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we are nevertheless unable to conclude that material to the purchaser, a court of equity equity has any jurisdiction to afford the re- will not compel him to complete the purlief here prayed. It is fundamental that chase; but, where the conveyance has been equity will not interfere where the law af. executed, I apprehend that a court of equity fords a plain, adequate, and complete reme- will set aside the conveyance only on the dy. “The remedy must be plain, for, if it | ground of actual fraud.” In Thompson v. be doubtful and obscure at law, equity will Jackson, 3 Rand. (Va.) 504, Justice Carr says: assert a jurisdiction. It must be adequate, “Executory contracts for real property, and for, if it falls short of what the party is en- some other subjects, offer to the party the titled to, that founds a jurisdiction in equity. alternative of either suing at law for damAnd it must be complete; that is, it must ages, or asking the aid of equity to obtain attain its full end at law. It must reach the specific thing. * * Very different is the whole mischief, and secure the whole the question where a party asks the court to right of the party.” Mitf. Ch. Pl. (Cth Am. rescind a contract, and especially an exeEd.) note, p. 2. "Covenants for title, like cuted contract. In the first case, the court all other covenants, are, of course, mere con- merely decides which of two remedies a partracts.

For a breach of contract ty shall pursue. In the second, it annihilates the common law provided a single remedy, a solemn contract, rendered still more solemn -a recompense in damages." Rawle, Cov. by the fact that the parties have carried it $ 354. Here is a contract which has been into execution. * * The vendor has partfully executed. Nothing remains to be per- ed with the title and possession of his land, formed. The consideration has been paid, and has taken his money, bonds, or other the conveyance executed, and full covenants equivalent. The vendee has entered into poshave been given and accepted. There is no session, * * and, for security of his tisuggestion of insolvency or nonresidence, or tle, has taken a deed with such covenants and that the plaintiff's remedy at law would not warranty as his contract called for. To unbe adequate. Hence, we do not find any do all this is a strong-handed measure, and good reason for interference by a court of none but a clear and strong case will justify equity.

it. Accordingly, we find it laid down in all It seems to us that much of the apparent the equity books that the court is in the daily conflict that is found in the adjudicated babit of refusing the specific execution of cases on this subject is due to a failure to contracts, which at the same time it just as observe the distinction which obtains be- promptly refuses to rescind. * * * When tween the rules applicable to a contract still the application is to rescind an executed conexecutory and one actually executed. "The tract for land, the English books lay it down distinctions between the rules which govern as a general rule (admitting of but few exthe relation of vendor and purchaser before ceptions) that, to justify such decree, fraud and after the execution of the deed-while must appear, and this fraud must be distinctthe contract is still executory, and after it ly put in issue by the pleadings. If the is executed—are broad and familiar. Al- charge be a mere failure of consideration, though the general principles of the contract arising from the sale of the defective legal of sale of real estate, especially in this coun- title, unmingled with fraud or mala fides try and in England, exact less of a vendor of any kind, it is generally laid down that than the rules of the civil law demand, yet, the vendee would be left to the covenants while the contract is still executory, they and warranty in his deed.” “Where a conrecognize and enforce the right of the pur- tract for the sale of land has been executed chaser to a title clear of defects and incum- by the giving of a conveyance, the court of brances; and this right does not depend upon equity will not rescind the contract upon the the terms of the contract, but is given by ground of a mere defect of title, where there the law, and is not, except in particular has been no fraud on the part of the vendor, cases, affected by the nature and extent of but will leave the purchaser to his remedy the covenants for title which the purchaser upon the covenants in his deed.” Woodruff is to receive." Rawle, Cov. $ 319. “General- V. Bunce, 9 Paige, 442. In Denston v. Morly speaking, a purchaser, after a conveyance, ris, 2 Edw. Ch. 36, it is said: “It is a wellhas no remedy except upon the covenants he settled rule of this court that a grantee, to has obtained, although evicted for want of whom possession has been delivered, under title; and, however fatal the defect of title covenants of title and warranty, can have may be, if there is no fraudulent conceal- no relief in equity against his grantor for ment on the part of the seller, the pur- a return of the purchase money or security chaser's only remedy is under the cove- on account of defect or failure of title, bonants."

