
    Pollard v. Lyman.
    1803.
    In the Court below,
    Joseph Lyman, Moses Bliss, Jonathan Dwight, John Hooker, George Bliss, Joseph Williams, William Smith, James S. Dwight, Daniel Lombard, Jonathan Dwight, jun. Worthington Hooker, William Ely, David King, Ebenezer King, jun. and Gideon Granger, Petitioners; Rob* ert Pollard and George Pickett, Respondents.
    
    The respondents’ answer to a bill in chancery, praying for a disclosure, is conclusive as to the facts stated therein.
    Mere loss in a bargain, resulting not * from fraud, nor the failure of a warranty, is not a ground of relief
    The doctrine of implied warranty, does not apply to hinds. Failure of consideration, where the consideration stipulated is received, affords no ground of relief
    hp A HIS was a petition in chancery to the Superior Court.
    The petitioners stated, that on the 5th of December, 1795, they severally advanced to William Ely certain sums of money, amounting, with the sum to be furnished by him, to $ 14,411, and authorized him, by a letter of attorney, to vest the same in such purchases of good uhlocated, or uncultivated lands, in Virginia, as he -ihpught would best promote the interest of the person advancing the money as aforesaid ; and also authorized him, in case he deemed it for the interest of his principal, to bind him to pay his proportional share of the purchase money; that the petitioners severally gave orders to Ely to take all conveyances of the lands, which he should purchase for them respectively, in the names of Jonathan Dwight, John Hooker, George Bliss, and Gideon Granger, jun. which they were to hold for the benefit of the proprietors ; that Ely proceeded directly to Vir* ginia, and effected various purchases of lands lying in that State, for the benefit of the petitioners, within the power and according to the authority to him given as aforesaid; that while he remained there, the respondents applied to him, and proposed to sell him 150,000 acres of land, which they represented as lying in the County of Wythe, in Virginia, and described the same by particular metes and bounds ; that they affirmed to Ely, to induce him to purchase, that they had a good and indefeasible title to these lands, and that the same were situated in the midst of a well settled country, and were taken up by an early location, at a time, when there was a great tract of vacant lands, in that part of the State, so that the person locating the same had a great opportunity to select a tract of good and valuable lands, and that said tract of 150,000 acres was of great value ; that still further to induce Ely to purchase this tract, th.-y laid before him a highly finished map or chart, with various fine rivers and streams delineated thereon, as watering the tract and greatly fertilizing the land, all leading through and off from the same, and connecting themselves with other great rivers in the State, thereby forming a most easy access to said lands, and almost every part thereof, and also affording a ready, cheap, and venient communication from said tract of land to variolb other parts of the State, and elsewhere, which chart the respondents affirmed to Ely was a true and _ representation of the said lands, and of the waters uptoi the same ; that Ely, induced by these representations, and believing them to be true, on the 12th of March, 1796, purchased of the respondents the aforesaid tract of land, for which- he agreed to give them ⅞ 16,500 payable in three instalments of S 5,500 each, and to secure the payment thereof, on the 28th of March, 1796, he executed and delivered to them three several bonds, for S 5,500 each, one payable on the 10th of June, 1796, another on the 12th of March, 1797, and the other on the 12th of March, 1798; and that, on the same 12th of March, 1796, the respondents, by their warranty deed, undertook to convey said lands to said Dn-jght, 
      
