161 So. 448 | Ala. | 1935
The bill is filed for rescission of a contract of purchase of a designated dwelling for fraudulent representations as to its condition, a cancellation of the notes and mortgage given to secure the remainder of the purchase money, and for an accounting, and recovery of the sum paid. Bullard Shoals Mining Co. v. Spencer,
The attack upon the sufficiency of the bill is here rested upon the theory that it discloses upon its face complainant too long delayed a rescission of the purchase after discovery of the fraud and a waiver on her part of the right to rescind.
Defendant relies upon our decisions to the effect that one electing to rescind a contract for fraud must exercise that right within a reasonable time, that is, with due promptitude from the time the fraud was discovered or ought to have been discovered from facts brought to his attention. Bynum v. Southern Building Loan Association,
But as observed by this court in Stafford v. Colonial Mortgage Bond Co.,
The averments of the bill bring the case within the influence of these latter authorities.
The delay, continued payment, and possession of complainant were at the express request of defendant, to the end that the defects be remedied, which in fact were unsuccessfully attempted by defendant at its own expense. And, upon complainant being given notice that no further effort would be made to that end, she promptly rescinded and did what she could to place the parties in statu quo. No delay or change of relationship appears that would render rescission between the parties inequitable, nor would the rights of any third person be prejudiced thereby. Under the averments of the bill, there was no waiver of the right to rescind, and the matter of delay is well explained.
The demurrer was properly overruled, and the decree will accordingly be here affirmed.
Affirmed.
ANDERSON, C. J., and BOULDIN and FOSTER, JJ., concur. *389