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582 FORMS.

another, after discovering that he is entitled to a rescission of the contract (4 Mm., 85; 9
B. Af., 525), or before so discovering ; though, if he has been defrauded, he can maintain
an action for the fraud. 6 Mon., 25.

A vendor, however, can not prevent a rescission by selling land conveyed to him in
part-payment by the purchaser ; and, upon a rescission being granted to the purchaser,
must account for it at the price stipulated between the parties. 3 Man., 525.

(/) See Daniel v. Pogue, Sneed, 98.

\m) See note (/) to this Form.

(n) The court, on rescinding contracts, should place the parties, as nearly as possible.
in statu quo, not only by requiring, when necessary, the surrender of contracts and delivery
of possession and conveyances (see cases died supra) ; but should make proper orders as to
interest, rents, profits, improvements, and waste: see Bullock v. Beemis, I Afar., 434;
Griffith v.Depew, 3 Id., 180; Richardson v.McKinson, Lilt. S. C, 320; Durrett \. Simp-
sons rep's, 3 Mon., 526; Caldwell v. White, 4 Id,, 570 ; Cogsweirs heirs v. Lyon, 3 /./ Af.,
41 ; Bartlett v. Blanton, 4 Id., 430, 439 ; Prewelt v. Graves, &c, $ Id., 126 ; Taylor v. Por-
ter, I Dana, 421 ; Combs v. Tarltoris adm'rs, 2 Id., 467; Williams 1 heirs v. Wilson, &c,
4 Id., 507 ; ICyle*s adtn'r v. Fauntleroy's heirs, 9 B. M., 620 ; Thompson v. Jones, 41 Id.,
367; Rogers v. Wiggs, 12 Id., 504; Robertson v. Lemon and wife, 2 Bush, 301 ; Hatcher and
wife v. Andrews, 5 Id., 566 ; Upshaw v. Debow, 7 Id., 447-48 ; Afosely v. Miller, 13 Id., 408.

(0) See note (c), ante, p. 576.

(/) It is settled that, in an action on a warranty of title brought by a vendee after his
eviction by an adverse claimant, the plaintiff, though the land may have risen in value,
can only recover the consideration paid, with interest ; and I am not aware of any case
holding that a different rule applies upon the rescission, for fraud, of a conveyance
with a warranty of title: to the contrary, that rule was adopted in the above cited cases
of Young v. Hopkins, &c; Upshaw v. Debow, and Hatcher and wife v. Andrews.

And yet it seems to have been settled —

1. That, in an action on a covenant for failure to convey land which has risen in value,
or in an action in equity for specific performance of such covenant, the plaintiff is entitled
to recover, as damages, the value of the land at the time of recovery, if it be shown that
the defendant covenanted to convey it, knowing that he had no title, or, having title,
afterward conveyed it to another. See cases cited in 3d paragraph of note(i), ante, p. 77.

2. That a covenant to convey land, unless it expressly provide otherwise, binds the
obligor to convey with a general warranty of title: see note (d), attte, p. 577.

3. That, if a vendor of personal property represent it as sound, knowing that it is
unsound, and also warrant it sound by a written contract, the purchaser can waive the
contract and maintain an action of tort for the fraud : see note 2, ante, p. 572.

And see Hynes 1 rep's v. Campbell, cited in note (b) to Form 58, in which the court
seems to have been of the opinion that the plaintiff, to whom the deed was made without
a warranty of title, would have had a right to recover the value of the land at the time of
recovery, if the defendant had made the deed knowing that he had no title.

59. Purchaser's petitions for rescission of executory contracts /or
land {a).



• {c) Circuit Court.



Petition in Equity.



a. Petition alleging fraud of defendant (b) .

A. B., Plaintiff,

against
C. D., Defendant,

[or
C. D. and E. F., Defendants.]

