Per Curiam. Appellee filed bill in equity against appellants for the rescission of an executed contract to recover money paid under such contract and to have a lien decreed in favor of the complainant against the defendants on the lands embraced in the contract.
The right to rescission and to the other relief prayed was based upon the allegations that contract was procured by fraud and the money paid because of false and fraudulent representations as to existing facts and by the making of false and fraudulent promises concerning future improvements which it is alleged were made with the intent to deceive and to defraud the complainant and without the intention at the time to perform the same. Demurrer to the hill of complaint was interposed and overruled. The appeal is from the order overruling the demurrer.
The order overruling the demurrer should he sustained on authority of the opinion and judgment in the case of Nixon vs. Temple Terrace Estates, 97 Fla. 392, 121 Sou. 475, and authorities there cited, and in the case of Sumter State Bank vs. Hayes, 68 Fla. 473, 67 Sou. 109. While in the case of Sumter State Bank vs.
Hjayes, supra, the consideration for the notes in controversy was an executory contract and the notes involved in the case now before us were given for and in consideration of an executed contract, the allegations of the bill of complaint are sufficient to require answer and proof as to whether or not the assignee of the notes took the same with full knowledge of defects in title which are alleged to have existed and by reason of such knowledge was not a holder in due course and for value. The order appealed from is affirmed. Buford, O.J., and Whitfield and Terrell, J.J., co'ncur.
Brown, J., concurs in the conclusion. Ellis and Davis,. J.J., concur specially.