Potter v. Roeth — 2 Cal. Unrep. 523

Majority

p. 523

POTTER and Others v. ROETH.

No. 8460;

August 26, 1885.

7 Pac. 762.

Headnote

Equity—Rescission of Contract for Fraud.—On the principle that he who seeks equity must do equity the plaintiff, in an action to compel the reconveyance of land, must aver his willingness to restore to the defendant the consideration paid by him.

APPEAL from Superior Court, Alameda County.

Action to compel reconveyance of land. The consideration for the deed of the land was a half-interest in a fruit business, the value of which plaintiffs allege that defendant fraudulently overstated. Complainants failed to aver a willingness that the sale of the interest in the fruit business be set aside and that the same be restored to defendant.

Geo. E. Whitney for appellants; Wm. A. Cornwall for respondent.

Upon the principle that he who seeks equity must do equity, the demurrer to the complaint should have been sustained. Judgment reversed and cause remanded, with directions to the court below to sustain the demurrer.