Opinion
6 Div. 872.
May 21, 1931.
Appeal from Circuit Court, Blount County; O. A. Steele, Judge.
Mathews Mathews and H. H. Sullinger, all of Bessemer, and J. T. Johnson, of Oneonta, for appellant.
The mortgagor of real estate as a general rule cannot hold possession of the mortgaged property and at the same time defeat the payment of the mortgage debt. Williams v. Troy, 39 Ala. 118; Wittmeier v. Tidwell, 147 Ala. 354, 40 So. 963; Strong v. Waddell, 56 Ala. 471. Equity will not permit one to receive property of value, retain the same, and then rescind and obtain back his property which he had conveyed away and hold both pieces. Hafer v. Cole, 176 Ala. 242, 57 So. 757; Jemison v. Woodruff, 34 Ala. 143; Rice v. Gilbreath, 119 Ala. 424, 24 So. 421. One seeking to rescind a contract must disaffirm at the earliest practical moment after discovery of the alleged fraud, and must also offer to return the consideration he has received. McLeod v. McLeod, 137 Ala. 267, 34 So. 228; Orendorff v. Tallman, 90 Ala. 441, 7 So. 821; Baggett M. Co. v. Vickery, 213 Ala. 427, 105 So. 207. When fraud is set up as a ground for rescission, the facts averred must clearly show fraud. The pleader cannot rely on statements of conclusions. McDonald v. Pearson, 114 Ala. 630, 21 So. 534; Hyman v. Langston, 210 Ala. 509, 98 So. 564.
A. L. Sapp, of Cullman, and W. C. Rayburn, of Guntersville, for appellee.
The bill to rescind a contract for the exchange of lands, because of certain incumbrances on the land conveyed by appellant to appellee which appellee did not agree to assume, is sufficient. The offer to rescind is equivalent to an offer to reconvey. 9 C. J. 1159; 17 C. J. 832, 838, 840.
The bill seeks the cancellation of a deed and mortgage executed by complainant to respondent, resting upon the right of rescission by reason of alleged fraudulent representations. Bullard Shoals Mining Co. v. Spencer, 208 Ala. 663, 95 So. 1; Merritt v. Ehrman, 116 Ala. 278, 22 So. 514; National Life Accident Ins. Co. v. Propst, 219 Ala. 437, 122 So. 656; Hyman v. Langston, 210 Ala. 509, 98 So. 564.
It appears from the bill that in the transaction here complained of, which consisted in an exchange of certain real estate between the parties, respondent conveyed to complainant one hundred and twenty acres of land. There is no offer to reconvey or to restore said property to respondent, and, indeed, no general offer to do equity. For such failure to offer restoration, the bill is subject to the fifth assignment of demurrer, which properly takes the point. Mathews v. J. F. Carroll Merc. Co., 195 Ala. 501, 70 So. 143; Owens v. Harris (Ala. Sup.) 133 So. 6; Baggett Merc. Co. v. Vickery, 213 Ala. 427, 105 So. 207; Summers v. Jordan, 220 Ala. 402, 125 So. 642; Grider v. Amer. Freehold Mortgage Co., 99 Ala. 281, 12 So. 775, 42 Am. St. Rep. 58.
The foregoing authorities from this court are in harmony with the generally recognized rule elsewhere (9 Corpus Juris, 1241), and with any exception thereto we are not here concerned.
We are also inclined to the view the bill fails to measure up to the rule of equity pleading in charging fraud. General averments of fraud will not suffice, but the constituent facts must be averred so that the court can see clearly that fraud has intervened. Hyman v. Langston, supra; McDonald v. Pearson, 114 Ala. 630, 21 So. 534.
The word "uneducated," used in the bill, is one of relative meaning, and, if complainant meant to aver that he could not read, and therefore did not know the contents of the deed, he accepted, which recited the facts, and was misled by respondent concerning the same, it should be plainly so alleged.
There was error in overruling the demurrer to the bill.
Let the decree be reversed and the cause remanded for further proceedings in the court below.
Reversed and remanded.
ANDERSON, C. J., and BOULDIN and FOSTER, JJ., concur.