#### Adam W. Snyder, Appellant, v. Baptiste Laframboise, Appellee.

APPEAL FROM ST. CLAIR.

In a sale of land where there is no fraud and no warranty, the vendee can not recover back the purchase money. (1)

This court will not protect a party who stands by and permits improper testimony to go to the jury.

The rule of law is, that where there is a community of interest and design, the declarations of one of the parties is evidence against the rest, and this rale is not confined to cases of civil contract.

The rule in relation to the charge to the jury is, that it be positive and specific, and that nothing be left to inference. (2)

A party who takes a quitclaim deed on the sale of land, runs the risk of the goodness of the title.

Where there is a total failure of title on a sale of land, and no circumstances are proved to induce a jury to believe that the vendor has acted dishonestly, it is not prima facie evidence of fraud.

(1)

The doctrine is well settled, both in law and in equity, that on a sale of land, where there is neither fraud nor warranty on the part of the vendor, the vendee can not recover back the purchase money, although there may be a total failure of title. Doyle et al. v. Knapp, 3 Scam., 334. Owings v. Thompson et al., id., 509. A quitclaim deed is a sufficient consideration. Bonney v. Smith, 17 Ill., 531.

(2)

See note 2, to the case of Humphrey v. Collier et al., ante, p. 297.

Opinion of the Court by

Justice Lockwood.

This was an action of assumpsit commenced in the St. Clair circuit court by Laframboise against Snyder. The declaration contains the common money counts to which the defendant below pleaded non assumpsit. On the trial of the cause, the defendant took a bill of exceptions containing the evidence and the charge of the judge. From the bill of exceptions it appears that the plaintiff below purchased a tract of land of the defendant and one Louis Pingonneau, for which he paid one hundred and fifty dollars, and received from them a quitclaim deed, in which it is stipulated that they do not wai'rant the land against the claims of any person but themselves. It was also proved that defendant below had no title to the premises. The plaintiff further proved by a witness “that after the sale and purchase, said Pingonneau told witness that he, said Pingonneau, had understood plaintiff did not wish to trade with Snyder for the land, as he was afraid he, Snyder, would cheat him, being a lawyer; that plaintiff preferred trading with said Pingonneau; that plaintiff1 2would find that he, Pingonneau, could cheat as well as defendant; and that Pingonneau admitted to witness that the legal title to the said land was in the heirs of one Augustin Pingonneau ; that *344if plaintiff would give fifty dollars more, he, Pingonneau, would make plaintiff a warranty deed, as he could let Augustin Pingonneau’s heirs have other lands for it.” The defendant was not present when these statements were made by Pingonneau. Some testimony was adduced on the part of the defendant which it is unnecessary to notice. After the testimony was produced, the defendant moved the court to instruct the jury, that if there was no fraud practised by defendant, nor any false affirmation as to his title, the plaintiff could not recover ; and further, where there is no false affirmation or fraud in a sale of lands, the purchaser can not recover back the purchase money, and that in the sale of land where there is no fraud, the maxim of caveat ernptor applies. The court, however, instructed the jury, that if they were satisfied from the evidence that Snyder and Pingonneau sold a title to the land, either legal or equitable, when in truth they had no title of either kind, or that they, or either of them, deceived the plaintiff as to the title, they should find for the plaintiff; but if they were satisfied from the evidence that Snyder and Pingonneau did not deceive the plaintiff as to the nature of the title, they ought to find a verdict for the defendant. To all of which instructions the defendant, by his counsel, excepted. A verdict was found for plaintiff, and judgment rendered thereon. Several errors have been assigned, and under them it was urged that a part of the testimony ought not to have been permitted to go to the jury, and that the instructions were not such as the defendant was entitled to, and was prayed for. The court in examining the bill of exceptions, do not find that the testimony was excepted to on the trial. If a party permits improper testimony to go to the jury without objection, the reasonable presumption is, that it was received by consent. In the event that a verdict should be found on such testimony, the proper remedy is by a motion for a new trial, and the case must be a strong one where this court will interfere to protect a party who stands by and permits improper testimony to be given to the jury. The court feel themselves called on to condemn the practice that seems to prevail extensively, to suffer illegal testimony to be given to the jury, and then rely upon the skill of counsel to extricate his client from the effect of such testimony. This course leads to much embarrassment, and frequently presents much difficulty in distinguishing between the province of the court and jury. In this case the court feel no hesitation in declaring that the evidence of the delarations of Pingonneau under the circumstances were not evidence against the defendant, and no doubt exists that, had the court below been called on *345to take this evidence from the jury, that it would have been withdrawn, and in that event no verdict could have been given for the plaintiff. The rule of law on this point is, that where there is a community of interest and design, the declarations of one of the parties is evidence against the rest, and this rule is not confined to cases of civil contract. It is indeed true, that in general, the declarations or admissions of one trespasser or other wrong-doer is not evidence to affect any other person, for it is merely res inter alios, but where it has once been established that several persons have entered into the same criminal design with a view to its accomplishment, the acts and declarations of any one of them, in furtherance of the general object, are no longer to be considered as res inter alios with respect to the rest. They are identified with each other in the prosecution of the scheme; they are partners for a bad purpose, and as much mutually responsible as to such purpose, as partners in trade are for more honest pursuits, and may be considered as mutual agents for each other. Where an unity of design and purpose has once been established in evidence, it may fairly and reasonably be presumed that the declarations and admissions of any one with a view to the prosecution and accomplishment of that purpose, convey the intentions and meaning of all; and this seems to be the general rule in the case of trials for conspiracies, and other crimes of a like nature. 2 Starkie on Ev., 47. It was urged on the argument that Snyder and Pingonneau ought to be considered as partners, and consequently the admissions of either be evidence against the other. The court are, however, of opinion that this action can not be sustained on this principle. The plaintiff’s right to recover in this case depends upon the question whether the defendant and Pingonneau were guilty of fraud in selling the land mentioned in the deed. Even in equity a vendee has no remedy on the ground of failure of title, if he has no covenants and there is no fraud. Chesterman v. Gardner, 5 Johns. Ch. Rep., 29. Gouveneur v. Elmendorf, ibid, 79. And the fraud must exist at the time of the execution of the deed or lease, and not fraud in a subsequent and distinct transaction.

