FRITZ against HOCKER, 4 Rawle 370

was relieved by the Court, whose opinion was delivered by Gibson, C. J. As there was ample evidence of delivery as well as of an ouster of the grantee, and as it has already been ruled in a case like the present, that the plaintiff may recover according to his ■title, it but remains to be determined, whether the proposed evidence of fraud was sufficient to set aside the conveyance in equity.

There was no allegation of fraud appearing from the intrinsic nature of the contract; for the consideration which is usually the test of that, appears to be a reasonable one ; nor from the condition of the parties; for they stood in the relation of brothers of mature age, free from the pressure of necessities, and labouring under no apparent infirmity; nor from the nature or circumstances of the transaction, as being a fraud upon others; for none but the immediate parties were concerned in it, either in interest or feeling.

If there was fraud at all, then, it must have arisen, according to the classification of Lord Hardwicks, in Chesterfield v. Jansen, from circumstances of actual and positive imposition. In what do these consist ! They consist, said the same great authority, in the suggestion of a falsehood, or the suppression of a truth. What, then, is the suggestion or suppression contained in the evidence of circumstances rejected! The parties were partners when the defendant purchased on separate account the marble quarry, which is the subject of the action, the purchase money being raised by a loan on the credit of both.

The partnership being dissolved, the plaintiff being pressed for payment of a heavy balance to the defendant, gave notice of measures meditated by him to release himself from responsibility as the surety of the defendant. So far, there is no pretence of fraud.

The dispute was merged in a new partnership, by which the defendant became jointly interested with the plaintiff in his business as a marble mason, and the plaintiff became, for a consideration to be paid in money, a joint proprietor of the quarry, which was conveyed on terms by which the defendant was to superintend the working of it, while the plain tiff was to superintend the sales at the yard in Philadelphia. On being pressed for his share of the purchase money, the plaintiff denied the partnership, his own indebtedness, kept exclusive possession of the yard, and set the defendant at defiance.

This is the whole case; for the subsequent credit surreptitiously obtained by the plaintiff, has no connexion with the conveyance. The gist of the supposed fraud, then, is in the concealment of an imputed plan of acquiring the property, and refusing to perform the agreement which was the consideration of it. But this plan, if it really existed, — and it can be inferred only from subsequent acts — was an impracticable one, for the láw would compel him to perform his agreement, whatever his determination in respect to it might have been.

No one would contend that, to deny the execution of a bond or mortgage given for purchase money, would entitle the vendor to a recision of the conveyance : yet what, in principle, is the present case, beside? Chesterman v. Gardner, 5 Johns. Ch. R. 33, was a much stronger case, even than that; for there subsequent acts of the defendants, in respect of which the law had provided neither guard nor remedy, were found to have put the plaintiffin a condition of jeopardy, which he certainly had not anticipated, but which nevertheless may have been meditated by the defendants at the execution of the deed.

The case was this. The owner of a mortgage, who, together with the owner of the equity of redemption, had leased the premises for a term of years with covenant for quiet enjoyment, assigned the mortgage to one who procured a decree of foreclosure and sale, the lessee becoming the purchaser, and depriving himself of recourse to the covenant by merging his term in the fee.

His bill to compel the lessors to account with him for the loss sustained by being deprived of the benefit of his lease, was dismissed, because, as the chancellor said, the fraud which is to afford relief, means fraud at the execution of the deed ; and that the cases on the subject do not refer to subsequent and distinct transactions, which do not affect or impair the good faith which was felt and intended when the conveyance was executed.

It is true the lessee had voluntarily relinquished the security of his covenant; but even that circumstance reduces the case but to the principle of the one at bar: and it may safely be asserted, that the meditation of a fraud which is incapable of consummation, is no ground for a recision of the contract. Judgment affirmed.