Platt v. Brown

Hinman, O. J. We think the ruling of the court below was correct in admitting in evidence the quit-claim deeds of the land in New York for the purpose of proving a transfer of the land to the defendant. In Jackson v. Fish, 10 Johns., 456, it was held that the words “ remise, release, and forever quitclaim,” which were the operative words used in those instruments, will raise a use by way-of bargain and sale, which by force of the statute of uses becomes operative to pass the title. It was claimed that this could not be so since the revision of the New York statutes, because by those statutes as they now stand the statute of uses is not in force in that state. However this maybe, the defendant’s counsel admits that these statutes do authorize conveyances by bargain and sale, and lease and release, and he refers us to no authority showing that any alteration of the New York statutes was intended to change or has in fact changed the law as recognized in the case referred to, and until this is done it appears to us that we should be governed by the last known decision of the highest court in New York upon the subject. Again it is claimed, that the right of Anna Platt to dower in this New York property was never legally transferred to the defendant, because the deed was not adapted to convey a future contingent interest, and therefore could only operate to convey such interest as she then had in it. There may be some force in this argument, unless it be removed by the provisions of the statutes of New York in reference to deeds by married women residing out of the state, but we have not thought it necessary to examine the point particularly. The objection was taken to the admissibility of the deed in evidence, not to its effect; and it was obviously admissible if any title or interest whatever passed by it. The question is not, therefore, in this part of the case, how much the deed proved, but whether it proved anything; and as we think it was a valid conveyance as against the husband, and passed whatever interest he had, it was of course admissible. The acknowledgment of the deed by Mrs. Platt we are however inclined [341] to think is sanctioned by the statute of New York, which provides that the acknowledgment of a deed conveying land in the state of New York by a married woman residing out of the state, may be made in the same manner as if she were sole. 3 Rev. Stat. of New York, p. 53, § 35. It is not denied that the acknowledgment of the husband was good by the laws of New York, consequently the same acknowledgment by the wife would be good were she sole; and if the statute applies to a case like this, where the wife signs the deed for the purpose of releasing her dower, which was her sole interest in the land released, as we incline to think it does, it makes her acknowledgment as good as it (would be if she were sole, and gives the same effect to the conveyance. But the principal question in the case arises on the refusal of the court to charge the jury as requested by the defendant, that, to entitle the plaintiff to recover, it was necessary for him to prove that, at the time of the delivery of the horse to him, he delivered or tendered to the defendant a deed of the land, operative and effectual to convey to the defendant the land free from all incumbrance, and that the deeds were incompetent and insufficient to convey such a title. The court not only refused so to instruct the jury, but on the contrary charged them that, if they found the contract was substantially as stated in the declaration, and the defendant accepted what was done under it as performance on the plaintiff’s part, and thereupon fulfilled the contract on his own part by a delivery of the horse to the plaintiff, the plaintiff was entitled to recover, provided he had proved the fraud alleged, even though it should appear that there was a partial failure of the consideration. It appears to us quite obvious that if this is not the law in respect to cases situated as this was, it would be impossible to do justice between such parties in an action at law. The plaintiff had parted with his land together with a considerable sum of money for the horse, in the value of which he seems to have been grossly deceived and defrauded ; and the deeds being, as we think, good to transfer all the interest in the land, except perhaps Mrs. Platt’s contingent right of dower therein in case she should survive her husband, if the de [342] fendant’s claim is correct, he has the right to retain' the money and such interest as the deeds conveyed to him, without any liability to respond in this action for his fraud in the sale of the horse. Had he chosen not to complete the sale, or had he offered to return the money and re-convey any interest acquired by the deeds, the equity of his claim would be much more apparent. But surely he ought not to be allowed to retain the consideration for the sale of his horse without being himself responsible for his frauds in the sale. The jury of course found the contract stated in the declaration to have been executed by both parties. As the money was paid by the plaintiff, and such interest as he had in the land was passed to the defendant, the case is in this respect like an action for the price of goods sold, or on a bill or note given for such goods, where the party does not repudiate the contract, but retains the goods. In such case he must at least pay the value of the goods. The sale of the horse was not only an executed contract, but the defendant still continues to affirm it by retaining the consideration. But he can not affirm the contract for the purpose of retaining the consideration, and disaffirm it for the purpose of avoiding the consequences of his own fraud. We think, therefore, that the court charged the jury correctly upon this point. But the defendant complains of the charge of the court on the subject of damages, and we are inclined to think that the rule of damages was laid down without such qualifications as ought to have been stated in order to prevent the jury from misapprehending it. It is true that in actions of this sort, where the plaintiff recovers on the ground that he has been made the victim of a gross and willful fraud, the jury are at liberty to give, and the course of our decisions has been rather to encourage them in giving, what are sometimes called vindictive or exemplary damages. And there is no doubt that the expenses of the litigation may properly be considered by the jury, as coming within this description of damages. The object intended in these cases is to give the plaintiff a full indemnity for his injury, which, as was remarked in the case of Bushnell v. Lindsley, 15 Conn., 237, every client knows is [343] never done in the taxation of the legal costs in the case. What was said in respect to interest on the difference between the value of the horse as he was, and his value had he been what he was represented to be, was well enough in the connection in which it was said. Still it is quite obvious that in a technical sense he was not entitled to it as interest, but only as an item to be considered in the estimate of those general damages which are intended as an indemnity to a plaintiff for the injury he has sustained. And it seems to stand, therefore, on the same footing with the expenses of the litigation over and above the taxable costs in the case. The whole charge in respect to the damages, while it follows very nearly the language that may be found to have been used in some one or more of our decisions, was still, as we think, so artificially put to the jury as a whole, as to be calculated to enhance the damages to the full extent at least which is by law allowable. Still it was undoubtedly a case where a gross fraud had been perpetrated, and we can not say that the jury were in fact misled except in respect to the last clause of the charge, in which they were told that they might increase the amount of exemplary or vindictive damages, by taking into consideration the plaintiff’s expenses in this litigation. Taking this instruction in connection with the whole charge on the subject of damages, without any qualification whatever, we are inclined to think that the jury may have understood that it was their duty to make and allow to the plaintiff an estimate of all the expense which he had incurred in the litigation, without any reference whatever to the taxed costs in the case. And when we consider the large sum which was recovered, beyond even the full value of the horse as he was represented at the time of sale, we are inclined to think that the charge must have been understood as substantially instructing the jury to estimate the plaintiff’s whole expense in the litigation, without reference to any taxation of costs in the case, and to add it to the damage they had before been instructed or authorized to give. If we are correct in this, the defendant must have suffered to the extent of the taxable costs at least. We therefore advise the superior court to grant a [344] new trial, unless the plaintiff will remit all the taxed costs in the case, or such portion of the damages recovered as will be equal thereto. In this opinion the other judges concurred.