such equitable relief as the complainant may be entitled to under the pleadings and proof is not insufficient for failure to show whether cancellation is sought or a recovery of damages.127 Also, in a bill to set aside an alleged fraudulent conveyance, the prayer for general relief will authorize the granting of a writ of possession.128 And under the laws and practice in Louisiana, in an action for rescission of a purchase of land, on the ground that the plaintiff is in danger of being disturbed in his possession, the prayer for general relief will justify the court in ordering the defendant to give security against that event, as provided in the statute. 129

§ 674. Plea, Answer, or Counterclaim.-The plea or answer in a suit for rescission or cancellation should not take issue upon immaterial points, but should cover all the equities of the case.130 But the defendant may set up as many defenses as he may have, provided they are not inconsistent with each other,131 and a plea may be sufficient to withstand a general demurrer though, in addition to a substantial defense, it contains allegations regarding irrelevant matters.182 In an action to rescind a contract for the purchase of lands on the ground of defective title in the vendor, the answer of the latter should set forth his title,183 or if it is alleged that he made fraudulent representations as to his ability to convey the title in fee simple, his answer should set forth his ability to comply with the representations.134 So, where the bill seeks to set aside a release on the ground of fraud and want of consideration, a plea of the release must deny generally the matter of avoidance charged in the bill, and must be accompanied by an answer denying such charges particularly.135 A plea or answer alleging affirm

127 Hagelstein v. Blaschke (Tex. Civ. App.) 149 S. W. 718. 128 Harlan v. Moore, 132 Mo. 483, 34 S. W. 70.

129 McDonold v. Vaughan, 14 La. Ann. 716.

130 Brown v. Pierce, 7 Wall. 205, 19 L. Ed. 134; Lyon v. Dees, 84 Ala. 595, 4 South. 407; Payette v. Ferrier, 31 Wash. 43, 71 Pac. 546. 131 Crowder v. Searcy, 103 Mo. 97, 15 S. W. 346.

132 Dolvin v. American Harrow Co., 125 Ga. 699, 54 S. E. 706, 28 L. R. A. (N. S.) 785.

133 Topp v. White, 12 Heisk. (Tenn.) 165.

134 Wellborn v. Tiller, 10 Ala. 305.

135 Crawley v. Timberlake, 36 N. C. 346.

ance of the disputed contract by the plaintiff, or his ratification of it or acquiescence in it, or his laches in regard to disaffirming it, must allege fully and specifically his discovery of the fraud, etc., or knowledge or notice of the facts, which alone would make a ratification or acquiescence effective.136 But in an action to cancel a deed on the ground of fraud, the defendant cannot plead the plaintiff's fraud to defeat a recovery," 187 and a charge of misrepresentations made by the defendant is not answered by an allegation of misrepresentations on the part of the complainant.188 So, in a suit to cancel a deed on the ground of the fraud of the grantee, a cross-bill based on breach of the covenants of warranty and against incumbrances in the deed cannot be maintained.189

The defendant in an action for rescission may counterclaim for sums which would be justly due him if the transaction in question were rescinded, as, for example, in the case of a sale or exchange of lands, for the rents of the property while in the other party's possession, or for money spent in making repairs or improvements; but he must plead these matters specifically and allege all necessary facts and figures.140 So, in an action by the grantor to rescind a conveyance of land on the ground of fraud, a counterclaim by the defendant was held good in which he denied the alleged fraud, averred that the plaintiff had wrongfully kept him out of possession, and prayed judgment for possession and for rents and profits.141 Again, where the plaintiff's action is founded upon the contract or conveyance in question, the defendant may demand its rescission by filing a cross-bill for that purpose, but in this case, he must

136 Emma Silver Min. Co. v. Emma Silver Min. Co. (C. C.) 7 Fed. 401; Graybill v. Drennen, 150 Ala. 227, 43 South. 568; Moore v. Cross (Tex. Civ. App.) 26 S. W. 122; Uecker v. Zuercher, 54 Tex. Civ. App. 289, 118 S. W. 149.

137 Paschal v. Hudson (Tex. Civ. App.) 169 S. W. 911. 138 Chaney v. Coleman, 77 Tex. 100, 13 S. W. 850.

189 McKenzie v. Call, 176 Mich. 198, 142 N. W. 370.

140 Fountain v. Semi-Tropic Land & Water Co., 99 Cal. 677, 34 Pac. 497; Roy v. Haviland, 12 Ind. 364; Walker v. Walker, 93 Iowa, 643, 61 N. W. 930; Barnes v. Gilmore, 6 N. Y. Civ. Proc. R. 286. See Cundiff v. Corley (Tex. Civ. App.) 27 S. W. 167.

