7 Blackf. 55 | Ind. | 1844
— Debt by the assignee against the maker of a promissory note for 160 dollars. The defendant pleaded, that the note was given for a part of the price of a lot of ground purchased by him of the payee of the note, and by the latter conveyed to him by a general warranty deed; that the vendor falsely, with intent to defraud the defendant, represented that the land was free from incumbrance, and thus induced him to purchase the same, and give the note ; that, in fact, the land was subject to a mortgage previously executed by the vendor for 10,532 dollars, which was in full force at the time of making the contract, and when the plea was filed; and that the defendant was ignorant of the incumbrance, and would not have made the contract had he known it. The plaintiff demurred generally to the plea. The Court sustained the demurrer. There was another special plea which led to an issue of fact. Trial by the Court, and judgment for the plaintiff for the amount of the note.
The only question in the cause arises from the demurrer. The fraud alleged in the plea undoubtedly entitled the defendant to rescind the contract of sale, and to consider the note as a nullity, had he seen fit to do so in proper season; but he could not rescind the contract without restoring the vendor to his original situation by reconveying the land. As he has
But though the defendant cannot defend this action by simply showing the existence of the incumbrance, yet if it exceed in amount the stipulated price of the land, or that part of it still due from the defendant, he may resort to a Court of equity for relief, and procure an injunction against the collection of the debt, until the mortgagor shall reduce the incumbrance to an amount not exceeding that of the purchase-money due.
— The judgment is affirmed with costs.