O'Neill v. Kunkle

Clark, J.

Plaintiffs as vendees in a land contract owned a parcel of land in Detroit. Defendants were owners in fee of a piece of land at Lake Orion. They agreed to exchange. Plaintiffs transferred to defendants the interest in the Detroit property and re *655 ceived back a land contract for the Lake Orion property at the price of $8,500, of which $3,500 was paid down by the transfer of the Detroit property. The bill is' for rescission on the ground of fraud. Plaintiffs had decree. Defendants have appealed.

The facts found by the court in favor of plaintiffs, which finding is well supported by the record, include a representation that the Lake Orion property could be sold upon the market for a certain price and a further representation that such property was worth a certain amount, largely in excess of actual value, defendants having professed expert knowledge of the value, and plaintiffs saying that they did not know the value, but would rely on defendants’ representation. These representations, relied on by plaintiffs and proving false, are sufficient to sustain decree rescinding the transaction for fraud.

Pound v. Clum, 204 Mich. 28 ;

Hammer v. Martin, 205 Mich. 359 .

Defendants invoke the rule of rescission applicable in an action at law; This same contention was made in Witte v. Hobolth, 224 Mich. 286 , and thus answered :

“It is said that plaintiff neither restored nor offered to restore to defendant the property received before seeking rescission. Neither was necessary. A bill in equity praying rescission proceeds on the theory that there has been no rescission, not on the theory that rescission has already been accomplished. Were plaintiff to sue at law for the money he paid defendant he should, before suit, restore, or tender restoration of, the-property he received that by his own act he thus may have legal right and title to the money. See 9 C. J. p. 1215;

Jandorf v. Patterson, 90 Mich. 40 .”

The decree does not provide for surrender and cancellation of the land contract covering the Lake *656 Orion property given by defendants to plaintiffs nor for restoring possession of such property to defendants. The decree may be modified so to provide. This was due we think to oversight and the matter should have been called to the attention of the court on settlement of decree, it not being contended that decree was not properly noticed for settlement, so the modification will not carry costs. We have disposed of all questions presented by appellants.

Decree so modified is affirmed, without costs.

Fead, C. J., and North, Fellows, Wiest, McDonald, Potter, and Sharpe, JJ., concurred..