| Ill. | Jan 15, 1874
delivered the opinion of the Court:
This was a bill in equity, brought for the rescission of an executed contract for the exchange of lands, whereby the appellee traded to the appellants 90 acres of land in Ford county, in this State, for a certain SO acres of land in Missouri. The ground of the bill was, false and fraudulent representations as to the character and quality of the Missouri land.
The decree in the court below found that, on the 25th day of December, 1868, the complainant, being the owner of the Ford county land, traded the same to the defendants for the Missouri land; that the Ford county land of the complainant was put into the trade at $5000, and the Missouri land of the defendants at $1465; that defendants paid complainant $2500,’ and assumed a $1000 mortgage on the Ford county land, which they have since paid; that the false and fraudulent representations were made as charged; that complainant, upon the hearing, had tendered back a deed of the Missouri land, and that defendants, before the filing of the bill, had conveyed 40 acres of the Ford county land to a third party; declared that it was inexpedient to render a decree of a rescission of the whole contract, and decreed to the complainant the sum of $1875.20, being the amount for Avhich the Missouri land Avas traded ($1465 Avith interest), and that the defendants have leave to Avithdraw the deed tendered to them of the Missouri land.
Defendants appealed to this court.
The proofs show a very clear case of deceit, and false and fraudulent representations as to the character and quality of the Missouri land, and such as manifestly entitles the appellee to relief.
It is objected against the decree, that appellee Avas not in a situation to restore to appellants Avhat he had received from them in the trade. Appellee Avas in such situation, but not the appellants, they having sold 40 acres of the land they received. It was sufficient to make such an offer to restore in the bill. Webster v. French, 11 Ill. 275; Miller v. Whittaker, 23 id. 453; Ryan v. Brant, 42 id. 78. This, appellee did. He offered in the bill to reconvey the Missouri land; to repay the $2500, Avith interest, and also the $1000 mortgage which liad been assumed and paid, if the court Avould decree a cancellation of the Avhole contract, or to restore a portion of Avhat he had received, on cancellation of the contract as to that portion of the land not sold by appellants.
It is insisted that a rescission must be total, and not partial. This is the general rule; but appellants, by conveying a part of the land, had rendered a complete rescission of the contract impossible. The testimony agrees that the Ford county land Avas sold for $5000, and that the Missouri land Avas put in at a certain price, the parties only differing as to the precise sum, appellants testifying that it Avas $1365, and appellee that it Avas $1465. The evidence shows that the Ford county land Avas Avell worth $5000, and that the Missouri land might be called worthless, the evidence being that it was not worth more than 12-J cents an acre, and, as it had never been occupied by appellee, and he tendered back a conveyance of it at the hearing, it was but just to allow, as the decree did, what the Missouri land was put into the trade at, with interest thereon.
It is further objected that appellee did not seek the aid of the court in a reasonable time. The trade was made in Ford county, in this State, December 25, 1868. It appears that the next spring or summer, appellee had information, by letter, that lands in that section of country where this Missouri land was situated were not of much value, but learned nothing in regal'd to this •particular tract of land, and that in January, 1870, he applied for counsel, and was advised that he must go and see the land before he could bring suit; that he knew nothing certain about the land till February, 1870, when he went and saw the land, and ascertained its quality, and commenced this suit February 28, 1870. We are of opinion there was reasonable diligence used here for the discovery of the fraud, and that suit was brought within a reasonable time after its discovery.
It is again insisted that, when the last money, under the contract, was paid to appellee, in July, 1869, and a receipt given by him, all differences between the parties in respect to the Missouri land were fully settled, and appellee then having knowledge of the quality of the land. Appellee’s testimony, taken alone, would support such a claim : but the evidence upon the point was conflicting, and we are unable to say that the court was not warranted in finding, from the whole evidence, that no such pretended settlement was made, and that appellee had not then sufficient knowledge of the quality of the Missouri land to lose his claim to equitable relief on account of any act of his on that .occasion.
A point is made that the decree does not conform to the prayer of the bill; but there was a prayer for general relief, and, where a bill contains a prayer for general relief, and also a prayer for specific relief, the complainant may have other specific relief, provided it be consistent with the case made by the bill and with the proofs. Wilkin v. Wilkin, 1 Johns. Ch. 111" date_filed="1814-08-29" court="None" case_name="Wilkin v. Wilkin">1 Johns. Ch. 111; Bailey v. Burton, 8 Wend. 339" date_filed="1831-12-15" court="None" case_name="Bailey">8 Wend. 339.
The decree here, we hold to be proper, under the allegations of the bill and the proofs, and we think the appellee should have the relief he is entitled to, although it differs from that specifically prayed for.
The decree made the money adjudged to be paid a lien upon the remainder of the Ford county land in the hands of the appellants, and directed that, in case, upon the sale of the premises, they should not sell for sufficient to satisfy the decree, an execution should issue for the deficiency. It is insisted that the court erred in decreeing execution against Abraham S. and Phoebe A. Hopkins, because they were not parties to the supposed fraud.
It is true that, chiefly, the trade was effected through, and the representations made by, Ell Hath an Hopkins, one of the appellants and the son of Abraham S. and Phoebe A.; but the deed of the Missouri land was made by the two latter, the title being in them, or in Abraham S., and the deed of the Ford county lands was made to them jointly. They reaped the fruits of the fraudulent representations made by their agent, and, to the extent that they derived a benefit therefrom, we see no objection to their being required to respond.
The decree must be affirmed.
Decree affirmed.