1 Sugd. Vend. p. 383; Rawlins v. cause he has taken care to secure himself Timberlake, 6 T. B. Mon. 225; James v. by covenants, and, if evicted, can have an McKernon, 6 Johns. Ch. 513; Bumpus v. adequate remedy at law. * But if Platner, 1 Johns. 213. And Lord Campbell, fraud is shown, either in making the contract in Wilde v. Gibson (House of Lords) 1 of sale, or in executing it, and whether there Clark & Fin. (N. S.) 605, says of this distinc- be covenants inserted in the deed to secure tion: “If there be, in any way whatever, the title or not, the purchaser, in case of evicmisrepresentation or concealment which is tion or disturbance of his possession, or

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whenever it is ascertained that the title is "Where a conveyance of land has been made defective, may come into this court to be by a deed executed with covenants of warrelieved from his purchase, or to obtain in- ranty, and a note has been received in condemnity against the consequences of the sideration of the conveyance, a partial failfraud. Imposition and fraud upon the pur- ure of title will not constitute a defense to chaser, by any willful misrepresentation or the note, but the remedy of the party must concealment, take the case out of the general be by suit on the covenants of his deed." rule, and entitle him to be redressed in Chase v. Weston, 12 N. H. 413. In Knapp v. equity, in adunion to and beyond the cove- Lee, 3 Pick. 452, it is said to be in dispute nants in the deed.” And in Wiley v. Fitz- in Massachusetts whether a total failure of patrick, 3 J. J. Marsh. 584, it is said: “The covenants of warranty of land would conremedy which a court of law can offer in stitute a defense to a note, but no doubt such cases, unless some extraneous circum- exists that a partial failure of title is not stances intervene to prevent it, is fully ade- permissible as a defense. In Maine it quate to all the demands of justice, and that has been held that the total failure of title is a sufficient reason why a court of chan- constitutes no defense to a note given for cery will not interpose.” “A purchaser of consideration money. Lloyd v. Jewell, 1 land, who has paid part of the purchase Greenl. 352; Jenness v. Parker, 24 Je. 289. money, and given a bond and mortgage for In the case of English v. Thomasson, S2 Ky. the residue, and is in undisturbed possession, 281, the court say: "It has been repeatedly will not be relieved against the payment of held by this court that in the absence of the bond, or proceedings on the mortgage, fraud, or insolvency or nonresidency of the on the mere ground of a defect of title, there vendor, that the vendee in the peaceable posbeing no allegation of fraud in the sale, nor session of the granted premises, by virtue of any eviction, but must seek bis remedy at a conveyance containing a covenant of gen. law upon the covenants in his deed.” If eral warranty, is not entitled to a rescission the purchaser was imposed on by any inten- of the contract, when sued for the purchase tional misrepresentation or concealment, he money, although the vendor may at the time may have redress [in equity) in addition to of the sale have represented his title as perand beyond his covenants." Abbott v. Al- fect, when in fact it was not, and that in len, 2 Johns. Ch. 519. "It is requisite that such a case the vendee must pay the money, the charge of fraud should be made a dis- and rely upon the covenant of warranty in tinct ground of allegation by the party in his case of an eviction,

A mere mistake pleading; otherwise, it is not to be deemed or error of opinion as to the validity of his in issue, and cannot affect the contract in title would not constitute a fraud. The warquestion." Gouverneur V. Elmendorf, 5 ranty which the appellant chose to accept Johns. Ch. 79. In that case, Chancellor Kent was designed to protect him against such a says: “A vendor selling in good faith is not misrepresentation, and is effective for that responsible for the goodness of his title, purpose; and he must await eviction, if it beyond the extent of the covenants in his ever occur, and then look to his remedy at deed." In Patton v. Taylor, 7 How. 150, the law on the covenant in his deed." supreme court of the United States, speaking We have already suggested in this opinthrough Mr. Justice Nelson, say:

