
    Jones v. Booth.
    1. A party will not he deprived of his appeal to the district court by a refusal of the court of common pleas to fix the amount of the undertaking therefor. Hubble v. Renick, 1 Ohio St. 171, followed.
    2. The court of common pleas having erroneously held that a case was not one for appeal to the district court, and refused to fix the amount of the undertaking for such appeal, fixed the amount of an undertaking for a second trial, at the request of the party who had demanded the appeal, which undertaking was given, and on the second trial judgment was rendered against the party who had taken such second trial. Held, that the right of appeal was waived, and that the judgment rendered on such second trial was not invalid for want of jurisdiction of the subject matter or parties.
    3. A contract under seal for the purchase of real estate, where possession has not been delivered, may be rescinded by verbal agreement; but if the rescission is obtained by the fraudulent representation of the purchaser no effect will be given to it; and it will make no difference that such fraudulent representation was a verbal proposition to purchase lands not enforceable under the statute of frauds.
    Error to the District Court of Guernsey county.
    On April 18, 1872, James L. Jones, by written contract, signed and sealed by the parties, sold to James Booth, and; agreed to convey to him, September 1, 1872, a tract of land in; Guernsey county, on payment of $6,000, $3,000 being payable.' June 1, 1872, and the balance September 1, 1872. Booth, paid in April and June, $300, and on August 20, 1872, $700, making $1,000 of the specified sum, but refused to pay the-balance, and Jones brought suit in the court of common, pleas of Guernsey county, setting forth these facts, asking for specific performance, and bringing into court a deed from, him to» Booth for the premises. Booth answered, that after payment of sums, amounting to $300, it was, on August 20, 1872, agreed between the parties that Booth should pay to-Jones the further sum of $700, in consideration of which the* contract of sale should be delivered up and canceled; that said sum of $700 was then paid, in addition to said sum of $300, making; $1,000 j and that the instrument evidencingthesalewas.then.de.*livered up and canceled. To this answer there was a reply, in which it was alleged that the rescission was obtained by fraud, the facts showing the fraud being set forth in the reply.
    At the January term, 1874, the cause was tried, and judgment was rendered in favor of Jones for $5,000. Booth gave notice of appeal to the district court, but the court being of opinion that the case was one for second trial, under the statute, and not for appeal, refused to fix the amount of the undertaking for appeal; and thereupon Booth, having excepted to the order fixing the amount of such undertaking, demanded such second trial; and the court having fixed the amount of an undertaking for the second trial, Booth filed such undertaking.' Subsequently the following amended reply was filed :
    “ The release and agreement in relation thereto, mentioned in said defense, is void and of no effect, for the reason that it was'procured by the fraud of the defendant, in this, that the said defendant employed one John Walters, agreeing to pay him therefor the sum of $500, to go to plaintiff and represent to him that the said Walters was engaged in the purchase of iron ore lands, and would like to purchase the land plaintiff had previously sold to defendant, and would do so if plaintiff would secure the rescission of his contract of sale to defendant of said land, and pay him therefor the sum of $8,000 as soon after such rescission could be effected as he could make his arrangements to do so, which the said John Walters did, as he was directed and instructed by defendant; that the plaintiff was ignorant of the- conspiracy and collusion which was then being employed to deceive and mislead him, and relied on the statements and representations made to him by said Walters, believing them to be true, though, as a matter of fact, they were false, and were intended by said defendant and said Walters to deceive plaintiff and induce him to rescind said contract, which he would not have done had he not been thus ■deceived and misled by said false and fraudulent representa-1 tions and promises of the said Walters, made at the instance of said defendant, and pursuant to a secret agreement and understanding between them; that' the defendant, pursuant to said fraudulent understanding between him and said Walters, subsequently called upon plaintiff and proposed to rescind the said contract of sale mentioned in plaintiff’s petition and in said defense, to which plaintiff agreed, relying on the representation and promises of the said Walters, the substance of which is herein and before stated, and not knowing that said representations were false or fraudulent, or that there was any understanding or agreement between said Walters and defendant to deceive and mislead plaintiff; that the said Walters did not comply with his said promises and agreements, nor was it ever intended by him or defendant that he should do so, they having been made for the sole purpose of deceiving and defrauding plaintiff ; and that the said rescission of said contract of sale of said land to said defendant was procured by the aforesaid fraudulent and false representations made to plaintiff by said Walters, in accordance with a previous understanding between him and defendant, entered into by them for the purpose of defrauding this plaintiff, through and by means of which fraudulent and false representations, promises and concealments, of the said defendant, the said plaintiff was induced to agree thereto, which he would not otherwise have done, and from which consent thus given plaintiff is wholly discharged, as much as if said agreement to rescind had never been made or entered into.”
    A demurrer to this amended reply was overruled, and on a trial in February, 1875, the issues were found in favor of Jones, and judgment was rendered in his favor for $5,000 and interest and costs; and it was ordered that the deed be delivered to Booth. The record does not contain any part of the evidence.
    On April 17, 1875, Booth filed a petition in error in the district court, in which he asked for a reversal of the judgment on the grounds:
    1. That the cause was one for appeal and not for second trial, and hence the cpurt erred in refusing to fix the amount of the undertaking for appeal, and the proceedings on the second trial were void for want of jurisdiction.
    