The plaintiff, A. B., says that, on the .... day of , in consideration of

dollars then paid by him to the defendant, C. D., and of the plaintiff's note to him, of

the date aforesaid, for dollars, payable after date, said defendant signed

and delivered to the plaintiff a writing, of the date aforesaid, [which is filed herewith,
marked A (</)], and by which he covenanted to convey to the plaintiff [on payment of

said note (e)], a tract of land situate in county [describe it by abuttals or by metes ami

bounds], and containing acres ; and that the plaintiff was induced to make said pur-
chase by [set forth the defendant' 1 s fraud substantially as in Form 58 b, ante, p 579].

And the plaintiff says that he is ready and willing to surrender to the defendant, C
D., the writing containing his aforesaid covenant [and \if the plaintiff has received }**•



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PETITIONS IN ACTIONS IN EQUITY. 583

session) the possession of said laud], upon his surrendering the aforesaid note for cancel-
men t and refunding the purchase-money paid to him as aforesaid with interest.

Wherefore the plaintiff asks that his said contract of purchase be rescinded, and that
said C. D. be required to file the aforesaid note for cancelment ; and for a judgment

against him for dollars, the purchase-money paid to him as aforesaid, and interest

thereon from the .... day of , and costs ; [and for a sale of said land {pr— a sale of

saidC. D.'s interest in said land) to satisfy said judgment], and for any other relief the
plaintiff may appear entitled to.

[Or, after setting forth the fraud— And. the plaintiff says that the aforesaid E. F., who
is made a defendant hereto (/), claims (set forth E. F.'s claim to the land) ; and the plain-
tiff is ready and willing to pay to said C. D. the unpaid purchase-money (g) (when it shall
become due), if he ean make good title to said land ; and, if he can not do so, the plaintiff is
ready and willing to surrender to him the writing containing his aforesaid covenant and
(if possession has been received) the possession of said land, upon his surrendering the afore-
said note for cancelment, and refunding the purchase-money paid to him as aforesaid with
interest.

Wherefore the plaintiff asks that the said E. F. be required to assert or renounce his
claim to said land, and that said C. D. be required to exhibit his title thereto, and, if he
can make title, that he be required to convey it to the plaintiff with general warranty of
title (A), and pay the costs of this action ; and, if not, (conclude with the first prayer in this
Form).]

(Verification as in Form 1.) G. H., Attorney.

(a) I. A fortiori, facts which entitle a purchaser of land to rescission of an executed
contract (see Forms 58, a, and 58, b) entitle him to rescission of an executory contract.

2. But fraud is not necessary to entitle a purchaser to rescission of an executory con-
tract, the puchaser's inability to convey title according to his contract, and sometimes par-
tial inability to do so, being sufficient for that purpose : see cases cited in notes to the next
following Form.

3. Nor, perhaps, is a purchaser who obtains a rescission entitled to greater relief by
reason of the vendor's fraud than by reason of his mere inability to convey title: see note
(/), ante, p. 582 ; to which I add that I have not found any decision which holds that a
purchaser seeking rescission of an executory contract for land is entitled to more than
relief against unpaid purchase-money and the recovery of purchase-money paid, with
interest, and of the value of improvements put by him on the land.

4. But it seems clear that, if such purchaser has been defrauded, he can maintain an
action for rescission without bringing conflicting claimants before the court, though he
may have been placed in possession of the land : see note (a) 2, to Form 58, a ; Gill v. Cor-
bin, 4 f. J ,M., 392; and Bullock v. Beemis, 1 Mar., 433, in which the vendor's negligence
in adjusting conflicting claims which were known to the vendee at the time of his pur-
chase was held to be •« equivalent to fraud."

5. But if, notwithstanding the fraud, the purchaser does not claim a rescission abso-
lutely, but insists on a specific execution of the contract if title can be had, he must bring
conflicting claimants before the court. Voder v. Swearingen, 6 /. f. M., 519-20.

6. If, however, there has been no fraud and he has had undisturbed possession of the
land, he " can not be entitled to a rescission without an effort to procure the title or with-
out showing that a good one can not be made; " and it is his duty to bring conflicting
claimants before the court. Duvall v. Parker, 2 Duv., 182 ; Casey, 6fc, v. Lucas, 2 Bush,
55 : but see dictum in Prewitt v. Graves, 5 J. f. M., 126.

