Comstock v. Ames , 1 Abb. Ct. App. 411 ( 1867 )

By the Court.

Hunt, J.

[After stating the substance of the referee’s ‘report, as above.] — We are not at liberty to go behind the report of the referee and examine the testimony of the witnesses to ascertain the facts upon which our judgment is to he based. I may say, however, that Ihave looked over all the evidence in the case, and I do not find that the referee would have been justified in reporting otherwise than he has done in regard to the facts to which I have referred as not having been foundry him. There is no testimony that would have sustained the finding that the representations were fraudulent, or that the Ricketsons had taken measures to avoid the deed to the deceased, although it appears that they were aware of its existence several years before the trial.

The decision was apparently made by the referee as if the question had been presented to him in a proceeding by the Ricketsons to avoid the comptroller’s deed. We do not assume to decide whether the Ricketsons can sustain an action for that purpose. It is not before us, and there are many and grave questions connected with it which should be carefully considered before reaching a conclusion on that question.

The present question .is, however, entirely different. It does not follow, if Ricketson could maintain an action for fraud, that the plaintiff can do so. A fraud upon one does not form a claim on behalf of a stranger to the transaction, not claiming under the party defrauded. A fraud is an individual and personal thing. It is a cause of complaint to the person only, upon whom it is committed. Ho other person can claim a benefit from it. A recovery by any other person is no defense to a claim by the party defrauded. The estate of the deceased in the present case remains liable to the Ricketsons for the alleged fraud, not discharged at all by the large recovery of the plaintiff against him for the same fraud.

So, if Ricketson subsequently assented to the transaction between himself and the deceased, the title of the deceased would thereupon become good as against every one. This results necessarily from the position of the parties. The deceased obtained a legal title to the lands in question by the comptroller’s deed of August, 1853. The confidence of Ricketson having been abused by the deceased, he would, under certain circumstances, be justified in attacking this title. But, until so attacked, the legal title is supreme. Should the injured party assent to and ratify the original transaction, the abandonment of his equitable claim removes all' doubt from the legal title, and it is as if suspicion or embarrassment had never attached to it. Stevenson v. Newnham, 16 Eng. L. & Eq. 401, 408.

It is said in answer, “ that judgments are not reversed in this court, because the facts found by the referee do not sustain them, hut that they will he sustained unless it appear that some rule of law has been violated. Grant v. Morse, 22 N. Y. 324; Milhau v. Sharp, 27 Id. 624; Brainerd v. Dunning, 30 Id. 211.

The papers before us show that several reports have been made by the referee in this action, and that in September, 1859, an order was made by the general term of the fourth district, striking out all reports supplementary to the original one, and directing the referee to make a further report, in which he should state in a plain and concise manner the facts found by him. In respose to this order the referee makes a new report, in which he says, “ I hereby report the facts found by me in this case,” &c. We cannot assume the existence of facts in opposition to those found by the referee for any purpose. But certain facts are expressly found, and certain other facts are studiously omitted to be found, and the existence of the latter are necessary to sustain a judgment, it is reasonably clear that a rule of law has been violated in rendering the j udgment. Such is the present case. In neither of the reports contained in the case is .there a finding of fraud on the part of the deceased, except in obtaining the comptroller’s deed of 1851, with which "transaction the present plaintiff is in no way connected, and from which he can derive no benefit; nor is there any finding that the recitals were intended to induce a purchase, or that the plaintiff relied upon their truth.

The contract of January 13, 1853, between the plaintiff and the deceased contained a recital in these words : “ No. 80 I know to be unoccupied or non-resident land; the title to this lot is therefore perfect.” The contract had just previously recited that the deceased had bid off these lots at a comptroller’s sale for taxes, and that the time allowed by law for redemption had expired. If all these things as recited did concur, the title, as a legal proposition, may he said to have been perfect, and was not affected by an equity existing in favor of the Ricketsons. This is all the falsity or error that is pretended to have existed in relation to lot 80, and on account of which the referee gives a portion of the damages for which he makes his report. If this is error, as I think it is, the report must be set aside for this reason, although the referee were right as to the other two lots.

Bearing in mind that this is an action for fraud, I think the appellant is no better off as to the other two lots than as to Ho. 80. The deceased did not covenant to warrant the title; — that was to be at the risk of the vendee, except so far as the acts of the deceased may have affected it.

The statement as to the service of notice upon the occupants of these lots is not guaranteed by the deceased, nor does he presume to have precise knowledge thereof, as he did that lot 80 was unoccupied; the contract simply recites, that, notices having been served, and the time having expired, &c. The simple fact that notices had not been served, would not sustain an action for fraud in making this statement. Knowledge of its falsity, intentional concealment, or some similar fact tending to show fraud, must be proved, together with the plaintiff’s reliance upon its truth. If the deceased had been error, the recital would have been false in fact, but it would not have been fraudulently so, and if any remedy existed, it would have been of another character. If the plaintiff had been aware of its falsity, or had suffered no damages therefrom, no action could have been sustained.

It is evident, upon an examination of all the facts reported by the referee, that the incorrect judgment in the case does not arise from a defective statement of facts, but from an erroneous application, in favor of the plaintiff, of that principle of law which would give the Ricketsons a supposed equitable defense, if the action to recover the lands had been brought against them. There is, therefore, a violation of the rules of law, such as is required by the authorities I have cited; and the report cannot be sustained. The order of the general term should be affirmed, and under the stipulation judgment absolute must be rendered in favor of the defendants.

A majority of the judges concurred.

Order affirmed, and judgment absolute for defendants, with, costs.