the irons, &c. Interest is to be paid on the purchase money till paid.
    William Lee.
    John Dean.”
    By indenture of bargain and sale, dated the 7th of March, 1828, William Priestman conveyed to William Lee, the defendant, in fee, in consideration of $550, a certain messuage and tract of land ^situate on Great Timber Creek, in the township of Deptford, in the county of Gloucester and state of New Jersey, by metes and bounds particularly set forth, “ containing about seventy-one acres, more or less,” with a sawmill, &c., thereon erected.
    By another indenture of bargain and sale of the same date, Priestman conveyed to Lee in fee, in consideration of $100 a certain lot or piece of ground situate on Great Timber,Creek in Deptford township in the county of Gloucester and state of New Jersey, “being a corner of a plantation with the messuage and saw-mill thereon erected, which the said William Priestman, by indenture dated the 7th day of March, 1828, and intended to be recorded, granted and conveyed unto the said William Lee:” then describing it by metes and bounds, “ containing one acre and one hundred and four perches, or thereabouts, being a part surveyed off from the above mentioned saAV-mill tract or plantation, which — Doughty Esq., high sheriff of the said county of Gloucester, by deed poll, dated the 17th day of September, A. D. 1825, recorded, &c., granted and conveyed to the said William Priestman in fee.”
    On the 22d of March, 1828, William Lee, with Elizabeth his wife, in consideration of $1000, conveyed to John Dean in fee the messuage and tract of land by the same metes and bounds as described and conveyed in the first above mentioned of the two conveyances from Priestman to Lee, containing “ about seventy-one acres more or less.” On the same day, Dean executed two bonds to Lee, each bearing the same date, and in the penal sum of $1000, with conditions for the payment of $1000, with interest, one on the 1st of April, 1830, and the other on the 1st of April, 1831; and for securing payment of these bonds, he executed a mortgage to Lee, of the same date, upon the real estate. Both bonds appear to have been paid.
    On the trial, the plaintiff gave in evidence the agreement between the parties; and the several deeds from Priestman to Lee, and Lee to Dean, and the following deposition.
    “John Conard, Esq., late of the city of Philadelphia, being by me duly affirmed, on his solemn affirmation doth say as follows, to wit:
    I am acquainted with plaintiff and- defendant in the above cause named. I have frequently seen the defendant write, and am acquainted with his handwriting. This agreement marked A., hereto annexed, is in the handwriting of the defendant; also, the signature William Lee, thereto subscribed.
    This deed, William Priestman, marked B., to William Lee, the defendant, dated the 7th day of March, 1828, is in my handwriting, I believe it was the defendant who employed me to write the said *deed, to the best of my recollection. I wrote another deed at the same time, between the same parties. I believe this deed purported to convey part of the same property as the first deed: not exactly the same property, but part of the same tract of land. The last deed conveyed a small lot of one or two acres. I presume I wrote it at Mr. Lee’s direction. I never saw Mr. Dean, the plaintiff, about it, at any time. I saw this deed marked C., from Enoch Doughty, Esq., sheriff, to William Priestman, dated the 17th September, 1825, and took the description of property contained in the other deeds from it, to the best of my belief. I think I took the description of the property contained in the first deed, marked B., from the sheriff’s deed; and I think I took the description of the other deed, which I drew at the same time, also from the sheriff’s deed. ■I either took it from the sheriff’s deed, or from a survey which I made. I cannot state when I made the survey of the one or two acres. Mr. Lee, the defendant, directed me to make the survey, and he was with me when I made it. The survey was made shortly before the deeds were written by me. It is my impression it was after the agreement between the plaintiff and defendant, marked A. It was a lot of a few perches in breadth, fronting on Timber Creek, and on a public road that was surveyed off. Mr. Dean was not present when we made the survey. It was a handsome lot, suitable for building. There is a little village starting up in the neighbourhood. The plaintiff knew nothing about the lot being surveyed off, to my knowledge.”
    The defendant then gave in evidence the two bonds and mortgages given by the plaintiff to him, and proved that the amount of the mortgage had been paid by the grantee óf the mortgaged premises; and also the record of the Court of Common Pleas of an action brought by the same plaintiff against the same defendant before a magistrate, to recover the sum of $50 damages for breach of contract in.not conveying the same one acre and one hundred and four perches of land; in which action judgment was given for the plaintiff, and an appeal taken to the Common Pleas, where also judgment was given for the plaintiff.
    
