Thackrah v. Haas

after stating the case as above, reported* delivered the opinion of the court.

No opinion of the court below and no brief or argument for the appellee having been submitted to us, it is not easy to conjecture the ground upon which the demurrers were sustained.

By the statutes of Utah, there is, for the enforcement or protection of private rights, and tlie redress or prevention of private wrongs, but one form of action, commenced by complaint, to which the defendant may demur or answer. If there be no answer, the relief cannot exceed that demanded in the complaint; in any other case, the court may grant any relief consistent with the case made by the complaint and embraced within the issue. Compiled Laws of Utah of 1816, §§ 1226, 1247, 1263, 1374.

The complaint in the present case is in the nature of a bill ' in equity against a mining corpor'ation, a bank, and two individuals, alleging that while the plaintiff was in such a state, of. intoxication as not to be in his right mind or capable- of transacting any business or entering into any contract, the defendants, knowing his condition, fraudulently extorted from him for the sum of $1200 a transfer to one of those persons, for the benefit of the other and of the bank, of his interests, worth $80,000, in shares to that amount in the mining corporation; and praying for a cancellation of the transfer, for a sale of enough of the interests transferred to repay the $1200, for the issue of the rest by the mining company to the plaintiff, for the restoration to him by the other defendants of any certifi--' cates in their hands, and for an account and an injunction. . It cannot be doubted that this was such a case of fraud as *502 entitled Mm to relief in equity. ' 2' Pomeroy, Eq. Jur. §§ 914, 949.

The complaint further alleges, and the demurrer admits, that the greater part of this sum of $1200 was retained by the bank and- applied to the payment of a debt previously due to it from the plaintiff, and (it would seem before he recovered from Ms intoxication) the rest of that sum was applied by Ms wife to the payment of his small debts, and he had no means available to raise money to repay the $1200, except the interests in the mining company, wMch he had been induced by the defendants’ fraud to make a transfer of. The plaintiff, without any fault of his, being unable to repay the consideration of the fraudulent transfer, equity will not require him to do so as a condition precedent to granting him relief, but will make due provision, in the final decree, for the repayment of that sum out of the property recovered. Reynolds v. Waller, 1 Wash. Va. 164; Allerton v. Allerton, 50 N. Y. 670; S. C., more fully stated, in Harris v. Equitable Assurance Society, 64 N. Y. 196, 200.

Judgment reversed, amd case remanded for fwrbh&t' jproceed-i/ngs vn conformity with this opi/nion.