Juzan v. Toulmin

9 Ala. 662

• Court: Supreme Court of Alabama
• Decided: January 15, 1846
• Status: Published

Opinion

COLLIER, C. J.

The allegation in the original bill, that the “ St. Louis” tract was conveyed by John Baptiste Laurendine, the elder, to D. Juzan and wife, to the survivor of them, and afterwards to the children of the marriage, is not supported by the proof; and it may perhaps be inferred from the frame of the amended bill, was intended to be abandoned. As a substitute however, for this ground of relief, the complainants state that the elder Laurendine and his wife, made their will, by which each bequeathed and devised to the other, one half of their respective estates, and the residue to their children ; they also alledge the death of the testator and testatrix previous to the year 1808, and the proceeding in that year, under the sanction of the then Spanish commandant at Mobile, by the executor of their 'respective wills, that an inventory, appraisement and division of the estate committed to him might be made ; further, in virtue of these proceedings, their mother became invested with a separate estate, in which D. Juzan could have no other interest than that of a tenant by the courtesy. It is thenalledged that the interest which passed by the sale to Files, in 1816, ceased with the death of the vendor, in 1825, and the land in question, vested jointly and equally in all his children, as the heirs of their mother.

The complainants admit that they made a contract by which they relinquished to the defendant their interest in the “ St. Louis” tract, influenced by the great confidence they had in him, their connection with him, their want of education, &c. Ftirther, that there is a deed bearing date in September, 1831, which indicates this relinquishment, recorded in the County Court of Mobile; but they deny that it was ever executed by them, or if it was, they were misinformed as to its contents, and not being able to read, could not inform themselves.

We will not stop to inquire whether the wife of D. Juzan in virtue of the wills of her father and mother, and the consequent proceeding became invested with an estate which descended to her heirs, in despite of any alienation by her husband. Conceding this to be so, we will consider the transaction of the complainants with the defendant upon the pretensions put forth by the bill.

It may be assumed, for it is abundantly proved, that the complainants were ignorant and uneducated, and reposed great confidence in the justice, integrity and sound judgment of the defendant. Upon this supposition, we will examine the law applicable to the grounds upon which the invalidity of the exclusive claim of the defendant is drawn in question. It is said to be equally a rule in courts of law and equity, that fraud is not to be presumed, but must be established by proof. Not however by mere circumstances of suspicion, leading to certain results, but if not by positive and express proof at least by circumstances affording strong presumptions. [1 Story’s Eq. 199, 200.]

If one persommakes a representation to another, who is going to deal in a matter of interest, upon the faith of that representation, he shall make it good, if he knew it to be false. But to induce the interference of equity in such a case, it is not enough to establish the fact of misrepresentation ; it must also be shown to have been in a matter important to the interests of the other party, and that it actually did mislead him. For if such was not the character and effect of the misrepresentation, no prejudicial consequences resulted from it.

A misrepresentation may be as well by deed or acts, as by words; by artifices to deceive as well as by positive assertions. And whether a party misrepresenting a fact knew it to be false, or made the assertion without any precise knowledge on the subject is immaterial, for the affirmation of what one does not know, or believe, to be true, is equally in morals and law, as unjustifiable as the affirmation of what is known to be positively false. So if a party innocently misrepresents a fact by mistake, it is equally conclusive ; for it operates as a surprise and imposition on the other party. But a misrepresentation in a matter of opinion and fact, equally open to the inquiries of both parties, and in regard to which neither could be presumed to trust the other, unless it be a mere contrivance of fraud, in cases of peculiar relationship or confidence; or where the other party has justly reposed upon it, and has been misled, furnishes no ground for the interference of fequity. [1 Story’s Eq. 200 to 212.]

