Fulton v. . Loftis

63 N.C. 393

• Court: Supreme Court of North Carolina
• Decided: January 5, 1869
• Status: Published

Opinion

PearsoN, C. J,

The plaintiff has misconceived his remedy. When a contract is obtained by fraud or duress, a Court of Equity will entertain a bill for its rescission; but the plaintiff must allege that he was induced to enter into the contract, by reason of such fraud or duress. A bill for rescission on the ground of fraud or duress prepetrated after the contract is made, is one of the first impression, and there is no principle upon which it can be maintained. The question is too plain to allow of discussion: Addington v. McDonnell, at this term.

The plaintiff having the legal title, may take possession, and thus force the defendant to file a bill for a specific performance, when the plaintiff may rely upon the alleged fraud, or duress, as a ground to induce the Court to refuse to entertain the bill; or the plaintiff may file a bill for specific performance, and ask for a reference as to the amount of the purchase-money remaining unpaid, and thus bring up the ques tion, as to tbe manner in wbicb tbe defendant obtained possession of tbe notes, and thus tbe controversy may be settled. But as we have seen, tbe idea of a decree for rescission, for matters occurring sis years after tbe contract was made, and after it bas been in part performed, is out of tbe question.

Let tbe bill be dismissed, but without costs as to the defendant Loftis.

Peb Cubiam. Bill dismissed.