Crossman v. Lindsley , 42 How. Pr. 107 ( 1871 )

Marvin J.

The attachment order must be vacated. The gravamen of the action is tort. It did not arise on contract for the recovery of money only (Code, § 227). By the contract, the plaintiff sold his land for the agreed price of $3,000 of which $1,200 was to be, and was paid at the time, and for the remainder the defendant was to sell and convey, and did sell and convey, other lands to the plaintiff, inducing him, by fraud, to accept the conveyance in payment., The notion of the plaintiff’s attorney, seems to be, that he may rescind that part of the contract by which he was to take the land of the defendant in payment of the $1,800, and recover this sum in money, as a part of the consideration of the land sold and conveyed by the plaintiff to the defendant.

This view is unsound. The defendant never undertook to pay $3,000 in money. He never owed the plaintiff $3,000. The contract was, to a large extent, a contract of. exchange of lands. The defendant was, according to the plaintiff’s case, guilty of fraud, by which the plaintiff was induced to make the exchange..

The plaintiff’s cause of action has arisen out of fraud only. He can rescind the contract in toto, by reconveying to the defendant the land the defendant conveyed to him, and refunding the $1,200 received, or offering to do so; and demand a reconveyance to him of the land he conveyed to the defendant.

If the defendant still owns the land conveyed to him by the plaintiff, equity will afford .to the plaintiff the proper relief. Or the plaintiff may maintain an-action to recover damages for the fraud by which he was induced to purchase, by way of exchange, the land of the defendant. It is not a case for an attachment, and the'motion ot the defendant must be granted, with $10 costs.