Nearly allied to the fraud which is perpetrated by suggestio falsi, is that which is inferable from suppressio veri. To constitute the latter, there must be a suppression of facts, which one party is under a legal or equitable obligation to communicate, and in respect to which he cannot be innocently silent; because the other has a right, not merely in foroponscientice, but juris et de jure, to know. [1 Story’s Eq. 213 to 224.] Where there is a peculiar relation of a confidential and fiduciary character, as principal and agent, trustee and cestui que trust, &c., to prevent the undue advantage which the situation of one of the parties gives him over the other, the law requires the utmost degree of good faith in all transactions between them. If, in such case, there is any misrepresentation, or concealment of any material fact, or any just suspicion of artifice, or undue influence, courts of equity will interpose, and pronounce the transaction void, and as far as possible restore the parties to their original rights. [1 Story’s Eq. 224, etpost.~\

In regard to acts done and contracts made by parties affecting their rights and interests, the general theory of the law is,‘that in all such cases there must be full and free consent, in order to make it binding upon them. Hence it is said, that if consent be” obtained, by meditated imposition, circumvention, surprise, or undue influence, it is to be treated as a delusion, and not as a deliberate and free act of tñe mind. For although the law will not inquire generally into men’s acts and contracts, to determine whether they are wise and prudent, yet it will not suffer them to be entrapped by the fraudulent contrivances, or cunning, or deceitful management of those, who purposely mislead them. [1 Story’s Eq. 227.]

Mere weakness of intellect, if the party is compos mentis, does not deprive him of the capacity to contract; but imbecility of understanding constitutes a material ingredient in examining whether a bond, or other contract has been obtained by fraud, or imposition, or undue influence ; for although a contract made by a man of fair understanding, may not be set aside, merely because it was a rash, improvident, or hard bargain, yet if made with a person of imbecile mind, the inference naturally arises, that it was obtained by circumvention or undue influence. [1 Story’s Eq. 238 to 242.] In Blackford v. Christian, 1 Knapp’s Rep. 77, Lord Wynford said, a bargain into which a weak mind is drawn, under the influence of deceit and falsehood, ought not to be held valid. And a degree of weakness of intellect far below that which would justify a jury, under a commission of lunacy, in finding him incapable of controlling his person and property, coupled with other circumstances, to show that the weakness, such as it was, had been taken advantage of, will be sufficient to set aside any important deed.

Mere inadequacy of price, or other inequality in the bargain, is not, it is said, to be understood as constituting per se a ground to avoid a bargain, in equity. Courts of Equity as well as courts of law, act upon the ground, that every person, who is not, from his peculiar condition or circumstances, under disability, is entitled to dispose of his property in.such manner, and upon such terms as he chooses; and whether his bargains are wise and discreet or otherwise, profitable or unprofitable, are considerations not for courts of justice, but for the party himself to deliberate upon. Where however, the inadequacy is such as to demonstrate some gross imposition, or undue influence, or, to use an expressive phrase, shock the conscience, and amount in itself to conclusive and decisive evidence of fraud, equity ought to interfere. And gross inadequacy of price, when connected with suspicious circumstances, or peculiar relations between the parties, affords a vehement presumption of fraud. [1 Story’s Eq. 240-50; Eaton v Patterson, 1 S. & P. Rep. 9; Bozman, et al. v. Dranghan, 3 Stew. Rep. 243.]

We have thus concisely stated the law applicable to the grounds upon which the contract between the parties has been assailed in argument, and have gone quite beyond what the allegations of the bill required. It has not been thought necessary to cite the authorities upon these points in detail ; they are noticed by Mr. Justice Story, in his Commentaries upon Equity, and do not lay down the law more favorable to the complainants than the summary we have made.

