
    Augustin Buchall, Respondent, v. John Higgins, Appellant.
    Second Department,
    December, 1905.
    Fraud—when cloud on title to land insufficient to establish fraudulent misrepresentations, of title by grantor.
    In an action based on an alleged fraudulent representation by defendant that he had title to the lands sold to the plaintiff, the following facts were shown:"
    That a warranty deed of the lands had been given to an agent of the defendant on October 10, 1872, and recorded in 1875, and that th'e will of said agent devised all of his property to his wife;
    
      That there was a deed of the samé lands from the same grantor to defendant on the same date as the deed aforesaid which was not recorded, until 1902;
    That defendant, on the date of his deed, had bought the lands at. public, auction and had given the deed which he had received to his said agent for record;
    That, unknown to the defendant, the agent had not recorded such deed, biit fraudulently took the other deed aforesaid in his own name; ■
    ■That the defendant did not discover the fraud of his agent until 1902, at which time he had his deed recorded; , .
    
      Held, that the deed to the agent having been taken in fraud of the principal' was a mere cloud on the title Which plaintiff would be entitled to have cleared;
    That, as, in an action for fraudulent' misrepresentation, it is necessary to establish an intention to deceive, there was insufficient proof of such intention, as the defendant, under the circumstances, had a right to believe that his oWn . title was good. '
    Appeal by the defendant, John Higgins, from a judgment of the County Court of Queens county in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 29th day of September, 1904, upon the verdict of a jury rendered- by direction of the court, and also from an order entered in said clerk’s office on -the 14th' day of October, 1904, denying the defendant’s motion for a new trial made upon the minutes.
    
      Winter & Winter, for the appellant.
    
      Arthur Van De Water, for the respondent.
   Woodward, J. :

The complaint in this action is based upon fraud. ■ It- alleges that “ the defendant having offered to sell to the plaintiff a certain lot at Bayside aforesaid, known, and designated by the lot number 157 on á certain map entitled 'Map of the Property of the Bayside Land Association, 1872,’ filed in the office of the Clerk of the County of Queens, did with the intent to deceive and defraud the plaintiff, falsely and fraudulently represent to him that the said lot was-the property of the defendant.” It then alleges the purchase of the'premises for $125, relying upon these-represeptationsj and the receiving of a deed with full covenants conveying the same, and that “in truth and in'fact as the defendant then'well knew said representations were false, and the said lot was not. the property of the defendarit, but. was the property of the heirs at law and' next of kin of Mary E. Carll, deceásed¡” The complaint for a second cause of action sets up substantially the same allegations in reference to a second parcel of land in the same tract. The answer admits the formal allegations as to residence, admits that the plaintiff purchased the premises for the amount named in the complaint, but denies the false and fraudulent representations, leaving the issue to be tried that of fraud in the representations of the defendant in reference to ownership.

Upon the trial the plaintiff put in evidence a certified copy of a warranty deed from L. Bradford Prince to G. Edward Carll, dated the 10th day of October, 1872, and acknowledged on the 19th day of November, 1875, by which deed a number of lots, including the two lots involved in this controversy, were conveyed for an expressed consideration of $1,220. This deed was recorded November 22, 1875. Plaintiff then offered in evidence the will of G. Edward Carll, by which he devised all of his real property to his wife, Mary E. Carll. The plaintiff’s attorney, over the objection and exception of the defendant, was permitted to testify that he had examined the title to this real estate and found that some time prior to 1872 the 'title was in a man named L. Bradford Prince; that in 1875 a deed was recorded from L. Bradford Prince to G. Edward Carll, and that no deed conveying the property had been made to the defendant, and that the .record title still remained in. G. Edward Carll or his estate. The same witness also testified that he had in 1886 or' 1887 examined the defendant in supplementary proceedings, and that defendant then testified that he did not own' the property; that G. Edward Carll owned the property, and he had no interest in it; that the examination was reduced to writing, and that he had made search all over his office for it and had made inquiry from every one who borrowed it, and “ I cannot find it.” Defendant objected to this evidence on the grounds that it was irrelevant, immaterial and incompetent, and that the examination itself was the best evidence, and took an exception to the admission of the evidence. Defendant likewise moved to strike out the evidence on the same grounds; the motion was denied and defendant excepted. ' ’

