to actions of this sort, and the time limited by it appears to have run, since the date of the transaction complained of and before the filing of the bill, the plaintiff must take himself out of the statute by distinctly alleging his first discovery of the fraud at a particular time, as a new starting point for the running of the statute and not already covered by it.93 § 672. Offer to Restore or to Do Equity.-Since the prime object of a suit for rescission or cancellation is to undo the original transaction and restore the former status, the complainant, in his bill or complaint, must offer to restore to the defendant whatever property or valuable consideration he may have received under it. And further, he must show that he is able to make such restoration, as, for example, where he has parted with some of the property received under the contract, he must show that he has re 93 Sublette v. Tinney, 9 Cal. 423; Le Roy v. Mulliken, 59 Cal. 281; Bohm v. Bohm, 9 Colo. 100, 10 Pac. 790; Matlock v. Todd, 25 Ind. 128; Morrill v. Little Falls Mfg. Co., 60 Minn. 405, 62 N. W. 548; Smith v. Linder, 77 S. C. 535, 58 S. E. 610. 94 Alaska & Chicago Commercial Co. v. Solner, 123 Fed. 855, 59 C. C. A. 662; Des Moines & M. R. Co. v. Alley (C. C.) 16 Fed. 732; Bone v. Lansden, 85 Ala. 562, 6 South. 611; Wilks v. Wilks, 176 Ala. 151, 57 South. 776; Davis v. Tarwater, 15 Ark. 286; Wainwright v. Weske, 82 Cal. 193, 23 Pac. 12; Buena Vista Fruit & Vineyard Co. v. Tuohy, 107 Cal. 243, 40 Pac. 386; Purdy v. Bullard, 41 Cal. 444; Potter v. Roeth, 2 Cal. Unrep. Cas. 523, 7 Pac. 762; Travelers' Ins. Co. v. Redfield, 6 Colo. App. 190, 40 Pac. 195; Babcock v. Farwell, 245 Ill. 14, 91 N. E. 683, 137 Am. St. Rep. 284, 19 Ann. Cas. 74; Dillman v. Nadlehoffer, 119 Ill. 567, 7 N. E. 88; Smith v. Doty, 24 Ill. 164; Miller v. Whittaker, 23 Ill. 453; Thrash v. Starbuck, 145 Ind. 673, 44 N. E. 543; Westhafer v. Patterson, 120 Ind. 459, 22 N. E. 414, 16 Am. St. Rep. 330; Leake v. Ball, 116 Ind. 214, 17 N. E. 918; Burgett v. Teal, 91 Ind. 260; Vance v. Schroyer, 79 Ind. 380; Axtel v. Chase, 77 Ind. 74; Supreme Council Knights and Ladies of America v. Apman, 39 Ind. App. 670, 80 N. E. 640; Long v. Johnson, 15 Ind. App. 498, 44 N. E. 552; McCorkell v. Karhoff, 90 Iowa, 545, 58 N. W. 913; Seymour v. Shea, 62 Iowa, 708, 16 N. W. 196; Hedges v. Pioneer Iron Works, 166 App. Div. 208, 151 N. Y. Supp. 495; Staiger v. Klitz, 136 App. Div. 874, 122 N. Y. Supp. 107; Smith v. Howlett, 29 App. Div. 182, 51 N. Y. Supp. 910; Mason v. Wheeler, 2 Misc. Rep. 523, 24 N. Y. Supp. 879; Spencer v. Clark, 48 Hun, 621, 1 N. Y. Supp. 533; Van Liew v. Johnson, 4 Hun (N. Y.) 415; Martin v. Cook, 59 N. C. 199; Pruitt v. Oklahoma Steam Baking Co., 39 Okl. 509, 135 Pac. 730; Terrill v. Dewitt. 20 Tex. 256; Ryan v. Nuce, 67 W. Va. 485, 68 S. E. 97 96 95 gained the title to it or the possession of it. This offer But there are certain cases in which no tender or offer of restoration is required to be made. In the first place, if the bill alleges that there was no consideration whatever for the contract or grant in question, or that the stipulated consideration was never paid to the complainant, or does not admit the existence or payment of such consideration, there should of course be no tender or offer to restore.105 Such 95 Thomason v. Pickett, 134 Ga. 107, 67 S. E. 433. 98 Arnold v. Fraser, 43 Mont. 540, 117 Pac. 1064. 99 Miller v. Louisville & N. R. Co., 83 Ala. 274, 4 South. 842, 3 Am. St. Rep. 722. 100 Bell v. Weyman, 99 Ga. 273, 25 S. E. 636; Gidney v. Chappell, 26 Okl. 737, 110 Pac. 1099; Hatch v. Garza, 7 Tex. 60; Cecil v. Henry (Tex. Civ. App.) 93 S. W. 216; Hurst v. Knight (Tex. Civ. App.) 164 S. W. 1072. 101 Pinkston v. Boykin, 130 Ala. 483, 30 South. 398. 