      Hooker, Bliss, and Granger, for the benefit of the petitioners.
    The petitioners also stated, that they had paid to the respondents the two first mentioned bonds, amounting, with the interest thereon, to S 13,057 50; and that on the other bond, the respondents had commenced a suit, before the Hartford County Court, which they were attempting to press into judgment.
    The petitioners then averred, that the respondents never had any legal title to the said 150,000 acres of land, or to any part thereof; that the lands are not, and cannot be, of any value whatever ; that they are altogether deficient from the description given of them to Ely, at the time of die purchase, for that the same lands are a mere pile of stupendous, inaccessible mountains, wholly incapable of settlement, and even incapable of being surveyed; that the map shewn to Ely is an unfair and totally false representation of the property, with respect to the waters on the same, their location, and courses, for that many of the streams never had existence, and the courses of others, if the tumbling of water from one huge precipice to another merit the appellation of a water-course, are wholly deficient from the representations of the map ; and that these facts the respondents well knew, but concealed them from the knowledge of Ely, and the rest of the petitioners, with an intent to decoy him into the purchase of said lands,
    The petitioners further stated, that the respondents were bankrupts, or, at least, in failing circumstances; that the petitioners could not have process of law upon the covenants in said deed, before any court of law in this State, nor could damages be recovered, before any court of law whatever, for the defect of value in said lands, upon any suit to be brought on said covenants; that in the peculiar situation of the petitioners, it would ruin them to pay the money demanded by the respondents, and seek redress in a distant court; that the petitioners had no defence at law, in said suit, and could have no relief, unless by the interposition of a court of chancery.
    The bill, after reciting that the facts stated therein rested only within the knowledge of the respondents and the petitioners, prayed, that the respondents might be compelled to disclose, on oath, all their knowledge with respect to the same.
    The petitioners concluded their bill, by praying for a perpetual injunction on the bond in suit, and for a restoration of the money, that had been paid on the other bonds, together with interest.
    The disclosure was ordered, was regularly made before commissioners in Virginia, and was returned to the Court, and became parcel of the record.
    In the disclosure, the respondents say, that in the year 1795, they became acquainted with Ely ; that in the summer of that year, he went from Richmond to Kentucky, and returned through the County of Wythe ; that after his return, he particularly described to the respondents the lands in that County, raid represented them as extremely valuable ; that the respondents, observing him to be particularly pleased with that part of the country, and having a tract of land, containing 150,000 acres, h ing there, for which they had paid a valuable consideration, offered to sell the same to him, infor-feting Him, that they knewhothing of the quality of that Part^cu^ar tract? nor had they, or either of them, any particular knowledge of that part of the country, neither 0f them, at that time, having been within one hundred and fifty miles of it, but observing, that the title being guarantied to them, by a responsible person, and having obtained a grant for the same from the Commonwealth of Virginia, they would, on obtaining a satisfactory price, undertake to give a deed, in fee-simple, with a general warranty; that in order to satisfy Ely with respect to the actual shape, and, as far as they could, with respect to the relative situation of said tract, they procured, from the register of the Land-Office, a copy of the plat, and certificate of the survey, as returned by the surveyor of the County of Wythe, in which were inserted not only the shape, and boundaries of said tract, with the water-courses, which passed through it, but the date of the entry, and the time when the survey wás made ; that this was a true copy of the plat and certificate of survey, which the respondents bought for a valuable consideration, and shewed it to Ely, without any colouring given to it by them ; and, that if there he any inaccuracy, or uncertainty therein, it is not justly imputable to them. They deny that they knew any thing of the actual or intrinsic value of the land, and aver, that they never informed Ely any thing relative thereto, nor gave him any other information with regard to its situation, than what the plat and certificate of survey exhibited; but from the solicitude expressed by him to become the purchaser, and from his having passed through the County of Wythe, they did believe he was possessed of much better information on the subject, than they possessed. They also aver, that Ely appeared to be satisfied with his own knowledge, as to the situation, quality, and value of the land ; and that he did not enquire relative thereto ; and discovered no solicitude, except as to the title only.
    The respondents admit, that they informed Ely, that they had a good title to the land, and were seized of the same in fee-simple, and aver, that such were the facts ; they admit, that Ely made the purchase as set forth in the petition, but deny that he was induced thereto in consequence of any representations relative to the value oi the land, or any other promise or assurance, made by them, or either Gf them, other than their agreement to warrant the title ; they also admit, that they did execute a deed of said tract of land, in fee-simple, with a general warranty, to the persons named in the bill, for the use and benefit of the petitioners, and that, by the tenor of that deed, they are bound to make good any deficiency, which there ma.v be in quantity, in said tract* and also to defend the title ; they further admit the execution of the bonds, the satisfaction of two of them, and the pendenev of a suit on the other to enforce a collec - tion. The respondents conclude their answer, by a positive denial of all fraud and combination, and of any knowledge of fraud and combination, and prat' to be dismissed with their costs.
    To this answer the general replication was filed.
    'The Superior Court thereupon proceeded to hear the Cause, and then, made-and--passed:the--, following judgment and decree: “The Court do find, that said Ely “ did purchase said tract of land, containing 150,000 “ acres, of said Pollard and Pickett, as stated in said pe- “ tition; that the petitioners did severally furnish money “for said Ely, to pay it to him in the proportions, and “ upon the terms, and under the agreements, set forth ct in said petition, and are interested in said land, in “ nronortion severally to the sums of monev by them ad-1 * ■■■'■' j J . “ advanced as aforesaid. And the Court do find, that “ said lands sold by the respondents to said Ely, were “ represented, and held out to said Ely, by the respond- “ ents, at the time of said purchase, as being of great “ value, in point of quality, and their relative situation “ with other lands in said County of Wythe, which said “ Ely had viewed, and which were valuable for scttlc- “ ments. And the Court do find, that a plan or survey u oi said lands sold by the respondents to said Ely, im- “ porting the came to be of good quality and situation, was shewn to said Ely, by said Pollard and Pickett, at “ the time of said sale, as is set forth in said petition. “ And the Court do find, that the said plan or survey “ was not made by any actual survey ; and that the lines u of said tract sold to said Ely as aforesaid, were never “ run out, nor surveyed ; and that the said plan or sur- “ vey imported, on the face of it, a falshood. And the “ Court do find, that the lands sold by the respondents “ to said Eh/, as set forth in said petition, were not, at 4‘ the time of said sale, and are not, now, of any value whatever. And the Court do find that the said three “bonds, mentioned in said petition, w'ere given by the “ petitioners, its the consideration of said purchase made “ by said Ely of the respondents ; and that two of said “ bonds have been paid ; and that a suit is now depending, on the other bond, which hath not been paid, in “ the County Court of Hartford Countv, all as stated its “ said petition. And the Court find, that as to any de-u feet in the title, derived to the petitioners from said ‘‘ purchase of said Pollard and Pickett^ the petitioners “ have adequate remedy at law, upon the covenants in. “ said deed from said Pollard and Pickett, it appearing to “ the Court, that said Pollard and Pickett are able to res-
      iL pond any damages, that may be recovered of them, in “ anv suit upon the covenants of said deed.
    “Whereupon, it is ordered and decreed, by this 14 Court, that said Pollard and Pickc if, their counsel, and “ attomies, be perpetually enjoined from further pror.ee- “ dings in said suit upon said bond, in said Hartford “ County Court, and from commencing and prosecuting “ anv other suit upon said bond. And it is further dc- “ creed and ordered bv this Court, that upon the peri- “ tioners executing to said Pollard and Pickett, their 44 heirs, &c. conformable to the laws of said Líate of Vir* 44 ginia, releasing to said Pollard and Picket their heirs, 44 ike. all the right and title to said lands purchased of 44 said Pollard and Pickett as aforesaid, by said Ely, which 44 the petitioners derived from said Pollard and Pickett, 44 by virtue of said conveyance from them, as stated ⅛ 44 said petition as aforesaid, and lodging the same with 44 the clerk of this Court, on or before the 17th of Feb-44 ruary, 1803, to be by said clerk delivered to said Pod 44 lard and Pickett, upon their complying with this decree, they the said Pollard and Pickett shall, on or before the “ 1st of July, 1803, deliver up said bond, on which 44 said suit is brought, to the clerk of this Court, to bo 44 cancelled, and shall pay to the clerk of this Court, for 44 the use of the petitioners, the sum of S 14,876 50, 44 and interest thereon from this time till the same shall “ be paid; and upon the failure of said Pollard and Pick». “ ett to comply with this decree, upon the condition, and 44 by the time aforesaid, they shall forfeit and pay to the 44 petitioners, the sum of S 30,000, to be recovered cf “ them, the said Pollard and Pickett, according to law. 44 And it is further decreed by this Court, that the peti-4,4 tioners do recover of the said Pollard and Picket‡ “yhetr costs.’’
    
