
    WATERS against VAN WINKLE.
    
      m ERROR.
    
    Trover lies to recover back property delivered in exchange for other property fraudulently described, ana not owned by defendant.
    The action below was an action of trover, brought by Waters against Van Winkle, for a mare. On the trial of the cause before the Common Pleas, the plaintiff proved that he had sold the defendant the mare, and delivered the mare to the defendant. That [425] the defendant agreed to give the plaintiff for the mare, two acres of wood land, laying at some miles distance from the residence of the parties, between the mountains; and also, to give him five dollars in cash, or five loads of nut wood, which the plaintiff was at liberty to take out of the defendant’s wood land, at his own expense, in case he concluded to take wood; that the plaintiff concluded to take the five loads of nut wood, but had not done it, nor had the defendant refused to permit the plaintiff to take the wood. It was also proved by the plaintiff’s witnesses, that the defendant had deceived the plaintiff, in describing the two acres of land. That he had described land to the plaintiff that did not belong to him. That the defendant’s land was much inferior- to the land which he had described. That the defendant refused to give a deed for the land described, and had boasted that he [*] had taken the plaintiff in. That part of the land described by him to the plaintiff, did not belong to him, and that part of the land he was to give the plaintiff, was not worth a cent. That the bargain was not reduced to writing. A demand of the mare, and refusal, was also proved. On this evidence, without examining any witnesses on his part, the defendant moved the Common Pleas to non-suit the plaintiff, on the ground that he had not given sufficient evidence to support the action. That the Common Pleas being of that opinion, nonsuited the plaintiff, who brought this writ to reverse the judgment the Common Pleas.
    It was contended on the part of the plaintiff, that in this transaction, there was a gross fraud committed by the defendant, which vitiated the contract. That contracts infected with fraud, are void, and the party injured may rescind them, and bring an action to recover damages suffered in consequence of the fraud. That when a man parts with his property, on a promise to get something of value for it, and this is refused to be complied with, he may disaffirm the contract, by bringing an action to recover damages for the injury. That a man who gains possession of property by fraud, cannot maintain possession of this property, which he thus acquired by fraud. In support of their positions, they cited, 2 Bur, 1011; 1 New York Term Rep.; 1 Stra. 407; 1 Bur. 395; 1 Bloc. Rep. 465.
    
    On the other side, the counsel for the defendant said, that if the plaintiff w'as injured, he had mistaken his remedy. That the property was changed, and became vested in the defendant; that therefore, an action of trover could not be maintained. That where the property has been delivered, and the contract executed, it cannot be considered a void act, and the property still remaining in the plaintiff. That it was a mere deception [426] at most. The consideration was not illegal, but only insufficient, and not as valnable as represented. That the whole of the difference between the parties was a controversy [*] about the description of the land, made by the defendant, at the time of the sale; they cited 8 John. Hep. 177; Cowp. 818. That there was no difference between an exchange and a sale ; 8 Blcte. Com. 44-6. That in case this action can be maintained, an action against the innocent vendee of the mare, might also be maintained, in case it had been sold by the defendant.
    
      Campbell and Williamson, for plaintiff.
    
      Hornblower and Halsey, for defendant.
   Kirkpatrick, C. J., and Rossell, J.

Were decidedly of opinion, that the conduct of the defendant was a gross fraud; and such as wholly to vitiate the contract, and rendered it null and void; and that the action of trover, brought by the plaintiff in the Common Pleas, was the proper remedy, and ought to have been sustained by that court; therefore, that the judgment of the Common Pleas must be reversed.

Pennington, J.

I am not satisfied that this action can be maintained, and would have asked time to consider it, had not my brethren been so perfectly satisfied of the correctness of the opinion they have formed, that no advantage ean arise from delay. As the case stood on the evidence before the Common Pleás, the conduct of the defendant was grossly bad; and it would be a reflection on our law, if it afforded no remedy. I am clearly of opinion, that it does, not only in equity, but in a court of common law. As at present advised, I incline to think, that this remedy has been mistaken by the plaintiff. The most essential ingredient in an action of trover, is property in the plaintiff. The property in this case, was changed. The mare was sold and delivered, and part of the consideration at least, good and valid. The cases in the books for money had and received, do not apply. The action for money had and received, is in the nature of a bill in equity. The proper action at law in this case, I apprehend to be, an action of deceit, or [*] what is more easy and familiar, a special action on the case, in the nature of an action of deceit.

Judgment of the Common Pleas reversed, and a venire de novo awarded. >

See S. C Ibid. 804.

Cited in Voorhees v. Woodhull’s Ex., 4 Vr. 482. 
      
      
         1 Gomyn's Dig. 830, 836.
      
     