US SUPREME COURT DECISIONS

In May, 1885, P., having an opportunity to purchase ten acres of land near Omaha at a cost of $3,600, payable $1,250 in cash, the rest on credit, wrote to D. that he could buy the tract for $4,800, payable $2,500 in cash, the rest on credit, and asked him to join in the purchase. D. assented, sent his $1,250 to P., and joined in a mortgage for the balance of the purchase money. In October, 1885, p. wrote to D. that he had sold the ten acres to B. for $6,000, $3,000 of which were in cash, and enclosed a cheque for $1,500, and a deed to B. to be executed by D. in which the consideration was expressed at $6,000. This amount was subsequently changed to

$10,000 without D.'s knowledge. On the day after receiving the deed, B. reconveyed the property to P. The land was laid out into lots and streets under direction of P., and some of the lots were sold to bona fide purchasers. After the institution of this suit, the remainder was conveyed by P. to one M., for a recited consideration of $19,425. In February, 1887, the deception practiced by P. as to the price of the land, and as to the change in the consideration of the deed to B. came to the knowledge of D., who thereupon wrote P., calling upon him to refund the overpayment in the purchase money and to pay him one-half of the increase in the amount of the consideration for the deed to B. P. made no payment, and commenced a correspondence which lasted until D. became possessed of knowledge of the reconveyance by B. to P. This bill in equity was then filed by D., praying for an accounting, and that he be decreed chanrobles.com-red

Page 160 U. S. 585

entitled to all the benefits of the original purchase, and that the deed to B., the deed from B. to P., and the deed from P. to N. be declared fraudulent; that P. be required to convey to D. so much of the premises as had not been conveyed to other parties for a valuable consideration; that he account to plaintiff for the sums received from such sales, and that he be restrained from selling other lots. The court below dismissed the bill on the ground that D. had elected to retain what he had received and to pursue his claim for moneys still due, and could not maintain a suit to set the whole transactions aside.

Held:

(1) That the plaintiff was entitled to a decree setting aside and annulling the deed purporting to have been executed by P. to M., the deed from B. to P., and the deed to B. from P. and D., leaving the title to the premises in question where it was prior to the execution of the last named deed, such decree to be without prejudice to any valid rights acquired by parties who purchased in good faith from P. while the fee was in him alone.

(2) That the cause should be referred to a commissioner for an accounting between D. and P. in respect of the sums paid by them, respectively, on the original purchase, as evidenced by the deed of 1885, to P. and D., D. in such accounting to have credit for one-half of all amounts received by P. on the sales by him of any of the lots into which the ten acres were subdivided, and P. to have credit for any sums paid by him in discharge of taxes or other charges upon the property.

The case is stated in the opinion.