There is certainly nothing in the proof found in the record, to indicate that the defendant made any misrepresentation, or suppressed any material fact, which could have influenced the complainants’ judgment in entering into the contract with him. It cannot be inferred that he had any information in respeet to the title to the land, of which they were not fully in possession. So far from profiting by his superior intelligence, and great influence over the complainants, the defendant proposed to them shortly after his purchase at the commissioners’ sale, and of Armstrong’s lease, that they should participate with him in the land, and become joint proprietors together with their brother-in-law, Mr. Gunnison, upon contributing equal shares of what he had expended in disencumbering it. The defendant did not deny their right to be paid their proportions of what was due irpon the mortgage ; this seems to have been conceded, and the cash payment s and conveyance of the twenty-five acres was intended to extinguish it. Whatever the defendant jnay have thought of his title, the mortgage being extinguished, it is not material to consider, as it is perfectly clear that he did not insist on its validity as against the complainants ; but was not only willing, but actually proposed that they should enjoy the “ St. Louis” tract upon equal terms with himself. In deciding upon this proposition, we can discover no reason for concluding that its rejection was not voluntary ; and the evidence is altogether satisfactory to show that their consent was freely given to the agreement which was entered into, to accept two hundred and fifty dollars in money, and twenty-five acres of land, including the family residence, in full satisfaction, not only of what was due upon the mortgage, but of their claim to the land. This is abundantly shown by the testimony of Mrs. Gunnison and Newbold, both of whom testify fully and directly to the point. The latter says, upon hearing of the arrangement, shortly after it was agreed upon, he advised the complainant to apply to the defendant for more land, to which they answered that they had as much land as they wanted; that they had rejected the offer of the defendant to take an equal share of the land, upon the payment of the same proportion of the purchase money, and were perfectly satisfied. In addition it may be said that there is nothing to warrant the conclusion that the defendant has availed himself of his connection with the complainants, or their confidence to gain an advantage which they did not freely accord. To say nothing of the evidence furnished by other witnesses, Mrs. Gunnison explicitly affirms that he has always dealt justly with them.

The defendant must have paid, or made himself liable for about six thousand dollars in acquiring the land in question, including the sum due on the mortgage, the amount paid to Files’ administrator, and to Armstrong on his lease. It is difficult to say what was its value in 1826. Mr. Russell says it was probably worth fifteen or twenty thousand dollars, while Mr. Newbold puts it down at five thousand dollars. The truth, we presume is, that unimproved land, situated so remote from the city, had no defined value at that early day, but depended rather upon its particular locality, and the conjectural estimate which those desirous of purchasing might form of the future growth of Mobile. It is not pretended that any effort was made by the defendant, or any one else, to disparage the title which would be acquired by a purchaser at the commissioners’ sale ; but it is fairly inferable from what seemed to be the opinion as to the title of D. Juzan, that it was supposed a purchaser would occupy the situation of Files’ heirs, and upon the mortgage being discharged, would have a perfect title. This being the case, it is safer to take the sum at which the defendant purchased, with the incumbrance of the mortgage and lease, as a criterion of value, than the mere opinions of witnesses at this distance of time, no matter how honestly formed. But it cannot be important to consider whether the defendant disembarrassed the title, and acquired the possession at a sum much below the value of the land; for if this was so, be claimed no exclusive benefit from it, but voluntarily tendered to the defendants an equal participation in it.

The proofs in the record do not enable us to determine, with any degree of accuracy, what was the value of the twenty-five acres allotted to the complainants — its precise location in respect to the residue of the tract — the character of its soil, whether comparatively inferior, or more fertile — the extent of the improvements, theit .cost, &c. Nearly all the witnesses, concur in the opinion that its situation and improvements made it more valuable than any part of the tract of the same extent. Perhaps too, not only the complainants, but their sisters also, may have placed a higher estimate upon it, because it was the parental homestead, in which they had been nurtured from their ' earliest childhood. Whatever may be the truth of the case, it cannot be assumed that in the transaction between the complainants and defendant, there was such unconscionableness or inadequacy of consideration given for what the former yielded up, a| would “ shock the eonscience, and amount in itself to conclusive or decisive evidence of fraud.”

