167 Mich. 605 | Mich. | 1911
Defendants have appealed from an order of the trial court overruling the demurrer to complainant’s bill. The bill charges fraud on the part of the defendants in selling certain real estate to the complainant. The demurrer claims want of equity in the bill, and that, complainant has an adequate remedy at law.
Complainant’s bill states: That he is a resident of the township of Scio, in Washtenaw county, and has devoted his life principally to farming; that the defendant Magdalene Rohde is the widow of Louis Rohde, deceased, and William H. L. Rohde is her son; that they both reside in the city of Ann Arbor; the son being engaged in the coal business in that city; that on the 3d day of May, 1909,. complainant bought of the said Magdalene Rohde a certain piece óf real estate in the city of Ann Arbor on which he proposed to engage in the coal business; the property being described as:
“ Commencing on the north line of West Huron street at the west boundary line of the Ann Arbor Railroad*607 Company’s right of way, and running from thence west along the north line of Huron street 180 feet to the west bank of the west branch of Allen’s creek, so called; thence along the west bank of Allen’s creek one hundred and sixty-two and eight-tenths (162.8) feet to the center line of block 1 north of Huron street, range 1 east; thence east along said center line 50 feet to the east bank of the east branch of Allen’s creek, so called; thence northerly along said east bank of said creek to the railroad company’s right of way aforesaid; thence southerly along said right of way to the place of beginning; excepting and reserving a strip of land 15 feet wide lying westward of and adjoining said railroad, heretofore conveyed by said Louis Rohde and wife to the said railroad company by deed recorded in Liber 161, p. 74.”
Complainant’s charge of. fraud relates to said strip of land 15 feet wide. He alleges that said William H. Rohde, acting as agent for his mother, took charge of all negotiations leading up to and culminating in the sale, acting for and on behalf of himself and his mother. The manner of perpetrating the fraud is stated in the bill, in substance, as follows: That said land is situated on the north side of said Huron street and west of the viaduct over which the Ann Arbor Railroad tracks cross Huron street; that in construction of said viaduct a cement retaining wall was built at or near the north line of said West Huron street, and was standing at the time of the negotiations and sale of the property; that, in order to induce the complainant to purchase the ground, said William H. Rohde went upon the same with the representatives of said complainant to point out the corners and boundary lines thereof, and while there falsely and fraudulently stated, represented, and pretended that the east line of said land was bounded by a line starting at a point in said retaining wall of said viaduct on the north side of Huron street indicated by a mark and puncture made in said wall, which he then pointed out; that he offered for and in behalf of himself and mother to sell and convey the land he pointed out in accordance with the courses, corners, distances, and directions as he then indicated; that the complainant and
The objections to the bill, as specified in defendant’s demurrer, are summarized as follows: It appears from the allegations of the bill that complainant has complete and adequate remedy at law; that he was in no way deceived by said defendants; that by the exercise of reasonable care he would have known the true boundaries of the land sold to him; that he has been guilty of laches and is not entitled to any relief prayed for in said bill.
The trial court, overruling the demurrer, said:
“The specific relief sought in the several prayers for relief contained in the bill of complaint is of doubtful right, but there may be some relief granted under the general prayer therefor.”
Complainant’s rights are to be tested by the allegations in his bill taken as true, rather than by his prayer for relief.
The bill charges, with sufficient allegations, fraud on the part of defendants in representing to complainant that the strip in question was a part of the land he was purchasing; that he relied on the representations then made, and thereby was induced to forego any examination of
In the light of Starkweather v. Benjamin, 32 Mich. 305, and other authorities along the same lines, we are not disposed to sustain the demurrer on the objection that the bill does not state a case of actionable fraud.
The most serious ground of demurrer urged is that complainant has an adequate remedy at law, which precludes jurisdiction in equity. That courts of law and equity have concurrent jurisdiction in cases of fraud is well settled, and it is also well settled in this State that a suit may be planted on the chancery side of the court where complainant is shown entitled to relief especially equitable. The question has been before this court in numerous cases, and thoroughly discussed. A comprehensive review of many of the decisions is to be found in Fred Macey Co. v. Macey, 143 Mich. 138 (106 N. W. 722, 5 L. R. A. [N. S.] 1036. In Detroit Trust Co. v. Old Nat. Bank, 155 Mich. 61 (118 N. W. 729), it is said:
“In this State equity has not taken jurisdiction of cases where a suitor has a full, complete, and adequate remedy at law, unless it is shown that there is some feature of the case peculiarly within the province of a court of equity.”
It was further pointed out in that case, as reasons for sustaining a demurrer, that the allegations in the bill did not show need of an injunction, or of a discovery, or of an accounting, or of specific performance, or the reformation or cancellation of a written instrument, and there was nothing to indicate that a judgment against defendants would not be perfectly good.
In the case at bar there is no claim that defendants are financially irresponsible, or a judgment against them
Complainant’s counsel say he asks for a rescission, an accounting, and the setting aside of a written instrument. The allegations in the bill present nothing which entitles the complainant to an accounting. To sustain a bill for an accounting there must be mutual demands, a series of transactions on one side, and payments on the other. "Where all the items are on one side, there can be no accounting. The bill shows no items of which the complainant is not fully informed, and the only items involved are the money complainant paid for the land and money expended by him in its improvement.
The deed which he asks the court to set aside is entirely in his hands and under his control. He has already, according to the allegations of the bill, rescinded and tendered a reconveyance of the property, which amounts in legal effect, so far as his rights are concerned, to setting aside the deed, so long as he maintains his tender and stands ready to perform.
It is patent from the allegations in the bill that it would be a vain thing for the court to order the specific performanee proposed. Defendants do not own, and did not own at the time of complainant’s purchase, the strip he asks the court to direct them to deed to him. The prayer that the defendants be compelled to buy and deed it to complainant could not be seriously entertained. The owner is not a party to this suit. A bare statement of the proposition manifests its infirmity. No court has power to initiate and force to consummation the sale of real estate by disinterested owners, in no way connected with the litigation. We find nothing in the allegations of complainant’s bill which especially calls for the intervention of a court of equity or precludes full recovery in a suit at law. The complainant’s ultimate object is a money judgment for damages.
In this State the remedy, where a money judgment is
The practice is further simplified by section 10421, 3 Comp. Laws, authorizing an action in assumpsit in all cases where by the fraudulent representations or conduct of any person an injury has been suffered either to the person, property, or rights of another for which an action on the case for fraud or deceit may by law be brought. This section has been held constitutional and has been frequently before this court for review.
It is the opinion of this court that an adequate remedy at law exists according to the case stated in complainant’s bill, and that the demurrer should have been sustained, and the bill dismissed.
Reversed, and bill dismissed, with costs of both courts.