Virginian-pilot. (Norfolk, Va.) 1898-1911, 1899-02-25

FRAUD IN SALE OF LAND-DAM-
AGES.
IF DEFENCE TO \ CONTRACT UN-
DER SEAL Is ON EQUITABLE
GROUNDS REQUIRING ~ RESCIS-
SION Q FTHE CONTRACT. SUCH
Defence CANNOT BE PLEADED
AT LAW.
DAMAGES FOR FRAUD IN THE
PROCUREMENT OF a CONTRACT
ARE FINED AS OF THE DATE OF
THE CONTRACT.
IL ONE SELL HIS OWN LAND REP
RESENTING IT TO BE AN
OTHERS, AND TAKE PUR-
CHASER'S BOND PAYABLE TO
THE OTHER, THE BOND Is SUB
JECT TO THE SAME DEFENCES
AS If TAKEN PAYABLE TO THE
REAL OWNER AND ASSIGNED BY
HIM TO THE OTHER PARTY.
This was an action at law by the OBJ
ligeo TO recover from the oblgor the
amount of II bond given for the pur-
chase money of land. The defendant Of
fered certain pleas which were rejected
by the court, and asked certain nstruc-
tons which were refused. Judgment
was given for the plaintiff and defend
ant appealed. The court says: The de-
fence attempted to be set up in plea No.
L ana in that portion of plea No. 2
which the court ordered stricken out,
are substantially the same. 1t was
averrcd in those pleas that the de-
PENDANT was induced to enter into the
contract for the purchase of the lot for
which the bond sued on was executed,
Dy certain representations as To the
solvency of one Mcbride, that these
81. a n al
lent; that defendant soon after lie dis
covered the fraud practiccd upon him.
refused TO pay the bond in suit, and
offered TO rescind the contract for the
purchase of the lot. and to make Il deed
reconveyinS il to the plaintiff but that
the plaintiff refused to rescind: where
fore the defendant averred that he was
not liable on the writing sued on.
1t was not permitted at common
law in an action upon contract under
seal to prove Il failure in the conSid-
Grafton OF the contract. or fraud in its
procurement, or breach of warranty of
the title or soundncss OF the personal
property. but the defendant had to re-
vert to his independent action for re-
lief. 1t is only by virtue OF section 3,2g9
of the Code that such defences can be
made I'm an action upon such Il con-
tract. If the defence is based upon
equitable grounds which require Il RE
ClSSlON of the contract and IL rein
Nestnent OF the vendor with the title
the plea provided by the statute Is not
available because the court of law is
incompetent to do complete justice be-
tween the parties. There can be no re-
cission in this action; neither can there
be q plea in bar based upon the right
and offer to reScind. If the fraud or
misrepresentation relied on are such as
to justify rescission of the contract.
that relief can only be had in a court
OF equity. The pleas were both bad at
common law and under the statute. and
were properly rejected by the circuit
court.
Plea No. does not aver that the lot
which the defendant was induced TO
purchase was not worth at the date of
his contract what he agreed to give for
1t. but AYERS that it was worthless at
the time the plea was filed. That
avcrmcnt is not sufficient. His dam
ages. If any, are to be ascertaned and
fixed as of the date OF the contract.
the time the fraud is alleged to have
been committed and not as of the date
his plea was filed This plea was also
properly rejected. The defendants in
struction No. .. which the court re-
1ected. ought to have been given If
White purchased the lot from the
plaintiff. and sold ii TO the defendant
without disclosing the fact that he was
the owner OF it. but represented that
the plaintiff WAS the owner, and had
the bond made payable to him instead
of to himself. it would be subject to the
same deiences in suit between the
plaintiff and the defendant as ii would
nave been if 1t had been made payable
to White and then assigned by him to
the plaintiff. The Judgment COM
planned of must be reversed and the
cause remanded for new trial
WILKINSON COUNTY V. LINDSEY.