delivered the opinion of the Court: .
This action was commenced in replevin in the Superior Court, by John W. Doane, against Henry B. Lockwood, and Orrin L. Mann, and was to recover a certain quantity of tea of the value of $2000. Afterwards, by leave of court, the pleadings were so amended as to make John H. Adams and Henry J. Sawdy co-plaintiffs with the original plaintiff. Defendant Mann was the sheriff of Cook county, and was the defendant in whose hands or possession the goods were found by the officers serving the writ of replevin. The declaration is in the usual form, and charges defendants with the wrongful taking and detention of the goods, and to which defendant Lockwood pleaded non cepit, non detinet, and property in himself, and his co-defendant, Mann, pleaded non cepit, non detinet, and also a plea of justification that he took the property replevied as the property of his co-defendant, Lockwood, by virtue of an execution issued on a judgment against him and in favor of Carter, Hawley & Macy, and which had been delivered to him as sheriff of Cook county, and that the goods were, in fact, the property of the defendant in the execution. Issues were joined on the pleas of non cepit and non detinet, and replications to the pleas of property in Lockwood were filed, upon which issues were formed. After plaintiffs had introduced their evidence and rested the case, the court, on motion of defendants, instructed the jury to find the issues for defendant, which they did. Plaintiffs then entered a motion for a new trial, which the court overruled, and entered a judgment on the verdict. That judgment was affirmed in the Appellate Court for the First District, and plaintiffs bring the ease to this court on their further appeal.
Instructing the jury to find the issues for defendant, is, in effect, the same thing as sustaining a demurrer to the *495evidence. In either case the court holds, that, admitting all the evidence tends to prove, it is not sufficient in law to sustain the action. It will therefore he necessary, in order to pass on the correctness of the ruling of the court, to ascertain what facts the evidence tends to establish. It is seen there is evidence to the effect plaintiffs were induced, by fraudulent representations made to them by defendant Lockwood as to his financial ability, to sell the goods replevined to him, on four months’ credit, for which plaintiffs took Lockwood’s promissory note. It seems the goods were delivered to Lockwood immediately after the sale to him, and shortly thereafter sheriff Mann levied upon them by virtue of the execution in his hands, as the property of Lockwood, and thereupon plaintiffs replevied the same. As there is evidence tending to show the goods were obtained from plaintiff by fraud on the part of Lockwood, that fact will be regarded as sufficiently proved. That being so, the plaintiffs had the clear right to rescind the contract of sale so soon as they discovered the fraud practiced upon them, and could reclaim the goods from any one not an innocent purchaser for value. That, plaintiffs undertook to do by commencing their suit in replevin to recover the possession of the goods. The fact the goods were obtained from the plaintiff by fraudulent representations made by Lockwood, does not appear to have been controverted at the trial. Indeed, the motion made by defendants to have the court instruct the jury to find the issues for defendant, was based on other grounds: First, because the rescission of a sale must be before suit brought; second, without a demand this suit can not be maintained, no matter what the other facts are; and third, that a rescission must be in toto, and can not be as to a part. It was for these reasons the court was asked to charge the jury as it did.
The making of a motion for the reasons stated, as was done, is an admission, by necessary implication, the fraud of Lockwood was such that plaintiffs had the right to rescind *496the contract of sale, and hence the taking by Lockwood would be regarded in law as a tortious taking without the consent of plaintiffs. Conceding, then, as must be done, the making of the sale to Lockwood was procured by fraud, was it indispensable, before plaintiffs could replevy the goods, there should be a formal rescinding of the contract of sale, by returning to or offering to surrender to him the notes taken for the goods ? That is one of the principal questions made on this record. Undoubtedly, the law is, where a party has received any valuable consideration upon the sale of property, he can not rescind the contract for fraud without first returning to or offering to return to the purchaser the consideration received, whatever it may be. The title of the fraudulent purchaser is subject to be divested, at the election of the seller, within any reasonable time after the' fraud is discovered. "When a sale is thus rescinded for fraud, it is as though no sale of the property had been made, and in that event the original taking will be regarded as a tortious taking without the consent of the vendor, and the title at once becomes reinvested in him, as though it had never been divested. Until the contract is rescinded, it is obvious both the title and the right of possession remain in the fraudulent purchaser. This precise question arose in Moriarty v. Stofferan, 89 Ill. 52S, and it was there held that in case of fraud on the part of the vendee of chattels, where nothing but the promissory note of the vendee and another was received, the vendor, to rescind the sale, must return the note, and- this • must be done before replevin brought, otherwise the action was premature. The same doctrine was declared in Buchenau v. Horney, 12 Ill. 336, and in Smith v. Doty, 24 id. 163. The case of Ryan v. Brant, 42 Ill. 78, was not an action of replevin, and is not, for that reason, inconsistent with Moriarty v. Stofferan, supra. That was an action of trespass, and the offer to surrender the notes received, to defendant, at the trial, on receiving a verdict, was held sufficient in law to *497place the vendee in statu quo, and therefore authorize plaintiff to recover his damages. There is no pretence plaintiffs in this case offered to surrender the notes taken for the goods, before this suit was commenced, and it follows that as the contract of .sale had, not been rescinded, .both the title and the right of possession were in defendant Lockwood, and according to the doctrine of the cases cited, plaintiffs could not sustain their action.
But after this action had been commenced, and before the cause came to trial, plaintiffs did offer to surrender to Lockwood his notes, and in that way did rescind the contract of sale on account of the fraud practiced upon them by Lockwood, and thereafter the right of immediate possession was in them. This raises the question whether the court ought to have ordered a return of the property, as it did, to the sheriff, from whose custody it had been taken. It is thought there is error in the record in this respect. Section 22, chapter 119, of the Revised Statutes of 1874, provides: “If the plaintiff in the action of replevin fails to prosecute his suit with effect, or suffers a non-suit or discontinuance, or if the right of property is adjudged against him, judgment shall be given for a return of the property, and damages for the use thereof from the time it was taken until a return thereof shall be made, unless the plaintiff shall, in the meantime, have become entitled to the possession of the property, when judgment may be given against him for costs and such damages as defendant shall have sustained. ” The facts of this case bring it precisely within the provisions of this statute. Since this action was commenced, plaintiffs, by rescinding the contract of sale, as they had a lawful right to do, “have become entitled to the possession of the property” in controversy, and it was error in the court to order a return of the property to the sheriff. After the contract had been rescinded, neither Lockwood nor the sheriff had any right to the property, as against plaintiffs. The law will not require the doing of a *498useless thing. Should the property be returned to the sheriff, now that plaintiffs have the right to possession, they could immediately reclaim it, or perhaps they would be liable to no more than nominal damages for a non-compliance with the order of the court to return the property. The utmost the court could do, under this statute, on the facts as they appear in the record, would have been to render a judgment against plaintiffs for costs, and such damages, if any, as defendants may have sustained.
On account of the errors indicated, the judgment of the Appellate Court will be reversed, and the cause remanded to the Superior Court, with directions to enter the proper judgment. ■
Till Judgment reversed.