Bill in Equity, for the cancellation of a deed. Trial before Pike, J., at the May term, 1904, of the superior court, and decree for the plaintiff. The defendants reside in Massachusetts, and the plaintiff in this state. Prior to August 24, 1899, the plaintiff had talked with Packard about trading a farm in Hillsborough for Massachusetts real estate.
Good law ✅— No negative treatment on recordhow we know
Decided 1905-03-07
How this case has been cited
Cited by 3 later decisions — most recently July 1950
1 federal appellate · 2 state decisions
Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.
¶1
The consideration the plaintiff received for his farm was the Peterson note. He gave Packard his farm and $3,000 for that note. Since the note has not been paid and is in his possession, he is in a position to return the consideration he received for his farm, if equity requires that he should do so. It is unnecessary, both in this state and in Massachusetts, for the injured party to offer to return the consideration he has received before filing a bill to rescind a conveyance which was procured by fraud. That is, the making of an offer of restitution is not a condition precedent to the right to maintain such an action in either state, although such an offer is necessary in Massachusetts in order to maintain a possessory action to recover property obtained by
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fraud. Neither is it necessary to make such an offer in the bill itself, for the court has power to impose the conditions upon which it will give relief.
Thomas
v. Beals,
154
Mass. 51, 54. The court has power to compel “the plaintiff to do what he equitably ought to do.”
Wheeler
v.
Stock
Exchange, 72 N. H. 315, 321. If such an order has not been made, the court can make it -at this time.
Mead
v.
Welch,
67 N. H. 341.
