Page:Federal Reporter, 1st Series, Volume 2.djvu/669

 662 FEDEEAL EEPOBTER. �MoCeary, C. J., (orally.) This ia a bill in equity filed by complainant, as assignee of the firm of Thornburg & Van Leuven, bankrupts, to set aside the conveyance of a certain tract of land, and cancel a contract, on the ground of fraud. The parties who are represented by the plaintiff, as assignee, bought from the respondents an 80-acre tract of land with- out seeing it, and upon the faith of certain representations made by respondents. It is alleged that these representa- tions were false and fraudaient, and the prayer is for a decree to set aside the contract and restore the parties to their orig- inal rights. �Upon the question of fact involved in the case, as to whether the representations made by respondents concerning thi qual- ity and character of the land were intentionally lalse and fraudaient, there is a serious conflict in the testimony, and upon some of the most material points it would seem to be almost evenly balanced. �It is, however, in my judgment, not necessary to decide that question, since the case may weU be disposed of upon a question of law 'which arises upon the record. The claim of the plaintiff here is that the contract should be rescinded, and set aside, on account of fraud. By the terms of the con- tract the said bankrupts were to transfer to respondents a certain stock of hardware, and respondents were to convey to the bankrupts an 80-aere tract of land in Tama county, lowa. The contract was executed. The transfer of the stock of hardware was made. A deed to the real estate was exe- cuted, acknowledged and delivered. �It is a well-settled rule of law that where the right to rescind a contract springs from diseovered fraud, the party defrauded must rescind as soon as circumstances permit ; or, in other words, at once, on discovery of the fraud. He is not bound to rescind, and any delay, especially if it be injuri- ous to the other party, amounts to a waiver of his right. "The mere lapse of time," says Mr. Parsons, "if it be con- siderable, goes far to establish a waiver of this right, and if it be connected with an obvious ability on the part of the defrauded person to discover tho fraud at a much earlier ����