Kitchen v. . Troy ( 1875 )

Pearsor, 0. J.

The facts are not found, and taking the complaint and the answer as affidavits, in connection with the other affidavits filed, there is so much conflict that this Court is not competent to decide the “ questions of fact” as distinguished from “ issues of fact.”

The case is, therefore, remanded to the end that the facts may be found by the Court, or upon issues submitted to a jury.

Mr. Ashe moved to dismiss the action on the ground that the complaint does not allege facts sufficient to entitle the plaintiffs to the relief demanded, that is, a rescission of the second mortgage. It may be, that the facts alleged will not entitle the plaintiffs to have the second mortage rescinded; but the plaintiffs allege that the second mortgage was executed with the understanding that the first mortgage and the gold watch was to be surrendered as a condition precedent. If such be the fact, the plaintiffs have an equity to enjoin a sale under the second mortgage, until the defendant has purged himself of the imputed fraud and breach of faith by surrendering the first mortgage and watch, and paying by way of compensation, the damages suffered by the plaintiffs, by reason of not being able to dispose of the land and watch, which, in breach of the agreement, the defendant has fraudulently, as is-alleged, failed to surrender.

This will be certified.

PeR Curiam. Case remanded..