Kent v. M'Kinney

1 Tapp. Rep. 292

• Court: Harrison County Court of Common Pleas
• Decided: November 15, 1818
• Status: Published

Opinion

President

In the case of Morrison vs. Eaton, [ante, page 173,] it was decided that a man should not be permitted to, both keep possession of, and use property, which he had purchased, and set up a fraud and deceit in the sale to avoid paying for it. A court of equity will relieve against a contract on the ground of fraud; but a purchaser has not the election of rescinding in toto, by application in equity, or rescinding in part by set-off or suit at law. The defendant has a right to set-off any “ debt, contract or demand ” he has against the plaintiff; but it must be such debt, contract, or demand, as he could sustain a suit at law for. , The defendant could not sustain an action at law on the matter of this set-off, if he was out of possession, for it was his own fault to take the plaintiff’s representation as to a boundary line, which it was easy for him to ascertain with the utmost certainty. Caveat empfcor, is a rule of good sense as well as of law: if he has been imposed upon in a matter which, by the use of ordinary vigilance and care, he would have avoided; if he has taken the plaintiff’s word instead of using his own eye sight, it is a degree of folly for which the law affords him no redress. Evidence rejected.