1. Defendant owned a tract of land of twenty-five acres, under a deed which excepted therefrom an old burial plot of about one-quarter acre, and he leased these lands to plaintiffs, without any reference to the burial plot, for the purpose of marketing sand, gravel, c., from the lands under a royalty agreement with defendant. Machinery, a tool house and a road were placed on the lands by plaintiffs, after which they began removing sand from a pit on the land, in the course of which they encountered bones and a skull. They thereupon ceased work and were subsequently notified by the Board of Health to refrain from operations on the lands in question. Plaintiffs thereupon brought suit against defendant, alleging fraudulent misrepresentation. Held, that the court properly left that issue to the jury, and that there was sufficient evidence to support their verdict in plaintiffs' favor.
2. One who is about to lease lands is not under the duty of exploring the title of his landlord.
3. Where the deed for lands to be leased contains an exception of a portion thereof, the lessor cannot lease the entire tract without advising the lessee of the exception, and failure so to do amounts to a fraudulent misrepresentation as to the lessor's title.
PER CURIAM.
The judgment under review herein should be affirmed, for the reasons set forth in the opinion delivered per curiam by the Supreme Court.
For affirmance — CASE, BODINE, DONGES, HEHER, PERSKIE, PORTER, HETFIELD, DEAR, WELLS, WOLFSKEIL, RAFFERTY, WALKER, JJ. 12.
For reversal — None.