Thorpe v. Packard , 73 N.H. 235 ( 1905 )

The consideration the plaintiff received for his farm was the Peterson note. He gave Packard his farm and $3,000 for that note. Since the note has not been paid and is in his possession, he is in a position to return the consideration he received for his farm, if equity requires that he should do so. It is unnecessary, both in this state and in Massachusetts, for the injured party to offer to return the consideration he has received before filing a bill to rescind a conveyance which was procured by fraud. That is, the making of an offer of restitution is not a condition precedent to the right to maintain such an action in either state, although such an offer is necessary in Massachusetts in order to maintain a possessory action to recover property obtained by fraud. Neither is it necessary to make such an offer in the bill itself, for the court has power to impose the conditions upon which it will give relief. Thomas v. Beals, 154 Mass. 51, 54. The court has power to compel "the plaintiff to do what he equitably ought to do." Wheeler v. Stock Exchange, 72 N.H. 315, 321. If such an order has not been made, the court can make it at this time. Mead v. Welch, 67 N.H. 341.

Exception overruled.

All concurred.