Opinion
7 Div. 209.
October 20, 1921.
Appeal from Circuit Court, Clay County; W. L. Longshore, Judge.
E. J. Garrison and Lackey Glass, all of Ashland, for appellants.
Demurrers Nos. 1 to 6, inclusive, should have been sustained. 195 Ala. 501, 70 So. 143; 58 Ala. 627; 194 Ala. 469, 69 So. 934; 68 Ala. 80; 69 Ala. 40; 76 Ala. 347; 176 Ala. 99, 57 So. 763. The offer of tender was not sufficient. 90 Ala. 308, 8 So. 157; (Ala.) 31 So. 110; 21 Ala. 782; 195 Ala. 505, 70 So. 143; 38 Cyc. 137.
E. P. Gay, Riddle Hardegree, and John J. Pruet, all of Ashland, for appellee.
Brief of counsel did not reach the Reporter.
The bill of complaint seeks to cancel or set aside a certain deed from the complainant to Rowland as well as a deed, or deeds, from Rowland to Bartlett and Hester, jointly or severally, upon the theory that Rowland procured the deed to himself through fraud and with the knowledge of or through a collusion with the other respondents. If Rowland, occupying a confidential relation to the complainant, induced her to deed him the land for the purpose of handling same as her sales agent, and at the time, as charged in the bill, assured her that he could and would sell the land for her for $35 per acre and at the time intended to sell it for less, and which he subsequently did, this would constitute such a fraud upon the complainant as would authorize a court of equity to cancel said deed as between Rowland and complainant as well as to the other two respondents if they had knowledge of the fraud practiced upon complainant by Rowland or were in collusion with him throughout. While the bill does not charge an actual participation or knowledge of the alleged fraud of Rowland to Bartlett and Hester, it does charge that all of them entered into a conspiracy to acquire the land for less than its value, and that a deed to same was to be procured by Rowland, who was, in effect, the agent of Bartlett and Hester, who were to and who did acquire the land. They were therefore chargeable with constructive notice of the acts and conduct of said Rowland in and about procuring the deed from the complainant.
The bill fully and sufficiently sets out the facts constituting the fraud charged, and was not subject to the demurrer for generality.
It is, of course, well settled that he who would disaffirm a sale in equity, as well as at law, must show an offer to restore the status quo; that is, must offer to restore whatever he may have received under said sale, or show a lawful excuse for not doing so. If the offer to restore is rejected by the vendee, and the party seeks to cancel the sale in a court of equity, it is essential to the equity of the bill to aver a willingness and readiness to restore the same as a condition precedent to relief. It is not essential, however, to the equity of the bill that the same be accompanied by a deposit of the money or thing into court, as a court of equity can require the restoration as a condition to the relief sought. McCalley v. Otey, 90 Ala. 307, 8 So. 157; Wittmeier v. Tidwell, 147 Ala. 354, 40 So. 963.
The present bill charges that the complainant offered to refund all the money received by her from Rowland. It does not aver an offer to restore the $300 paid to her mortgagee by Rowland but that she returned the mortgage and repudiated the payment of same upon a discovery of the alleged fraud, and, not having received the said $300, it was not incumbent upon her to have offered to return the same.
While the bill sufficiently avers an offer to restore before the filing of same, it does not offer to do equity by offering to restore all money received by complainant as a condition to relief, and is therefore defective as against an appropriate demurrer. It is not, however, subject to ground 7 of the demurrer, the only one which attempts to raise this question, as there was a sufficient offer to restore before the bill was filed, and, as above stated, the same did not have to be tendered to the court.
The decree of the circuit court is affirmed.
Affirmed.
SAYRE, GARDNER, and MILLER, JJ., concur.