
    Pierce v. Tiersch.
    1. In an action by mortgagee against mortgagor upon a note and mortgage given for the purchase money of the premises, the mortgagor may, as a defense, setup a counter-claim for damages by reason of the fraud of the mortgagee, in concealing from him material facts as to the situation and extent of the premises.
    2. In such an action, it is error in the court to instruct the jury, that while the mortgagor was in undisturbed possession of the premises, he.was not entitled to recover of the mortgagee on account of such fraudulent concealment, any thing more than nominal damages.
    Error to the District Court of Hardin County.
    The original action was begun in the court of common pleas by Mary Tiersch against Wesley Pierce, upon a note and mortgage given for the deferred -payment of purchase money fo;' the mortgaged premises. Pierce, for answer and by way of counter-claim to the petition of the plaintiff, alleged, that at the date of said note and mortgage, he pur chased from the plaintiff the premises described in said mortgage, to wit: “In lot No. 44 in the village of North Washington,” Hardin county, Ohio, for the sum of $900, — ■ four hundred cash, and the residue in one and two years thereafter, all which had been paid except the sum claimed by the plaintiff in her petition; that said lot fronts on the west on Main street, and on the south on Washington street; that there was at the time of said purchase a frame dwelling house one and one-half stories high, with a porch or veranda six feet in width, on the west end thereof, extending the full width of said house, which house then appeared to be located on the south-west corner of said lot, and was so represented by the plaintiff, and so understood by the defendant, whereas, in truth and in fact, the said house and veranda, or porch, extended six feet into and upon said Main street; that said lot was at the time of said purchase fenced in on the west side with a picket fence, which appeared to be on the line of said lot, whereas, in truth and in fact, the said picket fence inclosing said lot on the west, was set out six feet into and upon said Main street, thus including within the apparent limits of said lot a strip of land six feet in width along the west end of said lot, which was no part of said lot, but was and is a part of said Main street, and to which the plaintiff had no title whatever — said lot being 66 ft. front on said Main street, and 132 ft. back — all of which was well known to the plaintiff at the time of said sale, and the execution and deliver of said note and mortgage; that at and before the date of said purchase, the defendant was wholly unacquainted in said village of North Washington; that he did not know nor did he have the means of knowing the size or boundaries of said lot, except from the representations of the plaintiff and outside appearances; that the plaintiff fraudulently concealed from him, the defendant, the fact that said porch, or veranda, and said west fence were located and built outside of tbe true bounds of said lot, and on the public street; that he liad sustained damages by reason of -the said false and fraudulent representations and concealments of the plaintiff, to the amount of three hundred dollars; and asked that said sum be allowed to him by way of counterclaim ; and that he might have judgment for any balance that might be found due to him on final hearing.
    The plaintiff for reply, not knowing whether said porch or veranda, and picket fence extended into Main street or not, denied the same. She denied that at the time of said sale, she represented to the defendant that said house and porch, or veranda, were located on the south-west corner of said lot; that she fraudulently concealed from the defendant the fact that said porch, or veranda, and said west fence of said lot were located outside of the true bounds of said lot, and on the’ public street. She denied all fraud, and each and every allegation of fraud, in the answer contained ; and averred, that she sold and described said lot to the defendant simply by the number thereof as designated, on the plat of said village, and did not at any time point out or attempt to point out to the defendant the lines and boundaries thereof.
    The defendant gave in evidence to the jury testimony tending to prove the facts alleged in his answer; and the plaintiff gave in evidence to the jury, testimony tending to prove that the defendant was still in possession and occupation of said strip of land which was enclosed with said lot, and also testimony tending to disprove the testimony given as aforesaid by the defendant.
    The court charged the jury among other things,
    “ That if they should find that there was a strip of ground six feet wide lying along the west side of said lot, and inclosed therewith, which did not belong to said lot, nor constitute a part thereof, but belonged to the public street, and that the plaintiff knew that fact but fraudulently concealed the same from the defendant; yet, if they should find that the defendant was still in undisturbed possession and occupation of said strip of ground, the defendant was then not entitled to recover of the plaintiff, on account of such concealment, any thing more than nominal damages.”
    
