Opinion of the Court, per GROVER, J. mon v. Bank of England, 13 East., 134.) Even where note is delivered on condition, until performance a recovery thereon can be defeated. (Seymour v. Cowing, 1 Keyes, 532-536; Miller v. Gamble, 4 Barb., 146.) This note was delivered as an escrow. (Clark v. Gifford, 10 Wend., 310.) Isaac Mott for the respondent. A party cannot affirm in part and rescind in part. (Wheaton v. Baker, 14 Barb., 594; Lewis v. McMillen, 41 id., 420; Tompkins v. Hyatt, 28 N. Y., 347.) Having retained the deed and possession after knowledge of the fraud, defendants cannot now allege it. (Sweetman v. Prince et al, 26 N. Y., 224.) Nothing short of an eviction can be pleaded as a bar to the action. (Lamerson v. Marvin, 8 Barb., 9; Masson v. Bovet, 1 Den., 69; 41 Barb., 420.) GROVER, J. The legal conclusion of the judge, from the facts found by him, that the fraud practiced by Henry Lindsley, in procuring the delivery of the note in suit, did not constitute a bar to a recovery thereon, was correct. The substance of such facts was, that in July, 1867, Lindsley made a parol contract to sell to the defendants, Daniel Ferguson, Benjamin C. Starbuck and Joseph Russell, two hundred and ninety-two acres of land, and to convey the same to them by a warranty deed before the first day of January thereafter, for which they agreed to pay him éight thousand dollars, two thousand on the first day of August thereafter, and for the balance give him three promissory notes, payable at the times and for the several amounts specified in the agreement. That notes, including the one in suit, were executed and by agreement were placed in the hands of Mr. Brown to deliver to Lindsley when he procured a deed to himself from Joseph Ferguson, who owned an undivided eighth of said land, and had procured and delivered to defendant Ferguson a release of a verdict which had been obtained against him in the Supreme Court, and had executed and delivered a deed of the land pursuant to the contract. That thereafter Lindsley fraudu Opinion of the Court, per GROVER, J. lently represented to Brown and defendants Starbuck and Russell, that he had obtained a deed of the eighth and had procured and delivered the release of the verdict pursuant to the agreement, and thereupon executed and delivered the deed to the defendants, who, confiding in the truth of the representations, accepted the deed and directed Brown to deliver the notes to Lindsley, which he did in compliance with such directions. That the defendants had entered into possession of the land before the delivery of the deed, and retained such possession and cut timber on the land after the discovery of the fraud practiced by Lindsley, and kept the deed and possession of the land down to the time of the trial. That the plaintiff had notice of all the facts at the time he obtained the note from Lindsley. It is obvious that the previous parol contract does not affect the question. The rights of the parties are the same they would have been had the entire negotiation for the purchase taken place at the time the notes and deed were delivered and the fraud practiced. The circumstance that the notes had previously been delivered to Brown, to be by him delivered to Lindsley, is not material. The case comes to this: Lindsley having title to seven-eighths of the land, fraudulently represents to the defendants that he has title to the whole. That he has procured a discharge of a verdict against one of them, and they agree to give him eight thousand dollars for the land and the discharge. He thereupon executes and delivers to them a deed effective to vest in them the title to seven-eighths of the land, and they give him their notes for the purchase-money. The question is, can the defendants retain the land and pay no part of the purchase-money. This would be the result of holding that the fraud practiced was a bar to an action upon the notes. The statement of the question makes the answer obvious. The defendants, upon the discovery of the fraud, had an election either to rescind the contract, restore to Lindsley what they had received, and thus put an end to it, or to SICKELS-VOL. IV. 79 Statement of case. affirm the contract, retain the title to that portion which passed to them under the deed, and recover from Lindsley the damages sustained by the fraud. (Lewis v. McMillen, 41 Barb., 420; Wheaton v. Baker, 14 id., 594; Masson v. Bovet, 1 Denio, 69; Tompkins v. Hyatt, 28 N. Y., 347.) The defendants did not insist upon the trial upon any counter claim by reason of the fraud. The only question made and decided was whether the fraud barred a recovery upon the note. If the defendants had not received the deed giving them an interest in the land, the argument of the counsel for the appellants and the authorities cited would have conclusively shown that Lindsley had acquired no title to the note, but this fact renders them inapplicable. The judge properly excluded the evidence that Lindsley had, after the commencement of the suit, perfected the title to the land and procured the discharge of the verdict, as his right of recovery must exist at that time, but such right was shown independent of this evidence. The defendants, by retaining the land after discovery of the fraud, affirmed the contract, and thereby made the notes valid obligations. The judgment must be affirmed, with costs. Judgment affirmed. 