On cross-examination the plaintiff’s attorney admitted that he had found a deed on record, dated October, 1872, recorded in 1902 o>* 1903,' from Mr. Prince to the'defendant; that the deed.' to dfefendant and that to Mi*. Oarll was of the same property and. of; precisely the same date, and that Mr. Oarll’s deed was" recorded in 1875, while that-of the defendant was not recorded" "until 1902" or'1903; The defendant, to meet the plaintiff’s case,' put5 in evidence an Original warranty deed from L. Bradford Prince to John Higgins, dated the 10th day of* October, 1872, and acknowledged, tin .the same date, by which deed a number of Itits,-including the' tw©' here in dispute, were conveyed for an express consideration of $1,220. This'deed was not recorded until March 20, 1902. There is no question raised'as to the genuineness of this original" deed,: acknowledged upon the day of its execution, and the defendant testified1 that on the 10th day of October, 1872, about half-past three" or four o’clock in the afternoon, he bought these lots at public, auction and paid for them and; got the deed' from Mr. Prince1 at Bayside; •that' Mr, Oarll was his real estate agent, and, that same night, betook his deed tti Mi*. Oarll’s office and told Mr. Oarll of' his purchase and’said he wanted to get-his deed recorded the1 next morning;, that Mr. Oarll said-he would attend1 to it, and he left the deed with him for that purpose'; that' when Mr. Oarll stopped doing business' fdr the defendant this deed'came to him with his other papers;; that the first knowledge that he had that Oarll had1 not recorded his ■ deed, hut had'taken -One in -his own name,- was given him by a CeW tain Mr. Van Mostrand, .and'that the next" day,1 March 20; 1902, he put hig deed1' on record; that Oarll knew that defendant .owned1 the lots and had paid for- them when he took the' deed to. himself; and that Mu Prince; knew • it; This1 evidence' oft the- part of" the defendant is hot contradicted in any measure; except 'possibly* by the testimony of plaintiff’s- attorney- in reference- to- the alleged examination. in supplementary proceedings; and1 We aré unable' to concur in the conclusion reached by the learned court - in holding that the plaintiff had established the cause of aétitinv alleged; If the defendant’s version ofithe transaction is correct (ánd'itisTstrongíy supported By the original deed from the- common source of-‘ tillé;. bearing thesame date of that under which the plaintiff claims tlie.title tti be in another party), he'was the-equitable, if not‘tholegaí’owner of the premises at the time- of the sale to the plaintiff, and5 he BM' a a right to claim such ownership. The deed to Oarll Was merely an, apparent cloud upon the title, and the plaintiff would undoubtedly be entitled to have that cloud cleared away; but it can hardly be said, under the facts which appear to be conceded, for they are not disputed, that the plaintiff has established that the defendant knowingly misrepresented the facts in claiming to be the owner of the premises. Mr. Carll, if he purchased the premises, did so knowing that they already belonged to the defendant; he purchased them not only with knowledge of the facts, but in violation of his duty as the agent of the defendant. He could get no title by recording his deed and withholding that of his principal, though a third party might be protected if he had purchased in good faith and without knowledge of the facts. In an action for false representation it is necessary to establish the representation, its falsity, the intention to deceive, and that the plaintiff relied upon the representation and has suffered damage thereby (Grosjean v. Galloway, 82 App. Div. 380, 382, and authorities there cited); and we are of opinion that the evidence properly in this case does not warrant the conclusion that the defendant intended to deceive the plaintiff. Indeed, it seems to us that the undisputed evidence establishes that the defendant believed that he was in fact the owner of the premises.

The mere fact that there is an apparent cloud upon the title does not justify a finding of intentional fraud on the part of the defendant, and this is the essence of the action presented by the pleadings. Fraud must be proven ; it cannot be presumed.

The judgment and order appealed from should be reversed and a new trial granted, costs to abide the event.

Hibschberg, P. J., Rich and Miller, JJ., concurred; Hooker, J., concurred in result.

Judgment and order of the County Court of Queens County reversed and new trial ordered, costs to abide the final award of costs.  