Page:Federal Reporter, 1st Series, Volume 7.djvu/428

 el6 FEDBBAIi BKPOBTBB. �be held, therefore, that the court had jurisdiction of the per- Bon of the defendant, and the judgment, though by default, for want of answer or appearance on the day of trial, is bind- ing on the complainant. The plea, however, further alleges that the judgment has been satisfied by the sale on execution issued under said judgment of the property of the complain- ant, being the same property -which is sought to be recovered by the decree of rescission. The bill avers, in reference to this sale on execution, that the property was bid in by one Lincoln, as the agent, and for account of the defendant Park. It is suggested on behalf of the defendants that the fact of the sale on execution of the subject-matter of the contract sought to be rescinded, which fact must be held to be admitted by setting down this plea for argument, puts an end to complain- ant's right to rescind, because it makes it impossible for com- plainant to restore the property to defendants upon a rescis- sion. This point, however, is immaterial, so far as this plea is ooncerned, for this is not a plea to the bill as a bill for rescis- sion, and therefore the question cannot be raised on this plea whether the complainant is entitled to rescind. It must be assumed for the purpose of this plea that there may be a decree of rescission. �Aside from this consideration, I see no reason why, if the defendant Park took the property imder the sale in execution, as is in effect alleged in the bill, with full knowledge of the equitable rights of complainant to have the original sale rescinded, the defendant Park may not be treated in equity as having bought the property subject to those equitable rights. By suffering judgment to be taken against it in that action the complainant cannot be deemed to have consented to or joined in the transfer of the property under the sale on execution, nor to have waived or forfeited its equities against one having full notice of them. It is enough, however, to say that the question, though disoussed by counsel, does not fairly arise on this plea. The record must be held to estop the complainant from availing itself against the defendant Park of the facts averred in the bill which would have constituted a valid defence at law to a suit for the recovery of these ��� �