What has been said will show that there was no meditated imposition, circumvention, surprise, or undue influence in the sense in which the law understands these terms, and it cannot therefore be said that the complainants were beguiled into a contract which their better informed judgment would have repudiated. It is not alledged that the complainants are persons of such imbecile intellects as to require a Court of Equity to scan their contracts with unusual care, or guard their interests with extraordinary circumspection — the want of education and information is the extent to which the allegation and proofs go.

Can the complainants all unite in a bill which seeks to set up the deed executed by D. Juzan to his son Pierre in 1815, or would not the union of such a ground of relief, with allegations which equally affect all the complainants, make the bill multifarious ? However this might be, if the bill were thus framed, no relief is prayed, but such as pertains to the allegations, which alike affect all the complainants. The separate deed then, to the complainant Pierre, may, in the consideration of this case, be placed entirely out of view. We would, however, remark, that as more than twenty years, which was the limitation to actions for the recovery of real estate, when this suit was commenced, had elapsed after he attained his majority, and the assertion of an adverse claim had been continued for a longer period, we cannot very well perceive how he can be relieved in Equity, even conceding that the decree annulling the deed, at the instance of Files, is itself a nullity.

The complainants aver that a deed, dated the 24th September, 1831, by which they purport to relinquish all their interest in the “ St. Louis” tract is recorded in the County Court of Mobile — they declare that they have no recollection of ever having executed that or any other deed for the land in question, and therefore deny its genuineness. Gr. C. Russell, whose name appears upon the record as a subscribing witness, testifies that he has no recollection of ever having attested the original, believes he did not, and thinks it questionable whether he was about Mobile at the time.

The defendant repels the allegation in respect to the spuriousness of the deed with a positive denial; and declares that it was exeeuted by the complainants, with full knowledge of what they were doing. Mrs. Gunnison testifies “ That she, her husband, Pierre and John Juzan executed a deed for the “•St. Louis” tract to T. L. Toulmin, in September, 1831.” J. G. Lyon who was clerk of the Circuit Court of Mobile, in 1831, states that in that year he was at the house of the defendant, and there found the complainant Pierre, with his shoulder dislocated, so that he could not use his hand ; witnessbelieves he then signed the name of Pierre (at his request) to a deed which he executed to the defendant, and believes the deed in question is the one which was then executed, as there is no other deed between the same parties attested by him. Witness has a pretty distinct recollection of having taken the acknowledgment of Mrs John B. Juzan, and thinks it was to the' same deed. He has no recollection that G. C. Russell attested the deed, though he thinks he was at the defendant’s house at the time referred to. • Witness believes that the deputy of the clerk of the County Court, who registered the deed, was familiar with his hand-writing, and would not have recorded it, unless the acknowledgment of its execution, which purports to have been made by him, was genuine. ''

Lewis, who was clerk of the County Court when the deed was recorded, states, that both himself and deputy were familiar with Mr. Lyon’s hand-writing ; that he believes it could not have been counterfeited, while he was clerk, so as to have caused the registry of a deed which purported to have been acknowledged before him.

This proof, we think quite sufficient to establish the existence of the deed. Mr. Russell’s testimony amounts to no more than this, viz : that he has no recollection of ever having attested a deed similar to that in question, and expresses confident belief that he never saw or heard of it for years after it bears date, when, for the first time, he saw it upon record in the County Court of Mobile. It is difficult to avoid the conclusion, however accurate the memory of Mr. R. generally is, (as one or more of the witnesses state,) in this instance it is most probably at fault. Be this as it may, when his testimony is placed in opposition to that of Mr. Lyon and Mrs. Guunison, to say nothing of the defendant’s answer, it must yield to the positive statement of facts and circumstances they respectively narrate. The ordinary tests applied to ascertain facts, and the rules by which evidence is weighed, both show a preponderance of proof on the part of the defendant. Here the complainants’ witness has no recollection of ever having attested, seen or heard of the deed, and hence concludes that it was never executed as it purports ; while one of the defendant’s witnesses positively affirms its execution by herself, her husband, and the complainants, and the others state facts which directly corroborate her testimony, and standing alone, is quite as potent a witness as Mr. R. In this state of proof there is but little room for controversy upon this point.

