17 Ark. 603 | Ark. | 1856
delivered the opinion of the Court.
The court below decided correctly in sustaining the demurrer to the first three pleas .interposed by the defendant. The first was manifestly designed as a plea of fraud, and in case it did not present all the essential elements of such a defence, it was necessarily subject to a demurrer. Fraud was the very gist of the plea. If a purchaser wishes to rescind a contract of sale, he must put the vendor, or offer to put him in the same situation he was in before the delivery of the property. He will not be allowed to retain the property and protect himself against the payment of the purchase money. If he retain the property he cannot treat the contract as void for want of consideration upon the ground of fraud. The defence set up by this plea fails to allege that the defendant below returned, or offered to return the property. It would be unjust to permit the vendee to retain possession and enjoy the benefit of the property, and put his vendor at defiance. This plea, therefore, being one of want of title in the vendor, is no bar to the action; and, consequently, the demurrer to it was properly sustained. See Hynson et al. vs. Dunn, 5 Ark. Rep. 397; 4 Ark. Rep. 470, Sumner vs. Gray; and also, 2 Saunders Pl. 1st part, page 61.
The second plea is one of fraud generally. This is unquestionably bad. The party whose conduct is sought to be impeached, has an unquestionable right to be apprized of the facts which constitute the fraud, otherwise he might be taken by surprise on the trial. See same case of Hynson et al. vs. Dunn, 5 Ark. Rep. 397. The third is a plea of fraud, and is defective for the reasons given against the first, as well as others which do not apply to that. The third charges fraud in the representations made by the plaintiff in relation to the title to the land therein described, but wholly fails to charge that the writing in suit was executed in consideration of said title, or that the plaintiff in fact had no title whatever.,- The fourth is a plea of no consideration, generally, to which the plaintiff entered his replication, and upon which issue was taken. The parties then went to trial, and after the plaintiff had introduced the instrument sued upon, and the déed executed by himself and wife to the defendant, the defendant proposed to show that there was no title in the plaintiff at the time of the execution of said deed, and in order to do so, offered to read a deed from the Auditor of the State to himself for the' same land, which was objected to by the plaintiff, and excluded by the court. To this ruling the defendant excepted, and the point now presented is, whether such ruling was correct or not. There can be no doubt of the relevancy of the Auditor’s deed, as it conduced to prove a failure of title; and, consequently, that no consideration had passed between the parties, yet the defendant could not have been prejudiced by the action of the court in ruling it out, as, if admitted, it would not have shown a total want of consideration, as it was already in proof that the defendant had gone into possession under his purchase, and that he still retained the same down to the time of the trial. See Wheat vs. Dodson, 7 Eng. Rep. 711. Finding no error, the judgment of the court below is, consequently, affirmed.
