majority">EyaN, O. J.

The complaint is in tort; stating what would have been called, before the code, a special action on the case for fraud. It avers that the defendant, after having conveyed certain premises to which he had title, by his unrecorded deed under which the plaintiff’s intestate would have taken title, knowingly, fraudulently and wrongfully conveyed the same premises to another by a subsequent deed which was recorded, under which a bona fide purchaser without notice took, and so defeated the intestate’s title. The whole court is agreed that the facts averred constitute an action in tort.

The demurrer to the defendant’s counterclaim ex contractu, not arising out of the same transaction, was therefore properly sustained. This is held by the whole court, and was, indeed, not denied at the bar.

The tort charged arose out of a transaction ex contractu, not *305often tbe ease. And a majority of tbe court bold that tbe only remedy of tbe plaintiff is ex contractu (Curtis v. Deering, 12 Me., 499; Lukens v. Nicholson, 4 Phila. R., 22), unless tbe actual fraud averred be sustained. The mere act of making tbe second conveyance is not per se tortious. The tort pleaded rests on tbe defendant’s scienter, raising a presumption of intent to defraud, and making tbe second conveyance a fraud upon tbe defendant’s previous grantee.

A second conveyance of tbe same land, with intent to defeat tbe title.under a prior valid conveyance executed by the same person, is undoubtedly a wrong; but, without tbe intent, it may be innocent or justifiable. There are cases in which a second conveyance to a different person would be a, right, or even a duty. Therefore, tbe mere act 'of tbe second conveyance is not essentially unlawful. And the tortious character of tbe act must depend upon tbe guilty knowledge of tbe prior conveyance, implying a fraudulent purpose.

In such a transaction as that stated in tbe complaint, tbe execution of tbe second deed is the gravamen of an action ex contractu; but tbe fraudulent intent is tbe gravamen of an action ex delicto.

No case was cited at tbe bar, and none has been found, of an action of tort by a first grantee against bis grantor for defeating tbe grantee’s title by a second conveyance. But there are many cases, bearing more or less on tbe principle on which this case is ruled, which strengthen tbe view of a majority of tbe court, that tbe question of tort in such case is a question of actual intent to defraud. Haycraft v. Creasy, 2 East, 91; King v. Phillips, 6 id., 464; Wardell v. Fosdick, 13 Johns., 325; Monell v. Colden, id., 395; Benton v. Pratt, 2 Wend., 385; Culver v. Avery, 7 id., 380; Ward v. Wiman, 17 id., 193; Gallager v. Brunel, 6 Cowen, 346.

Tbe court below found as a fact that tbe defendant bad forgotten bis conveyance under which tbe intestate claimed, and did not intend to sell tbe land twice. It was stated at tbe bar that this finding proceeded upon a stipulation of counsel in tbe court below, equally honorable to both parties.

*306It is therefore held by a majority of the court, that this finding negatives the fraudulent scienter, and makes the act of the defendant an innocent mistake; that it is an acquittal of the defendant of the tort; and that the judgment of the court below should have been for the defendant on the finding. And on this ground Oole and Tayloe, JL, and the chief justice, hold that the judgment should be reversed.

The learned judge of the court below, however, found as a conclusion of law that the defendant is chargeable in law with knowledge of his first conveyance; that is, as it is here understood, that the mere act of the second conveyance, without the scienter or the fraudulent purpose, is essentially tortious in law. And this is the view taken by Lyon and Obton, JJ., of the nature of such a second conveyance in general. But they hold that, in this case, the act of the intestate in referring the defendant’s second grantee, when the latter desired to purchase the land, to the defendant, and in effect advising him to purchase from the defendant, had somewhat the effect of concurrence in the second conveyance, may have tended to mislead the defendant, and purged his act of all tortious character against the intestate. Volenti non fit iryjuria.

The whole court, therefore, hold that the judgment must be reversed, and the cause remanded to the court below with directions .to dismiss the complaint.

By the Court. — So ordered.

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