— This was a suit by the appellant, against the appellee, to obtain the rescissioy, for alleged fraud, of a contract for the sale of real estate, and to recover back certain money alleged to have been paid on such contract. The appellee’s demurrer to the complaint, for the want of sufficient facts therein to constitute a cause of action, was sustained by the court, and to this decision the appellant excepted. The appellant refused to amend or plead further and judgment was rendered against him for the appellee’s costs.
The decision of the circuit court, in sustaining the demurrer to his complaint, is assigned here as error, by the appellant. The only question, therefore, for the decision of this court, is this: Does the appellant’s complaint state facts sufficient to constitute a cause of action ?
In his complaint, the appellant alleged, in substance, that on the 21st day of April, 1870, in Vanderburgh county, Indiana, the appellee represented to the appellant that he was the owner of the following described real estate, to wit: The south-west quarter of section one, in township seven north, of range six east, containing 160 acres, in Crittenden county, in the State of Arkansas, and that he had a complete and perfect title thereto; and the appellee offered to sell said land to the appellant for the sum of three hundred dollars, and to convey the same to him by a good warranty deed; and, to induce appellant to buy said land, the appellee made to him the following statements and- representations concerning the same: That he, the
The appellant further alleged, that he informed the appellee that he knew nothing about the land, nor its value or situation; that he desired to buy a tract of land as a farm for his sons, then minors, to live on when they arrived at full age; and that he would buy said land, trusting entirely to the appellee’s representations concerning it.
And the appellant averred, that on the said day, being wholly ignorant of the facts and statements so made by the appellee and having no means of learning the same, and relying entirely upon appellee’s statements and representations concerning said land, the appellant bought the same of the appellee for the sum of $300, and then and there paid him for the same in personal property, at prices agreed upon by the parties, and then and there delivered by the appellant to the appellee, and of the value of $300; that soon after the day of said sale the appellee delivered to the appellant a paper writing, which the appellee said, and the appellant at the time believed, was a warranty deed for said land, for the price so paid by him; that the paper had the words “"Warranty Deed” printed across
The appellant further alleged, that besides said' sum of $300, so paid the appellee for said land, since he bought the same, he had paid taxes thereon to the amount of $94, but he never took possession of said land. The appellant also averred that in December, 1877, he went to Arkansas for the first time, for the purpose of examining said tract of land, when he learned for the first time, that not one of the statements, so made by the appellee concerning said land, was true, and that the appellee had deliberately swindled and cheated him in said sale; that said land was situated in an inaccessible swamp, and was subject to be overflowed by high-water from the Mississippi river to the depth of sixteen feet, and to be thus overflowed for long periods of time, varying from six weeks to six months; that it was not situated on a good wagon road, nor on any road, nor on the said St. Francis river; that it was not good upland, nor covered with such timber as grew on upland ; that it was not susceptible of being made into a good farm, but was of no value for farming or for any other purpose; that the appellee had not been offered $500 for said land; that the appellee had no good title to said land, but merely a tax title, for which he only paid eight dollars at a tax sale, and which, by the laws .of the State of Arkansas, rvas of no value whatever.
The appellant further averred that, by the means and in
And the appellant further averred, that his travelling expenses and time, in going to and returning from Arkansas, to ascertain the situation and value of said land, amounted in the aggregate to seventy-five dollars. Wherefore, etc.
We learn from the brief of the appellant’s counsel, that, in the discussion of the sufficiency of the complaint in this case, two objections thereto were urged by the appellee’s attorney in the circuit court, as follows:
1. The lapse of time between the date of the contract óf sale, mentioned in the complaint, and the date of the demand for the rescission of such contract; and,
2. That the parties, upon such rescission, could not be
The same objections to the sufficiency of the complaint are relied upon by the appellee’s counsel in this court, for an affirniance of the judgment below. It seems to be settled by the decisions of this court, that the first of these objections to the complaint, of the mere lapse of time, can not be reached as a rule, under the provisions of the practice act, by a demurrer for the want of sufficient facts. This is so in all cases, whether legal or equitable in their nature, since the code of practice took effect and became a law of this State. Thus, in the case of Potter v. Smith, 36 Ind. 231, it was said : “ Where lapse of time is relied upon as a defence to an action, it must generally, under the code of procedure, be pleaded to the action, and be based upon some statute limiting the same. This may not have been the old rule in relation to many suits in equity, but by" the code the distinction between actions at law and suits in equity is abolished; and it is provided that ‘There shall be in this State, hereafter, but one form of action for the enforcement or protection of private rights, or the redress of private wrongs, which shall be denominated a civil action.’” Again, in the same case, it was further said: “ There are cases where a man must act promptly and within a reasonable time, in order to be entitled to an action; e.g., if he finds himself defrauded in a contract, he may be required, in order to rescind, to act promptly on the discovery of the fraud, and tender back to the other party what he has received, thereby placing him in statu quo, and demand a rescission ; but having done all that is necessary to entitle him to a rescission, he may bring his action therefor at any time before he is barred by the statute.” The language last quoted, it. will be observed, is peculiarly applicable to the case made by the allegations of the appellant’s complaint, in the cause now before us.
For the reasons given, we are of the opinion, that the objection first above stated, of the lapse of time between the date of the contract and the date of the demand for rescission, is not a valid objection to the complaint, under the demurrer thereto for the want of facts.
It is a sufficient answer, we think, to the second objection above stated to the sufficiency of the complaint, to say that it does not appear on its face, that the personal
In conclusion, we are of the opinion, that the appellant’s complaint stated facts sufficient to constitute a cause of action, and that the appellee’s demurrer thereto ought to have been overruled.
The judgment is reversed, at the appellee’s costs, and the cause is remanded, with instructions to overrule the demurrer to the complaint, and for further proceedings not inconsistent with this opinion.