Parties and persons interested, are recognized as competent witnesses, in respect to the facts and circumstances necessary to lay a foundation for secondary evidence of a writing, as that a search has been made and it cannot be found. [3 Phil. Ev. C. & H’s Notes, 1218-9, and cases there cited.] No certain rule can be laid down as to the proof necessary to establish a loss; the degree of diligence must depend on the nature of the transaction to which the paper relates, its apparent value and other circumstances. The rigor of the common law, it is said, has been relaxed in this respect, and the non-production of instruments is now excused for reasons more general and less specific, upon grounds more broad and liberal than were formerly admitted. If any suspicion hangs over the instrument, or that it is designedly withheld, a rigid inquiry should be made into the reasons of its non-production. But when there is no such suspicion, all that ought to be required is reasonable diligence to obtain the original — in fact courts in such cases are extremely liberal. [3 Phil. C. & H. Notes, 1223 to 1233; 1 Starkie’s Ev. 349 to 354, 1 Am. ed.; Greenl. Ev. 593-4.]

In Mordecai v. Beall, 8 Porter’s Rep. 529, the plaintiff proved that a deed under which he claimed had once,existed, and traced it to the possession of a third person, who had intermarried with the grantee, a female ; proved that it had been demanded of that person who failed to produce it, and that he now resided in another State. Further, that search and inquiry had been made of others, who it was supposed might have the deed, but without effect. It was held, that the preliminary proof was sufficient, and as it could not be intended that the plaintiff had any motive in withholding it, a copy from the records of the court was admissible. To the same effect is Swift v. Fitzhugh, 9 Porter’s Rep. 39; Beall v. Dearing, 7 Ala. Rep. 124.

The defendant states in his answer, that he thinks he handed the deed of September, 1831, together with other papers, to his counsel, the late Mr. Elliott, to enable him to prepare his answer, and make defence to a suit in Chancery commenced against himself and the heirs of D. Juzan, deceased, in November, 1831, by Thomas Johnston and the heirs of D. Files. That he has never seeii it since his answer in that cause was filed, though he has made the most anxious and diligent search for the deed, and caused a search to be made among the papers of his late counsel; that hoping to find it in the file of the cause referred to, he applied at the proper office, and was informed that not a paper pertaining to it was remaining in court. He thereupon employed the register in Chancery, and the former deputy clerk, as well as others to examine all tho files and books of reference in the court of .Chancery, as also in the Circuit Court, on the equity side of which the suit was instituted and determined. But all his efforts to recover the deed proved unavailing. This answer, conceding to it. the force of testimony, it is insisted, is not sufficient to establish a loss, so as to let in secondary proof, and if it was, its effect is destroyed by the evidence of the complainant’s witness, S. Chastang. In respect to the testimony of this Avitness, it by no means establishes the existence of the deed of September, 1831. He merely states, that the complainant, John B., married his sister, that he spent a night at the defendant’s house since the institution of this suit, when the defendant “ brought out a pocket book, from Avhich he took a paper and read a portion of it to deponent, containing the names of the complainants.” Defendant said this was a deed from the complainants for the land now sued for; defendant did not leave the deed in his hands, nor does he knoAV any thing of what it contained of his own knowledge.” This witness thus disclaiming all knowledge of the contents of the paper produced, his testimony is worth nothing, except so far as it relates the statement of the defendant to him; and thus far we think it may be reconciled with the assertion of the loss of the deed, which is made in the answer, by supposing that the paper which the defendant took from his pocket book was a transcript from the record of the County Court. The presumption is both reasonable and natural, that the defendant obtained such a copy, if he had not the original in order to prepare his defence; and if he had the original, which he did not intend to produce, it can hardly be believed that he showed it to the witness ; especially as he was nearly connected with one of the complainants.

