Tallman v. Whitney
New York Court of Common Pleas
Appeal from an order denying a motion to vacate an order of arrest granted on the verified complaint. The action was brought to recover damages for deceit, and the plaintiff alleged that on October 27th, 1870, he was the owner of land in New Jersey, worth $3,000, and on that day gave a deed of it to defendant in exchange for a deed by defendant and wife, of certain lands in Missouri, which said deed contained a covenant by the defendant that at the time of the delivery of…
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Appeal from an order denying a motion to vacate an order of arrest granted on the verified complaint. The action was brought to recover damages for deceit, and the plaintiff alleged that on October 27th, 1870, he was the owner of land in New Jersey, worth $3,000, and on that day gave a deed of it to defendant in exchange for a deed by defendant and wife, of certain lands in Missouri, which said deed contained a covenant by the defendant that at the time of the delivery of the deed he was lawfully seized of a good, absolute and indefeasible estate of inheritance in fee simple in the said…
1Opinion of the CourtLarremore, 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.
*507Where, 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…
2Cases cited1 opinion
- Ely v. MumfordNew York Supreme Court · 1866