
    Bradley v. Carter.
    
      (Supreme Court, General Term, Fifth Department.
    
    March, 1891.)
    1. Deceit—Damages—Sufficiency of Evidence.
    In an action for fraudulent representations concerning the title to land it appeared that defendant sold and conveyed to one J., the son of plaintiff, 47 acres of land, for SI,(345, taking for the price thereof a mortgage on the same for $1,000, and a mortgage on land owned by plaintiff for 8645, in consideration of which latter mortgage J. gave plaintiff a second mortgage on the 47 acres for the same amount, ($645.) At the time of the transaction defendaht stated to plaintiff that the 47-acre tract was clear of incumbrances, but the evidence showed that it was part of a tract of 207 acres owned by defendant, on which there was a mortgage for $4,000. Before the conveyance to J. defendant had sold 160 acres of the land to one G., who had assumed the mortgage on the entire tract to the extent of $3,850. Turing the negotiations with J. and. plaintiff, and before the alleged representation, the holder of the $4,000 mortgage promised to release the 47 acres therefrom whenever defendant should desire to sell the same; but the release had not been given at the time of the conveyance to J. The 160 acres were shown to be worth from $4,800 to $5,600. There was no evidence that defendant or G. was insolvent. Held, that a verdict for plaintiff for $450 was not sustained by the evidence, as there was nothing to show that the 47 acres were subject to a greater charge than the $150 residue of the $4,000 mortgage.
    2. Same—Evidence.
    In such case the release of the 47 acres from the $4,000 mortgage, procured three years after the conveyance to J., was properly excluded, as plaintiff’s cause of action arose immediately upon her giving defendant the $645 mortgage on her land.
    Appeal from circuit court, Chautauqua county.
    Action by Fanny Bradley against Ladwick H. Carter. From a judgment entered on a verdict for plaintiff for $450, and from an order denying a motion for a new trial on the minutes of the court, defendant appeals.
    Argued before Dwight, P. J., and Macombeb and Coblett, JJ.
    
      William H. Henderson, for appellant. J. G. Record, for respondent.
   Dwight, P. J.

The action was to recover damages for an alleged fraudulent representation concerning the title to land. On the 1st day of April, 1885, the defendant sold and conveyed to James Bradley, the son of the plaintiff, by warranty deed, 47 acres of land, at the price of $1,645, and received in payment therefor a mortgage of the purchaser, on the same premises, for $1,000, and a mortgage of the plaintiff, on other premises, for $645; in consideration of which latter mortgage James executed to his mother a second mortgage on the 47 acres for the same amount. There was evidence tending to show, and the jury found, that at the time of the transaction the defendant stated to the plaintiff that the 47 acres was free and clear of incumbrance. The proof showed that the 47 acres liad been part of a farm of 207 acres belonging to the defendant, on which there was an outstanding recorded mortgage of $4,000 held by one Saunders; that in the previous year the defendant had sold 160 acres of the farm to one Mrs. Guy, who, as part consideration of the purchase, had assumed and agreed to pay the mortgage on the whole farm to the extent of $3,850; that during the negotiation with James Bradley and his mother, and before the alleged representation was made, the defendant informed Saunders, the holder of the $4,000 mortgage, that he proposed to sell the 47 acres, and obtained his promise to release that portion of the farm at any time when the defendant had an opportunity to sell. On the trial, the defendant offered in evidence a full release and discharge of the 47 acres from the lien of the $4,000 mortgage, duly executed and acknowledged by Saunders on the 2d day of October, 1888, which was a few days before the commencement of this action. The evidence of the release was excluded on the objection of the plaintiff, and the defendant excepted. The evidence was undisputed that the 160 acres was worth from $800 to $1,600 more than the full amount of the $4,000 mortgage. The court charged the jury that the promise made by Saunders to the defendant to release the 47 acres from the lien of the $4,000 mortgage did not operate to discharge that lien, and that the 47 acres was in fact, at the time of its sale by the defendant, subject to such lien, and liable to be sold on foreclosure to pay at least the sum of $150, and, in default of realizing $3,850 out of the 160 acres, then for an undetermined sum in addition to the $150; also that, in case the plaintiff was entitled to recover, the measure of damage was the difference between the value of the mortgage given to her by her son without the incumbrance of the $4,000 mortgage on the property, and its value with such incumbrance on the property; and the jury found a verdict for the plaintiff for $450.

