Walling v. Thomas

SHARPE, J. A conveyance of lands obtained for a grossly inadequate consideration by unfair advantage taken of great mental weakness, though not amounting to absolute incapacity, of the grantor, will in equity be set aside on equitable terms when application therefor is made seasonably by the grantor, his representatives or heirs. — Waddell v. Lanier, 62 Ala. 349; Shipman v. Furniss, 69 Ala. 562; Burke v. Taylor, 94 Ala. 530; Allore v. Jewell, 94 U. S. 506 (24 L. ed. 260) ; Harding v. Handy, 11 Wheat. (U. S.), 125; Raymond v. Wathen, 142 Ind. 367; 18 Ency. Pl. & Pr., 765, 771. In such cases the deed being voidable only and not wholly void passes title to the grantee, and the heirs’ claim to relief rests not on legal succession to the title but on an equitable right to be invested with such succession. The relief appropriate to be afforded by the courts is by enforcing rescission of the contract of sale and cancellation of the deed. The right to rescind may be waived by the party in whom it resides whether he be the one originally injured or his successor in interest, and such waiver may be implied from conduct inconsistent with an intention to exercise it including acquiescence in the transaction for an unreasonable length of time.- — Howle v. North Birmingham Land Co., 94 Ala. 389; Lockwood v. Fitts, 90 Ala. 150. But mere delay in taking steps to avoid the deed may be so explained as to show it was not an ae [431] quiescence. Wliat will he considered a reasonable time for moving to disaffirm may depend on the situation and condition of the parties and the circumstances of the particular case. — Orendorf v. Tallman, 90 Ala. 441; 18 Ency. Pl. & Pr., 826. The bill avers in substance that the deed it assails was obtained from complainants’ ancestress while her mind was unsound, at about one-fourth the value of the land it conveys, and by means of the purchased influence of one in whom she was accustomed to repose trust and confidence; that thereafter she continued to decline to a state of total insanity lasting until her death. Taken as true as they must be on demurrer, these averments show a right lay in the grantor to have the sale avoided and they furthermore rebut all presumption that willing acquiescence was the cause of her failure to assert that right. Subjects of such infirmity merit protection from courts of equity so far at least as to be relieved from such presumptions, and the imputation of laches as well. Complainants themselves waited before filing this bill about two years and eight months after the death of their ancestress. But it is averred that since then they have continuously asserted their rights in the lands by demands on defendant and that he made promises to pay for their claims on which they relied and were so caused to postpone legal proceedings. Delay so induced by defendant cannot fairly be attributed to acquiescence in its holding nor can it be accounted laches. Equity will not assist one to repudiate a contract and retain its benefits. Hence a bill for rescission must ordinarily offer to do equity by restoring the party called on to rescind such consideration as he has paid with interest or other compensation for its use. But exception to this rule occurs where the defendant has been fully reimbursed for his expenditures by what he has received under the contract. — Higby v. Whitaker, 8 Ohio, 108; Wilson v. Moriarty, 77 Cal. 596; 18 Ency. Pl. & Pr., 834. The hill shows the use of the land during defendant’s possession has been of value greater than the consideration he paid with interest and, therefore, an offer to return the consideration was not required to be [432] alleged or made. If there be persons who ought to be and are not made parties to the suit, that fact does not appear on the face of the bill, and, therefore, the objection is not a proper subject of demurrer. The decree appealed frpm will be affirmed.