140 P. 994 | Or. | 1914
This is an original proceeding in this court by writ of mandamus against tbe defendant, as judge of tbe Circuit Court of Multnomah County, to require bim
“The best-considered cases in equity go far to bear out the proposition that there is a remedy in equity to ask the court to rescind without requiring an absolute return before suit, wherever such a return would operate to enhance the completeness of the fraud or abandon the little indemnity that already exists.”
This was the theory in Crossen v. Murphy, 31 Or. 114 (49 Pac. 858).
It is said in the text of 9 Cyc. 441:
* ‘ Since the doctrine that one must restore what he has received is so frequently used to shield the party guilty of the fraud, it is not strange that the courts have endeavored to put some limits to the doctrine itself.”
“A party seeking to set aside a sale of shares is not bound to pay calls on them to prevent forfeiture after filing the bill; * * the party, in substance, redelivering the bond as a condition of obtaining such reconveyance, it would seem that a defense of this character could not be a good one. But of this the appellant must take his chance. If the bond has become thus*243 impaired, it is no worse than the loss of a perishable article, or the forfeiture of shares during the litigation. These circumstances do not alter the rule of law.”
The contract must be rescinded in toto; that is, the parties must be wholly released from it, though not necessarily placed in statu quo. That is often impractical and would render rescission impossible in many cases: See Gatling v. Newell, 9 Ind. 572; Smith v. Love, 64 N. C. 439. So equity adapts itself to the circumstances of the case in rescission: Bell v. Merrifield, 109 N. Y. 202 (16 N. E. 55, 4 Am. St. Rep. 436). Defendants had ample opportunity while the property was intact to protect themselves—namely, after the decree in plaintiff’s favor in the Circuit Court—and equity should require that the delay caused by defendants should be at their risk. Therefore we find that there was no error in the decree entered by the Circuit Court on the 24th day of January, 1914, which is as follows:
“It is hereby ordered, adjudged, and decreed that the contract and transaction of sale, trade, or exchange entered into between plaintiff and defendant Minerva A. Jones on or about April 9, 1912, be and the same is hereby declared fraudulent and void, and the same is hereby rescinded, canceled, annulled, and held for naught; and it further appearing to the court that the plaintiff, Edith Owen, since the commencement of this suit, has at all times, while the property was in her possession and until the same was taken from her possession by process of law, been ready and willing to turn over and deliver back to the defendants all property received from defendants in the above-mentioned transaction of exchange, and has at all such times offered and tendered back the said property in the same good order and condition in which it was received, reasonable use and wear thereof excepted, and that such offer' and tender was made in open court upon the trial of this cause, and has never been accepted by the*244 defendants; and it further appearing to the court that, since the decree of this court was entered herein, and while this cause was pending in the Supreme Court of the State of Oregon upon appeal from this court, a certain mortgage placed upon the said rooming-house and furnishings by the defendants prior to the date of the fraudulent transfer of the said property to this plaintiff and existing on the date thereof became due and was foreclosed in this court by suit in equity, and that these defendants were duly served with summons and complaint in said foreclosure suit, and made no appearance therein, but suffered the said mortgage to be foreclosed as by default; and it further appearing that said rooming-house and furniture therein was taken from the possession of plaintiff by due process of law under said foreclosure proceedings, and was duly and regularly sold under the decree of this court in accordance with the laws of the State of Oregon in such cases provided to satisfy the said mortgage so placed upon the property by these defendants, as aforesaid, and that the defendants made no effort or attempt to redeem the said property or to protect their rights therein, if any they had or claimed, but knowingly waived the same, and that' the said rooming-house and the furniture therein has passed into the hands of innocent purchasers, and that, by reason of the premises, and without any fault or neglect upon the part of plaintiff, it has become and is impossible for plaintiff at this time to deliver over to the defendants the said rooming-house or contents, and that plaintiff, Owens, has never encumbered said property in any manner, save and except her chattel mortgage given to defendants for the purchase price thereof, which said chattel mortgage has been and is hereby canceled.
“(2) That the deed executed by the plaintiff, Edith Owen, to the defendant Minerva A. Jones on or about the 9th day of April, 1912, for lots six (6) and twenty-one (21) in block three (3) of Cloverdale tract, in Multnomah County, Oregon, be, and the same is, hereby canceled of record, and the said defendant Minerva A. Jones is .hereby ordered and directed forthwith to execute and deposit in this court a reconveyance with*245 full covenants of warranty, reconveying to the plaintiff, Edith Owen, the said lots six (6) and twenty-one (21) in block three (3) of said Cloverdale tract, free from all debts, liens, encumbrances, or damage done, made, or suffered by the said defendants, or either of them, or any person acting under, by, or through them, and the clerk of this court is hereby directed forthwith to deliver the said deed of conveyance to the said plaintiff, Edith Owen.
“(3) That the said defendants, Minerva A. Jones and C. M. Jones, forthwith deposit in this court the 27 promissory notes so executed by the said plaintiff, Edith Owen, to the said defendant Minerva A. Jones on the 9th day of April, 1912, the same being 25 promissory notes for $40 each and one note for $55 and one note for $20, bearing interest at 8 per cent per annum, and payable 30 days apart, the first note being payable May 9,1912, and that thereupon the clerk of this court is directed to cancel the same and to return the said canceled notes to the plaintiff, Edith Owen, and that a certain chattel mortgage executed by Edith Owen to the said Minerva A. Jones on the 9th day of April, 1912, to secure said 27 notes, and covering the furniture and fixtures then and now being in the said apartment house at 927 Union Avenue, Portland, Oregon, be, and the same is, hereby canceled, annulled, and discharged of record; and it is further ordered that the County Clerk of Multnomah County, Oregon, make the proper entries canceling upon the records of Multnomah County, Oregon the said chattel mortgage and the above-described deed from Edith Owen to the said Minerva A. Jones for the said real property, to wit: Lots six (6) and twenty-one (21) in block three (3), Cloverdale.
“ (4) It is further ordered and decreed that the said defendants, Minerva A. Jones and C. M. Jones, forthwith deliver up possession of the said lots six (6) and twenty-one (21) in block three (3), Cloverdale tract, with the dwelling-house thereon, to the plaintiff, Edith Owen, and also deliver to the said Edith Owen all furniture left therein by Edith Owen on the 9th day of April, and taken possession of by these defendants,*246 or either of them, all in good order and condition, reasonable use and wear thereof excepted.
“(5) It is further ordered and adjudged that the plaintiff, Edith Owen, have and recover of and from the defendants, Minerva A. Jones and C. M. Jones, and from their sureties an appeal, to wit, the Globe Indemnity Company of New York, her costs as taxed in the Circuit Court, to wit, the sum of $35,35, with interest at 6 per cent thereon from November 12, 1912, together with her costs and disbursements taxed in the Supreme Court herein, amounting to the sum of $43, and that execution forthwith issue out of this court in favor of the plaintiff, Edith Owen, and against the defendants, Minerva A. Jones and C. M. Jones, and the Globe Indemnity Company of New York (defendants’ sureties on appeal) therefor.
“Dated January 24th, 1914.
“[Signed] Henry E. McGinn, Judge.”
The demurrer to the return is overruled and the writ is dismissed. Writ Dismissed.