    The defendant’s counsel then requested the Court to charge the jury,
    “1st. That the parol agreement of February 28th, 1828, was merged and extinguished by the deed of the defendant to the plaintiff, of March 22d, 1828.
    2nd. That the plaintiff had waived any claim on the defendant *in this form of action by a voluntary payment of the consideration money, as stated in this declaration.
    3d. That the plaintiff cannot recover the claim as laid in his declaration in his present form of action.
    4. That the plaintiff cannot recover, because the matter complained of would have been discovered by him before he concluded the bargain, but for gross carelessness, negligence, or inattention.
    5. That assumpsit will not lie to recover back money paid for land, if conveyed by deed and warranty, the remedy being upon the warranty.”
    Upon all which points the judge charged the jury, that there was nothing in them to prevent the plaintiff, in strict law, from sustaining this suit; and that the plaintiff could recover in this form of action. He also told the jury, that if they found for the plaintiff, they would decide on the value of the property and give a verdict accordingly; and in reply to a question of a juror, he added, that though, as a general rule, the value of the property was the measure of damages, yet the jury were not imperatively restricted to that standard, but might include in their verdict the necessary expenses of the plaintiff, if they deemed it prudent and reasonable to do so.
    The jury found for the plaintiff, with $500 damages, and the defendant took a writ of error, and filed the following specifications of error.
    “ The Court erred in charging the jury, that there was nothing in the points upon which the defendant below requested the charge and opinion of the said Court, to prevent the plaintiff below in strict law from sustaining this suit, to wit:
    1. That the parol agreement of February 28th, 1828, was not merged and extinguished by the deed of the defendant to the plaintiff, of March 22d, 1828.
    2. That the plaintiff has not waived any claim on the defendant in this form of action, by a voluntary payment of the consideration money, as stated in his declaration.
    3. That the plaintiff could recover the claim as laid in his declaration, in his present form of action.
    4. That the plaintiff could recover, although the matter complained of might have been discovered by him before he con- - eluded the bargain, but for gross negligence, carelessness, or inattention.
    *5. That assumpsit would lie to recover back money paid for land, if conveyed by deed with warranty, and that the remedy was not upon the warranty.
    6. That the jury might include in their verdict the necessary expenses of the plaintiff, if they deemed it reasonable to do so.”
    Mr. F. F. Brewster, for the plaintiff in error contended.
    1st. That the agreement for the sale and purchase of the property was merged in the deed; for which he cited Hammond v. Pope, (Hob. 79); 1 Dane’s Abr. 234; 5 Viner’s Abr. 516; Vandervoort v. Smith, (2 Caines Rep. 155).
    . 2nd. That Dean having paid voluntarily, and Lee having received the purchase money in good faith, no action could be maintained to recover it back. Goodright v. Davis, (Cowper, 803); Birch v. Wright, (1 Term Rep. 386); Goodtitle v. Morse, (3 Term Rep. 370); 5 Dane’s Abr. 116.
    3rd. That the action was misconceived. If the plaintiff had any remedy, it was by a special action on the case for a deceit. Oliver’s Precedents, 485; Wilson v. Marsh, (1 Johns. Rep. .503).
    4th. That there was gross negligence on the part of the plaintiff, who had all the deeds before him, and might have procured a survey of the property. The law in such case is, that the vendee has no cause of action. Stackpoole v. Arnold, (11 Mass. Rep. 27); Oliver’s Precedents. 334; Lesning v. Selden, (2 Ld. Raym. 1019).
    5th. That assumpsit will not lie to recover back money paid for land, if conveyed by deed with warranty. 1 Dane’s Abr. 188.
    
