Rhoades v. Bugg ( 1910 )

GOODE, J.

(after stating the facts). — We would have gone into the facts of the title more fully were we not persuaded no case was made out and the verdict cannot stand. No doubt the action was brought with the expectation of proving not only that defendant drove stakes on the parcel of land in controversy, but claimed to own it by word of mouth and spoke disparagingly of the title of plaintiffs. No spoken or printed words having been proved, plaintiffs insist they are entitled to have a verdict for defamation of title by the setting out of stakes by defendant. Slander of title differs from slander of person in that it may be the result of written as well as spoken words. [Odgers, Libel and Slander, ch. 4; Newell, Slander (2 Ed.), sec. 2, p. 204.] We havd not found a case after Jong search, nor have we been cited to one, wherein it wTas held there could be slander of title except by words published in some manner; that is to say, by spealdng, writing, printing or other mode of publication. The point never has been decided to our knowledge; but all the authorities imply there must have been a defamation of title by language for the action to lie. Practically conceding the action will not lie as one for slander of title, plaintiffs insist it may be treated as an action in the nature of trespass on the case, the essential fact being that the defendant maliciously asserted title to the ground by driving stakes, when he knew he had no title, for the purpose of preventing plaintiffs from selling, and succeeded in accomplishing the purpose. That is to say, his act alarmed Casey and prevented him from completing the sale, which had been negotiated with him. Without holding such an action will not lie, we hold it was not brought in this instance, which is plainly one for slander of title. The petition does not say setting the stakes out in itself prevented Casey from buying; but alleges, as will be observed by reading the conclusion, that said conduct, in connection with the verbal slander, broke up the sale. The allegation is “that by reason of said false, defamatory and malicious acts, representations and statements so done and made by the defendant,” Casey was dissuaded from the purchase of the property, etc. The verbal slander is counted on throughout the petition as an essential part of the cause of action, and there was a futile attempt to. make it good by evidence. We hold only that in the present action plaintiffs cannot recover as in trespass on the case, without deciding whether or not such a remedy would he available ii properly sought.

The judgment will be reversed and cause remanded.

All concur.