7. In Hancock v. Byrne, 5 Dana, 514, which was an action to rescind an executed con-
tract, the court said that, in a purchaser's action to rescind an executory contract, the
burden lies on the defendant to show title ; which is no doubt true as to cases of fraud ;
and as to cases in which the purchaser has not received possession and in which, after
making the necessary allegations (see note (d) to* Form 59, b), he calls on the vendor for
an exhibition of title (see Vittitoe <5r* Enloe v. fones «5r* Triplett, 6 /. /. A/., 515) ; but ac-
cording to Casey, cVY., v. Lucas, 2 Bush, 57, the burden of showing that the vendor has
no title seems to rest on the purchaser if there has been no fraud and he has had undis-
turbed possession.

(b) See the last foregoing note.

(c) As to the venue of this action see note (c), ante, p. 579.



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584 FORMS.

(d) It is not necessary for the plaintiff to file the contract with his petition or to>
account for not filing it, unless he ask for relief as in the last (the bracketed) paragraph of
this Form.

(e) See 3 Man., 542-43 and 549: 3 /./. M., 670; 3 Dana, 200.
( /) See note (a) 4 and 5, ante, p. 583.

(g ) Though a purchaser suing for specific performance must, when he files his petition,
pay into court purchase-money due (see Form 57, ante, p. 577, and notes thereto), I hare
found no case holding that he must do so if his petition state facts showing him entitled
to a rescission, though he ask for a conveyance if the defendant be able to make title.
That he must not deposit the money until required to do so by the court seems inferable
from Clark, et a/. f v. Bell, el al., 2 B. M. % 5.

(h) See note (d), ante, p. 577.

b. Petition alleging defendant's inability to convey according to his contract.

A. B., Plaintiff, \ (a) Circuit Court.

against I Petition in Equity.

C. D., Defendant. J

The plaintiff, A. B., says that on the .... day of , in consideration of

dollars then paid by him to the defendant, C. D., and of the plaintiff's note to him, of the

date aforesaid for dollars, payable after said date, the defendant signed

and delivered to the plaintiff a writing of the date aforesaid, which is filed herewith,
marked A, and by which he covenanted to convey to the plaintiff [on payment of said

note (b),] a tract of land situate in county [describe it by abuttals or metes and

bounds], and containing acres, possession of which was never delivered to the

plaintiff (c) ; and that, as the plaintiff has since discovered, the defendant had not then and
has not now any title to said land [or— and that, as the plaintiff has since discovered, the
defendant's title to said land was then and is now defective in this, to- wit — set forth the
<Uf«(\ (J) ;

[Or — and that, as the plaintiff has since discovered, the defendant had not then and

has not now any title to acres of said land (or — and that, as the plaintiff has

. since discovered, the defendant's title to acres of said land was then and is now

defective in this, to-wit — set forth the defect) ; and that said acres embrace the

dwelling-house and all the buildings on said tract of acres and the only spring and

stream of water on said tract (e)]

and that the plaintiff is ready and willing to surrender to the defendant the writing con*
taining the aforesaid covenant on his surrendering to plaintiff the aforesaid note and
refunding to the plaintiff the money paid to him as aforesaid, with interest thereon.

Wherefore the plaintiff asks that his said contract of purchase be rescinded ; that the
defendant be required to file the aforesaid note, for cancelment; and for a judgment

against the defendant for dollars and interest thereon from the .... day of ,

and costs, [and for a sale of the acres of said land to which the defendant has title,

to-wit: (describing the land by abuttals or metes and bounds) for the satisfaction of said judg-
ment ;] and for any other relief the plaintiff may appear entitled to.

(Verification as in Form 1.) E. F., Attorney.

{a) As to the venue of this action, see note (r), ante, p. 579.