      6th. That there was manifest error in that part of the charge which related to the damages. The amount given by the jury was excessive, and the plaintiff, aware that it could not be sustained, remitted $100 of it. The rule is that the damages are to be measured by the value of the land at the time of the sale or conveyance. Here the plaintiff claimed only $50 before the justice of the peace, and it was proved on the trial that the property was not worth that sum. Besides, the defendant made a written offer at the trial to convey the omitted land, and to pay the costs of the suit. The jury ought to have been told, that they could not give vindictive or exemplary damages. Laws on Assumpsit, 283; 1 Harrison’s Dig. 429 ; 1 Dane’s Abr. 546; Baker v. Beach, (2 Ld. Raym. 1382); Eichelberger v. Barnitz, (1 Yeates, 307); M'Dowell v. Cooper, (14 Serg. & Rawle, 296); Smith v. Evans, (6 Binn. 102.)
    Mr. Graham, for the defendant in error, was told by the Court to confine himself to the last error.
    This was a case of gross fraud, and therefore different from the cases cited on the other side. The jury had a right to give exemplary and compensatory damages. "Where there is no unfairness *on the part of the vendor, the value of the things sold with the interest, is the usual measure of damages. But where there has been an attempt at fraud, there is no other standard than the whole amount of damage sustained. 2 Rolle’s Abr. “ Trial,” pi. 9; Bussy v. Donaldson, (4 Dall. 207, 8); Bender v. Fromberger, (4 Dall. 444-6); King v. Pyle, (8 Serg. & Rawle, 166); Pitcher v. Livingston, (4 Johns. Rep. 12); Dennis v. Barber (6 Serg. & Rawle, 426); Fulweiler v. Baugher, (15 Serg. & Rawle, 45); Harger v. M'Mains, (4 Watts, 418). The whole difficulty here arises from the word “ expenses,” which may mean damages. The plaintiff was certainly entitled to the expenses of investigating the title, and making the necessary searches, &c. Hopkins v. Gazebank, (6 Barnw. & Cressw. 31; 13 Eng. Com. Law Reps. 100); Laws on Assumpsit, 283, 4. It is true that special damage was not laid in the declaration, but evidence was given of such damage, which was not objected to. Even if the expression of the judge was inaccurate, yet if it appears on the whole that substantial justice has been done, the Court will not reverse. Johnston v. Breckbill, (1 Penn. Rep. 364); Allen v. Rostain, (11 Serg. & Rawle, 373); Fulweiler v. Baugher, (15 Serg. & Rawle, 56); Douglass v. M‘Allister, (3 Cranch, 298); Lewis v. Baker, (5 Rawle, 114); Galbraith v. Blake, (4 Serg. & Rawle, 211).
    
      
      
         This judgment was reversed, on a writ of error in the Supreme Court, on the ground that the justice had no jurisdiction of an action on a contract for the sale of real estate. See 3 Rawle, 325, (Lee v. Dean.)
      
    
   The opinion of the Court was delivered by

Kennedy, J.

This is an action of assumpsit: the declaration contains four counts : the first three are special, setting forth a special agreement between the parties, alleging an observance and fulfilment thereof by the plaintiff, and a breach of the same on the part of the defendant: the fourth count is in indebitatus assumpsit for money had and received.

The counsel of the defendant below, the plaintiff in error here, submitted five points to the judge of the District Court, upon which the latter was requested to instruct the jury in favour of the defendant. His Honour, however, charged the jury, that there was nothing in the points submitted, to prevent the plaintiff from sustaining the present form of action; and that he might recover in it. His Honour also advised the jury, that if they found for the plaintiff, they ought to give the value of the property which the defendant had failed or refused to convey to the -plaintiff, and in addition thereto might include in their verdict the necessary expenses of the latter, if they should think it reasonable to do so.

The errors assigned are, first, that the judge erred in instructing the jury as he did, on the defendant’s five points. And, second, that the judge erred in directing the jury, that if they should find a verdict for the plaintiff, they might if they should think it reasonable, add the necessary expenses of the plaintiff to the value of the property *which the defendant had refused to to his

