(after stating the facts). When the trial was entered upon, the defendants moved for judgment rescinding the contract of sale, for that their answer demanding this was a counter-claim, the facts alleged in which not being controverted, were to be taken as true. The Court, not acceding to this view, denied the motion, and directed the trial to proceed, with the result shown in the verdict, the jury finding the false and fraudulent representations set out in the answer to have been made, and that by reason thereof the defendants were induced to make the purchase, but that no damages had accrued thereby to them. The answer, it will be observed, while averring the facts upon which their defence rests, commingles such as go in avoidance and also constitute a counter-claim. The primary and preferred relief, the annulling of the entire contract, is matter in avoidance, and is deemed to be controverted without a replication ; The Code, §268; Price v. Eccles, 73 R. C., 162; wdiile the same matter, as furnishing a cause of action for compensating damages for the fraud and deceit, which leaves the transaction to stand as a sale and transfer of the title, constitutes a counter-claim. In our opinion, the case is not one for a rescission, for the obvious reason that the parties cannot be restored to the status occupied at the making of the covenants, in consequence of dispositions since made of the property. McDowell v. Sims, Busb. Eq., 130; Pettijohn v. Williams, 2 Jones Eq., 302; and again in same volume, 356.
The right to recover remuneration in an action for deceit in the sale of land or fishing grounds, effected by fraudulent devices and representations, is settled by the case between the same parties, reported in 1 Jones, 145; and again in 2 Jones, 33.
*322The defendants, however, demanded a judgment of rescission, and in this were properly overruled. They did not ■demand an interlocutory judgment and an inquiry of damages by the jury, and hence their right to this was not passed on by the Court. The defendants certainly were not entitled to final judgment in either form. There being no error in this ruling, there could be no appeal from a judgment setting aside the verdict as having been rendered against the weight of the evidence, and especially with such repugnant findings.
The judgment must be affirmed. Let this be certified.
No error. • Affirmed.