Updike v. Abel. Let us take a brief review. The defendant (as the evidence shows, or tends to show, and as the jury have found,) represented "that he had good title, and the best kind of title" to the lands in question; that they had been. selected as choice lands many years before, by one who had great opportunities of locating choice lands; that Jerome, who had thus selected these lands, had conveyed some of them to his brother, and that brother had conveyed them to the defendant. There was also evidence that during the negotiations between the parties, the plain tiff distinctly informed the defendant that he would not purchase lands under a tax title. All this testimony was clearly presented to the jury by the learned judge, who also informed them that there was no dispute in regard to the evidence that the defendant held the lands under a tax title. He also informed the jury "that if the defendant made the representations proved, knowing that the title · was a tax title, it would be a fraud." And also he said. "that there is evidence here tending to show that the plaintiff had sufficient reason for insisting upon a title not a tax title; and the evidence shows (he says) that these premises, or a portion of them, are in possession of a person or persons claiming them under a United States title, and that this tax title is supervened by that title, and stands in a position to defeat the tax title; and that may be a sufficient reason why the plaintiff has been intending not to take a tax title." 66 Now," said the judge, "did he bargain for a title not a tax title, so that he has been defrauded by the defendant?" In all this, it seems to me, the case was put to the jury fairly, as to the facts, and upon sound legal propositions, satisfactory to both parties, as is manifest by the absence of an exception. And a verdict was rendered in accordance with this charge, and upon the weight of evidence. Upon what ground, then, was this verdict and judgment set aside? This presents the only point in the case. We Updike v. Abel. must see what reason the learned judge gives. He thinks he committed an error in refusing to nonsuit. In this I think he was mistaken. He says, although the plaintiff proved the representations set forth in his complaint, there was no proof of their falsity. I think this a still greater mistake. There is evidence that the defendant said these lands were selected many years before, by one who had great opportunities for selecting choice lands. The falsity of this was clearly proved, and the judge even told the jury that there was no dispute that these lands had been purchased under tax titles. The evidence on this point is as follows: "I told him if I could get a good title I would not mind buying some of it. He said he had the best kind of title. He said he would be rather a foolish man to take a tax title; he was very particular to get a good title; that Tift Jerome had located this land, and let Jim (Jerome) have it, and he (defendant) got it of him; that Tift was a surveyor, and had located this land when surveying, and he would mark it, and aftewards go to the office and locate this particular piece." This was a most material representation. There was evidence clearly showing this statement to be false. It was further testified, that the plaintiff went out to Michigan to inquire about the lands, and on finding the title to be only a tax title, and parties in possession, claiming under a United States title, he returned and told the defendant, saying "he had found out that he (defendant) didn't really own any land there; that he (the plaintiff) wanted defendant to secure him for the money, or pay it back, or give a deed as he agreed to." Defendant told me to keep still, and said “I can sell the land; I have traded away the other half, and can sell that, if you keep still." If the jury believed this testimony, as they had a right to do, it was an implied admission of the fraud. It was, I think, clearly error to say the falsity of the representations was not proved. But the learned judge, as I understand him, puts the Updike v. Abel. case upon the ground that if these representations were proved false, it was made out by proving that the title was a tax title, and because those words, though proved, were not set forth in the complaint as one of the false representations, the plaintiff should not be permitted to recover upon the words alleged. I think there are two perfect answers to this position. First. This evidence was received on the trial without objection, and no motion was made to strike it out, and no request that the judge should charge the jury that it was not legitimate evidence. Besides, it was a part of the language used by the defendant at the interview between the parties, at the time the false representations were made; and it could not have been separated from the other; it was a part of one continuous connected conversation and statement. One example will show its impossibility. In the main interview, the witness states, the plaintiff asked him what title he had. Defendant said he had the best kind of title. The plaintiff asked him if it was a tax title. The