102 Veney v. Furth, 171 Mo. App. 678, 154 S. W. 793. 103 Shuee V. Shuee, 100 Ind. 477. 104 Martin v. Martin, 35 Ala. 560. 105 Des Moines & M. R. Co. v. Alley (C. C.) 16 Fed. 732; Mark v. North, 155 Ind. 575, 57 N. E. 902; Martin v. Bolton, 75 Ind. 295; May v. May, 29 Ky. Law Rep. 1033, 96 S. W. 840. is also the rule where it is alleged that the consideration received by the plaintiff was absolutely without value,100 or that a deed which was to have been made and delivered to him was never fully executed; in this case it is not necessary for him to offer to restore what the deed would have conveyed if executed.107 So, if the bill alleges that the complainant has not and never had possession of the land in question, no offer of restoration of it can be made.108 Nor is it necessary to offer repayment or restoration where it is alleged that the amount received by the defendant on the contract, or realized by him out of the subject-matter of it, and for which he is accountable to the plaintiff, equals or exceeds that which the plaintiff may be required to account for to him.109 It is also held that an omission of the offer to do equity or to make restitution of what the complainant has received, does not go to the sufficiency of the bill to state a cause of action, but must be taken advantage of by answer or demurrer, and the defect is waived if the defendant goes to trial without objecting on this ground.110 Finally, as a tender of restitution or reconveyance is not generally a condition precedent to the institution of the suit, it is ordinarily sufficient if the bill itself contains such a tender or offer as described above, and it is not necessary to plead an offer or tender made before the suit.111 106 Citizens' Bank v. Leonhart, 126 Ind. 206, 25 N. E. 1099. 107 McNally v. Fitzsimons, 70 App. Div. 179, 75 N. Y. Supp. 331. 108 Orendorff v. Tallman, 90 Ala. 441, 7 South. 821. 109 Board of Levee Com'rs v. Tensas Delta Land Co., 204 Fed. 736, 123 C. C. A. 40; Watts v. White, 13 Cal. 321; Hensan v. Cooksey, 237 Ill. 620, 86 N. E. 1107, 127 Am. St. Rep. 345. 110 Lange v. Geiser, 138 Cal. 682, 72 Pac. 343; Newman v. Smith, 77 Cal. 22, 18 Pac. 791; McCormick v. Malin, 5 Blackf. (Ind.) 509; Haydon v. St. Louis & S. F. R. Co., 117 Mo. App. 76, 93 S. W. 833; Town of Springport v. Teutonia Sav. Bank, 75 N. Y. 397; Ludington v. Patton, 111 Wis. 208, 86 N. W. 571; Dunn v. Amos, 14 Wis. 106; Hollenback v. Shoyer, 16 Wis. 499. 111 Gross v. George W. Scott Mfg. Co. (C. C.) 48 Fed. 35; King Bros. v. Perfection Block Mach. Co., 81 Kan. 809, 106 Pac. 1071; Knappen v. Freeman, 47 Minn. 491, 50 N. W. 533; Day v. Mooney, 3 Okl. 608, 41 Pac. 142; Wiley v. Heidell, 12 Heisk. (Tenn.) 98; Lockwood v. Allen, 113 Wis. 474, 89 N. W. 492. And see, supra, § § 673. Frame of Bill and Prayer for Relief.-The rescission of a contract or cancellation of a conveyance will not ordinarily be granted by a court of equity unless specifically asked for. Thus, a deed set up in an answer will not be set aside, though proved to be void, unless such relief was prayed in the bill.112 But a deed may be canceled as a cloud on title on a bill making a proper case and merely praying "that said conveyance be set aside, and that [complainant] be put in possession of the land, and have a decree for rents and for general relief." 