The only disputed question of fact in the case, aside from the question of damages, was whether the representation was made as charged. Upon that question the verdict of the jury must be conclusive against the defendant. There can hardly be a pretense that such representation was made with any purpose on the part of the defendant to defraud the plaintiff of any portion of the value of the security; because, though he had not yet procured a formal release of the 47 acres, he had the assurance that he might have such release at any time when he should effect a sale. Besides, he had the covenant of the purchaser of the 160 acres, which not only bound herself personally, but constituted the 160 acres the primary fund for the payment of the old mortgage to the extentof $3,850. Russell v. Pistor, 7 N. Y. 171; Slauson v. Watkins, 86 N. Y. 597. This left only $150 chargeable on the 47 acres, in any event, unless the 160 acres and the personal covenant of Mrs. Guy were worth less than the former amount, which is contrary to the evidence; while, as against the $150, there was the covenant of warranty of the defendant himself, and there is no evidence or intimation that he was not entirely responsible. But the representation being made as found by the jury, and the actual fact being otherwise, as known to the defendant, there was an apparent intention to deceive, and at least a technical cause of action was established auainst the defendant. But we are unable to see that there was evidence which, in any view, warranted the verdict for $450. The rule of the measure of damages was correctly stated by the court. The amount of the possible recovery by the plaintiff was limited to the amount by which the mortgage of $645, given to the plaintiff by her son, was rendered of less value by the existence of the real or apparent lien of the mortgage of $4,000 on the same premises. This rule, no doubt, entitled the plaintiff to nominal damages, and more, if there was evidence to show that the value of her security was actually and appreciably reduced by the existence of the lien in question. How to make such proof, in the absence of any attempt to enforce, or even to assert, that lien against the premises covered by the plaintiff’s mortgage, it is not easy to say. The plaintiff’s mortgage was never offered for sale; no depreciation in market value was sought to be shown. The jury, as it seems to us, was permitted to . find a verdict based upon mere conjecture as to what may have been the deterioration in the value of the plaintiff’s security from the cause specified. The language of the instruction to the jury on this question is as follows: After pointing out the possibility of a deficiency in the amount to be realized on the 160 acres, the court says: “So that there could be a contingent liability placed upon this forty-seven acres to make up something,—the evidence does not disclose how much; neither does it disclose any practicable or striking probability as to what that might be, but that there would be something there that this land might be made liable to pay in the first instance, for the purpose of extinguishing this mortgage.” It must have been under the permission given to conjecture by this instruction that a verdict was found for any sum greater than $150, for which sum alone was the 47 acres liable until after the exhaustion of the primary fund furnished by the 160 acres. The language of the instruction recognizes the absence of evidence that ttiere would be, or was likely to be, any deficiency of that fund to pay the $3,850; and it permits the jury to include in their verdict a merely possible deficiency, which is confessedly undetermined, and practically indeterminate, in amount. The particular instruction quoted above was not excepted to by the defendant, and there does not seem to be any exception to the charge, nor any request to charge, which covers the precise question here considered; but we regard the verdict for $450 as unsupported by the evidence, and are of the opinion that the motion for a new trial should have been granted for that reason.

We think the request to charge that the plaintiff could recover no more than nominal damages was properly refused, and that, under proper instructions, the question might have been submitted to the jury, upon the evidence as it stood, whether the plaintiff should recover the sum of $150, the amount for which the 47 acres was, in the first instance, subject0to the lien of the $4,000 mortgage. The exception to the exclusion of evidence of the release of the 47 acres, executed three years after the transaction in question, was not well taken. It is conceded by counsel for defendant that such cause of action as the plaintiff had arose immediately on the giving of her mortgage to the defendant, and pust be determined upon the facts as they then existed, (Northrop v. Hill, 57 N. Y. 351;) and it is plain that the fact that the defendant subsequently procured the release to be executed was not (as urged by his counsel) relevant to the question whether the representation was made as alleged by the plaintiff. . Upon the ground formerly considered, we think the judgment and order appealed from should be reversed and a new trial granted, costs to abide the event. All concur.  