(b) See 3 Man., 542-43. and 549; 3 /./. M., 670; 3 Dana, 20a

(c) A vendee who has been placed in possession, and who seeks to rescind a contract
because the vendor's title is defective, must make the adverse claimant a party to the
action (see note 6, ante, p. 583 ; and must aver his readiness and willingness to surrender
the possession. See Form 58 b, ante, p. 579.

(d) «' Vague and general surmises " as to defects in the vendor's title, or "a mere sug-
gestion that the title of a party is defective," or that the vendor "has not and never did
have a good or perfect title and that his title is defective," are not sufficient to entitle a
purchaser to rescission : he must allege a want of title, or of such title as the vendor cove-
nanted to convey ; or he must specify the defects complained of, so that the vendor may have
an opportunity to cure them or to show that they do not exist (3 Bibb, 302 ; 6 /. /. M. t



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PETITIONS IN ACTIONS IN EQUITY. 585



515-16; 7 Bush, 7, 8; 78 Ky., 612) ; for, unless the vendor's conduct has been fraudulent
or hard and unconscientious or otr, 9 B. M., 176, and
Fall v. AlcAfurdy, 3 Met., 364.

(1) Cases relating to uncontemplated deficits ana surpluses on sales by the acre.

Vendees have been held to be entitled to relief for deficits, or vendors to relief for
surpluses, on sales by the acre of stated quantities, without saying "more or less," in
the following cases: Smith v. Smith, 4 Bibb, 81, as to a surplus of 24 acres in a tract sold
as containing 165 acres; Whaley v. Elliotts heits, 1 Mar., 343, as to a surplus of 30 acres
in a tract sold as 185 acres ; Buck <&* Conn v. AfcCaughtry, 5 Mon., 216, 231, as to a deficit
of 50 acres on a tract sold as 787 acres ; Grant v. Combs, 6 Mon., 280, as to a deficit of
1032 acres in a tract sold (at 12 J£ cents per acre) as containing 2245 acres; Campbells
ex'rs v. Wilmore, 6 J. J. M., 209, as to a surplus of 8 acres in a tract sold as 124 acres;
Grundy s heirs v. Grundy, 12 B. Af., 269, as to a surplus of 101 acres in a tract sold as 447
acres; and Reedy. Quisenberty, cited in 4 Met., 114, as to a deficit of 2 acres in a tract
sold as 135 acres : and on sales by the acre of stated quantities, " more or less," in Thomp-
son v. Robertson, 9 B. A/., 383, as to a surplus of 3 acres in a tract sold as 173 acres ; and
in Hutchings v. A/00 re, 4 Met., no, as to a surplus of n# acres in a tract sold as 160
acres.

And parol evidence is admissible to prove that a contract, though on its face a sale in
gross, was in fact a sale by the acre : Smith v. Smith, 4 Bibb, 81 ; Campbell* s ex'rs v. Wil-
more, (>/./. A/., 209, and Harrison v. Talbott, 2 Dana, 266-67; in eacn °f which it was
held that the vendee was not entitled to the surplus : and Elliotts heirs v. Whaley, 1 Mar.,
618, in which it was held that evidence was admissible in behalf of the heirs to prove that
the land sold was part of a larger tract owned by their ancestor, and, consequently, that
the land was sold by the acre and the heirs entitled to the surplus; and that, as they had
failed to make such proof, it must be presumed that the land sold was not part of a larger
tract owned by their ancestor ; and that, consequently, it must be held that the land was
sold in gross, and the heirs were not entitled to the surplus: and see Taylor v. Zimmer-
man, 2 Bibb, 453.

And the decisions on the above cited cases are all that I am aware of relating to deficits
or surpluses on sales by the a«:re.

(2) Cases relating to uncontemplated deficits and surpluses on sales in gross.

