
    Octave B. Brunnell et ux v. Eugene W. Carr et ux.
    October Term, 1903.
    Present: Koweit, C. J., Munson, Start, Watson, Stafford, and Hasetton, JJ.
    Opinion filed January 7, 1904.
    
      Husband md Wife — Joint Deed — Deceit—Liability—Interest —Date of Computation.
    It not appearing that tbe land conveyed by tbe joint deed of busband and wife was bers, sbe is not liable for deceit wbicb consists of a false statement contained in tbe deed as to tbe amount of incumbrance on tbe land conveyed.
    In sucb case tbe busband is liable for bis tort, and should pay tbe grantees tbe amount tbe latter bad to pay by reason thereof, with interest from tbe commencement of tbe suit, it not appearing when sucb payment was made.
    Case Eor Deceit in the sale of land. Plea, the general ■issue. Trial by court in the city court of the city of Montpelier, Laird, Acting Judge. Judgment for the defendants to recover their costs. The plaintiffs-excepted.
    The deed from the defendants to. the plaintiffs was a war■ranty deed in the usual form, and warranted the premises free from incumbrance “except a mortgage in favor of L. C. Parker of Calais in the County of Washington, on which there is now due six hundred and forty dollars, which said mortgage the said Brunnells hereby assume to- pay as part consideration of this deed.”
    The court found, from oral evidence received without objection, that the six hundred dollars named in the deed as the amount of the mortgage, was the full purchase price of the land; that the amount of said mortgage, at the time said •deed was executed by the defendants, was in fact eight hun•dred dollars; that the plaintiffs have paid the mortgagee eight hundred dollars with the interest thereon since the deed was made.
    The court held, as matter of law, that by the terms of ■said deed the plaintiffs assumed and agreed to- ]Say the mortgage which said Parker held upon the real estate, and rendered judgment for the defendants to recover their costs.
    
      H. C. Shurtleff for the plaintiff.
    
      Sargent for the defendant.
   Rowell, C. J.

This is case for deceit in the sale of land conveyed to the plaintiffs by the joint deed of the defendants. The deceit consisted in a statement in the deed that the premises were free from incumbrance, except a certain mortgage whereon was then due $640, which the grantees assumed and .agreed to pay as a part of the price, whereas there was more then due thereon, to the knowledge of the defendants, which the plaintiffs had to pay.

It not appearing that the land was Mrs. Carr’s, the case does not come within the Married Women’s Act, but must stand upon the common law, and at the common law a married woman is not liable for torts based upon her contracts, Tut only for her torts simpliciter. Woodward v. Barnes, 46 Vt. 332; Russell v. Phelps, 73 Vt. 390, 50 Atl. 1101.

But Mr. Carr is liable for his tort in the matter, and •should pay to the plaintiffs $167.70, the amount they had to pay by reason thereof, with interest thereon by way of damages from the commencement of the suit, the record not showing when the payment was made.

Judgment affirmed as to Mrs. Carr, but reverseId as to Mr. Carr, and judgment against him for said last-mentioned sum, zvith interest thereon as aforesaid, and costs. Certided execution ■granted.  