The counsel, for the plaintiff in error, by his first point, requested the judge of the Court below to charge the jury, “ that the parol agreement of the 28th of February, 1828, was merged and extinguished by the deed of conveyance from the defendant to the plaintiff, of the 22d of March, 1828.” Although the acceptance of a deed in pursuance of articles of agreement may be deemed prima facie an execution of the contract, and an extinguishment of it, so that no action can be maintained for a breach of any of the covenants or promises therein contained, Houghtaling v. Lewis, (10 Johns. 297); Steitzinger v. Weaver, (1 Rawle, 377); Haggerty v. Fagen, (2 Penn. Rep. 533), yet it would, as it appears here, have been clearly wrong to have charged the jury as requested: for evidence had been given to the jury, tending to repel the presumption arising from the execution and acceptance of the deed, going, in short, to show, that the defendant below had fraudulently induced the plaintiff there to accept of the deed, by making him believe that it conveyed all the land embraced by the agreement of the 28th of February, when in fact one acre one hundred and four perches of it had been purposely struck off and left out by the defendant. The evidence, too, tended strongly to prove that it was done with a fraudulent design on the part of the defendant below, from the manner in which it was effected: because it is perfectly manifest, from the terms of the agreement of the 28th of February, 1828, that he agreed to sell and convey to the plaintiff below, all the land which he had previously purchased of Mr. Priestman, supposed to contain seventy-two acres, one line of which had not then been closed; and for which, as appears from other evidence given on the' trial, the defendant below had not then obtained a deed of conveyance from Priestman. The agreement describes it as “a small tract of land on Timber Creek, and purchased from Mr. Priestman, supposed to contain seventy-two acres more or less, but one of the lines is not yet closedthus showing that it was not a part, but the whole of the tract purchased of Priestman, that was to be conveyed by the defendant below to the plaintiff. The mention that is made of one of the lines of the tract not being then closed, has a reference, as it must be understood, to the contract between the defendant below and Priestman, and not to any understanding between the parties here, further than that, whatever should ultimately be fixed on as the boundary of the purchase from Priestman, should govern between them. The suggestion, therefore, of the counsel for the plaintiff in error, that the mention of one of the lines of the tract not being closed, goes to show that the agreement between the parties only embraced a part of the land purchased by the defendant below from Priestman, is entitled to no weight, and has no such tendency whatever. The circumstance, then, of the defendant below going, a^er *he agree(l t° sell to the plaintiff the land which he of Priestman, without the or knowledge of the plaintiff, and getting the land divided by an artist into two parcels, one containing about seventy-one acres, and the other, the one acre and one hundred and four perches here in dispute ; and then procuring Priestman to make him a separate deed of conveyance for each parcel, so that he might exhibit, as it would seem he did, the deed of conveyance for the larger part to Dean, the plaintiff below, as evidence of Ms whole purchase from Priestman; concealing from Dean the fact of his having got one acre one hundred and four perches cut off from the tract which he had purchased of Priestman, and his having obtained a separate deed of conveyance for it. This, as it appears from the evidence, the defendant did; and no doubt, it was sufficient to satisfy the jury, that it was done for the purpose of deceiving the plaintiff below, and making him believe, as doubtless he did, that when he accepted of the deed of conveyance made to himself, from the defendant below, accompanied by a deed of conveyance also from Priestman to the defendant for precisely the same land,' he was getting a deed of conveyance for all the tract purchased by the defendant of Priestman; and under this impression the plaintiff below received the deed to himself, believing that the defendant, in making it, had fulfilled his agreement of the 28th of February, 1828. If it be, then, that the defendant below thus unfairly induced the plaintiff to accept of the deed of conveyance made to him for part only of the land, leaving out the one acre one hundred and four perches of it, under a full conviction that it embraced the whole tract purchased of Priestman, it was not such an acceptance of the deed, as was binding upon the plaintiff below, and would amount to a perfect execution of the previous agreement of the 28th of February; nor yet to such a fulfilment of it by the defendant, as would preclude the plaintiff from maintaining his action of assumpsit against the defendant for the nonperformance of it. Even a written discharge, drawn up with all the formality imaginable, fraudulently obtained, would not have availed. It would be regarded as a nullity; for no one shall be permitted to gain any advantage, especially by his own fraud, and seldom, perhaps, if ever, even by the fraud of another.

