It is ordered, adjudged, and decreed, that plaintiff take nothing by his complaint filed herein, and said complaint be hence dismissed; and it is further ordered and adjudged, that there is due under the terms of the contract set out in the cross-complaint to the defendant, Mary M. Arthurs, from the plaintiff, the following sums: (a) the sum of $9,470, with interest thereon, at the rate of seven per cent per annum, from the 28th day of July, 1905, and [b] the further sum of $1,337.50, with interest thereon, at the rate of seven per cent per annum, from the 16th day of November, 1905. And it is further adjudged, that the plaintiff pay unto the defendant, Mary M. Arthurs, said several sums, with interest as aforesaid, up to the time of payment, within ten days from the entry of this judgment. And on failure to so pay, then it is ordered, adjudged, and decreed, that the said plaintiff be forever foreclosed and debarred from claiming any right, title, or interest in the contract set up in the cross-complaint or the real property described therein. It is further ordered and adjudged, that the defendant, Mary M. Arthurs, do recover from the plaintiff, M. S. Kornblum, her costs and disbursements herein, amounting to the sum of $61.50. Dated this 30th day of April, 1906. J. S. Noyes, Judge of Superior Court. § 463. ANNOTATIONS.-Rescission. 1. Rescission an equitable remedy. 2, 3. Rescission for fraud or mistake. 4. Relief administered irrespective of form of action. 5, 6. Petition, when insufficient. 7. Pleading defense of rescission in the alternative. 1. Rescission an equitable remedy.Complete and full justice is a fundamental doctrine of equity jurisprudence, and if damages, as well as rescission, are essential to accomplish full justice, they will both be allowed: Holland v. Western B. & T. Co. (Tex. Civ. App.), 118 S. W. 218; Wintz v. Morrison, 17 Tex. 372, 67 Am. Dec. 658. 2. Rescission for fraud or mistake.The rule supported by the weight of authority is that the facts pleaded must show a case of fraud and mistake, or fraud or mistake, in the complaint in order to entitle the complainant to relief upon either ground which the evi dence may establish: Clemens v. Clemens, 28 Wis. 637, 9 Am. Rep. 520; Leighton v. Grant, 20 Minn. 325 (Gil. 298); Daniel v. Mitchell, 1 Story, 172, Fed. Cas. No. 3562; Stebbins v. Eddy, 4 Mason, 414, Fed. Cas. No. 13342; Smith v. Babcock, 2 Woodb. and M. 246, Fed. Cas. No. 13009; White v. Denman, 1 Ohio St. 110; Willamas v. Sturdemant, 27 Ala 598; Moehlenpah v. Mayhew, 138 Wis. 561, 118 N. W. 826, 831. 3. Upon a bill filed for relief on the ground of fraud, relief may be granted on the ground of mistake: Read's Admrs. v. Cramer, 2 N. J. Eq. 277, 34 Am. Dec. 204. Likewise, where an an swer averred mistake, relief may be given on the ground of fraud: Berryman v. Graham, 21 N. J. Eq. 370. 4. Relief administered Irrespective of form of action. Under the form of procedure whereby the distinction between forms of action is abolished, the court may in an action,-in effect, a suit to enforce a rescission which has been offered and refused, -administer equitable relief, regardless of the question whether under former system of jurisprudence the action would be deemed an action in assumpsit for money paid, or an action in equity to compel rescission and a return of the consideration: Spreckels v. Gorrill, 152 Cal. 383, 92 Pac. 1011, 1016, (to recover money alleged to have been paid as the price of corporate stock). a 5. Petition, when insufficient.-A petition in an action in equity to rescind an executed contract of exchange of real estate, and to set aside a deed on the ground of fraud, which does not plead sufficient facts to constitute fraud, and from which it is apparent that the plaintiff was not acting equitably in his offer of rescission, that he was not prompt in demanding a rescission, etc.; held insufficient: Town of Grand River v. Switzer, 143 Iowa 9, 121 N. W. 516, 517. 6. A complaint in equity for rescission of a contract can not be supported by averments as to a breach of a condition subsequent, or of an express warranty, or breach of the covenant, in the absence of other grounds of equitable jurisdiction: Forster v. Flack, 140 Wis. 48, 121 N. W. 890, 891, citing Davison v. Davison, 71 N. Η. 180, 51 Atl. 905; Raley v. Umatilla County, 15 Ore. 172, 13 Pac. 890, 3 Am. St. Rep. 142; Love v. Teter, 24 W. Va. 741. 7. Pleading defense of rescission in the alternative. - A defense of general denial, coupled with the special defense, stating that whatever agreement, if any, the defendant made for the purchase of stock referred to in plaintiff's petition was, by and with the consent of the plaintiff, rescinded; held, not bad for inconsistency between defenses: Palais Du Costume Company v. Beach (Mo. App.), 129 S. W. 270, 271. Form No. 1080. Supplemental complaint in action commenced by special administrators and continued by executors to quiet title and for cancelation of forged deed 1794 ... §466. Answer 1799 Form No. 1081. Defense that instrument was executed under undue influence. -Action to cancel deed.... 1799 § 467. Judgments [or decrees] 1800 Form No. 1082. Confirming deed, and quieting defendant's title thereunder.-Action to cancel deed alleged to have been executed under undue influence 1800 Form No. 1083. Annulling deed, and quieting plaintiff's title as against the same.