Fratt v. Fiske & Loring

Citations

• 17 Cal. 380

Syllabus

<p>^-'° Su’t on note an|l mortgage, the condition of which was a deed of land with warranty of title from plaintiff to defendants, defendants set up fraud in this : that plaintiff represented that the title was confirmed by the United States, which representation defendants aver was false. Defendants, at time of deed, were in possession of a portion of the land, afterwards went into possession of the balance, and have been in possession ever since. They made no offer to rescind the contract until suit and filing answer; and it neither appears, nor is it averred, that defendants had no notice of this fraud until answer. But there was some proof that defendants employed counsel to contest plaintiff's title after the date of the deed : Held, that a party entering on land by virtue of a contract, and holding possession under and enjoying the fruits of the contract, must, if he desires to rescind it for fraud, act promptly and give notice of bis intention to rescind, or he will be deemed to have waived the fraud.</p> <p>Held, further, that in this case defendants were not entitled to a rescission of the contract without placing plaintiff in statu quo. Plaintiff having by his deed remitted all control over the land sold to defendants, could not have sold or rented it, and was therefore entitled to the value of the rents and profits of that portion of the land of which defendants were not in possession at date of the deed, upon rescission of the contract—at least, it should have been averred and proved that the use of the land was of no value to defendants, and would not have been of any value to plaintiff.</p> <p>Held, further, that as to the land of which defendants were in possession at the date of the deed, equity, in case the contract were rescinded for fraud, would probably not allow plaintiff rents and profits.</p> <p>Query: Whether a party can go into equity to set aside a contract for fraudulent representation as to title, when he has been let into and enjoyed pea