said premises; that at the time plaintiff tendered to defendants everything of value that she had received as aforesaid she demanded of defendants that the deed to the said Chicago property, left with defendant J. N. B., be returned to her; that defendants then and there refused to accept the said tender, and refused to return the said deed, and plaintiff is informed and believes, and therefore alleges, that the said defendants have caused the said deed to said Chicago property to be recorded in the county recorder's office of the county of Cook, state of Illinois, and unless restrained by an order of this court that they will dispose of said property, and that plaintiff will be irreparably injured thereby. Wherefore, plaintiff prays judgment and decree of this court: (a) That said agreement between the plaintiff and defendants be canceled and set aside. (b) That defendants, and each of them, be restrained by order of this court from conveying the said Chicago property or parting with the title thereto pending this action. (c) That defendants, or either of them in whom the title now exists, be required by order of this court to execute and deliver to plaintiff herein a good and sufficient deed reconveying to the plaintiff the said Chicago property, and for such other and further relief as may be equitable, and for costs of this action. Davis, Kem & Post, [Verification.] Attorneys for plaintiff. FORM No. 951-To recover property obtained by fraud and collusion, and to adjudge plaintiffs the owners thereof. (In Boon v. Root, 137 Wis. 451; 119 N. W. 121.)1 [Title of court and cause.] Plaintiffs complain of defendants, and for cause of action aliege: That Lavina C. Curtis, a resident of the village of Rio, Wisconsin, was prior to her death, hereinafter alleged, an aunt of the plaintiffs; that on January 4, 1890, in expectation of death, said Lavina C. Curtis made, executed, and delivered a conveyance of lands [here described] to her husband, Delos Curtis, for the term of his natural life; that after the death of the said Delos Curtis said real property 1 The complaint in the form No. 951 sets forth the substantial averments in the case as the same appear in the report thereof: Boon v. Root, 137 Wis. 451, 119 N. W. 121, 122. was to go to the plaintiffs, who were then living with their said aunt, the mother of plaintiffs having died in the year 1881; that said Lavina C. Curtis died January 16, 1890; that the conveyance aforesaid was on February 3, 1890, recorded in the office of the county recorder of Columbia County, state of Wisconsin, the same being the county in which said lands are situated, and the same remains of record therein. 2. That the plaintiffs, except Rose V. Hoban, within a few weeks after the death of their said aunt, moved to the home of their father in Chicago, where they and each and all of them have since resided; that said Rose V. Hoban went to her father's home in June or July, 1890; that, with this exception, the plaintiffs have resided in Chicago since their said removal thither; that in July, 1890, said Delos Curtis married one Loretta D. Root, a widow with two children by a former marriage; that said Delos Curtis failed and neglected to pay the taxes assessed against said premises, in which he held such life estate, and, as a consequence of said neglect, the said premises were sold at tax sale on the 1892, for the sum of $12.21, to William H. Root, son of said Loretta D. Curtis, formerly the said Loretta D. Root. day of 3. That on August 28, 1895, a tax-deed was issued to said Loretta D. Curtis as the owner of the tax certificate issued to her said son; that notice of said intention to take a tax-deed was served on her husband, but that no notice thereof was given to the plaintiffs or any of them; that on July 22, 1901, said Loretta D. Curtis executed a life lease of said premises to said Delos Curtis and Carrie M. Bush, her daughter; that this lease was recorded August 30, 1901, in the office of the county recorder of said county, state aforesaid; that on May 29, 1903, said Loretta D. Curtis executed a warranty deed of the said premises, subject to said lease, to the said William H. Root, and that said deed was recorded in the office of the county recorder of said Columbia County on September 9, 1903. 4. Plaintiffs allege that Delos Curtis intentionally omitted and refused to pay the taxes assessed against the premises, and that the tax-deed aforesaid was procured by the connivance and collusion of said Delos Curtis, Loretta D. Curtis, William H. Root, and Carrie M. Bush, and that said tax proceedings were taken for the purpose of fraudulently cutting off and destroying the rights of the plaintiffs in the premises. 5. That said Loretta D. Curtis died in the year 1905, and the said Delos Curtis died on the 23d day of March, 1907. 6. Plaintiffs allege that none of the facts regarding the procuring of the said tax-deed, and the said collusion and connivance of the defendants with the defendants' mother and Delos Curtis in fraudulently securing said tax title as aforesaid, were known to plaintiffs, or any of them, until after the death of said Delos Curtis; that plaintiffs had always believed that he, said Delos Curtis, as life tenant under the deed from said Lavina C. Curtis, paid the taxes on the premises; that the plaintiffs, and each and all of them, never had any knowledge or notice whatever that the said taxes were not paid. 7. That said Carrie M. Bush is now in possession of the premises; and that the said Carrie M. Bush, with her said brother, William H. Root, are the sole heirs at law of the said Loretta D. Curtis. 