Hawkins v. Coleman

1 Miss. Dec. 478

• Court: Mississippi Supreme Court
• Decided: May 10, 1886
• Status: Published

Opinion

Opinion

Campbell, J.,

delivered the opinion of the court:

The gravamen of the bill is the charge that the deed made on the 12th September, 18Y5, was executed under such circumstances as entitled the complaint to have it vacated. It is the lien in her way, and until destroyed effectually stops her progress. Hence the assault upon the deed, which is alleged to have been obtained by fraudulent devices and assurances' on the part, of Hawkins, who thereby obtained an unfair advantage of the complainant, which he has used unconscionally to her detriment. The truth of this averment is the gist of the controversy. We have fully considered the pleadings and the evidence, and reached the conclusion that the bill is not maintained. The testimony of the complainant and her daughter is not in harmony with the theory of the bill, which on its face appears to' be- improbable. The testimony of both these persons as to the conversation between complainant and Hawkins about the state of indebtedness between them when the deed was about to be made negatives the theory of the bill. It seems strongly probable that the deed was voluntarily made to vest title in the grantee, in execution of the wish of Mr. Coleman in lifetime, concurred in by the complainant at the time of making the conveyance', but which she desired to recede from at a subsequent date, because of matters arising ex post facto. It is doubtless true that Hawkins, had not paid for the land, and it is unwise in the complainant to convey it to his wife, and thus put it out of her power to coerce payment by controlling the title, but nothing is shown to justify a decree annulling what she did, of her own free will, and without being inveigled by any one, as far as we can discover.

It may be morally just for Hawkins to pay $826, as found by McKinney to be due, but as the notes given for Hie land are barred by limitation, and have never been legally revived, and the charge of fraud made, as to tbe giving of the deed is not supported, the complainant has not shown any right which a court can enforce.

The fact that Mrs. Ooleman under some circumstances could not prejudice the estate makes no difference in this case.

Decree reversed and bill dismissed at the costs of the complainant in both courts.

1 A conveyance cannot be vacated at the instance of the grantor upon the mere ground that it was made without consideration. Though voluntary it is binding upon him. Day v. Davis, 64 Miss. 253, 8 So. 203.

It is not enough in a bill to charge fraud generally; the specific acts must be pointed out. Allegations, if the facts be in the knowledge of the pleader, must be made positively, oi', if made upon information and belief, must be charged as true. The averments must be so specific that if taken for confessed a decree might be rendered granting relief. Railroad Go. v. Neighbors, 51 Miss. 412.

Where an action is brought to set aside a fraudulent conveyance the facts constituting the fraud should be positively alleged in the bill, if known to complainant, otherwise they should be alleged on information and belief; and hence a petition alleging fraud in general terms only is insufficient. MeTnnis v. Wiscasset Mills, 78 Miss. 52, 28 So. 725.

A bill in equity, to set aside a sale under a deed of trust on the ground of fraud, is demurrable, if it fail to state the facts upon which the charge of fraud is predicated. Weir v. Jones, 84 Miss. 602, 37 So. 128.