By the second point, the judge below was requested to instruct the jury “ That the plaintiff had waived any claim on the defendant in this form of action, by a voluntary payment of the consideration money as stated in the declaration.” It would have been erroneous in the judge to have done so; because it was proper, and indeed requisite, before the plaintiff below could demand of the defendant a performance of his part of the agreement, and sustain an action of assumpsit, such as the present, against him for a breach of it, that he should have performed his part of the agreement, by having given his bonds and mortgage, securing the of the in the manner therein mentioned, or at least by *having tendered them to the defendant. This to enable the to maintain the present action, it was therefore altogether proper that he should aver it in his declaration. But why the payment of the consideration-money for the land agreed to be sold, as set forth in the declaration, is called voluntary by the counsel for the plaintiff in error, I do not very well comprehend; because the plaintiff below having given his bonds for it, in pursuance of his agreement made with the defendant, was under a legal obligation at least to pay it. If, however, it te meant, that he might have set up as a defence against the payment of the purchase-money, the non-fulfilment of the agreement of the 28th of February, by the defendant below, but not having done so, he is now precluded from either claiming a performance thereof specifically or damages as a remuneration for the loss arising from the non-performance, it is a proposition so contrary to all reason as well as justice, that it cannot be sustained for a moment. Can it be pretended, that if the plaintiff below had given his bonds and mortgage, in conformity to the agreement, securing the payment of the purchase-money, and paid them off as they fell due, without having obtained a deed of conveyance from the defendant for any portion of the land, the defendant would not still be bound by his agreement to make the deed, and if he refused, be liable to be sued thereon for a breach of it ? It is scarcely possible for any one to doubt of his liability in such case ; and yet if the deed of conveyance made in this case was fraudulently imposed upon the plaintiff below as a deed of conveyance for all the land purchased by the defendant of Priest-man, when in truth it is only for a part, it is in principle not merely the same, but a much stronger case against the defendant, by reason of the fraud practised by him, which precludes the implication of any agreement in his favour that otherwise possibly might have arisen from the acceptance of the deed, and renders the acceptance of it of no avail to him whatever, in respect to the land excluded from it, which is embraced in the original agreement. It cannot be doubted, but a fraudulent performance by the defendant below, as against him, may be treated as a nullity, excepting so far as it is available and advantageous to the plaintiff.

By the third point, the judge below was requested to charge the jury That the plaintiff could not recover the claim laid in his declaration, in this form of action.” In support of this, it has been contended, that if the plaintiff be entitled to recover in any wise from the defendant below, it must either be in case for a deceit, or otherwise by action of covenant upon the deed made by the defendant. There is, however, not the slightest ground for this argument. Because the claim of the plaintiff is not for or on account of any objection that he has to the land, or the title received for it, that is actually embraced within the deed of conveyance made by the *defendant, but for other land that ought to have been included in it, which was fraudulently excluded by him; and therefore, it is utterly impossible, that the deed can furnish any security or ground of action for redress to the plaintiff, that would enable him to recover the claim made here. And although the land for which the plaintiff below has recovered damages in this action, was excluded from the deed of conveyance by the fraud of the defendant, yet it is inconceivable how that would impose any necessity on the plaintiff of resorting to an action on the case, in the nature of deceit for redress; seeing it has been shown already, that the very circumstance of the deed’s having been imposed

fraudulently upon him by the defendant below, left the plaintiff at full liberty to treat it as no performance whatever of the original agreement, for that portion, at least, of the land in contest, and left out of the deed of conveyance. To determine otherwise, would be to permit the defendant to take advantage of his own fraud, and to give to it the .effect of extinguishing the original agreement, which nothing short of a new agreement being subsequently made between the parties, or an honest execution of the original one could produce.

The judge, by the fourth point, was requested to direct the jury, That the plaintiff could not recover, because the matter complained of would have been discovered by him before he concluded the bargain but for gross carelessness, negligence, or inattention.” The judge, we think, was perfectly right in refusing to give this direction. Without admitting, in the slightest degree, that the party in such case, where a fraud has been practised upon him, would forfeit his right to redress for such carelessness or negligence as is mentioned on this point, even if it existed, I can see no reason or evidence in the ease, which induces me to believe that it did exist, or that there is the least ground for saying so. On the contrary, it appeare to me that the device or contrivance resorted to by the defendant below, of getting the land divided, without the knowledge of the plaintiff, into two distinct parcels, then obtaining a separate deed for each parcel from Mr. Priestman, and conveying the larger parcel alone to the plaintiff as the whole of the tract purchased by the defendant of Priestman, and delivering to the plaintiff, at the same time, as evidence of the truth of that fact, the corresponding deed from Priestman to himself, is such as but few of the most wary and cunning rogues would have been likely to have detected at the time; aud much less certainly, would an honest and unsuspecting mind have been likely to have done so. I cannot avoid thinking it an artifice, supposing it to'have been one, that was most admirably calculated to deceive, and such almost as no honest man would ever have thought of, or even suspected; but still I do not wish to be understood, as saying that it might not have been conceived for an honest purpose; from the circumstances, however connected with it, by the evidence in this case, I think it rested with the defendant *below to have satisfied the jury that it was so; but it would seem from their verdict that-he failed to do that.

