Reports of Cases Heard and Determined in the Supreme Court of the State of New York Volume 14 (Paperback)

This historic book may have numerous typos and missing text. Purchasers can usually download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1876 edition. Excerpt: ...some fraud. No case is cited vhere after a conveyance has been executed, and in the absence of fraud or deceit, the grantee has recovered the purchase money on a failure of title, unless by action upon covenants in the deed. There is another difliculty in this case. The plaintiff seeks to have the contract rescinded. This means to replace the parties as they were before the contract; but the judgment does not do this; he has recovered a judgment against the defendant for over $500, so that instead of rescinding the contract, the court is altering the original contract and enforcing it as altered. But the plaintiff may say that the decision gave the defendant the option to rescind. Not at all. It gave him the option to exchange back again the parcels of land, and to pay the plaintiff for the improvements he had put on the saw-mill. But the defendant may not wish for these improvements, he may not be able to pay for them, they may be useless to him, or even worse than useless. It is no reinstating the parties in their former condition, when one is compelled to pay the other some $1,300. Furthermore, when this action was commenced, the plaintiff had leased the property, and the lessee was in possession; and the plaintifi could not restore actual possession. And to see that this would be inequitable, we must remember-ythat the defendant has been guilty of no concealment, fraud or deceit. Why should he be punished? As is said by Judge Sroar: Where each party is equally innocent, and there is no concealment of facts which the other party has a right to know, and no surprise 01' imposition exists, the mistake or ignorance, whether mutual or unilateral, is treated as laying no foundation for equitable interference. (1 Story...