Disbrow v. Jones , 1 Harr. Ch. 102 ( 1839 )

The Chancellor.

The most important points in the first of the above cases, were decided upon the motion to dissolve the injunction. (See Disbrow vs. Jones, ante 48;) and it is not necessary again to examine and. decide the same points which were then discussed and decided-*'

Jones and Whiting, each, had an insurable interest in, the premises; they paid the premium on the.'insurance; they have sustained loss to the full amount of the insurance, and they are clearly entitled to the benefit of the policy. The agreement respecting the insurance, was between Jones and Whiting; Disbrow.was not a party to it; Jones is liable to his vendees for the #2,800, and this amount must be deducted from the amount secured by tbe mortgage; but I cannot perceive how Jones can be made responsible to Disbrow for the $2,500, when the policy does not pass with the title to the premises.

There is another point in this case upon which I have entertained some doubt. It is the alternative prayer in the bilí by Disbrow vs. Jones and others, that the contract between Disbrow and Thompson may be rescinded and the deeds and conveyances set aside on the ground of fraud. If this is done, it must be on the ground that the complainant has not a full and adequate remedy at law,

The only particular in which the remedy in this court would be more full than at law is, if the contract between Dis-brow and Thompson, should be set aside, this court would have the power to order a re-conveyance. It is alledged in the bill that a part of the consideration paid by Disbrow to Thompson, was paid in lands, and upon a proper showing, it would unquestionably be competent for this court to order a re-conveyance; but it does not appear that the title to the lands conveyed by Disbrow to Thompson, is still in Thompson, and a re-conveyance is not specifically prayed for in the bill; a specific sum was agreed upon by the parties, which Dis-brow was to pay Thompson for his interest, a part of which was paid in lands at a specified price. The incumbrance of Whiting’s lease, does not affect the title to the property conveyed by Thompson to Disbrow, but to the present possession only; and it does not sufficiently appear that Disbrow has not an adequate remedy at law.

A party seeking to set aside a conveyance on the ground of fraud, must bo prompt in communicating it when discovered, and consistent in his notice to the opposite party of the use he intends to make of it. Boyce’s ex’rs. vs. Grundy, 3 Peters, 215. Such was not the case here; the complainant had notice of the incumbrance of Whiting’s lease at the time, or immediately after his purchase from Thompson, and he admits that Thompson handed him the agreement recognizing Whiting’s right to occupy the premises, under his lease from Jones, until February 1,1839, at the time or immediately after the consummation of the contract between Disbrow and Thompson. If Dis-brow conceived this to be a fraud upon hi's rights, he should at once have given notice of his intention to recede from the contract. But this was not done. Disbrow rested for several months, and until the condition of the. property was changed, before he took any steps to rescind the contract.

Under the facts here presented, it would be going further than any case I have been able to find, to rescind the contract between Disbrow and Thompson- and brder the deeds to be cancelled.

The complainant must be left to his-remedy at law, where, so far as I can perceive, that remedy ip .full and adequate.

The mortgagee haying retained’possession of the mortgaged premises by his tenant, would, perhaps,- exclusive of any agreement upon the subject, be liable to the- mortgagors for the rents;' but here was a specific agreement, as to the rent, between the mortgagors and the mortgagee. Jones was to pay the mortgagors $1,400 per annum, inlieúof rent.- The amount secured by the mortgage is admitted-to be unpaid, and a portion of it now due; this mortgage is.,expressly recognized in the deed from Thompson to Disbrow. The mortgagors have permitted the bill to be taken as confessed against them, and Jones is entitled to a decree for the amount now due upon the mortgage, deducting the amount due from Jones to his mortgagors, by virtue of the agreement, and it must be referred to a master to ascertain the amount so due.-

The bill in the case of Disbrow against Jones and others,, must be dismissed. : .