      The respondents brought a writ of error to this Court, and assigned the general errors. °
    Benson, (of New-York) and Daggett, for the plaintiffs in error,
    contended,
    1. That the Superior Court could not, by law, find the facts, which they declare found. The finding contains not only facts, which are not alleged in the petition, or confessed by the answer, but also such as are expressly denied by the answer. But the answer is conclusive upon the petitioners, and no evidence can be admitted to contradict it. To this point Butler v. Catling, 
       1 Root S82, and 2 Swift 475, were cited.
    2. That the facts, which appear found, do not warrant the decree. No fraud on the port of the respondents, or science that the representations made by them were false, though charged in the bill, is found by the Court. But that mere falshoods were held out to the petitioners, without any fraudulent intention in the respondents, and with no more knowledge of the thing contracted about, than the petitioners themselves had, is not sufficient to entitle them to relief. 
    
    This was a bargain of hazard. The price was but eleven cents an acre, for lands in a settled county, through which the purchaser had lately travelled. It was evidently the intention of the parties to speculate.
    
    That even this price, as events have shewn, is fax-above the value of the land, affords no ground of relief. Inadequacy of price may be evidence of fraud; but fraud will then be found, 
    
    3. That the petitioners had adequate remedy at law. 
    
    
      Edwards, (of New-Havcn) and Husma-, for the defendants in error.
    