The evidence then, is such as induces a fair presumption of loss, and we cannot see in the facts any thing to warrant the inference that the deed is designedly withheld. [See 1 Caine’s Cas. in Ev. 27; 2 Johns. Cas. 488; 2 Caine’s Rep. 367; 3 McC. 322; 3 Wend. Rep. 296; 1 Pet. Rep. 591-6; 3 Verm. Rep. 399; 12 Johns. 194; 9 Cow. Rep. 208; 1 Carr. & P. Rep. 282; 4 Wend. Rep. 543; 7 Pet. Rep. 99; 6 Binn. Rep. 59.] It is difficult to conceive of any object that could have been promoted by the forgery of Mr. Russell’s name as a subscribing witness to the execution of the deed. It was good without any witnesses, where, as in this instance, it was acknowledged by the grantors; and the law was so ruled by this court, previous to 1831. The evidence of loss, then, being sufficient, it was allowable to prove the contents of the deed by a copy from the registry.

But conceding that the evidence was both incompetent and insufficient to establish the deed and its contents, and is the complainant’s title to relief made out ? We will not stop to inquire whether, as the complaints have denied the genuineness of the deed, which is registered, and the defendant sufficiently excuses its non-production, the onus does not rest upon the complainants, of showing that it was not executed by them; or if this be not so, whether under the state of the pleadings, less conclusive proof of loss is not sufficient to let in secondary evidence of its contents. Placing the deed entirely out of view, and we have seen, that the proof is satisfactory to show the contract between the complainants and defendant, by which the former agreed to receive twenty-five acres of land, embracing the parental homestead, and two hundred and fifty dollars in money, and relinquish to the defendant all claim to the residue of the “St. Louis” tract. This contract has been executed, on the part of the defendant, by paying the money to the complainants, allowing them to retain the possession of the land allotted to them; and he is, and has been at all times, ready to furnish them the proper evidence of title. We have seen that this contract is not unconscionable, or fraudulent for inadequacy of consideration, for fraudulent concealment or misrepresentation, or an undue influence exerted over, or advantage taken of the complainants. Is it so hard a bargain on the part of the complainants, that Chancery would not decree a specific execution, at the instance of the defendant, if they had not already executed the proper deed? We incline to think not, and the acts of part performance certainly take it out of the statute of frauds. But if the contract is so unequal that it would not be specifically enforced against the complainants, we have seen it would not be set aside at their instance. This being the case, it is the obvious result of what has been said, that the complainants are not entitled, upon the case made out, to relief against their contract with the defendant.

If, however, every imputation against the transaction, which is made, either upon the record or 'in argument, were fully made out, it might still be asked whether the complainants have not slumbered too long upon their rights, so as to exclude them .from,the interposition of equity, in consequence of the staleness of the application ? Vigilantibus etnon dorirmenlibus leges subveniuni. [Wood v. Wood, 3 Ala. Rep. 766; Johnson v. Johnson, 5 Id. 90; 1 Caro. L. Rep. 508; 3 J. J. Marsh. Rep. 15; 1 Russ. & M. Rep. 236, 539; 3 Rand. Rep. 117; 4 Id. 454; 2 Moll. Rep. 157.] We content ourselves merely with making this inquiry, and citing these authorities ; the conclusion expressed upon other points renders its solution unnecessary.

Whether the contract was entered into under a mistake of law or fact, we cannot regard as at all material, since it is clear that it was made in good faith ; each party possessing equal information, or at least equal means of acquiring knowledge, and neither having practised towards the other any unfairness or deception. [1 Story Eq. 125, 145, 146, 159 to 164.] Subsequent events may have made it most advantageous for the defendant — but its legal character and effect remain unchanged.

We have considered with great care the different points decided by the Chancellor, as well as the arguments made at the bar; but we deem it unnecessary to notice others more particularly; for no matter what opinions we may entertain in respect to them, they • cannot change the conclusion we have already intimated. The consequence is, the decree of the Court of Chancery is affimed.