Tallman v. Whitney

Larremore, J. The covenant of seizin contained in defendant’s deed created such an obligation on his part as to render him liable, for fraud or misrepresentation therein, to action and arrest. [507] Where, as in this case, the cause of action and the ground of arrest are identical, a bare denial of the facts constituting the alleged fraud, will not authorize a discharge of the arrest, unless it is evident that the action cannot be sustained (Ely v. Mumford, 47 Barb. 629; Stuyvesant v. Bowran, 3 Abb. Pr. N. S. 270 ; Royal Ins. Co. v. Noble, 5 Abb. Pr. N. S. 54). The defendant has not denied the representations, but on the contrary avers their truth. As to mere matters of opinion, he should not he made responsible, but for a voluntary misstatement of any material fact upon which the plaintiff relied, and by which he was misled, the defendant should be held liable. It is admitted that he represented to plaintiff that no one else had any interest in the property; yet Cushing’s affidavit shows that defendant previously knew of the claim of the Atlantic and Pacific B. B. Co., which fact he failed to disclose. Had he done so, plaintiff might have declined to purchase a litigation with the land. Fraud consisting as well in the suppression of truth, as'in the assertion of falsehood, it should be left for a jury to decide whether the representations in question were made with intent to deceive. The order appealed from should be affirmed. Daly, Ch. J., and J. F. Daly, J., concurred. Order affirmed.