113 Such a bill need not ask discovery, name the witnesses, etc., but a simple statement that the instrument is void or voidable, with the proper prayer, is sufficient.114 And a bill so framed and asking such relief is not demurrable as a bill to quiet title.115 A prayer assigning several different reasons for vacating a deed is considered as so many separate prayers, and if one reason is valid, it is error to reject the whole prayer.118 But the bill should not be framed with a double aspect. Thus, if the instrument assailed is a mortgage, the plaintiff cannot ask, in the alternative, that it shall either be canceled or else established as a mortgage and a redemption allowed.117 But in a suit by heirs to set aside a deed of their ancestor, it is not improper to add a prayer for partition of the premises among those entitled.118 A count or prayer for damages resulting from the fraud alleged as the basis of the action should not be joined with a demand for rescission or cancellation, as these are mutually inconsistent.119 But if 112 Boyd v. Hawkins, 17 N. C. 197. 118 Dodd v. Benthal, 4 Heisk. (Tenn.) 601. 114 Almony v. Hicks, 3 Head (Tenn.) 39. 117 115 Lecus v. Turns, 180 Mich. 117, 146 N. W. 649; Gragg v. Maynard, 164 Mich. 535, 129 N. W. 723. 116 American Exch. Bank v. Inloes, 7 Md. 380. 117 Micou v. Ashurst, 55 Ala. 607; Tatum Bros. v. Walker, 77 Ala. 563; Ross v. Ross, 81 Mo. 84. 118 Leidenthal v. Leidenthal, 121 App. Div. 269, 105 N. Y. Supp. 807; Duffy v. Mellick, 42 N. J. Eq. 117, 7 Atl. 341. 119 Pearsoll v. Chapin, 44 Pa. 9; Pierce v. Brassfield, 9 Ala. 573. But compare McKee v. Eaton, 26 Kan. 226. And see Sires v. Sires, 43 S. C. 266, 21 S. E. 115. A plaintiff who was induced to purchase goods by the fraudulent representations of the defendant, and who has parted with the goods, may recover under a declaration in tort which goes upon a rescission of the contract, if the declaration suffi a transfer of realty is sought to be vacated on the ground of fraud, and it is alleged that part of the property has been sold by the defendant since the date of the transfer to him, it is not improper to ask that the proceeds of such sale be accounted for and the money paid over to the persons entitled.120 And it has been held that, where the subjectmatter of the suit is a note alleged to have been procured by fraud, the plaintiff may pray for a surrender and return of the note, or, in default thereof, for a decree for the amount of it.121 But a bill in equity to enforce a resulting trust cannot be amended so as to set up that the deed for the property in question was fraudulent, and to pray for its cancellation.122 In some jurisdictions, however, after the defendant has appeared and answered, the plaintiff is entitled to relief according to the facts proved on the trial, even though his prayer asks for relief inconsistent with the cause of action set out in his complaint.123 Thus, while an action brought to enjoin one from obtaining an injunction is demurrable, yet if facts are stated which would justify the cancellation of the contract out of which the litigation arises, the demurrer should be overruled.124 And if the allegations are sufficient to call on the court to charge the defendant with misconduct in office as a trustee, that relief may be granted, though the plaintiff's prayer was for cancellation of the power of attorney under which the defendant acted.125 It is ruled that a prayer for general relief will authorize the cancellation of a written instrument,126 and a prayer for ciently charges the fraud and the damage to the plaintiff resulting from it, after striking out everything alleged in regard to rescission. Nash v. Minnesota Title Ins. & Trust Co., 163 Mass. 574, 40 N. E. 1039, 28 L. R. A. 753, 47 Am. St. Rep. 489. 120 Parker v. Simpson, 180 Mass. 334, 62 N. E. 401. 121 Southern States Fire Ins. Co. v. Kelley, 186 Ala. 259, 65 South 328. 122 Toomey v. Hughes, 8 Pa. Co. Ct. R. 384. 123 Hatton v. McFadden, 15 N. Y. St. Rep. 124. 124 Cowper v. Theall, 40 Hun (N. Y.) 520. 125 Hatton v. McFadden, 15 N. Y. St. Rep. 124. 126 Laverty v. Sexton, 41 Iowa, 435; Bolware v. Craig, Litt. Sel. Cas. (Ky.) 407; Prewit v. Graves, 5 J. J. Marsh. (Ky.) 114; Clagett v. Hall, 9 Gill & J. (Md.) 80. |