Clint v. Eureka Crude Oil Co.

GRAY, P. J. This is an action to cancel a deed alleged to have been obtained from plaintiff, Martin Clint and others, by false and fraudulent representations and without delivery. On a trial without a jury, the findings and judgment were in defendant’s favor; The appeal is by plaintiffs from the judgment and an order denying a new trial. It is reasonably clear from the evidence that the eighteen thousand seven hundred and fifty shares of stock in the defendant corporation were agreed to be given and were in fact transferred as a consideration for the deed sought to be canceled herein, and that this was a sufficient consideration to uphold such deed. It is immaterial that the transfer of this stock may have also constituted the agreed consideration for a lease of the same property mentioned in the deed. We find nothing in the.evidence to warrant the theory that two lots of stock of eighteen thousand seven hundred and fifty shares each were ever agreed to be delivered to plaintiff Clint. The evidence shows that before any of this stock was delivered to Clint the previous lease was, in effect, canceled by an agreement to convey the same, and also the property leased to the defendant. This agreement was executed to defendant by all the parties to the lease, including plaintiff Clint, who was the lessor named in the lease. This agreement to convey the whole title took the place of the original agreement of lease and the agreement to transfer the eighteen thousand seven hundred and fifty shares of stock, being still unexecuted at the date of the last agreement, constituted a sufficient consideration to support the agreement to convey the entire title, and especially was it a good consideration when the stock was thereafter delivered in accordance with the agreement. Furthermore: If it were admitted that the delivery of the stock was not a sufficient consideration to support the agreement to convey, still we have the signature to the agreement to convey of the parties named as lessees in the lease, and their signatures, agreeing to convey their valuable interest in the lease, most certainly constituted a sufficient consideration for plaintiff’s signature of the same instrument. *465 We think, therefore, that the findings of the court as to the consideration, as well wherein they negative plaintiffs’ allegation that the agreement to convey was without consideration, as also in the affirmative finding that the transfer of the stock was the consideration, are amply supported by the evidence. There is no evidence that plaintiffs ever offered to return any portion of the stock received by them for this deed, and the court finds that no such offer was made. Of course, it would be inequitable to cancel this deed without a return of the stock which was given for it, even if the deed was obtained by fraud and a delivery also procured by fraud and without the consent of the grantors. This is an action in equity and the plaintiffs cannot be restored to their rights in the property and at the same time retain the consideration for it, which they have received. It is, therefore, unnecessary to determine anything as to the question of fraud, and the finding of fraud in the transaction may be disregarded as immaterial to the support of the judgment. The judgment must stand for the defendant on the finding of no offer to return what was received by plaintiffs for the land, however fraudulent the transaction may have been. This failure to restore, or offer to restore, the consideration prevents a recovery by plaintiffs, whatever view may be taken of the other issues in the case, and we need not, therefore, consider any other issue. It is found that the land described in the complaint is the same land described in the agreement to convey, and no attack is made upon this finding in appellant’s brief. A careful reading of the special findings will disclose that they dispose of every issue in the case. The finding to the effect that all the material allegations of the complaint are untrue, “except as hereinbefore found,” and that the answer, except as hereinbefore found, is true, may be disregarded as entirely unnecessary and immaterial. Some other objections are urged, but after an examination we do not find them of sufficient importance to require further discussion. The peculiar circumstances and facts surrounding this case and the transactions which led to its commencement and prosecution incline us to the opinion that neither party should have been awarded costs. Therefore, the order denying a new *466 trial is affirmed; the judgment is -modified to the extent of striking out that part thereof awarding costs, and otherwise to stand affirmed. Allen, J., concurred.