Brown v. Lyon ( 1902 )

Terral, J.,

delivered the opinion of the court.

Lyon sold and conveyed the'north ¶ of south -J-, section 10, township 23, range 2, east, in Tallahatchie county, to Monroe Leverett, and took his notes for $2,600, a part of the purchase money. In 1895 Brown bought said tract of land at a tax sale thereof. At that time he was the supply merchant to Leverett, and was under promise to him to pay the taxes thereon. Lyon, by a renewal of his debt and vendor’s lien, preserved the same. Lyon resided in Arkansas, and, Brown falsely stating to him, - as the bill alleges, that he had rightfully acquired a good tax title to said tract of land, when in truth said tax title was voidable as to Leverett, because he was under contract, with • him to pay the taxes, and also voidable as to Lyon because of privity between Leverett and Lyon. Brown induced Lyon to sell and transfer to him his purchase money notes for said land, amounting to more than $2,400, for $1,000 cash. Brown thereafter collected of Leverett the face value of the notes given by Leverett and transferred to him by Lyon upon the false representations above stated, when Lyon, finding out the true state of the case, filed his bill against Brown to collect the full value of the notes sold and transferred to him through deception, less the $1,000 received by him. Brown demurred to the bill. The demurrer was overruled, and hence this appeal.

The demurrer was rightly overruled.. If there be evidence to support the allegations made, Lyon will be entitled to recover of Brown the balance of the purchase price of the land less the $1,000. The. purchase of the land by Brown at the tax sale was voidable as to Leverett, as he was under contract with him to pay the taxes, and it was voidable as to Lyon also, because as to the extent of the purchase money due to him he was in privity with Leverett, and entitled to every right belonging to him. The suit, though in equity, is not for a rescission of the contract between Lyon and Brown. That contract cannot now be rescinded, because Brown has already collected the contents of the notes transferred to him by Lyon, and they cannot be revived. Lyon’s claim is that he has been defrauded by Brown of all the excess of his purchase money notes above the $1,000 paid upon its transfer, and his bill is to recover that of which he has been defrauded, and to make it, if need be, a charge upon the parcel of land the title to which he [Brown] has acquired through fraud. It is not necessary that Lyon return the $1,000 received by him from Brown. It is sufficient that Brown have a deduction in the decree that may be made against him. Lyon, by his bill in equity, seeks to recover money to which he is clearly entitled, and of which he has been defrauded by Brown. Such, at least, are the allegations. of the bill, and by the demurrer they are confessed. A good cause of equity action is stated. Pierce v. Wood, 23 N. H., 519; Gould v. Bank, 86 N. Y., 75; Allerton v. Allerton, 50 N Y., 670; Garza v. Scott, 5 Tex. Civ. App., 289 (24 S. W., 89); Big. on Fraud, ch. 5, “Rescission.”

Affirmed.