130 So. 178 | Ala. | 1930
The bill was for rescission of a contract for fraud, on which plaintiff acted to her prejudice, to set aside a deed for fraud, for the recovery of moneys paid and induced thereby, and for injunction.
The status quo may be preserved by temporary injunction to final determination on showing that plaintiff has a fair question to raise as to the existence of her right, and a "showing of balance of convenience." Rice v. Davidson,
The several purchases and conveyances were made on contracts under seal, entered *646 into and executed during September and November, 1925; the bill was filed July 16, 1929, and amended October 12th same year. It is alleged that complainant did not learn that the recited material representations of fact were false and fraudulent until a later date, and on or about February 15, 1926, when negotiations for a settlement and rectification of her wrongs began.
The provisions of section 8966, Code, only create an exception to statute (Van Ingin v. Duffin,
The equity of such a bill is established by our decisions, where it is to rescind a contract, cancel a deed, order repayment of the purchase price with interest on the grounds that complainant was induced to make the purchase by false and fraudulent representations made by defendant through its accredited agents, and upon which she relied to her prejudice, in and as to the material facts alleged, and where the remedy at law is inadequate. Phillips v. Sipsey Coal Mining Co.,
The case of Bullard Shoals Mining Co. v. Spencer, supra, was to cancel a contract of June, 1913, and suit brought in 1922 was sustained. It was a conveyance under seal, as that in the instant case, and was not barred by the statutes or laches. The statute of ten years does not specifically apply. Taking the averments of the bill as true, it does not appear when that complainant discovered the fraud and negotiations ended. The bill on its face does not show laches or bar of statute. Hamilton v. Watson,
In Nicolopoolos v. Donovan (Ala. Sup.)
The case of National Life Accident Ins. Co. v. Propst,
The decree sustaining demurrer was in error, and it is reversed and the cause remanded for a trial upon the full pleading and proof.
Reversed and remanded.
ANDERSON, C. J., and SAYRE and BROWN, JJ., concur.