Oldfield v. Stephenson

Perkins, J. — “ There was no error in overruling this demurrer. Supposing the plea to be good, the replication well answered it. It is settled that an outstanding mortgage upon lands purchased, when a deed and possession accompany the sale, is no bar to the recovery of the purchase money. — Buell v. Tate, 7 Blackf. 55; Pomroy v. Burnett, 8 Id. 142. The present is distinguishable, so far as the plea is concerned, from the ordinary case of the simple existence of a mortgage, only by the three facts alleged, the insolvency of the mortgagor, fraud, and an offer to reconvey. The insolvency we think not available as a defence at law. It might be a ground for a temporary injunction out of chancery upon the collection of the purchase money, according to the principle laid down in Buell v-Talc, supra. The fraud is denied by the replication and is admitted not to exist by the demurrer. But fraud ivas the only matter alleged entitling the party to rescind the contract of purchase, and as that is denied, the offer to rescind is of no importance in the case. The party, there being no fraud, was not entitled to a revision even had the offer been made in time, much less when tendered several years after the conveyance, during all which time he had enjoyed the possession and use of the land.” Judgment affirmed.