OPINION of the Court, by

The plaintiff brought suit in the Green circuit court, against the defendant. He charges in his declaration in substance, that he purchased a tract of land from the defendant, at the price of g 1084 ; that at the time of sale, the defendant represented to him that the title was in Richard Thurman, who would at anv time convey ; that relying upon the representations of the defendant, he made the purchase, and actually paid the defendant the price for the land. That in fact neither Richard Thurman nor the defendant had anv title, and that the defendant at the time of the sale and payment, well knew of the defect of title, but most artfully and fraudulently concealed from Wade a knowledge thereof, and by his fraudulent conduct obtained the sale, &c. The defendant demurred to the declaration, which was joined by Wade, and the court awarded judgment on the demurrer in favor of the defendant; to reverse which Wade prosecutes this appeal, and has assigned for error that the court erred in the judgment given on the demurrer.

Wherever a vendor, either by concealment or false representations, is guilty of" fraud in the sale of label, the pm chaser may either bring an action on the case, or file his bill for relief — Sag. 330, Butler’s note 1 to Co. Litt. 384 a, 1 Com. Dig. 236. In this case the declaration shews clearly a fraud in Thurman, it contains a good cause of action. The court evidently erred in awarding judgment in favor of the defendant on th@ demurrer.

It is therefore considered by the court, that the judg-went of the Green circuit court is erroneous and must *5841 j - , ,, ,ac4 wltb costs. Eke. ; that this cause be remar. - J to nut court for 1 urtuei pt oceedings tobe hath swi t if ' T ieirl.int be p.-rtmtu tl to withdraw his demur- ' •- >'d ph 1 ¡ . t’,i e action, i! be should apply for leave 'i . s y u ,- i ⅛ !)-• Mint c¡ the costs attending the .uu’iiho o ,, it il he son .¡d not make such ppplica-i i.i, th >t .o ..t h aided i.i favor of Wade on the ■Mi. an , ,8 .1 ic tí ..ip-iiiy be awarded, &c.