Speiglemyer, administrator, &c. vs. Crawford, 6 Paige Ch. 254

The Chancellor. The bill in this cause, as well as the decree in the original suit, in which the. defendant and Tripp 'wpre both parties, shows that C. Crawford is primarily liable for the payment of the debt and costs decreed to be paid to the complainant. And this court has already decided that a creditor by decree in chanóery is entitled to the same relief against the equitable interests' and other property of his debtor, upon the return of an execution unsatisfied, as a creditor by a judgment at law. (Clarkson v.

DePeyster, 3 Paige’s Rep. 320.) Neither is there any thing in the defendant’s affidavit to show that she ever had any equity as against Tripp, which could protect her against his claim for indemnity upon her covenants of warranty, in the conveyance to him# even if she is not estopped by the decree in the original suit, awarding .execution against her property in the first instance, from insisting that she was not primarily liable for the payment of the whole of the complainant’s debt and costs.

The law at the present day appears to be well settled that a false assertion by the vendor, merely as to the value of the property which he is about to sell, or as to the amount of its future income# where there is neither a warranty as to value, nor a misrepresentation of any fact respecting the property which is not a mere matter of opinion, forms no substantive ground for relief either at law or in equity.

A naked assertion by the vendor as to the present or future value of property does not imply knowledge, but must necessarily be understood by-the purchaser as a mere matter of judgment or opinion; and upon a subject as to which the purchaser is generally supposed to be as competent to form a correct judgment as the vendor. 1 .will not attempt to defend the morality of a false assertion either by the seller or the buyer, in relation to his real opinion as to the value of property which is the subject of negotiation between them.

It is sufficient to say the law presumes that each relies upon his own judgment and opinion as,to the value of property, rather than upon the opinion of the other party to the negotiation, where the facts upon which the value of the property depends are equally known to both.

In the present case, the fact that Tripp had formerly offered to sell the Schoharie lot for S500, is a circumstance from which it might perhaps be inferred that he did not really believe it was worth the sum of $800; which he said was its actual value, when he sold it to the defendant at that price in part payment of the land purchased from her. But as the offer of the lot to another at a less price could not alter or diminish the intrinsic value of the property, and as no inquiry was made of him on the subject, he was not legally bound to disclose the fact of such offer.

Tripp, therefore, stands in the situation of a mere surety for the defendant for the payment of the complainant’s debt and costs in the original suit in this court; and if he had paid the decree, he would, in equity, have been entitled to an assignment of all the rights and remedies of the complainant, to compel payment and satisfaction of the debt and costs by the defendant as the principal debtor.

He would also, in that case, have been permitted to file a creditor’s bill against the defendant in his own name, founded on such original decree, to obtain satisfaction out of her property which could not be reached by the execution on such decree. (Dowbiggin v. Brown, Young’s Ex’c. Rep. 111. Cuyler v. Ensworth, in Chan. 5th April, 1836, ante, p. 32.) He was, therefore, authorized to make the arrangement which he did, that the complainant should proceed in the present suit to collect the amount, if possible, out of the estate of the principal debtor.

And as the original decree awarded execution in the first instance against the seperate property of the principal debtor, it was not necessary that the complainant should have exhausted his remedy against the surety also, before he proceeded by a creditor’s bill against her alone. The usual order for the appointment of a receiver must therefore be entered.-