¶1The opinion of the court was delivered by
¶2This action is brought against the defendant to recover the damage which the plaintiff claims to have sustained in consequence of the defendant’s having made false and fraudulent representations to him as to his, the defendant’s, title to and ownership of certain property which the plaintiff, relying upon such representations, purchased of him and paid him therefor, when in fact the defendant had no title whatever to the property. The defendant pleads infancy, and the plaintiff demurs to the plea.
¶3The representations alleged in the declaration are of the same character, and stand upon the same principles, as representations as to the quality of the property — they enter into and constitute an element of the contract itself; it is that that makes them actiona*355ble. The contract must be alleged and proved, or there can be no recovery. The contract is the basis of the action ; the fraud is predicated upon the contract. This being so, this case comes clearly within the case of Gilson v. Spear, 38 Vt. 311, and must be governed by it. It is there decided that in cases like the present, a plea of infancy is a full defence. The subject is so fully and ably discussed by Judge Kellogg in the opinion in that case, that to-enlarge upon it here, would be a waste of time.
¶4Judgment affirmed.