"A pur

ion that a covenant on the part of a grantor chaser in the undisturbed possession of the that he is the "owner in fee" of premises land will not be relieved against the payment

conveyed, when in fact his title fails or is de of the purchase money on the mere ground fective, might give an immediate right of acof the defect of title, there being no fraud tion to his grantee, and unlike covenants of or misrepresentation, and that in such a case quiet possession, warranty of title, and the he must seek his remedy at law, on the cov- like, the grantee would not be obliged to enants in his deed.” In Simpson v. Hawk- await eviction; but for a breach in either ins, 1 Dana, 303, it is said that: “A contract case, in the absence of strong equitable confor the sale of land, unaffected by fraud, siderations, not disclosed by the bill in this cannot be rescinded in chancery after it has case, we hold that his remedy is at law for been carried into effect by a conveyance. the damages sustained. In Edwards v. Me* * * If the grantee in possession loses Leay, 10 Eng. Ch. 307, the bill charged, and part of the land, he may recover, on the war- the court found the fact to be, that the ven. ranty, damages commensurate with the loss, dor knew and concealed a fact material to the but it is not cause for rescinding the whole validity of his title, and that the defect could contract. * I regard it [says Judge not have been ascertained from the abstract. Underwood in that case] as immaterial A rescission was decreed, the learned master whether the vendors had any title at all. If of the rolls holding that if the vendor knows they conveyed with warranty, and put the and conceals a fact material to the validity Vendee in possession, I hold that there can be of his title, of which fact the vendee is igno rescission of the contract, where there norant, relief in equity is to be afforded to has been no fraud, no eviction, and no as- the purchaser. This case has been often zitsertion of an adverse claim.” This case is ed in support of a view of the law contrary cited approvingly by the supreme court of to that we have taken, but it will be observ. the United States in Patton v. Taylor, supra. ed that the facts there charged and found

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differ very materially from those alleged in ed in that case. Woods y. North, 6 Humph. this bill. It was there asserted that the ven- 309, is another case frequently cited in supdor knew at the time of the sale that a large port of the contrary doctrine. The court portion of the granted premises was claimed there say: "In this deed there is a covenant by the parish as a public common. This of seisin, in which the defendant asserts that fact he concealed from the purchaser, and the he has a right to sell and convey the land. abstract did not disclose it. The court grant- Here is an express misrepresentation.” In ed a rescission; holding that the vendor's si- that case the sole representation of title was lence concerning it, when he knew of the as- confined to that expressed in the covenant sertion of such adverse claim, constituted contained in the deed. There being a supesuch fraud as warranted the interposition rior outstanding title, a rescission was deof equity. And Lord Eldon, in affirming the creed. We think the misrepresentation judgment of the master of the rolls, upon which will entitle a party to rescind an exappeal, said "that if one party makes a rep- ecuted contract must be something more than resentation which he knows to be false, but the statement of the vendor of what he inthe falsity of which the other party has no nocently and in good faith believes to be means of knowing, this court will rescind the true, without knowledge or notice of any fact contract.” 2 Swanst. 302. It will be ob- | affecting his title, and especially where the served that the chancellor, in affirming, pla- vendor is not insolvent or a nonresident, and ced it upon the assumption that the seller where the vendee has exacted and accepted knew the representation to be false.