Testing this case by the above principles, there is an absence of evidence of any concerted design between Snyder and Pingonneau to defraud the plaintiff below. The declarations of Pingonneau being made subsequent to the execution of the deed, and in the absence of Snyder, and there being no evidence of concerted design, must be considered as admissions res inter alios, and consequently, hearsay, and inadmissible as evidence.

*346But ought the court to reverse the judgment because of the inadmissibility of this evidence? Were there no other objections to the judgment, the court might well doubt whether they ought to interfere; but on examining the charge of the judge, they are of opinion that it is not as specific and certain as it ought to have been. The rule in relation to the charge to the jury is, that it be positive and specific, and that nothing be left to inference. From what the judge said in the first part of the charge, the jury may have inferred that if they believed that Snyder and Pingonneau had no title to the land sold, that the plaintiff had a right to recover ; yet from the latter part of the charge, the jury might have an equal right to infer that the plaintiff had no right to recover, unless Snyder and Pingonneau had deceived the plaintiff as to the nature of their title. The charge then, as preserved in the bill of exceptions, does not convey to the jury distinctly the precise rule that is to govern them in their deliberations. The court are of opinion that the?judge should have instructed the jury that the defendant was not liable to refund the money paid in this case, unless the defendant, previous to the sale, affirmed what he knew to be false in relation to the title to the land, or concealed some material fact in relation to the title, or used some fraudulent means to induce the plaintiff to accept a deed without covenants of "warranty; that a party who takes a quit claim deed on the sale of land, runs the risk of the goodness of the title, unless some fraud has been practiced upon him. Inasmuch then as the charge may have had an improper influence on the jury, the judgment must be reversed with costs, and the cause remanded to the St. Clair circuit court, for further proceedings.

See the cases of Livingston et al. v. Maryland Insurance Company, 7 Cranch, 506. 11 Wheaton, 59, as to the manner of charging a jury.

Separate opinion of

Justice Smith.

I concur in the reversal of the judgment in this cause, on the ground that it is possible the jury may have decided against the defendant on the simple ground of a failure of title in Snyder and Pingonneau, without considering it essential that there should have been evidence of fraud against him.

I hold the doctrine correct, that where there is a total failure of title in a case like the present, and no circumstances are adduced to induce the jury to believe that the vendor has acted dishonestly in the sale, but are left to infer that he may have sold under a mistaken impression of his title, that such sale is not prima facie evidence of fraud, and *347that it is necessary, to entitle a party to recover, to show facts sufficient to warrant inferences of fraud. From the general character of the charge, and the fact of the qualification in it, (being in the disjunctive) it may have led the jury to the simple inquiry, whether Snyder had title or not, and as none was shown, on the trial, they may not have inquired into the question of fraud. That an individual may execute a release for a valuable consideration, for a supposed interest in lands, when in truth he may have no title, either legal or equitable, and not be liable to refund, will depend upon the honesty with which he acts. Should he conceal facts, or misrepresent others necessary to a correct understanding of his title, it can not be doubted that he would be liable.

Breese and Semple, for appellant.

Blackwell, for appellee.

In the present case it does not appear that Snyder was guilty of either a suppression or a misrepresentation of the manner in which he deduced his title to the lands in question. I had great doubts on the motion for a new trial, whether it ought not to have been granted, but as the evidence of Pingonneau’s declarations were not objected to on the trial, and the whole evidence had been weighed by the jury, whose peculiar province it alone was to determine its character and force, I did not feel disposed to disturb the verdict. Upon reflection, I am now satisfied that the confessions of Pingonneau were not evidence, that they must have had great weight with the jury in determining their verdict, that there was no evidence connecting Snyder’s acts with those confessions, and when Snyder was not present, and that a possible indistinctness in the charge given may have had its effect upon the jury to lead them away from the question of fraud in selling the lands in controversy. I believe, for the purposes of justice, that the reversal of the judgment will be but right, all circumstances considered, and therefore concur in the reversal, (a)

Judgment reversed.

(a)

The civil law bound every man to warrant what he sold, albeit there be no express warranty; but the common law does not, without a warranty in deed or in law, for the rule is, caveat emptor. Co. Litt., 102. 4th Dane’s Dig., p. 327.

In a sale of lands, the maxim of caveat emptor applies. Boyd v. Bopst, 2 Dallas, 91.

A purchaser of real estate can not recover back the purchase money in an action for money had and received, in case the title proves defective, unless there be fraud or warranty. Dorsey v. Jackman, 1 Serg. and Rawle, 42.

*348Between the sale of goods and of land, there is a marked distinction. In the former, the law implies a warranty of title, but not in the latter. Ibid.

An action will not lie to recover back a sum of money paid in consideration of the assignment of á mortgage, although it turned out to be a forgery. Bree v. Holbeck, Doug., 655.