
    Helen G. Carr and Sarah M. Carr, Respondents, v. William H. Sanger, Appellant, Impleaded with Christine E. Jones and James G. Jones, Defendants.
    Second Department,
    April 22, 1910.
    Pleading — fraud — vendor and purchaser — scienter — information — confederacy in fraud.
    A complaint in an action for deceit alleged to have been practiced in making a contract for the exchange of real property, which alleges that the- representations and concealments by the defendants were “falsely and fraudulently” made, sufficiently sets -forth scienter.
    
    If a vendor represents his title to be good when he knows it to be bad, and the vendee be deceived thereby, the vendor cannot escape liability on the claim that the validity of the title-was a matter of opinion.
    Where an unmarketable title under a -tax deed was exchanged for a farm, and it appears that nearly two years before the exchange S. introduced the subject on behalf of- J., and that the' transaction was later consummated by direct negotiations between plaintiffs and J., but on the trial all the evidence tending to show fraud on .the part of J. was excluded as against S., the question of the confederacy of S. in the fraud should not be submitted to the jury, although the quitclaim deed given by J. was signed by S. as administrator of a third party.
    Appeal by the defendant, William H. Sanger, from a judgment óf the Supreme Court in part in favor of the plaintiffs, entered in the office of the cleric of the county of Kings on the 26th day-of February, 1909, upon the verdict of a jury, also from an order entered in said' clerk’s office on the same day denying a motion for a- new trial made upon the minutes, and also from an order entered in said clerk’s office on the 17th day of November, 1909, denying the appellant’s motion for a new trial on the ground of newly-discovered evidence.
    
      Ralph Earl Prime, Jr., for the appellant.
    
      Ernest W. Stuart, for the respondents.
   Carr, J.:

The defendant Sanger appeals from a judgment entered on the verdict of a jury against him and his fellow-defendant for the sum of $346.75. The action was for deceit alleged to have been practiced on the plaintiffs by the defendants in a contract for the exchange of real property. The alleged deceit consisted of representations by' the defendants that they had a good and marketable title to the land which they sought to exchange for the plaintiffs’ land, and a fraudulent suppression by them of the knowledge that they were not the owners of said land.

The appellant moved to dismiss the complaint at the opening of the trial on the ground that scienter was not alleged. This motion was denied and an exception taken. It is now urged that the denial of the motion was reversible error. The complaint did not allege in words scienter on the part of the defendants, but it did describe the alleged representations and concealments of the defendants as being falsely and fraudulently ” made. It has béen long held that a pleading in this form sufficiently sets forth scienter. (Thomas v. Beebe, 25 N. Y. 244; Dudley v. Scranton, 57 id. 424.) It is likewise urged that a representation as to title to real property is at most but a matter of opinion, upon which a charge of deceit cannot be founded, and that the rule of caveat emptor applies and requires the purchaser to exercise due diligence instead of relying-upon the representation. Whether this be true or not depends upon the form of the representation, for if the vendor assumes to represent his title as good when he knows it is bad, and the vendee is deceived thereby, he cannot escape liability for deceit by claiming that the question was but a matter of opinion. (Clark v. Baird, 9 N. Y. 183; Whitney v. Allaire, 1 id. 305; Schwenk v. Naylor, 102 id. 683; 20 Cyc. 46, 55.) The allegation in the complaint in regard to the represen- ‘ tations as tó title is, therefore, sufficient. Apart from.these questions of pleading, some difficulty arises from the conduct of the trial. The plaintiffs’ claim is that they were the owners of a farm in Oneida county., and that they entered into an agreement with the defendant Jones' .to exchange that farm for several lots of land in Brooklyn: They made -no search of the title to the Brooklyn property, relying upon a statement by Jones that he and Sanger had good title to the Brooklyn property. They delivered a quitclaim deed .for their farm to Jones, and received in exchange a quitclaim deed" for the Brooklyn lots, executed by Jones’ mother and the .appellant Sanger, as administrator with will annexed ” of Zedekiah Sanger: They showed On the trial that the title sought to be. released by this quitclaim, was a tax title under a deed from the State Comptroller, and that the property, was held adversely when the deed was given. No evidence was offered to sliow that the tax deed was-in fact, in valid. It was assuméd, andperhaps properly so, that the.title under the tax deed was unmarketable at least, because the land was held adversely under a hostile title. The exchange, however^ took place between the plaintiffs and the defendant Jones, and the plaintiffs knew that - they were dealing with Jones in relation to it.

Assuming that actionable deceit was practiced by Jones, who has not appealed from the judgment against him, it was sought to connect Sanger with such deceit by showing that nearly two years before the transaction of exchange was put through he liad called on the plaintiffs and introduced the subject of exchange -on behalf of Jones; ■ The plaintiffs then communicated with Jones and .received a- reply. • Nothing followed in. the negotiations for more than a year. . Then the plaintiffs renewed the negotiations with Jones, and, after some little time, the transaction was consummated. The plaintiffs’ theory, among others, was that' Sanger was a confederate with Jones in whatever fraud the latter was guilty of. The court in. its. charge submitted this question of confederacy in .fraud' to the jury. ■ During the trial, however, all the evidence tending to-show fraud upon the part of Jones had been expressly excluded as against Sanger. , There was, therefore, nothing in the evidence as it stood .which justified the submission to the jury of the question of the confederacy.of Sanger in the fraud of Jones.

I recommend that the judgment and order be reversed as to the defendant Sanger,.and a new trial be granted, costs to abide the event.

Jerks, Burr, Thomas and Rich, JJ., concurred.

Judgment and order reversed as to defendant Sanger, and new trial granted, costs to abide the event.  