full covenants. In a note found on page 639 There are cases wherein the jurisdiction of of his work on Covenants for Title, Mr. equity has been asserted upon facts similar Rawle says of this case of Woods v. North to those alleged in the complaint in this case. that "it is believed that there is no wellAmong the leading cases so holding is Par- considered class of cases which give such an ham v. Randolph, supra, in which the learn- | interpretation to a covenant.” Nor will equied chief justice of Mississippi, in support of ty take jurisdiction in this case on the ground the position there taken, quotes Chancellor of mutual mistake, although there is some auKent, as follows: "The good sense and equi- thority for the assertion of such jurisdiction. ty of the law on the subject is that if a defect In the case of Leal v. Terbush (Mich.) 17 of title, whether of land or of chattels, be so N. W. 713, the plaintiff purchased of the degreat as to render the thing sold unfit for the fendant a parcel of land which had belonged use intended, and not within the inducement to defendant's husband, and to which she to the purchaser, the purchaser should not had no title, excepting a life estate under the be held to the contract, but be at liberty to will; and a deed was given by her, with the rescind it altogether. 2 Kent, Comm. $ 475." usual covenants. The court held that the An examination of the entire section, and par- vendee could not rescind on the ground of ticularly that part immediately preceding the mistake as to the vendor's title, as the mislanguage above quoted, makes it manifest, take did not go to the entire consideration; however, that the learned chancellor was the vendee, supposing the vendor had title there referring to contracts that are execu- in fee, simply accepted a mere life estate. tory merely. The views of that distinguish- In the opinion, Judge Cooley says: "He ed jurist upon the questions involved in the [plaintiff] appears to have provided against determination of this case are, to our better the contingency of her title falling short of satisfaction, found in the cases of Abbott v. the complete fee by requiring of her coveAllen and Gouverneur v. Elmendorf, supra. nants for his protection.

It is cerAnd it seems to us that the reference by tain that the parties took into consideration the learned judge in Parham v. Randolph to possible defects in the title, and bargained the case of Greenleaf v. Cook, 2 Wheat. 13, in respect to them.

The conveyis equally unfortunate. Defendant in that ance purports to be in fee, and the assurcase, in an action on a promissory note given ances, we must suppose, are to him, his heirs for the purchase price of real property, set

and assigns. The plaintiff has therefore reup by way of defense a prior outstanding ceived value for the money paid, and, if not mortgage and a decree of foreclosure, of

to the full extent of the payment, the defiwhich mortgage it was shown that he had ciency is uncertain, and dependent on continno knowledge at the time of purchase. Up: gencies, and does not go to the entire conon these facts the court, speaking through

sideration. If this contract can be rescinded Chief Justice Marshall, say: “The note was

on the ground of mistakes of fact, then every given with full knowledge of the case. AC

purchase of land, the title to which proves quainted with the extent of the incumbrance, in any respect defective, must be subject and its probable consequences, the defendant to rescission also, unless the parties have exconsents to receive the title which the plain- pressly bargained with mutual knowledge tiff was able to make, and, on receiving it, ex

that defects existed. If this were the law, ecutes his note for the purchase money. To covenants would be of little importance." the payment of the note given under such We deem it unnecessary to multiply authorcircumstances, the existence of the incum- ities in support of this position. The combrance can certainly furnish no legal objec- plaint in this action does not allege that the tion." This was the sole question determin- respondents knowingly conveyed what they

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did not own, or that they concealed any fact | plans and specifications, and the same was affecting the title which was within their thereupon accepted by the city as a full perknowledge, and which they were bound to formance of the contract. This ordinance is disclose; and, while it is true that the “arm pleaded in the complaint. The contract enof equity is long and powerful,” it is also tered into between Massey and the city is also true, as is tersely said by Lord Nottingham, pleaded, which contract provided, among oththat the "chancery mends no man's bar- er things, that if any payments upon said coygain.” Willful misrepresentation or conceal- tract became due and payable, and the said ment is nowhere charged, nor can it be ascer- fund had not been recovered, the city would tained in what respect or to what extent the issue its warrants or certificates of indebtedtitle conveyed by the respondents has failed. ness redeemable within one year. In pursuThey may, for aught that appears to the ance of said contract, the city issued, among contrary, well have conceived that they were others, its four certain warrants which are set “seised in fee" of the premises, and have forth in the complaint. It is alleged that the acted in good faith in executing the convey- warrants set out were, on the 13th day of ance; and if, in so doing, they have erred April, 1889, duly presented for payment to the in estimating their estate, and the damages | city treasurer of the defendant corporation, flowing from such error are susceptible of and payment thereof was refused for want of definite ascertainment, and the respondents funds; that the warrants have been duly assolvent and residents of the state, what oc- signed to plaintiff; that they are long past casion is there for the interposition of equi- due, and wholly unpaid; that the city of Spoty? There are many expressions to be found kane has wholly failed, neglected, and refus. in the reported cases and in text-books that ed to take any steps for the purpose of creatare seemingly antagonistic to the conclusion ing a fund to be known and designated as the we have reached in disposing of this case.