defendant said no, it was the best kind of title." How could this be stricken out? 66 Second. These words, even if susceptible of sustaining a separate allegation in the complaint, may also be used. as evidence to sustain other allegations that were contained in it; and if used as evidence to sustain another allegation, to wit, the falsity of the statement that his title was the best kind, it is no ground for granting a new trial. A perfect cause of action was made out upon the other allegations; and there is no variance between the allegations and the proofs, even though an additional allegation of false representations might also have been sustained, by counting upon these words. I am not able, therefore, to concur with the learned judge in supposing that a recovery was had upon allegations not contained in the complaint. On the contrary, the allegations contained in the complaint were the equiv Loomis v. Loomis. alent of the words proved, and which were but another form of charging the same fraud. Both were fraudulent representations, and in effect were the same thing, and proving the one not alleged was only proving the animus of the other. The plaintiff was not bound to set out every statement of equivalent words. If there was any soundness in this objection of the defendant, even if made earlier, certainly after judgment it was too late to avail himself of it. Under our system of practice established by the Code, in order to entitle the defendant to a new trial, it must appear that the cause of action was unproved, in its entire scope. This does not appear, but, as I think, clearly the contrary. (Hamilton v. Gridley, 54 Barb. 549.) The order of the special term, granting a new trial, I think, should be reversed. [THIRD DEPARTMENT, GENERAL TERM, at Elmira, April 4, 1871. Miller, P. J., and Potter, Justice.] JESSE LOOMIS vs. SAMUEL I. LOOMIS. The plaintiff's farm, being sold on a mortgage foreclosure, was bid off for $2400, by W. who agreed, orally, with the plaintiff to let him have the farm back on the payment of said sum of $2400, and the sum of $20 in addition, for expenses. The plaintiff failing to procure the money, or security, within the time limited, got an extension of time, and within the extended time, procured the defendant to take a conveyance from W. upon the terms on which W. had agreed to convey to the plaintiff; and it was then agreed, by parol, between the parties, that the plaintiff should remain in possession, and receive the rents and profits, and with them, and from other sources, refund to the defendant what he had paid, or should pay or secure, to W., and that on such payment, the defendant should convey the premises to the plaintiff. Held that the agreement of the defendant to convey the premises, being by parol, was void by the statute of frauds, and could not be enforced in equity. Held, also, that the plaintiff having, at the time of making the agreement, no Loomis v. Loomis. title or interest in the premises, and there being no legal consideration received from him, for the promise made by the defendant, that was another difficulty thrown in his way by the statute of frauds. Held. further, that there could be no express trust, in the case, for the reasons that the plaintiff had no estate to put in trust, and because there was no writing to make a valid trust. Nor could there have been a resulting trust, according to the provisions of the statute, (1 R. S. 723, ýý 51, 54,) no valuable consideration having been paid by the plaintiff, and the conveyance being absolute upon its face. That the conveyance being in the form which the parties agreed upon, it could not have been a mortgage, and in this particular there was no fraud. ther had the plaintiff, in law, any estate to mortgage. Nei HE plaintiff in this case owned a farm that was incumbered by himself, by mortgage, which was duly foreclosed, and the premises bid in by one Jabez R. Ward, the attorney of the mortgagee, for $2400, which was less. than its true value. Ward agreed, orally, with the plaintiff to let him have the farm back on the payment of said sum of $2400, and $20, added for expenses, and gave him, the plaintiff, a certain time to procure the money or security for that purpose. The plaintiff failed to procure it within the time given, and got an extension of time; the plaintiff in the meantime holding the possession. Within this extended time, the plaintiff obtained his brother, the defendant, to take a conveyance from Ward, upou the terms on which Ward had agreed to convey it to the plaintiff; and it was then agreed, by parol, between the plaintiff and the defendant, that the plaintiff should remain in possession, and receive the rents and profits, and with them and from other sources, refund to the defendant what he had paid or should pay or secure to Ward, and then that the defendant should convey the premises. to the plaintiff. On the sale, by the mortgagee, there was a surplus of $83.67, belonging to the plaintiff, over and above paying the amount of principal, interest and costs, and the defendant used this sum, in his purchase from Ward, towards paying for the farm. The plaintiff brought |