I dissent from some of the conclusions of the court in this case, and therefore, from the order denying a rehearing before the court in Bank.
It will be observed that the decision does not go upon the ground that the plaintiff was not in fact defrauded. On the contrary, it assumes that he was defrauded, but holds that he could not rescind by his own act without tendering a release by his wife of her interest in the policy. I think this is probably a sound construction of the statute. (Civ. Code, sec. 1689.) But if plaintiff could not effect a rescission by his own act without putting the defendant in statu quo, it does not follow that he could not compel a rescission by an action instituted for that purpose. The present action, it is true, is not in form an action „to rescind, and that is not the relief prayed. The complaint proceeds upon the theory that a rescission was effected by the act of the plaintiff, and merely prays judgment for the amount of premium paid. But, assuming, as the opinion does, that the plaintiff was really defrauded, his complaint states facts sufficient to warrant' a judgment of rescission—facts, in other words, sufficient to constitute a cause of action— though not sufficient to warrant the specific relief sought by the prayer. In this respect, however, the complaint was amendable, and the omission to make Mrs. Jurgens a party was waived by the failure to demur.
As to the rights of Mrs. Jurgens, it made no difference whether she could or could not be compelled to release her interest in the policy. If she could be compelled in an action to rescind to release her interest, she was a necessary party to such action only for the protection of the defendant, and the defendant could, by failing to demur to the complaint for nonjoinder, waive the advantage of a decree binding upon her. If *168she could not he compelled to release her interest, that would not have been a reason for denying a rescission. It is only in cases of mere mistake that rescission cannot be adjudged without putting the party against whom it is adjudged in statu quo. (Civ. Code, sec. 3407.) A party who has secured an advantage over another by fraud cannot avoid rescission upon the ground that he has involved himself in obligations to third parties. (Masson v. Bovet, 1 Denio, 69; 43 Am. Dec. 651; Hammond v. Pennock, 61 N. Y. 145.)