Page:Federal Reporter, 1st Series, Volume 1.djvu/277

ELFELT V. HART. 269 �erty. Equity will not uphold such action, and no advantage can be obtained by suoh conduct. �While the coud sel for plaintifï does not concede this, in terms, yet he urges that the defendant, having retained the $2,000 received from the plaintiff under the contract, has affirmed it, and cannot, without placing the plaintifï in the position he occupied before the agreement was entered into, avail himself of facts which show that he was over- reaohed and deceived, and that defendant cannot rescind the contract and retain the $2,000 paid by the plaintiff, and, having retained it, has elected to affirm and abide by the contract. �The general doctrine is well stated that the party who has heen induced to enter into a contract by fraud may either rescind or af&rm it. If he rescinde, and bas received some- thing of value under the contract, he must restore the same to the other party. But it is not always necessary for the injured party, even where fraud taints a contract, to rescind it in order to resist its full operation. He may permit the contract to be amended so as to conform to fair dealing, and if, under the pleadings and the relief prayed, a court of ohan- cery can enter a decree which would be just and fair, and in accordance with equity, it will do so. 2 Paige, 390; 1 Pet, 383. �Tbe defendant had no knowledge of the sale of the prop- erty. He was anxious about the security of his loan, upon which no interest had been paid for over two years, and the land mortgaged forfeited to the state for non-payment of delinquent taxes. The plaintiff, while quieting bis feelings about the taxes, was still making an effort to obtain a com- promise with the defendant, and concealed information of the statiis of the property, and indirectly induced the defendant, through fear of loss, to consent to the compromise, while fair dealing required a frank statement from the plaintiff, so that the defendant would not be misled. �I think the defendant is entitled to the protection of the court and relief against the conclusive operation of the agree- ��� �