INADEQUACY OF CONSIDERATION.-Mere inadequacy of consideration by itself, and disconnected from all other facts is not a sufficient ground for setting aside a contract: Judge v. Wilkins, 19 Ala. 765; Chaires v. Brady, 10 Fla. 133; Maddox v. Simmons, 31 Ga. 512; Holmes v. Fresh, 9 Mo. 201; Potter v. Everitt, 7 Ired. Eq. 152; Mann v. Betterly, 21 Vt. 326; Whitefield v. McLeod, 1 Am. Dec. 650. But gross inadequacy of price and inequality in the position of the contracting parties is a ground of equitable relief: Gifford v. Thorn, 9 N. J. Eq. 702. On this point, Story, 1 Eq. Juris. secs. 244, 246, says: "Mere inadequacy of price, or any other inequality in the bargain, is not, however, to be understood as constituting per se a ground to avoid a bargain in equity. Still, however, there may be such an unconscionableness or inadequacy in a bargain, as to demonstrate some gross imposition or some undue influence, and in such cases courts of equity ought to interfere upon the satisfactory ground of fraud. But then such unconscionableness or such inadequacy should be made out as would (to use an expressive phrase), shock the conscience, and amount in itself to conclusive and decisive evidence of fraud. And where there are other ingredients in the case of a suspicious nature, or peculiar relations between the parties, gross inadequacy of price must necessarily furnish the most vehement presumption of fraud." There is a very accurate statement of the law in Robertson v. Smith, 11 Tex. 211, holding that where a party has made a disadvantageous contract from carelessness and inattention, and when there has been no mistake of fact or fraud, such party cannot be relieved from the contract; a principle identical with that laid down in Pollard v. Lyman.

GRISWOLD V. Brown.

[1 DAY, 180.]

ACTION OF TRESPASS SURVIVES TO ADMINISTRATOR.-An action of trespass for entering upon the land and burning the mills of the intestate, in his lifetime, survives to the administrator.

AN ACTION of trespass was brought by Nathaniel Griswold against Brown and Moore, for entering the plaintiff's close and burning his mills. The suit was prosecuted to a final judgment before the superior court, and a verdict obtained against both the defendants. A motion for a new trial was thereupon made, during the pendency of which Griswold, the plaintiff in the original action, died; and a citation issued to friend Griswold, the administrator, to appear and defend. The administrator appeared and pleaded that the action in which a new trial was sought, being an action of trespass, could not be prosecuted by an administrator, and therefore the petition for a new trial ought to be dismissed. The court adjudged the plea insufficient and granted a new trial. On the second trial the defendants pleaded severally not guilty, and a verdict was found against Moore and in favor of Brown.

The administrator brought a writ of error and assigned at errors: 1. That the superior court proceeded to hear the peti tion, and to grant a new trial after the death of the plaintiff in the original action; 2. That the said court proceeded to the second trial, committed the case to the jury, and rendered judg. ment therein.

Ingersoll and Edwards, for the plaintiff in error, contended that the petition was, by the death of Nathaniel Griswold, abated, and could not be revived against the administrator. The original action being for a trespass on a freehold estate, it could not be prosecuted by the personal representative of the plaintiff after his decease. Hambly v. Trott, Cowp. 376; 2 Bac. Ab. 439, 440; 11 Vin. Ab. 123; Stat. Edw. III.

Goodrich and Dana, for the defendants in error, contended that it was competent for the court to proceed in the petition after the death of Nathaniel Griswold, and to grant a new trial. The original action was for damages, not for title, and had the plaintiff died before the trial, the action would have survived. The maxim, actio personalis moritur cum persona, has not a general, much less a universal application. Hambly v. Trott, Cowp. 375. It has not the same application as to torts done to and done by the testator. 2 Bac. Ab. 445; Berwick v. Andrews, 1 Salk. 314, S. C. 2 Ld. Raym. 971; Williams v. Carey, 1 Salk. 12, S. C. 1 Ld. Raym. 40; Crossier v. Ogleby, 1 Str. 60; King v. Ayloff, 1 Salk. 295; Esp. Dig. 295; Rutland v. Rutland, Cro. Eliz. 377, 378; Went. Ex. 65; Tol. Ex. 395. The principle of the statute, 4 Edw. III. S. 6, by which an action is given to executors for goods taken out of their testator's possession, extends to cases of damages done to the realty. Lucy v. Levington, 1 Vent. 176; Justice Moreton's case, Id. 30; Smallwood v. Coventry, Esp. Dig. 439.

BY COURT. The judgment affirmed.

See Middleton v. Robinson, 1 Am. Dec. 596, and Avery v. Moore, Id. 560, for decisions on the same question.

BOSTWICK V. Lewis.

[1 DAY, 250.]

FRAUD AND CONSPIRACY IN Sale of Real ESTATE. The plaintiff was induced to buy and take a warranty deed of certain lands from N. by the fraudulent and false representations of N. and others, who had combined together for the purpose, that N. had a good title, and that the lands were of good quality; it was held that an action on the case would lie against all the confederates for this fraud, on proof that the title to a part of the land was never in N., and that the residue was of no value.