By the fifth point, the judge was requested to instruct the jury “ That assumpsit would not lie to recover back money paid for land, if conveyed by deed and warranty, the remedy being upon the warranty.” It is perfectly manifest that this point does not arise in the cause, and therefore, has no application to, or bearing upon it whatever. Eor so far as this action can be said, under any point of view, to be brought to recover back money for land, it is certainly not for land that has been conveyed by deed from the defendant to the plaintiff below, but for land which the former ought to have conveyed by his deed to the latter, in compliance with his engagement, but has refused. There is, therefore, no ground for saying, that the original agreement between the parties, is merged by the deed, as to the land in question, and that this action for a breach of that agreement cannot be sustained; or that the plaintiff, on account of the fraud practised by the defendant, should not be at liberty to' consider the original agreement annulled thereby as to the land in question, and therefore, recover back the money for it on the count for money had and received.

The remaining error, is to the charge of the judge, in advising the jury That they might include in their verdict the necessary expenses of the plaintiff, if they deemed it reasonable to do so.” If any doubt existed in the mind of the counsel for the defendant below, in regard to the nature of the expenses actually embraced, or intended to be embraced, within the terms “ necessary expenses,” at the time his Honor used them, in his advice to the jury, an explanation might have been required; and doubtless it would have .been given, so as to remove the ambiguity if there be any, which is made part of the complaint now. But as this was not done, we may fairly take it, that the ordinary expenses attending the investigation of-the title, in order to ascertain whether it was good or not and free from all such incumbrances as might in any way or event affect it, were all that were intended or understood to be included. The amount of such expenses a defendant ought to pay, even in a case where he has acted honestly; believing, for instance, at the time, that he had a good title to the land which he agreed to sell and convey to the plaintiff, but happened to be mistaken in regard to it, and discovered afterwards, that he could not do so. This seems to be reasonable, because it must be admitted that he has been the cause of the loss occurring to the plaintiff, from the expenses incurred in the investigation of the title; and as' between two innocent persons generally, where one occasions a loss or injury to the other, it ought to fall upon him who has been the occasion of it.

The decisions for the most part, on this point, I believe, have been made in conformity to this principle. See Flureau v. Thornhill, (2 *Bl. Rep. 1078); Richards v. Barton, (1 Esp. Ca. 288); Sugden on Vend. 222, (7th Lond. ed.); Bratt v. Bilis, and Jones v. Dyke, in the Appendix thereto, Nos. 7 and 8. In the last case here referred to, the expenses allowed, amounting to nearly £261, consisted of the following items:

Costs of the plaintiff’s solicitor ¿£47 19 04
Costs of trustees in about 30 00 00
Journeys to London and Llandilo, about twenty days horse hire and travelling expenses 21 00 00
Journey to London 15 15 00
¿£260 19 04