49 626 109 207 49 626 118 136 118 137 118 149 49 626 125 229 49 626 132 64 49 626 166 126 166 272 166 390 SETH W. HALE, Appellant, v. THE OMAHA NATIONAL BANK, Respondent. Where a general demurrer is interposed to a complaint containing two counts, if in either count a sufficient cause of action is alleged, the demurrer will be overruled. If the allegations of the complaint are not definite and certain, the remedy is not by demurrer, but by application, under section 160 of the Code, that they be made so. The relief demanded in the complaint does not necessarily characterize the action or limit the plaintiff in respect to the remedy which he may have; and the fact, that after the allegation of the facts relied upon, the plaintiff has demanded judgment for a sum of money by way of dama Statement of case. ges, does not preclude the recovery of the same amount by way of equitable relief, if the facts entitle the plaintiff to such relief. The complaint set forth a lease of certain hotel property in Omaha, which lease contained the following clause: "A lien to be given by the said lessees to said lessors, to secure the payment thereof (i. e., the rent), on all the furniture that shall be placed in said hotel by said lessees." It then alleged the taking possession by the lessees, and their placing in the hotel a large amount of furniture, and their subsequent abandonment of it, they being utterly insolvent. It is then alleged that defendant took possession of the furniture, sold the same, and converted the proceeds, leaving a large amount of rent unpaid, in fraud of the rights of plaintiff (who claimed as assignee of the lessor), and who was thus prevented from enforcing his lien thereon. The complaint further alleged that defendant had in its possession the avails of the sale of said furniture, which justly belonged to plaintiff by virtue of the alleged lien, and wrongfully withheld the same from the plaintiff, to his great damage, etc. Upon demurrer,-Held (ALLEN, J., FOLGER and RAPALLO, JJ., concurring), that it was immaterial whether plaintiff's right was based upon a legal title to the property, or upon an equity entitling him, as against defendant, to pursue the avails thereof; that the clause in the lease did not create a lien, but was a covenant to do so, and one of which a court of equity would decree a specific performance; that if the property had remained unchanged in defendant's possession, plaintiff could have followed it in equity, and that, as these remedies are lost by the wrongful act of the defendant, plaintiff could acquire, claim and have a lien upon the avails in place of the property itself; and that, therefore, the complaint contained a sufficient cause of action. (Argued May 27, 1872; decided June 11, 1872.) APPEAL from judgment of the General Term of the Superior Court of the city of New York, reversing an order of Special Term overruling demurrer to complaint, and directing a judgment dismissing the complaint. The first count of the complaint alleged in substance: That, on the 22d day of June, 1867, "the Credit Foncier of America," a corporation organized under the laws of the State of Nebraska, and the owner and in possession of a hotel building situate in the city of Omaha, in said State, as party of the first part, and Edward Cozzens and John M. Bettman as parties of the second part, made and executed a lease or indenture in writing, in and by which said corporation leased the said hotel, then in course of erection, and premises to the Statement of case. parties of the second part for the term of five years, commencing at the time possession was taken thereof; possession to be given the lessee within forty-five days from June 7th, 1867, or thirty days from date of lease, and said lessee to receive the same if ready for delivery at that time, the said lessee agreeing to pay therefor the sum of $10,500 per annum; the said lease contains, also, the following clause: "And a lien to be given by said lessees to said lessors to secure the payment thereof (i. e., the rent) as herein before stipulated on all the furniture which shall be placed in said hotel by said lessees." That said lease was duly acknowledged and recorded in the office of the clerk of Douglas county, where said hotel and premises were situated; that said lessees took possession of said premises in pursuance of the terms of the lease, and put into the hotel a large quantity of furniture, and kept a hotel therein until November 1st, 1867, when they abandoned it without the consent of the lessor; that on the 22d day of July, 1867, the lessor assigned and transferred the said lease and all its rights, title and interest therein, and to the rents due and to grow due thereon, to the plaintiff. That defendant, on the 1st of May, 1868, by its officers, etc., took possession of said furniture, sold and wrongfully converted the same to its use, receiving therefor the sum of $10,117.81. That defendant has in its possession said avails which justly belong to plaintiff under said lien; that he has demanded of defendant the amount so received, which defendant refuses to pay. Defendant demurs upon the ground "that complaint does not state facts sufficient to constitute a cause of action." The second count alleges that defendant, on or about May 1st, 1868, wrongfully and unlawfully took possession of a large quantity of furniture, etc., upon which plaintiff had a good, valid and prior lien, and, without the consent of plaintiff, sold and converted the same, etc. Defendant demurred upon the ground "that complaint does not state facts sufficient to constitute a cause of action." |