Keller

Is the plaintiff entitled to a decree setting aside the agreement for the sale of the rancho “Tobango Malibu” made with defendant Carrie S. Lewis?

The complaint alleges failure to perform on the part of defendants and that they have abandoned the agreement. The answer admits the failure and contains no offer to perform, but alleges that the agreement is void, because defendant Carrie S. Lewis was induced to enter into by reason of false and fraudulent representations of plaintiff. The district court found no fraud, and we think the finding is sustained by the evidence.

The doctrine of courts of equity with respect to setting aside deeds, securities and agreements is referable to the jurisdiction they exercise in favor of a party, quia timet. When, therefore, the illegality of an instrument appears on the face of it, a court of equity will not interfere to direct it to be delivered up or canceled; in such case there can be no danger that lapse of time will deprive a party applying for its cancellation of his full means of defense.

It has been said where the instrument sought to be set aside is a deed purporting to convey the legal title, it will be canceled, as a cloud on the…