As appears by the above statement, the gist of the action is the alleged deceit practised upon the plaintiff by the agents, attorneys and officers of the company to induce him to purchase from it a lot in Leadville, by representing that it had obtained a release of the right of all claimants to the land, and could put him into immediate possession; whereas, upon attempting to enter upon the land purchased, he found another in possession, who refused to surrender it, and thus he was kept out of possession from the time of his purchase, March 27, 1879, to February 22, 1883, during which period he lost its rental value.
To this ground of complaint there are two obvious answers. In the first place, the plaintiff could have required the delivery of the possession of the land to accompany the payment of the money. The lot being in the town might have been readily reached, when the ability of the company to give possession could have been at once determined. The plaintiff alleges that he used all diligence in his power to find out whether the representations of the officers, agents and attorneys of the company were true or false, but the inspection of the premises, the most natural and obvious mode of ascertaining
Besides, it does not appear at what time the party in possession entered upon the land. The complaint only alleges that when — the time not being stated — the plaintiff attempted to take possession, he found another person there, who, for aught that appears, may have gone on the land after the execution and delivery of the deed. There was at the time, according to the allegations of the complaint, a great struggle to obtain possession of lots among the crowd of persons pressing to the town owing to the report of rich gold discoveries within its immediate neighborhood. The claim of right to the land advanced by the occupant was founded only upon her alleged prior possession of it as a part of the public domain of the United States, a claim which would seem, from the result of the ejectment suit against her brought by the company, to have been entirely worthless. The complaint alleges that the defendant represented that it had received a patent from the government of the United States for the premises, as well as for a large number of other lots in the town, and contains no averment that this representation was untrue. It may therefore be fairly presumed, that upon the title thus conferred, the company subsequently evicted the intruder. The possession of a patent of the United States would have justified all the representations alleged, as to title and right of possession, and the purchaser might have called for an inspection of that document if doubtful of the statements of the agents and officers of the vendor.
In the second place, the covenant in the deed for quiet possession merged all previous representations as to the possession, and limited the liability growing out of them. Those representations were to a great extent, if not entirely, mere expressions of confidence in the company's title, and the right of possession which followed it, against all intruders. The
False and fraudulent representations upon the sale of real property may undoubtedly be ground for an action for damages, when the representations relate to some matter collateral to the title of the property and the right of possession which follows its acquisition, such as the location, quantity, quality and condition of the land, the privileges connected with it, or the rents and profits derived therefrom. Lysney v. Selby, 2 Ld. Raym. 1118; Dobell v. Stevens, 3 B. & C. 623; Monell v. Colden, 13 Johns. 395; Sanford v. Handy, 23 Wend. 260; Van Epps v. Harrison, 5 Hill, 63. Such representations by the vendor as to his having title to the premises sold may also be the ground of action where he is not in possession, and has neither color nor claim of title under any instrument purporting to convey the premises, or any judgment establishing his right to them. Thus in Wardell v. Fosdick, 13 Johns. 325, an action for deceit was sustained against the vendor of land which had no actual existence, the court holding that in such case the purchaser might treat the deed as a nullity. The land not being in existence there could be no possession, and of course no eviction, and consequently no remedy upon the covenants, and the purchaser would be remediless if he could not maintain the action. But where the vendor, holding in good faith under an instrument purporting to transfer the premises to him, or under a judicial determination of a claim to them in his favor,