In such cases the vendee is entitled to compensation for the deficit, or the vendor is ,
entitled to the surplus or its value, as is shown by the following cases, in which the land
sold was described as being a certain quantity, "more or less;" namely, Le7vis\. Aferri-
wether, 9 8. A/., 163, and, especially, 175 to 182, as to a surplus of 37^ acres in a tract sold
as 160 acres; Beam v. Grundy* s heirs, 12 B. A/., 269, as to a surplus of 90 acres in a tract
*sold as 447 acres; Dawson v. Goodwin, 15 B. Af., 439, as to a surplus of 31 acres in a
tract sold as 167 acres ; and Fannin v. Belloftiy, 5 Bush, 663, as to a smrplus of 92 acres in
a tract sold as 100 acres, and in which the court said that, by "more or less," the parties
"should be presumed to have understood and intended such reasonable deviation from the
supposed quantity as might be expected under the circumstances of the negotiation, which
would not, without mutual surprise, exceed ten or fifteen per cent" — as to which see
* Quesnal v \ Woodlief, et at., cited in 2 Dana, 259: and the following cases in which the
words " more or less " we*e not used in the contract ; namely, Shelby & Roberts ▼. Smith's
heirs, 2 Afar., 504, as to a deficit of 32 acres in a tract sold as 200 acres ; More dock v. Rai-
lings, 3 Mon., 73, as to a deficit of 14 acres in a tract sold as 162 # acres; Gilmorr v. H&
gan, 2 J. J. Af,, 65, as to a surplus of 18 acres in a tract sold as 100 acres; Crone r.
Prather 4 ,/. J. M., 75, as to a deficit of 24 acres in a tract sold as 129 acres ; Falls. Mi-
Afurdy, 3 Alet., 364, as to a deficit of 2 acres in a valuable tract sold as 6 acres; Dy* ▼•
Hollaml, 4 Bush, 635, as to a deficit of 41^ acres in a tract sold as 200 acres; and Bor>
rison v. Talbott, 2 Dana, 258, as to a surplus of 90 acres in a tract sold as 400 acres, tad



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PETITIONS IN ACTIONS IN EQUITY. 589



in which, though the contract was, on its face, a sale in gross, it was proved "that the
land was, in fact, sold at fifteen dollars an acre ; " but in which the court, in order to show
its views, avowedly treated the contract as if it had been a sale in gross of " a tract of
land supposed to contain four hundred acres more or less; 1 ' and it seems clear that the
court, so treating the contract, would have held that the vendee was not entitled to the
surplus, even if the land had not been "sold at fifteen dollars an acre." See 2 Dana, 267.
The cases of Smith v. Smith, Harrison v. Talbott, and Fannin v. Bellomy, cited supra,
rose on bills filed by executory vendees for conveyances of tracts containing surpluses;
and in each case the surplus was held to have been uncontemplated. In Smith v. Smith,
the vendee's bill was dismissed; and no other relief was given to the vendor, for the reason,
perhaps, that he had not filed a cross-bill : in Harrison v. Talbott, the vendee's bill was
dismissed ; and no other relief was given to the vendor though he filed a cross-bill :* in
Fannin v. Bellomy, there being a surplus of 90 acres in a tract sold as 100 acres, and the
vendor having offered, before suit was brought, to convey 115 acres, he was required to
convey no acres, because it might be presumed that a surplus to that extent had been con-
templated.

3. Remedies of vendees for deficits.

Formerly, a vendee who was sued at law for purchase-money was compelled to submit
to a judgment and go into equity for relief on account of a deficit ; but, under \ 17 of the
Code, a vendee's right to a deduction for a deficit may be pleaded as a defence in the action
at law, and constitutes a defence of exclusively equitable cognizance, both because it is
founded on a mistake (2/,/. M. t 2) and because it goes to only a part of the consideration
of his contract to pay the purchase-money (see note 5, ante, p. 126) ; but if the purchase-
money be payable in installments, the deduction for the deficit '* should be divided into as
many installments as that of the entire price agreed to be paid for the land, and an equal
part thereof [should be] credited upon each note given for the land, at the time it became
payable." 6 Mon., 283.