      2. The court erred in overruling the demurrer to the amended reply.
    The district court reversed the judgment, and this petition in error is filed by Jones to obtain a reversal of the judgment of the district court and an affirmance of the judgment of the court of common pleas.
    
      Taylor da Anderson, F. Wood and John Ferguson, for plaintiff in error.
    
      White d Campbell and F. W. Matthews, for defendant in error.
   Okey, C. J.

The action was in equity, the parties were not entitled to a jury, and hence the case was a proper one for appeal to the district court. Act of 1858, 2 S. & C. 1155, 1157, §. 5. But Booth was not deprived of an appeal by the order of. the court' refusing to fix the amount of an undertaking therefor. Notwithstanding such refusal, he might have prosecuted his appeal. Hubble v. Renick, 1 Ohio St. 171. The order of the court finding that the cause was one for a second trial under that act, and fixing the amount of an undertaking for such second trial, was erroneous; but the second trial was allowed at the request of Booth, and by availing himself of it he effectually waived the error. As said in Bank v. Slemmons, 34 Ohio St. 142, 151, “the plaintiff is estopped to deny that the second trial was taken in pursuance of the statute then in force on the subject.” And see Collins v. Davis, 33 Ohio St. 567; Andrews v. Youngstown, 35 Ohio St. 218. The authorities relied on to show that where there is want of jurisdiction as to the subject matter or parties the judgment is void (Gilliland v. Sellers, 2 Ohio St. 223; Buell v. Long, 18 Ohio St. 533, and for other cases, see 25 Ohio St. 273), have no application to the judgment rendered on that second trial.

The other question is as to the sufficiency of the amended reply. The action, as already stated, was in equity to enforce the written agreement. The answer did not present the case of a mere verbal agreement to rescind by one placed in actual possession, as in Kelley v. Stanbery, 13 Ohio, 408, nor the case of an attempted rescission by the destruction of deeds, as in Dukes v. Spangler, Jeffers v. Philo, 35 Ohio St. 119, 173; but it presented the case of a verbal rescission and the cancellation of a written agreement to purchase lands, where possession had not been delivered, but the purchaser had paid $1,000 to obtain such rescission and cancellation. On the facts alleged in the petition and answer, it is clear specific performance of the agreement set forth in the petition should be denied on the ground of such rescission. Gorman v. Salisbury, 1 Vern. 240; Pryce v. Dyer, 17 Ves. 356; Robinson v. Page, 3 Russ. 114; Stevens v. Cooper, 1 Johns. Ch. 425, 430; Buel v. Miller, 4 N. H. 196; Phelps v. Seely, 22 Grat. 573; Bowman v. Cunningham, 78 Ill. 48; Auer v. Penn, 92 Pa. St. 444.

But the amended reply shows that the alleged rescission was obtained by the fraudulent representations of Booth, acting by his fraudulent instrument, Walters, and the question is, what effect that should have on such agreement to rescind. Dung v. Parker, 52 N. Y. 494, is cited among other cases of a similar character, and relied on by counsel- for Booth, as showing that the proposition of Walters, stated in the amended reply, was within the statute of frauds, and hence the false representations afford no ground for avoiding the rescission. Aside from the fact that the decision has been explained and materially qualified in the same court (Rice v. Manley, 66 N. Y. 82), we are satisfied it has no application here, and that the court of common pleas properly held the chancellor should give no effect to a rescission obtained in the manner stated in the amended reply. That reply is far from being a model of concise pleading, but it is sufficient in substance, and hence the demurrer to it was properly overruled. Watson v. Erb, 33 Ohio St. 35. We have not the evidence before us, and hence are bound to presume that the allegations in the petition and reply were fully proved. And as, in the rendition of the judgment, Booth obtained credit for the sum of $1,000 which he paid, he is, of course, not entitled to have that sum returned to him. Allerton v. Allerton, 50 N. Y. 670. And see Byers v. Chapin, 28 Ohio St. 300.

Binding no error in the court of common pleas which has not been waived, we hold that the judgment of that court was right, and that the district court erred in reversing it.

Judgment reversed.  