In the case, however, before us, the defendant below having it in his power to make a title for the land to the plaintiff, aecording'to his agreement, fraudulently refused, as would appear from the finding of the jury, and therefore has not even the shadow of either equity or law, to be exempt from paying the necessary expenses, to which the plaintiff was subjected on account of the confidence induced by the defendant’s engagement. In such case, when the contract is fairly made, it is nothing more thani just that the plaintiff, when he has paid all the purchase-money, as here, should recover in damages, the highest value of the property, without regard to the price paid for it; for had the defendant fulfilled his engagement, as he was bound to do, the plaintiff would have been the owner of the land, but through the fraudulent ’ refusal of the defendant to do so, the plaintiff may very properly be said to have been deprived of it; and therefore, can only be made whole, when he seeks to be redressed in an action for damages, by the jury’s giving an amount equal to the full value of the land, according to the highest estimate put on by the evidence, without regard to the amount of the price paid for it. This would seem to be' the principle, too, upon which courts entertain bills for, and decree thereon a specific performance of such contracts; so that the vendee by obtaining the estate itself, may be made perfectly sure of getting the full value and benefit of his bargain. And accordingly in this state, for want of a court of equity to enforce a specific performance, a jury, in an action brought at law in affirmance of the contract, will give damages to the plaintiff, equal fully in amount to the fancied value of the estate, and the expenses necessarily incurred by the plaintiff in consequence of his purchase, with the offer of an alternative to *the defendant, that he shall be released from the payment of the amount of damages so given, excepting so much thereof as shall be mentioned in the verdict, to cover the expenses of the plaintiff, upon the defendant’s making a title to the plaintiff for the estate, within a limited time, besides paying the costs of the action, and’ that portion of the damages allowed to cover the expenses. So at law in England in Brig’s case, (Pasch. T. 21 Jac. 1; Palm. Rep. 364,) it was ruled by the King’s Bench, that a purchaser was entitled to recover damages from the seller for the loss of Ms bargain, when the seller having it in his power, refused to comply with his agreement. In Flureau v. Thornhill, (2 Bl. Rep. 1078,) the same principle is implicitly recognized by Be Grey, Chief Justice, who in delivering his opinion, says, “Upon a contract for a purchase, if the title proves bad, and the vendor without fraud is incapable of making a good one, I do not think that the purchaser can be entitled to any damages for the fancied goodness of the bargain, which he supposes he has lost.” Thus indicating most clearly, if the vendor has either wilfully refused, or fraudulently rendered himself incapable of making a good title when he was capable of doing so, according to the tenor of his contract, that the purchaser would be entitled to recover damages for the fancied goodness of the bargain, which he lost by the knavery of the vendor. And in Hopkins v. Grazebrook, (6 Barn. & Cress. 31; s. c. 13 Eng. Com. Law Rep. 100,) where a person who had contracted for the purchase of an estate, but had not obtained a conveyance, put up the estate for sale in lots by auction, and engaged to make a good title by a certain day, which he was unable to do, as his vendor never made a conveyance to him ; it was held that the purchaser of certain lots at the auction, might, in an action for not making a good title, not only recover the expenses which he had incurred, but also damages for the loss which he sustained by not having the contract carried into effect. This Court seemed to think the defendant was justly liable to pay, because he knew when he offered the lots for sale and bound himself to make a good title, that he had no title whatever ; and therefore wilfully misled the plaintiff; and hence he ought to be hold responsible to the plaintiff for the loss sustained in not obtaining what the latter contracted for.

It has also been contended, supposing that the plaintiff is entitled to recover for the non-conveyance of the on'e acre one hundred and four perches, that he ought only to recover back such proportion of the whole purchase-money paid by him, as. the one acre one hundred and four perches bears to the whole quantity of land paid for. This, however, even in a case untainted with fraud, has neither reason nor authority to support it, as is very clearly shown by Chief Justice Kent, in Phelps v. Morris, (5 Johns. Rep. 56). There it was held, in an action for a breach of covenant of seisin, where there was a want of title only as to part of the land conveyed, that the *damages ought to be to the measure of value between the land lost and the land preserved, and not according to the number of acres lost and the number preserved. He also puts a case, which illustrates the justice of the rule very forcibly. “ Suppose,” says he, “a valuable stream of water, with expensive improvements upon it, with ten acres of adjoining barren land, was sold for $10,000; and it should afterwards appear, that the title to the stream with the improvements on it failed, but remained good as to the residue of the land, would it not be unjust that the grantee should be limited in damages, under his covenants, to an apportionment according to the number of acres lost, when the sole inducement was defeated, and the whole value of the purchase had failed ? So, on the other hand, if only the title to the nine barren acres failed, the vendor would feel the weight of extreme injustice, if he was obliged to refund nine-tenths of the consideration-money.” Accordingly, the same rule was adopted by the Supreme Court of New Hampshire in Ela v. Card, (2 New Hamp. Rep. 175,) where it was determined, that when a covenant of seisin is broken only as to part of the land conveyed, the relative value of that part compared with the consideration paid for the whole, furnishes the rule of damages. — The judgment is affirmed.

Judgment affirmed.

Cited by Counsel, 2 Watts & Sergeant, 550; 5 Barr, 406 ; 6 Id. 130; 1 Jones, 167; 6 Harris, 201; 4 Casey, 415 ; 10 Id. 322; 11 Id. 27.

Cited by the Court, 9 Watts, 270; 4 Casey, 134; 10 Id. 428.

Cited by Woodward, J., dissenting, 1 Grant, 137.

See 9 Watts, 572. 
      
       See 5 'Wharton,'459.
     