If the vendee has paid the purchase-money, he can maintain an action in equity for
compensation for the deficit {Crane v. PraUier, 4 J.J. M. t 75); in which a judgment for
*• the amount of the original consideration for the 24 acres [the quantity of the deficit],
and legal interest upon it," was affirmed ; but it seems doubtful whether the plaintiff can
recover interest which accrued before the commencement of his action unless he had
notified the vendor of the deficit. See, ante, note VI, p. 73; note (2), p. 78; and 86
*>., 675-76.

The allowance for a deficit should be the price per acre stated in the contract (5 Mon.,
2 3>-3 2 ) I or » u P on a purchase for an aggregate sum, the reduction should be the price of
the number of acres in the deficiency, ascertained by the price of the whole quantity as
agreed by the parties (Liggitl's heirs v. Ashley, 5 Litt., 178; Murdoch v. Rowlings, 3 Mon.,
73) ; and in Caldwell v. Moore and Harlan, 3 Dana, 340, 345, those rules were held to be
applicable to a deficit resulting from the vendor's want of title to part of the land, it not
having been shown that the land thus lost differed in quality from the residue: but see 5
Dana, 147; 5 Mon., 231-32. In a case, however, in which "the improvements upon the
lot, and their adaptation to the purposes for which they had been and were to be devoted,
formed the principal element of the value of the property," the criterion of abatement
was held to be "lie difference in the value of the property as it was at the time of the sale,
and as it was represented to be— taking into consideration the location, size and value of
the lot, with the improvements, the purposes for which it was to be bought, used, &c."
Fall v. McMurdy, 3 Met., 364; and see 5 Dana, 1 54-55.

4. Remedies relating to surpluses.

As has been suggested, a surplus does not entitle either the vendor or vendee to a re-
scission of the contract. The vendee's remedy is a surrender of it or paying for it ; and
the vendor's remedy is an action for it or its value.

A conveyance by the owner of land passes the legal title to all the land within the
designated boundaries, however great the surplus may be, leaving in the vendor only an
equitable right to the surplus or to compensation therefor; and a like conveyance by the
vendee to a purchaser without notice of that equity, vests him with the legal title to the sur-
plus free from any claim on the part of the first vendor ( Powell v. Eve, 2 Bibb, 317;
Floyd's heirs v. Adams, <5rV., I Mar., 72; Jennings v. Monk's ex r, 4 Met., 103); whose
remedy is a suit in equity against his vendee for the value of the surplus. Grundy's heirs
v. Grundy, 12 B. M. t 269.

Citation of authorities seems unnecessary to show that a sale by an executory vendee,
or his executory sale though he hold the legal title, as it would give only an equitable
right to his vendee, can not affect the prior equity of his vendor to the surplus.



* As to that decision, see note («),>«/, p. 591 .



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59° FORMS.



But as to cases in which the vendee has not conveyed the surplus to a bona fide pur-
chaser there is no fixed rule concerning the optional right of a vendor to recover the sur-
plus or compensation instead of it, or the correlative right of a vendee to surrender the
surplus or to pay for it instead. In Rogers v. Garnett, 4 Man., 271, the court said:
«• Whether that redress should be by a re-conveyance of the surplus, or by compensation
at the contract-price or at the present value, would depend upon circumstances. We do not
find ouselves under the necessity to decide what should be the general rule of relief in such
cases," and the court did not lay down any special rule in that case, as it held that the
vendor was not entitled to any relief. The optional rights above mentioned seem to
depend on the question whether the surplus is large or small, though the cases furnish no
exact criterion on the subject: see opinion in Lewis v. Merrrwether, 9 B. M., 171 and 173;
and decisions in Thompson v. Robertson, 9 B. M, 383 ; Campbell's ex*rs v. Wilnme, 6
J.J. M., 209, and Hutching* v \ Moore \ 4 Met., no, which relate, respectively, to a sur-
plus of 3 acres, 8 acres, and n^ acres, and in which it was held that the vendor was
entitled to recover compensation, though in the last named case the vendee offered to



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