
    No. 18120
    Harry G. Fredrickson v. Nicholas C. Nye and John Nye.
    Error to the Court of Appeals of Hancock county.
    27. ACTIONS — Action by vendor based on fraud averring title in granter, and asking, money judgment, is at law, and inconsistent with suit in equity on same fraud- Election of one remedial right bar to pursuit of another, when.
   DAY, J.

1. An action by a vendor asking for a money judgment based on fraud in the transfer of property, averring title in the vendee, is an action at law in deceit, and is inconsistent with an aciton in equity averring equitable title in the vendor and seeking to establish a constructive trust ex malifi.cio in favor of the vendor upon the same fraud as set out in the law action.

2. In order that an election of one remedial right shall be a bar to the pursuit of another, the same m.ust be inconsistent and the election made with knowledge and intention and purpose to elect. The mere bringing of a suit is not determinative of the right, but the party making the election must have received some benefit, under the same, or have caused detriment to the other party, or pursued his remedy to final judgment.

Judgment reversed.

' Marshall, C. J., Robinson and Matthias, JJ., concur. Wanamaker, J., not participating.  