Sec. 470. Form where sheriff executes deed. KNOW ALL MEN BY THESE PRESENTS, that, whereas, on the —, 19—, plaintiff, against day of filed his petition in the district court of County, State of Oklahoma in case number praying, among other things, for the specific performance of a certain contract for the conveyance of the real estate hereinafter set forth; and, WHEREAS, Such proceedings were had in said cause, on the day of sheriff of as 19, that said court ordered County, Oklahoma, to execute, acknowledge and deliver to the defendant a deed, according to the statute in such cases made and provided, conveying the fee simple title to the real estate hereinafter described. Now, KNOW YE, that I, the said of sheriff of said county by virtue of said judgment, and of the statute for such cases made and provided, and for and in consideration of and of the premises herein, do hereby grant, the sum of $ sell and convey unto said the following described real estate, to-wit: (IIere specifically describe same), together with the privileges and appurtenances thereunto belonging. his sheriff TO HAVE AND TO HOLD said real estate unto said heirs and assigns, as fully and completely as said of said county of -, by virtue of said judgment, decree and the statute made and provided for such case, might or should sell and convey the same. IN WITNESS WHEREOF, I have hereunto set my hand this the day of 19-. Sheriff of County, State of Oklahoma. to me known to be the identical person who executed the within and foregoing instrument, and acknowledged to me that he executed the same in his capacity therein stated, and as his free and voluntary act and deed, for the uses and purposes therein set forth. My commission expires Notary Public. 3. CONVEYANCES THE LAW AND PROCEDURE BY WHICH INSTRUMENTS OF CONVEYANCE ARE CANCELED. SECTION 471. Procedure General statement. 472. Specific acts of fraud should be alleged and proved. 473. The jury in the action to can cel instruments of conveyance. 474. The petition need not allege inadequacy of legal remedy. 475. The statutory regulations as to when party may rescind a 476. Rescission and cancellation al- 477a. Mental incapacity to execute deed. SECTION 478. The rule as to notice. 478b. Federal court has power to 479. Form for petition for cancellation of deed. 480. Another form for cancellation of deed, mortgage and lease. 481. Decree of court canceling instruments set forth in the petition. 482. Another form for decree for cancellation of deeds. Sec. 471. Procedure-General statement. The rules applicable to the procedure for the reformation of instruments of conveyance, apply to the action to cancel the same. In actions to reform instruments, the mistake must be mutual, but in an action to cancel such instruments, the mistake of one party will permit its cancellation.1 Sec. 472. Specific acts of fraud should be alleged and proved. In an action to cancel an instrument conveying real estate, the same rules apply as are used in other actions, and conclusions of law, or facts, should not be alleged. When fraud is the basis for the action to cancel such instrument, it is insufficient to make a mere allegation that the instrument sought to be canceled was procured by fraud. The 12 Kinkead's Code Pleading, Sec. 1,100; Benson v. Marhoe, 37 Minn. 30, 5 Am. St. Rep. 816. specific acts relied on as constituting the fraud should be alleged with particularity.2 In an action to cancel a deed alleged to have been procured by false and fraudulent promises, a specific averment that the grantee did not intend, at the time he made said promise, or contract, to carry out the same is not necessary, if from the facts alleged the existence of his fraudulent intent not to carry out his contract can be clearly inferred." Sec. 473. The jury in the action to cancel instruments of conveyance. A jury, if used at all in an action to cancel an instrument of conveyance, sits only in an advisory capacity, and as such its verdict and findings must be treated.* Sec. 474. The petition need not allege inadequacy of legal remedy. The right to relief does not depend upon the adequacy or inadequacy of the plaintiff's legal remedies, but upon the sound discretion of a court of equity, to be admitted or refused according to its own idea of what is reasonable and right." 2 State v. Williams, 39 Kan. 577, 18 Pac. 727; Railroad v. Commissioners, 18 Kan. 169; Clark v. Dayton, 6 Neb. 192; Pelton v. Bemis, 44 O. S. 51, 4 N. E. 714; Ockendon v. Barnes, 43 Ia. 615; Railroad v. Neighbors, 51 Miss. 412; Smith v. Lockwood, 13 Barb. 209; 2 Kinkead's Code Pleading, Sec. 1,100. The pleader did not undertake, however, to state, and we are unable to learn from the petition, wherein the advertising, offering for sale, or sale of the lands were defective or fraudulent. There are other charges of illegality in the petition, but there are no accompanying facts to inform the court in what the illegality consists. Allegations of fraud or illegality, without a statement of the facts constituting the same are mere legal conclusions and of no force in a pleading. No issue is presented by such averments and no proof is admissible thereunder. State v. Williams, 39 Kan. 579, 18 Pac. 727. 3 Blackburn v. Munson, 29 Okla. 510, 118 Pac. 402; see, also, Skimes, et al., v. Scott, et al., 29 Okla. 364, 118 Pac. 394, where plaintiff guilty of laches. 4 Mosier v. Walter, 17 Okla. 305, 87 Pac. 877. 5 Mosier v. Walter, 17 Okla. 305, 87 Pac. 877; 1 Story's Eq. Jur., The Supreme Court of our State, in a well considered case, has, upon this subject, well said: "And while it is the general rule that a contract or conveyance, which is improvident or based upon an inadequate consideration, will not be set aside for these reasons alone, yet, certainly, where, as in the case at bar, there is not only nonperformance and clouding of title, but entire want of consideration, and proof of such facts, as furnishing in itself, convincing evidence of fraud, this court will not hesitate to deem such a condition a sufficient occasion for invoking the equitable remedy of cancellation. In such a case, the exercise of equitable jurisdiction is not dependent upon the inadequacy of the legal remedy, but rescission and cancellation may be sought irrespective of any question of a remedy at law." Sec. 475. The statutory regulations as to when party may rescind a contract. A party to a contract may rescind the same in the following cases only: 1. If the consent of the party rescinding, or of any party jointly contracting with him, was given by mistake, or obtained through duress, menace, fraud or undue influence, exercised by or with the connivance of the party as to whom he rescinds, or of any other party to the contract jointly interested with such party. 2. If through the fault of the party as to whom he rescinds, the consideration for his obligation fails in whole or in part. 3. If such consideration becomes entirely void from any cause. 206, 692; Jones v. Poles, 9 Wall. 364; Pom., Eq. Jur., Sec. 221, 911, 914, 1,377; Gefken v. Graef, 77 Ga. 340; Shaeffer v. Sleade, 7 Blackf. (Ind.) 178. 6 Garretson v. Witherspoon, 15 Okla. 473, 83 Pac. 415; 6 Cyc. 291; John Hancock, etc.. v. Dick, 114 Mich. 337, 72 N. W. 179, 43 L. R. A. 566; Ranney v. Warren, 13 Hun (N. Y.), 11; Holden v. Hoyt, 134 Mass. 181. |