141 Woodruff v. Garner, 27 Ind. 4, 89 Am. Dec. 477.

142

plead the facts justifying rescission with the same detail and particularity as would be requisite in an original bill.1 Thus, in a suit to foreclose a mortgage securing a note, the defendant may file a cross-bill seeking cancellation of the instruments on the ground of fraud or duress, or because the debt has already been paid, or for other sufficient cause; but he must allege the facts constituting the fraud or other ground of rescission, with all necessary directness and circumstantiality.143 So, in a suit to set aside a conveyance of mining claims to one under whom the defendant claims, a cross-bill to quiet title in defendant's grantor is germane.144 And in a suit for an injunction to restrain the sale of realty under execution levied, and for a cancellation of the levy and execution, the defendant may file a cross-bill asking cancellation of the deed under which plaintiff holds, as having been made to defraud the creditors of the grantor.145 But in a suit for the cancellation of a note and mortgage and for the recovery of personal property, a cross complaint seeking to settle title to real estate to which no claim is made, and the title to which cannot be affected by any judgment which could rightfully be rendered, is improper.1

146

§ 675. Trial and Decision by Court or Jury.--Where the laws and practice of the particular state are such as to require the participation of a jury in the trial of suits which are fundamentally of an equitable character, the facts on which an action for rescission or cancellation is based are to be determined by the jury, while the court applies the principles of law, as in other cases. Thus, in Kentucky, an action in equity for the cancellation of a deed and the possession of the land is in the nature of an ejectment, and the

142 Swanston v. Clark, 153 Cal. 300, 95 Pac. 1117; Bay v. Shrader, 50 Miss. 326; Shaw v. Millsaps, 50 Miss. 380; Williams v. Chambers (Tex. Civ. App.) 26 S. W. 270; Southern Home Building & Loan Ass'n v. Winans, 24 Tex. Civ. App. 544, 60 S. W. 825.

143 Mortimer v. McMullen, 102 Ill. App. 593; Union Nat. Bank v. Carr, 49 Iowa, 359; Scott v. Town of Menasha, 84 Wis. 73, 54 N. W. 263. But compare Beebe v. Swartwout, 3 Gilman (8 Ill.) 162.

144 Mallory v. Globe-Boston Copper Min. Co., 11 Ariz. 296, 94 Pac. 1116.

145 Allen v. Tritch, 5 Colo. 222.

146 Washburn v. Roberts, 72 Ind. 213.

148

sufficiency of the pleadings and proof is to be determined by the rules of practice in that action at law.147 Where the jury are thus to act as triers of the facts, it is held, for instance, that the facts relied on to establish a charge of fraud are to be decided by the jury, though the question whether the facts, when proved, amount to such fraud as to warrant a judgment of rescission or cancellation is for the court." So, it is for the jury to decide whether or not a particular person participated in the fraud alleged,149 whether a person was misled by an incorrect copy of a contract shown to him,150 and whether fraudulent representations were the inducement to his execution of a deed.151 So also, what constitutes duress or undue influence is a question of law, but whether duress, threats, or undue influence existed and were operative in the case at bar is for the jury.152 So again, the existence of a mistake relied on as ground for the rescission of a contract or grant is for the jury,158 and so is the question whether a grantor was sane or insane at the time of making the deed,154 whether fraud was waived or a contract ratified with knowledge of its existence,155 whether the complainant was negligent in entering into the transaction sought to be vacated, or whether he exercised. proper care and prudence under the circumstances,156 and

147 War Fork Land Co. v. Spivey, 162 Ky. 600, 172 S. W. 1042. 148 Crow v. Holland, 12 N. C. 481; Moline Jewelry Co. v. Crew, 171 Ala. 415, 55 South. 144. See Goodloe v. McLanathan, 6 T. B. Mon. (Ky.) 310.

