¶1There is no ground for reversing the order made at special term denying the motion for a new trial.
¶2The complaint charges false representations, by which property was purchased by Sloan from the plaintiff, and sets out an assignment from Sloan to the defendant.
¶3This is denied by the answer, so far as relates to the fraud. There is no proof of any representations, but the evidence rather shows' a desire on the part of the plaintiff to make the sale than any application of Sloan to make the purchase.
¶4• The mere fact that a purchaser is in debt or involved is not enough to vitiate a-sale. The confession of judgment and the existence of the judgment, and execution at the time of the purchase, were all proper circumstances to have been submitted to a jury, if the charge had been for fraudulently concealing the facts which should have been disclosed.
¶5The terms -of the contract are not very specifically.stated by-any witness. It does riot even - appear in the plaintiff’s testimony that any note or credit was to be given, although the deputy sheriff states that the plaintiff’s attorney handed him two notes, which he gave to Slóan; but -Sloan testifies that he pur*203chased the property of Fisher, and paid part in cash and part in notes.
¶6If this is so, then the plaintiff has never put himself in a position to reclaim the property. Homan can avoid a contract and retain the consideration received for it, or any part of it. He must return all that he has received. Here he retains the cash and then reclaims the goods, only returning the notes which he says he received.
¶7In Masson v. Bovet, 1 Denio, 69, Judge Beardsley says: The party who would disaffirm a fraudulent contract must return whatever he has received upon it. He cannot hold on to such part of the contract as may be desirable on his part and avoid the residue, but must rescind m toto, if at all. To retain the whole or a part of what was received upon the contract is incompatible with its rescission, and hence the necessity of restoring what has been received upon it.
¶8The order at special term should be affirmed with costs.
¶9Ordered accordingly.