Elwell v. Russell

• Decision Date: 09 March 1899
• Citation: 42 A. 862,71 Conn. 462
• Parties: ELWELL et al. v. RUSSELL.
• Court: Connecticut Supreme Court

42 A. 862

71 Conn. 462

ELWELL et al.

v. RUSSELL.

Supreme Court of Errors of Connecticut.

March 9, 1899.

Appeal from superior court, Middlesex county; George W. Wheeler, Judge.

Action by James W. Elwell and others against Charles T. Russell to recover damages for fraud respecting the title to real estate. There was a judgment for the defendant, and plaintiff's appeal. Affirmed.

This was an action brought to recover damages of the defendant for a fraud. The plaintiffs had loaned to the defendant the sum of $5,000 upon the security of a mortgage of certain real estate. The fraud consisted in misrepresenting the title of that real estate. The parts of the complaint which set out the fraud are as follows: "(2) For the purpose of inducing the plaintiffs to accede to such request, and to lend the defendant said sum of five thousand ($5,000) dollars, the defendant at the same time pretended and represented to the plaintiffs that the real estate which is described in said mortgage was then the property of the defendant's daughter, Matilda A. Russell, the maker of said mortgage and of said mortgage note, and that the same stood in her name, of record, and belonged to her absolutely in fee simple, subject only to said mortgage, and was free and clear from any incumbrances whatsoever, except said mortgage; and the defendant, in pretended corroboration of that statement, produced to the plaintiffs a certificate in writing of John H. Russell, town clerk of said town of Had dam, wherein said real estate is situated,—the custodian of the land records of said town of Haddam, and the father of the defendant to the effect that the real estate described in said mortgage was then clear of all incumbrances except said mortgage. (3) The defendant made said statements and representations as of his own knowledge, and presented said certificate as true, not believing said statements, representations, or certificate to be true, but having reason to believe them to be false, and believing and knowing them to be false, and with intent thereby to induce the plaintiffs to lend and advance to the defendant the said sum of five thousand ($5,000) dollars, and with intent to defraud him thereof." The defendant denied all those parts of the complaint which charged the fraud. There wag a trial, and the court found the issue for the defendant, and rendered judgment for him, to recover his costs. The plaintiffs have appealed to this court. There is a finding of facts, which it is not necessary to set out. Upon the trial the plaintiffs claimed (1) that the representations as alleged were proved; (2) that they were false, and Matilda A. Russell had no title to the premises at the date of the representations; (3) that the defendant knew of the falsity of the representations; (4) that the representations were relied on, and the loan made in reliance thereon; (5) that the defendant was not relieved of liability by having followed the advice of counsel, or by having obtained the certificate of title from the town clerk; (6) that a case of actual fraud had been proved; (7) that upon the facts proved, and the doctrine of Hadcock v. Osmer, 153 N. Y. 604, 47 N. E. 1)23, and of Furnace Co. v. Moffatt, 147 Mass. 403, 18 N. E. 168, the defendant was liable in this action. The trial court found in accordance with claims 1 and 2, and against claims 3 and 6, and overruled claim 7. As to claim 2, the court found that the representation as to the title was false, in respect to the taxes due upon said premises; and, as to the title not being in Matilda A. Russell, the court did not find it necessary to pass upon this question, having assumed this to be true, and, upon that assumption, haying concluded that the defendant was not liable. As to...