WILSON v. BREYFOGLE, 63 F. 379

JENKINS, Circuit Judge (after stating the facts). The plaintiff, by her action in assumpsit, sought to recover the unpaid balance due for the Grand Crossing property upon the ground that, although by the contract that balance was to be paid by the conveyance to her of a good and sufficient title to the Tennessee lands, the defendant had therein failed. There was delivered to her the warranty deed of the Cumberland Lumber & Transportation Company and the quitclaim deed of (he defendant for the land in question.

She unquestionably accepfod the deeds in execution by the defendant of his contract, relying upon Ms assurance that the title thereto was perfect in the grantors. She seeks t.o avoid the effect of the acceptance of the deeds upon the gramo that she was induced to accept them by the false representations of the defendant with respect to the title. While it is true that in many cases a tort may be waived and assumpsit sustained against: one who has wrongfully obtained the property of another (Burton v. Driggs, 20 Wall. 125), we still think that the suit here cannot be maintained.

She has never conveyed or offered to reconvey the title or claim of title which was vested in her by those deeds. The title of the grantors so conveyed to her rested upon certain judicial sales which the plaintiff claims were invalid, but they were sufficient as a foundation for a claim of title, and the plaintiff accepted covenants of warranty of the Cumberland Lumber & Transportation Company with respect to that title. The deed of the company presumably stated the correct consideration of f75,000, and to that extent the company was responsible to the plaintiff upon iis covenant: if the title should fail.

If she was induced to accept; the deeds by any false representations of the defendant, it still remains true' that, in order to avoid the transaction, she must return that which she has received. The acceptance of the deed was not a void act by reason of the alleged fraud, but was voidable at her election. Bhe cannot, however, hold the fruits of the transaction, and at: the same time repudiate if.

Bhe cannot retain the covenants of the lumber company, and the title or claim of title vested by its deed, and at; the same time pursue the defendant upon the ground that she accepted the deed by reason of his false representations. Nor do we tliink it any answer to say that that deed of the lumber company was afterwards returned, and another warranty deed substituted with an expressed consideration of one dollar. That was done at. her request, to avoid payment of the legal fee for recording, and not in repudiation, but in affirmance, of her acceptance of the original deed.

We do not stop to consider the questions presented by the statute of frauds, or of the light of the plaintiff to maintain the action because the contract was made with ber husband, since, if these ■questions should be resolved in her favor, it would still remain that, unless she should restore or offer to restore that which she has received, namely, the title or claim of title acquired from the defendant and the Cumberland Lumber & Transportation Company, she cannot avoid the effect of the acceptance of the deeds as fulfillment by defendant of his contract. The judgment, however, was erroneous in form.

The court should have entered a judgment of nonsuit, whereas it found generally in favor of the defendant upon his pleas; so that, as we take it, the judgment is a bar to any further action by the plaintiff.' The judgment will therefore be reversed, with costs, and the cause remanded, with direction to the court below to enter judgment of nonsuit without prejudice to such further proceedings as the plaintiff may he advised to take.