8. Plaintiffs allege that they are the owners of the said premises, and that the defendants claim an interest therein adverse to the plaintiffs, by and through the said tax-sale and tax-deed, but that the said claim of the defendants is inferior and subordinate to the rights of the plaintiffs as shown herein. That plaintiffs have tendered and offered to pay the said William H. Root the said sum of $12.21, with interest from the date of the tax-sale to the time of said tender and offer, and now and herewith tender and offer to pay said sum to the said William H. Root, with interest from the date of said tax-sale. Wherefore, plaintiffs pray that the said tax proceedings, the said life lease from said Loretta D. Curtis to said Delos Curtis and said Carrie M. Bush, and said conveyance to said William H. Root, be set aside and held for naught, and that the defendants be required to release all their pretended interests in the said premises, that plaintiffs be adjudged the owners thereof, and that defendants deliver the possession thereof to the plaintiffs, and for such other and further relief as the court may deem just. [Verification.] § 400. ANSWERS. FORM No. 952-Denial of fraud. [Title of court and cause.] H. E. Andrews, Attorney for plaintiffs. The defendant answers to the plaintiff's complaint [or petition], and denies: That he obtained the said deed [or other instrument] from the plaintiff by fraud or misrepresentation. [Deny the particular allegations.] FORM No. 953-Defense that the writing declared upon in the complaint departed from the oral agreement in substantial and material respects, and was entered into through the false and fraudulent representations of the plaintiff's agent.Action to recover for goods sold and delivered. (In Providence Jewelry Co. v. Crowe, 108 Minn. 84; 121 N. W. 415.) [Title of court and cause.] [After formal introductory part, denials of the averments of the complaint inconsistent with this defense, and after stating the terms of the oral agreement:] That on the said 20th day of March, 1907, and immediately after said oral contract and agreement was entered into by and between the plaintiff, through its agent, and the defendant, the plaintiff, by its agent, voluntarily assumed to reduce the said oral contract to writing; that plaintiff, through its said agent, with intent to cheat and defraud defendant, and for the purpose of inducing defendant to sign said written instrument, pretended to reduce said oral contract to writing; that defendant, relying upon the honesty and integrity of said agent, and believing that said agent had reduced the said oral contract to writing in the exact terms of said oral agreement, and not otherwise, was induced to sign the same; that the said agent, for the purpose of cheating and defrauding this defendant, made the aforesaid writing, which is a different contract and agreement from the one orally made by the plaintiff, through its said agent, and defendant, and which said written instrument does not contain any of the terms and conditions of said oral agreement; that, depending upon the false and fraudulent statements of the said agent then and there made, defendant did not read the said written instrument so reduced to writing, and, believing and relying upon said written instrument containing the provisions and agreements of the oral contract aforesaid, and not otherwise, defendant signed the same without any consideration, and without any knowledge on his part of the contents or the purport thereof; that under the belief on the part of the defendant that the said instrument so signed was the said oral contract herein before mentioned, which belief was induced by said false and fraudulent representations of the plaintiff, through its agent, the defendant has never consented to enter into the contract or agreement set forth in said complaint. [Concluding part.] § 401. ORDER AND DECREE. FORM No. 954-Order to show cause and preliminary injunction.-Action to rescind contract for fraud. (In Shopbell v. Boyd, 9 Cal. App. 136; 98 Pac. 69.) [Title of court and cause.] The plaintiff in the above-entitled cause having commenced an action in the superior court of the county of Los Angeles, state of California, against the above-named defendants, and having applied for an order of this court against defendants, requiring them to refrain from certain acts in said complaint and more particularly hereinafter mentioned; now, on reading the said complaint in said action, duly verified by the oath of the plaintiff, and it satisfactorily appearing to me that this is a proper case for an injunction and that sufficient grounds exist therefor: It is hereby ordered, that you, Mattie H. Boyd and J. Newton Bunch, defendants in said action, appear on Friday, the 23d day of February, 1906, at the hour of ten o'clock A. M. of said day, in department 3 of the superior court of the county of Los Angeles, state of California, at the courthouse in said county, and then and there show cause, if any you have, why an injunction should not be issued restraining you from disposing of, directly or indirectly, or transferring by deed or otherwise, that certain real property situate in the city of Chicago, county of Cook, state of Illinois, and described in the complaint herein, during the pendency of this action. And the plaintiff herein, having given an undertaking approved and as required by me in the sum of $500, you and each of you are strictly commanded to refrain from disposing of or encumbering, directly or indirectly, by deed or otherwise, the property hereinbefore referred to, until the further order of this court. Dated this 9th day of February, 1906. D. K. Trask, Judge. |