Douglass v. Low

Yery little need be said to show that this complaint sets forth a good cause of action.

The defendant insists that there has not been a sufficient rescission of the contract and offer to restore. But the plaintiff avers that he is ready and willing to assign or to cancel the note and mortgage, and that prior to the action he executed an assignment thereof to the defendant, and a satisfaction, and caused the same to be tendered to the defendant. He has done enough in this respect.

Next the defendant says that after he is of age a ward may settle with his guardian. (Kirby v. Taylor, 6 John. Ch., 242.) All which that case says is that a release given six months after a ward comes of age, freely and without any fraud, is valid. On the contrary, the demurrer admits the fraud in this case. Furthermore, the practice in equity was to allow a ward a year’s time to investigate the guardian’s accounts; ón the ground that when he first comes of age he is still too much under the guardian’s influence to protect himself. (Hylton v. Hylton, 2 Ves., 548; In re Van Horne, 7 Paige, 46.)

Next, it is urged that the decree in the Surrogate’s Court cannot *500be set aside for fraud in this action, and that so long as it stands it is a bar to relief in this court; that a motion should be made in the Surrogate’s court. It seems to us that the present is precisely one of those cases in which equity will set aside a judgment or decree. (Ross v. Wood, 70 N. Y., 8.) There was no trial before the surrogate. The plaintiff by fraud was induced to authorize an attorney to appear for him and to consent to a discharge. It is not that there was false or fraudulent evidence given. It is that the plaintiff was by fraud induced to consent to a decree without any trial. This case is like one where, by fraud, a party is induced to keep away from court; “ where the unsuccessful party has been prevented from fully exhibiting his case by fraud, by reason of which, there has never been a real contest before the court of the subject-matter of the suit.” ( U. S. v. Throckmorton, 98 U. S., 61; Johnson v. Waters, 111 U. S., 640; S. C., 30 Alb. Law Jour., 373.)

We think it unnecessary to cite further authority.

The judgment should be affirmed, with costs.

Judgment affirmed, with costs.