"Mallon street fund"; that it has failed, neg. Of many of them, however, it may be said lected, and refused, and still fails, neglects, that they, at most, are merely “loose dicta,

and refuses to carry out said contract upon without any fullness of illustration," and

its part by the payment to this plaintiff, or to want that precision which is requisite to give

any other person for him, of the amount of much force to them. The judgment appeal

said warrants; and that, on account of said ed from is affirmed.

failure, neglect, and refusal of the officers of

the defendant city to keep and perform said HOYT, C. J., and ANDERS, SCOTT, and contract, the plaintiff, as the assignee and DUNBAR, JJ., concur.

owner of the warrants, has been damaged in
the sum of $2,805.26; wherefore plaintiff de-

mands judgment for that amount. A demur(11 Wash, 41)

rer was interposed to this complaint, on the STEPHENS v. CITY OF SPOKANE.

ground that it did not state facts sufficient to

constitute a cause of action. The demurrer (Supreme Court of Washington. Feb. 1, 1895.)

was sustained by the court, and a final judg. ACTION ON CITY WARRANTS-PLEADING.

ment entered against the appellant. 1. In declaring on a city warrant which an ordinance requires to be in writing, it need not

Section 3 of the charter of 1886 granted the be alleged that the contract was in writing; a power, in general terms, to the city, to aswritten contract being admissible under a gen- sess, levy, and collect taxes for general mueral allegation that the parties contracted. 2. In an action on city warrants signed by a

nicipal purposes; and section 7 provides that person acting as mayor, where it was alleged

the city “shall have power to construct sidethat the warrants were duly and legally issued, walks, and to curb, pave, grade, plauk, mait was not necessary to allege the council pro- cadamize and gutter any street or streets, ceedings by which the person signing the warrants became acting mayor.

highway or highways, alley or alleys therein,

or any part thereof; and to levy and collect a Appeal from superior court, Spokane coun

special tax or assessment on all lots or party; James Z. Moore, Judge.

cels of land fronting on such street or streets, Action by W. M. Stephens against the city

highway or highways, or any part thereof, of Spokane. From an order sustaining a de.

sufficient to pay the expenses of such immurrer, and judgment thereupon for defend

provements, and for such purposes way esant, plaintiff appeals. Reversed.

tablish assessment districts," etc. Section 3 Jones, Belt & Quinn, for appellant. James provides that "the city of Spokane Falls has Dawson, for respondent.

power to provide for clearing, opening, grav

eling, repairing and clearing streets, alleys DUNBAR, J. This is an action brought on and highways, and for the prevention and refour street-grade warrants of the city of Spo- moval of all obstructions therefrom." In the kane, for $500 each, and interest thereon, is- case of Soule v. City of Seattle, 6 Wash. 315, sued April 12, 1889, and drawn on the Mallon 33 Pac. 381, 1080, this court held, in construstreet fund. In 1888 the city of Spokane duly ing similar charter provisions, that the city passed an ordinance for the grading of Mal- was not limited to special assessments as a lon street, and let the contract for the grad- means of improving its streets in any way it ing thereof to one V. M. Massey, who, in saw fit. On that proposition we think the April, 1889, finished the same according to the decision in that case is conclusive of the ques.

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tion raised in this case as to the power of the tion was squarely decided in Pettit v. Hamcity to pay for these improvements, and we lyn, 43 Wis. 314. There it was held that pass that phase of the case without further where there is an averment, in general terms, comment.

