Ransier v. Dwyer, Docket No. 60

Docket No. 60 | Mich. | Sep 20, 1907

Carpenter, J.

The circuit court found that a contract whereby complainants purchased from defendant’s testator the hotel called “Hotel Barry,” in the city of Hastings, was procured by fraud, and entered a decree for its rescission. Defendant asks us to vacate that decree.

It appears by the testimony that before complainants entered into the contract of purchase they had by investigation learned the falsity of every fraudulent representation alleged in their bill of complaint. Under' these circumstances it must be held that they were not defrauded by these representations, and if the case were not an extraordinary one, it would be our duty to reverse the decree and dismiss their suit; but the case is an extraordinary one.

It appears, from the testimony that when the contract in question was made, defendant’s testator had already contracted to sell said property to another, one Lura Gregory Powell, and that she, Mrs. Powell, had commenced'suit in the circuit court for the county of Barry, where the property was situated, to enforce said contract. This suit resulted in a decree in favor of Mrs. Powell, which decree has just been affirmed by this court. See Powell v. Dwyer, ante, 141. Complainants had no knowledge of said contract of purchase until after they commenced this suit (and there is, therefore, no reference to the same in their bill of complaint), but their rights were subject thereto, because a proper and legal notice of lis pendens was upon file when they entered into their contract of purchase.

Under these circumstances it would be an idle ceremony to observe the rule — generally a most meritorious one — that relief will not be given upon any ground not alleged in complainants’ bill. For if complainants were permitted — and it would be unjust to refuse to permit them — to file a new bill setting forth the established facts, they would be entitled to relief. * No defense could possibly be made to such a bill.

The decree will, therefore, be affirmed. Defendant “will recover costs in the circuit court. No costs will be awarded in this court:

McAlvay, O. J., and Grant, Hooker, and Moore, JJ., concurred.