      
       1 MOQt 310,
    
    
      
       1 Pc%v, Coni. 141,
    
    
      
       As to ss Unreasonableness™ vide 2 Po*o. Cost. 143, 4, 5, fc In-2 Povk Cont. 152. ec Exorbitancy” 2 Pg-vj. Cnnt, 228.
    
    
      
      
         2 Poor 338, IVillst v. Overton. 9 Com-. 324. Mit. 104, 5, 6. Kirby 135, Lothrop v. Bennet.
    
   By the Court.

The disclosure, which admitted none of the facts alleged as fraudulent, and denied them all, was conclusive with respect to those facts.

Chancery power to compel a disclosure, has, by the practice of this State, from the beginning, been limited to the case of there being no other evidence. To have extended it further would have been an unnecessary departure from the common law, and an unnecessary exposure to imminent danger of perjury. A plaintiff, therefore, to entitle himself to a discovery, avers in his bill, that the facts respecting which he prays a disclosure, rest solely in the knowledge of the defendant, or of the defendant and himself; and to permit him, after disclosure is obtained, to produce other evidence in proof of those facts, is to permit him to falsify himself, and to trifle with the Court, and the conscience of his adversary.

The Court having found that Pollard and Pickett were able to respond any damages, that might be recovered of them, in any suit upon the covenants of the deed, if they liad been broken, the question of die title was laid out of the case.

They further found, that the lands sold to Ely were, at the time of the purchase, represented and held out to him, by the respondents, as being of great value, in point of quality, and their relative situation with the lands in the County of Wythe, which he had viewed, and which were valuable for settlements. If “ represented and held out, as being of great value,” mean any thing more than the exhibition of the plan, which is included in the next finding; — if it mean, that Pollard and Pickett affirmed the lands to be of a great value, or that they were located in the midst of a well settled country, — the affirmations alleged in the bill, and which the disclosure had denied, — the finding must have been without evidence, or upon evidence which was inadmissible, and inoperative.

The only defects, or misrepresentations of the plan, specifically charged in the bill, were, that it delineated many water-courses, well interspersed, and connected with rivers of extensive communication, some of which water-courses did not, in fact, exist, and others were misplaced ; a.nd, that it represented the land to be of great value, when, in fact, it was of no value. That the plan represented the land to be of great value, otherwise than by a demarcation of water-courses, which might create a presumption of fertility, and of easy access, wras not alleged. Nor does it appear, from the finding of the Court, that the demarcation of the watercourses, was, at all, incorrect; the finding is silent with respect to them. And as to any facts found respecting the plan, which were not charged so specifically, that the adverse party had notice to contest them, it is not material what they amount to. It may be proper, however, to notice, that whatever misrepresentations the plan may have contained, it was not found, that- Ely was induced by it to purchase, nor that Pollard and Pickett knew it to be incorrect, or had any agency in making it, or procuring it to be made ; and, indeed, the reverse of all these facts is apparent from the disclosure, so that the allegation wholly fails.

The Court further, and finally, found, that the land was of no value.

Mere loss in a bargain, — loss resulting not from fraud, nor the failure of a warranty, but from bad calculation, or the want of vigilance, is not a ground for relief. It could not be admitted as a ground, without rendering all express contracts futile.

As to the doctrine of implied warranty, that the article sold is of the ordinary quality of articles of its kind, or equal throughout to the sample seen, it applies only to articles susceptible of a standard quality, or which are sold by samples, and does not extend to lands which have no standard quality, and must depend, for their value, on a variety of circumstances, none of which are reducible to a common measure. Nor does the doctrine of the failure of the consideration reach this case. It readies no case, where the purchaser obtains the article contracted for, and the purchase was not induced by fraud, nor the quality of the article warranted. It is not having the stipulated consideration, and not its -want of value, which the doctrine respects. In this case, it must be understood, as there is nothing either expressed or implied to the contrary, that the purchaser took- upon himself tile risque of the quality, or value, of the land, which lie improvident!}' purchased unseen. And as to fraud, it does noi appear, that the seller practised any addres's whatever; though it is not every species of adr dress that vitiates a contract. If the address be such only as the purchaser, bv due diligence and circumspection, might guard himself against, — that is to say, such diligence and circumspection, as in the ordinary course of business usually accompany similar transactions, he is without remedy.

There not appearing, then, from the record, any sufficient ground to warrant the decree of the Superior Court, it is reversed.  