of an agreement to convey, it must be asThe brief of the respondent charges the ap- sumed that it is a valid agreement; and it is pellant with making a misstatement in his error to reject all evidence under the coniopening brief, in alleging that the city has plaint for its failure to expressly allege an never taken any steps whatever towards cre- agreement in writing before, thougb the anating a fund to be known as the “Mallon swer denies such an agreement. The court in street fund," and has never paid, and now re- that case said: “It is said by the counsel for fuses to pay, to plaintiff the amount of these the plaintiff that the court below held the warrants, claiming that it has no authority or complaint insufficient, because it did not show power to pay the same from any other fund that the agreement was in writing. If that than the Mallon street fund, which, as before was the view of the learned circuit court, it stated, has never existed, and which the city was unsound. The complaint states the has never taken any steps to create; and agreement to convey in general terms, and it counsel proceeds to show that the city has must be presumed that it was a valid agreetaken other steps by pas ing ordinances, etc. ment. Cer ly, the contrary presumption But this case comes here upon the allegations cannot be made, because the complaint states of the complaint, and we hardly see how generally the agreement. It was not necessathese evidentiary matters which are argued | ry to allege that it was in writing. The law by the counsel for respondent can be taken upon this point is well settled. It is true the into consideration. If the allegations of the answer alleges that the agreement to convey complaint are not true, that is a matter of de- was not in writing, but we do not see that fense; but, for the purposes of this demurrer, that can affect the question as to the suffithey must be considered as true, and the al- ciency of the complaint.” In this case, the legation is that the city of Spokane has whol- complaint being assailed by a demurrer unly failed, neglected, and refused to take any der that authority, the complaint states a steps for the purpose of creating fund to be cause of action and an allegation is made known and designated as the “Mallon street which will sustain proof of a written contract. fund”; that it has failed, neglected, and re- To the same effect is Hamilton v. Lau (Neb.) fused, and still fails, neglects, and refuses, to 37 N. W. 688, and Higgins v. McDonnell, 16 carry out said contract on its part by the pay- Gray, 386. In the latter case it was held that ment to this plaintiff, or to any other person a written contract may in general be given in for him, of the amount of said warrants. It evidence in support of a declaration on a conis hard to conceive on what theory the state- tract not alleged to be in writing. See, also, ment made in appellant's brief is said to be Tuttle v. Hannegan, 54 N. Y. 686. a misstatement of the case; and it seems to The remaining contention is that it was necus that, under the former rulings of this court essary to allege the proceedings of the city and the well-settled law, if the allegations of council by virtue of which Tull, who signed the complaint are true, thata contract was duly the warrants, becaine acting mayor. This almade, and that no steps have been taken for so, we think, is a matter of evidence, and not five years on the part of the city to collect the of pleading, and the allegation that the warnecessary funds for the payment of these war- rant was duly and legally issued was suffi. rants, the plaintiff has a legal grievance cient. Dill. Mun. Corp. $ 502, states the rule against the city, and that the complaint in ev- thus: "County and city orders signed by the ery respect states a cause of action.

proper officers are prima facie binding and leThere are two technical points, however, gal. These officers will be presumed to have raised by the respondent which we will notice done their duty. Such orders make a prim: here. The first is that the contract must be facie cause of action. Impeachment must alleged to have been in ng, because, un- come from the defendant,"-citing many cases der the ordinance of 1889, a contract, to be to sustain the text. And such is the undisbinding, must be reduced to writing, and puted weight of authority. We think the comsigned by the mayor and city clerk on behalf plaint is in all respects sufficient to place the of the city; and Arnott v. City of Spokane, 6 city on its defense. The judgment will there. Wash. 442, 33 Pac. 1063, is cited to sustain fore be reversed. this objection to the complaint. We think this case is not in point. In that case we de

ANDERS, SCOTT, and GORDON, JJ., concided that the city could not be rendered liable by the verbal agreement of the mayor and

HOYT, C. J., dissents. the council to pay certain sums exceeding $50, and the case as reversed because the court admitted testimony which went to show

(11 Wash, 36) a verbal contract. But the question is here,

MRAS v. DUFF et ux. is a written contract admissible in evidence

(Supreme Court of Washington. Feb. 1, 1895.) under a general allegation that the parties

MECHANIC's Lien-NOTICE, contracted, without indicating whether the

A notice of lien filed by the contractor, contract was in writing or not? This ques- which, in stating the terms of the contract, re

.

cur.

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