ACTION on the case. The declaration substantially stated that in January, 1796, the defendants (the appellants in this court) affirmed to the plaintiff that Austin Nichols was the owner and proprietor in fee of a tract of land in Virginia, containing fortyfive thousand acres; and well knowing that he was not the owner, and that the land was of no value, but mountainous and rocky, and unfit for cultivation, they conspired together to induce the plaintiff to buy a portion of the said tract, at twenty-five cents per acre; and intending to cheat and defraud the plaintiff, and to share among themselves the profits, did, to carry out the purpose aforesaid, severally and respectfully affirm and represent to the plaintiff, that Nichols was the owner of the tract, and that the same was of an excellent quality, and well adapted to agricultural purposes. And in pursuance of an agreement and conspiracy entered into by the defendants, and to induce the plaintiff to purchase, Ebenezer Smith and Daniel Smith, two of the defendants, did falsely affirm to the plaintiff, that they had had great opportunities for informing themselves of the title and quality of the land, and that it was of an excellent quality, worth more than twenty-five cents per acre, and could not be purchased for less, and that the title of Nichols was good and valid. And said Bostwick, in pursuance of an agreement, combination and conspiracy, made by the defendants, pretended and ostensibly agreed, to become a purchaser of one-fourth of said tract, at twenty-five cents per acre; and proposed to the plaintiff to join in a purchase of said tract, at the said price, and represented that it was of an excellent quality, and that Nichols's title was good and valid; that he had exerted himself to find the truth respecting it, and the land was really worth twenty-five cents per acre, and unless purchased immediately the opportunity would be lost; and Baid Bostwick presented to the plaintiff a pretended map, and

falsely and fraudulently affirmed that the map contained a true description of the land, from which map it appeared the land was good lowland, well fitted for agricultural purposes; and the plaintiff relying upon the affirmations and representations aforesaid, did, on the twelfth of February, 1796, purchase of said Nichols, the one fourth part of the tract, and paid for the same the sum of two thousand eight hundred and twelve dollars and twenty-five cents, which sum the defendants divided between themselves. And said Nichols, in pursuance of said agreement and combination, did give to the plaintiff and said Bostwick, and two others, a deed of said tract of land. And said Nichols had no title at the time of executing the deed, and such Bostwick never was a purchaser of any part of said land, but ostensibly, and to decoy the plaintiff, and in pursuance of said combination, nor did he ever pay anything for said land, but said Nichols, as soon as said deed was executed, discharged Bostwick from the payment of anything on account of said land. And the plaintiff, in consequence of said conspiracy, has lost all the money which he paid said Nichols, and is injured, etc.

On the trial in the superior court, Nichols suffered a default, and the other defendants severally pleaded not guilty. The plaintiff exhibited in evidence a deed of the described land, the execution and acknowledgment of which were admitted. He then offered in evidence certain patents in favor of Jacob Pate and others, to prove that at the time of the execution and delivery of the deed, about nine thousand acres had been taken up, surveyed and granted by Virginia to Pate and others, and that the title to such was not in Nichols, but in these parties, and that Nichols had no right to sell the same. The plaintiff offered to prove by other testimony, that the remainder of the land was of no value. The defendants objected to any proof of a defect of title; because the plaintiff had his remedy by a suit upon the covenants in the deed. The court admitted the patent in evidence on the ground that by such testimony the plaintiff might evince that the land attempted to be conveyed by said deed, exclusive of the nine thousand acres, was of no value. A verdict was found and judgment rendered against two of the defendants; and the present appeal was taken on the ground that the testimony objected to was improperly admitted. Ingersoll and Smith, for the appellants, contended that the evidence of the patents ought not to have been admitted. The remedy of Lewis was upon the covenants in his deed, which

covenants embody the whole contract and stipulations between the parties. A party can obtain no more damages in an action. on the case than in an action on the covenants, and in neither is it necessary to show the defendant knew he had no title. An action of fraud is sustained on the ground that a title has been given which is worth nothing. The deed having covenants of seisin and warranty, no action would lie except on the covenants until it was shown Nichols was bankrupt; and no authority could be shown where such an action was sustained in Great Britain. In this case there are other persons not parties to the deed. The action will not lie against them and Nichols, for there is another remedy against him; and therefore no evidence can be produced to show that the other defendants combined with Nichols. If such an action as this would lie, there would be two concurrent remedies for the same thing.

The evidence offered was wholly irrelevant; for showing that the title to part of this land was not in Nichols, did not tend in the least to show that the remainder was of no value. No cause of action is shown. The strongest allegations are that the defendant represented the land as excellent, well worth twenty-five cents an acre. This is merely an opinion; no fact is affirmed. If a man declares that there is a mountain of salt, or lake of whisky upon his land, he affirms a fact, and if false, an action will lie; but if he states that he has an excellent horse well worth fifty dollars, and the horse is not worth that sum, no action will lie, for the maxim caveat emptor will apply; for the purchaser might have examined and judged for himself. An extravagant representation of the value of a small farm in this State would not be a ground of action; and the reason of the case is the same if the land lies in Virginia.

The law will not encourage the indolent, nor pay the buyer for shutting his eyes. In Pasley v. Freeman, 3 T. R. 56 Buller, J., says, "the buyer of land is at his peril to see to the title." Mere affirmations, unaccompanied with fraud, will not furnish a ground of action. Parkinson v. Lee, 2 East. 314. There have been decisions in the superior court sustaining a recovery for fraud in the sale of lands. A state of things has existed which induced that court to adopt principles which in more settled times would never have been recognized. But these opinions have never been sanctioned by this court; and the case of Pollard v. Lyman, ante, 63, so far as it went, was in oppo sition to the principle contended for.