-Action for cancelation of forged deed 1801 1802 § 464. CODE PROVISIONS. When cancelation may be adjudged. California, § 3412. A written instrument, in respect to which there is a reasonable apprehension that if left outstanding it may cause serious injury to a person against whom it is void or voidable, may, upon his application, be so adjudged, and ordered to be delivered up or canceled. (Kerr's Cyc. Civ. Code.) The following statutes treat of the same subject as the foregoing. Where the provisions differ materially from the above, a further reference is made in a lettered note succeeding and the difference there shown: Montana, Rev. Codes 1907, § 6115. a North Dakota, Rev. Codes 1905, § 6626. South Dakota, Rev. Codes 1903, C. C. § 2356. a North Dakota, § 6626. When a written instrument, or the record thereof, may cause injury to a person against whom such instrument is void or voidable, such instrument may, in an action brought by the party injured, be ad judged void and the same be ordered to be delivered up for cancelation and the record thereof canceled, whether extrinsic evidence is necessary to show its invalidity or not. As to instrument obviously void. California, § 3413. An instrument, the invalidity of which is apparent upon its face, or upon the face of another instrument which is necessary to the use of the former in evidence, is not to be deemed capable of causing injury, within the provisions of the last section. (Kerr's Cyc. Civ. Code.) The following statutes treat of the same subject as the foregoing: Montana, Rev. Codes 1907, § 6116. South Dakota, Rev. Codes 1903, C. C. § 2357. Cancelation in part. California, § 3414. Where an instrument is evidence of different rights or obligations, it may be canceled in part, and allowed to stand for the residue. (Kerr's Cyc. Civ. Code.) The following statutes treat of the same subject as the foregoing: Montana, Rev. Codes 1907, § 6117. North Dakota, Rev. Codes 1905, § 6627. South Dakota, Rev. Codes 1903, C. C. § 2358. § 465. COMPLAINTS [OR PETITIONS]. FORM No. 1079-To annul a contract. [Title of court and cause.] Plaintiff complains of defendant, and for cause of action alleges: 1. That on the day of , , 19 plaintiff was the owner , of a tract of land situate in the county of in this state, and particularly described as follows, to wit: [Here describe]; that said land was then, and ever since has been, and now is, of the value of $ 2. That plaintiff, on the date aforesaid, and for some time prior thereto and thereafter, was infirm in mind [or physically), the nature of his infirmity [or physical deficiency, such as loss of eyesight, etc.] being as follows: [Here allege the facts showing the plaintiff's condition); that by reason thereof the plaintiff was on said date incapacitated from doing any business or making or entering into any contract whatever [or if the disability be such as to have been fraudulently taken advantage of, allege the facts accordingly]; that on the date aforesaid, the defendant, knowing of the plaintiff's said incapacity and infirmity (or disability), and for the purpose of defrauding the plaintiff, procured and caused plaintiff to execute an instrument in writing in the form of a deed conveying, or purporting to convey, to the defendant said tract of land from the plaintiff; that the defendant falsely represented said instrument to be [here state specific representations, etc., constituting facts of fraud]; that plaintiff, by reason of his condition of mind [or physical condition] aforesaid, believing such representations to be true, and by reason of said representations, and wholly and only on account thereof, executed such instrument in writing, and acknowledged the execution thereof, and delivered the same to defendant; that there was not then, and never was, any consideration given for such deed; that on the day of 19 , defendant caused said instrument in writing to be recorded as a deed in the office of the recorder of said county of , Wherefore, plaintiff prays judgment: That said instrument in writing be delivered up by the defendant; that the same, together with the record thereof, be adjudged to be void; that defendant, or, in the event of his refusal so to do, some competent officer or person appointed by the court herein, convey to plaintiff the legal title acquired by the defendant as hereinbefore alleged; that the court grant such other and further relief as the equity of the case may require; and that plaintiff be given his costs of suit herein incurred. A. B., Attorney for plaintiff. [Verification.] FORM No. 1080-Supplemental complaint in action commenced by special administrators and continued by executors to quiet title and for cancelation of forged deed. (In Angus v. Craven, 132 Cal. 691; 64 Pac. 1091.) [Title of court and cause.] Now come the plaintiffs, James S. Angus, Thomas G. Crothers, and W. S. Goodfellow, executors of the last will and testament of James G. Fair, deceased, (substituted for James S. Angus, Thomas G. Crothers, and W. S. Goodfellow, surviving special administrators of the estate of James G. Fair, deceased,) and by leave of court first had and obtained, and by way of supplemental complaint, complain of and against the defendants, Nettie R. Craven, Marc Livingston, George R. Williams, Stephen Roberts, Elizabeth Haskins, John Doe, Richard Roe, Jane Doe, and Mary Roe, and for cause of complaint and action, allege as follows: [Averment of ownership in decedent.] 1. That on the 28th day of December, 1894, James G. Fair was the lawful owner in fee-simple, and in the actual possession by himself and his tenants, of all those certain premises or parcels of land situated, lying, and being in the city and county of San Francisco, state of California, and bounded and described as follows: (Here follows descriptions of said property.] [Averments as to decease, appointment of special administrators, etc.] 2. That on said 28th day of December, 1894, and while the said James G. Fair was still the owner in fee-simple of said described premises, the said James G. Fair died testate in the city and county of San Francisco, state of California, leaving said real estate and other property, real and personal, in said city and county, and being a resident of said city and county of San Francisco at and immediately prior to the time of his death. 3. That thereafter, and on the 29th day of December, 1894, the last will and testament of said James G. Fair, deceased, together with a petition for the probate thereof, was filed for probate in this court, and such proceedings were thereafter had in this court in the matter of said estate that on the 2d day of January, 1895, an order was duly given, made, and entered by said court wherein and whereby these plaintiffs, together with one Louis C. Bresse, were appointed special |