      To this portion of the charge the defendant excepted. The jury returned a verdict for the plaintiff. A motion for a new trial was made by the defendant, for the reasons,
    1st. That the verdict was against and contrary to the weight of evidence and law of the case.
    2d. That the court erred in charging the jury, that if the evidence satisfied them that the defendant was still in possession of the six feet of ground as to which the defendant claimed to recoup for damages, then the defendant could not recover.
    The motion for a new trial was overruled, and judgment rendered on the verdict. A bill of exceptions was taken by the defendant. The district court affirmed the judgment of the court of common pleas; and the supreme court is asked to reverse the judgment of the district court.
    
      Jj. M. Strong, for plaintiff in error. •
    
      James Watt and John Stillings, for defendant in error.
   DlCKMAN, J.

It was not contended in the court below by Wesley Pierce, the mortgagor, that there had been any breach of the covenants of warranty or for quiet enjoyment contained in the deed from Mary Tiersch, the mortgagee and vendor; and the question did not arise, whether there had been an ouster or eviction, actual or constructive, by paramount title. The mortgagor laid no claim to damages, or to relief against the security which he had given for the purchase money, on account of any breach of any of the covenants of title. He was in the full possession and occupation of '“In lot No. 44,” to the extent of that description, and as designated on the plat of the village of North Washington.

But the mortgagor complained, that with no means of knowledge save the representations of the mortgagee and outside appearances, he was deceived and defrauded as to the size and boundaries of the lot described, through the fraudulent representations and concealments of the mortgagee, as to material facts; and that he was by the mortgagee led to believe, that the strip of land six feet in width on the west of the lot and embraced within the fence, was part and parcel of the premises conveyed, whereas in fact it was part of Main street. If it be true that fraud was practised by the mortgagee in her sale of the premises to the mortgagor, he was entitled to the benefit of a counter-claim for damages sustained. (Allen v. Shackelton, 15 Ohio St., 145.) And furthermore, in an action against the mortgagor for the purchase money, his right to set up a counter-claim for any excess in price through the vendor’s misrepresentations of the extent of the property, would be the same, whether such misrepresentations were willful or innocent. Baughman v. Gould, 45 Mich., 481. The question arises however, what was the measure of damages of the mortgagor, under his counterclaim ? The court below charged the jury, that if they should find there was a strip of ground six feet wide, extending along the west side of said lot and inclosed therewith, which did not belong to the lot but to the public street, and the plaintiff knew that fact, but fraudulently concealed the same from the defendant; yet, if they should further find that the defendant was still in the undisturbed possession and occupation of said strip, he was not entitled to recover of the plaintiff on account of such concealment, any thing more than nominal damages. We are of opinion that the court erred in this instruction. The mortgagor’s right to recover other than nominal damages, did not depend upon whether he had been disturbed in the possession of the strip of ground, at the time of setting up his counter-claim. If there had been fraudulent representations and concealments on the part of the vendor, by -which the mortgagor was defrauded as to the territorial extent of the premises, a right of action for the fraud accrued to him on discovery of the same. The vendor in such case was not in a situation to ask, that the vendee and mortgagor should wait until perhaps his right of action would be lost by lapse of time. Such vendor should not be more favorably regarded than a grantor with covenant of seisin — a covenant which is deemed to be broken instantly, if at the time of executing the deed, the grantor or some person claiming under him, was not in actual possession of the premises, claiming title.

The mortgagor should not have been restricted to nominal damages, if fraud was practised upon him, as alleged, in the sale of the premises. The measure of his damages was the difference, at the time of purchase, between the value of the lot with its apparent bounds on the west, — inclosing the strip of ground belonging to the public street and liable to be taken.for public use — and the value of the same lot, had said apparent bounds been its true west line, and said strip of ground part and parcel of the lot.

The judgment of the district court and of the court of common pleas must be reversed, and the cause remanded to the common pleas for a new trial.

Judgment accordingly.  