149 Daniels v. Fowler, 123 N. C. 35, 31 S. E. 598.

150 Cady v. Coates, 101 Mo. App. 147, 74 S. W. 424.

151 Lancaster v. Richardson (Tex. Civ. App.) 45 S. W. 409.

152 Keys v. McDowell, 54 Ind. App. 263, 100 N. E. 385; Salvador v. Feeley, 105 Iowa, 478, 75 N. W. 476; Hoeb v. Maschinot, 140 Ky. 330, 131 S. W. 23; Clement v. Buckley Mercantile Co., 172 Mich. 243, 137 N. W. 657; Anderson v. Anderson, 17 N. D. 275, 115 N. W. 836; Kansas City, M. & O. Ry. Co. v. Graham (Tex. Civ. App.) 145 S. W. 632.

153 Locke & Ellison v. Lyon Medicine Co., 27 Ky. Law Rep. 1, 84 S. W. 307; Johnson Lumber Co. v. Leonard, 145 N. C. 339, 59 S. E. 134.

154 Dougherty v. Powe, 127 Ala. 577, 30 South. 524.

155 Hoag v. Hoag, 210 Mass. 94, 96 N. E. 49, 36 L. R. A. (N. S.) 329; Cotton v. Morrison (Tex. Civ. App.) 140 S. W. 114; Evans v. Goggan, 5 Tex. Civ. App. 129, 23 S. W. 854.

156 Shores-Mueller Co. v. Lonning, 159 Iowa, 95, 140 N. W. 197; Johnson v. Ft. Worth Driving Club (Tex. Civ. App.) 164 S. W. 875.

157

whether a right of rescission was claimed or exercised within a reasonable time after discovery of the facts is ordinarily for the jury.1 But the court must first determine whether the evidence is sufficient to require the submission to the jury of an issue as to the fraud, mistake, duress, etc., alleged and relied on,158 and may be able, where the facts are established or undisputed, to rule as a matter of law on the validity or invalidity of the contract or instrument sought to be rescinded,159 or to order a nonsuit or give a peremptory instruction for a verdict.100

In those jurisdictions where the distinction between law and equity is preserved in its purity, the complainant in an action to rescind a contract or cancel a written instrument is not entitled to a trial by jury. 181 The trial and decision must be by the chancellor, but it is in his discretion to frame and submit to a jury an issue upon any specific question of fact involved in the case, and this is entirely proper where the evidence is in substantial conflict.162 But the verdict of a jury on an issue so submitted is advisory only, and the court is entirely at liberty to reject or disregard it if not convinced of its correctness,183 though this course should not be pursued if the verdict is sustained by the facts as proved. 164

157 Luckenbach v. Thomas (Tex. Civ. App.) 166 S. W. 99. And see, supra, § 547.

158 Carpenter v. Bradshaw, 116 Ga. 674, 42 S. E. 1016; Huston v. Schindler, 46 Ind. 38; Cutler v. Roanoke R. & Lumber Co., 128 N. C. 477, 39 S. E. 30; Paddock v. Bray, 40 Tex. Civ. App. 226, 88 S. W. 419.

159 Stowell v. Spencer, 190 Ill. 453, 60 N. E. 800; Wakley v. King, 112 App. Div. 765, 98 N. Y. Supp. 957.

160 Johnson v. Coleman, 134 Ga. 696, 68 S. E. 480; McKechney v. City of Chicago, 160 Ill. App. 544; Sherk v. Holmes, 125 Mich. 118, 83 N. W. 1016; Robinson v. Vaughan, 49. App. Div. 170, 63 N. Y. Supp. 197; Clay County Land & Cattle Co. v. Skidmore, 26 Tex. Civ. App. 472, 64 S. W. 815.

161 Monnett v. Turpie, 132 Ind. 482, 32 N. E. 328. igan v. Skelly, 89 App. Div. 108, 85 N. Y. Supp. 4.

And see Flan

Conran v. Sel

162 Green v. Hayes, 120 Minn. 201, 139 N. W. 139; lew, 28 Mo. 320; Gillis v. Arringdale, 135 N. C. 295, 47 S. E. 429; Magill v. Manson, 20 Grat. (Va.) 527. See Timmons v. Westmoreland, 72 N. C. 587.

163 Chadwell v. Reed, 198 Mo. 359, 95 S. W. 227; Mosier v. Walter, 17 Okl. 305, 87 Pac. 877; Pittman v. Lamb, 53 Miss. 594.

164 Fitzgerald v. Reed, 9 Smedes & M. (Miss.) 94; Busiere v. Reilly, 189 Mass. 518, 75 N. E. 958.