Moody v. Farr

27 Miss. 788

Opinion

Mr. Justice Handy

delivered the opinion of the court.

The controversy in relation to the property involved in this suit has beep heretofore before this court in a case reported in 6 S. & M. 100.

That was a bill filed by Moody against Farr in the superior court of chancery, to confirm the title of the former to a town lot in the city of Jackson, wdfieh Moody had purchased at sheriff’s sale as the property of one John Shields, and which had been purchased of the State of Mississippi by Farr, who had given a bond therefor to Shields to convey to him the title upon payment of the purchase-money to Farr, alleging that the purchase-money had been fully paid at the time of Moody’s purchase of the property at sheriff’s sale. Farr denied in his answer that the purchase-money had been paid by Shields, and stated that before the purchase of Moody at sheriff’s sale, the contract was rescinded by him and Shields, who delivered back to him his title bond which he had lost or destroyed, and it being of no special value, that he had taken no care of it, and could not find it; and that he gave notice to Moody at the sheriff’s sale of his claim to the lot. Much testimony was taken in the case, and upon final hearing, the bill was dismissed by the chancery court, and that decree was affirmed by this court.

Afterwards, Moody filed the bill now before us, which, after stating the same facts as alleged in the previous bill in substance, charges that the answer of Farr to that bill was false and fraudulent in denying the payment of the purchase-money by Shields to Farr, and that the title bond to Shields was lost or destroyed and not in his possession, stating that since the decree in the former suit, he has discovered that the bond was in Farr’s possession at the time he made his answer, and that it contained indorsed upon it evidence that Shields had paid the purchase-money for the lot, and that by the suppression of this bond and his false answer, he fraudulently procured the decree dismissing the former bill, and praying that the former decree may be declared void as having been procured by fraud, and that the title to the lot be confirmed in Moody.

Farr answers'reiterating the statements of his former answer, denying positively that there was any entry of payment in full upon the title bond, or that it was in his possessioh at or about the time of filing or making his former answer, or that he had shortly before that time received it from the clerk of the circuit court of Hinds county, where the bill alleges it had been de-. posited in another suit in relation to the property pending in that court. He states that the bond for which he gave a receipt to that clerk, was not this title b.ond, but another paper which he withdrew from that suit and handed to his counsel for the purpose of aiding him in drawing his answer to the former bill, and that it has remained in his possession ever since. He ■denies all fraud charged, and sets up by plea the former decree, as a full bar to the complainant’s recovery.

Upon the final hearing the chancellor dismissed the bill, and from that decree this appeal is taken.

The bill now before us may be considered in two points of view: 1st, as a bill to avoid the former decree on the ground of the fraud and perjury of the appellee in his ansvrer in that suit; and 2d,'as a bill for a new trial founded on evidence that has come to the knowledge of the appellant since the hearing of the former cause.

1. The fraud charged is this, that the title bond to Shields contained written evidence upon it, that the entire purchase-money had been paid by Shields; that this bond was in the possession of the appellee when his answer was made in the former suit, which fact he falsely denied in that answer, stating that it was lost or destroyed and could not be found, and refused to produce the paper because he knew that it would establish the fact of payment as alleged. This charge is positively denied by the answer, and there is much conflict upon the point among the witnesses for the respective parties. The effort of the appellant was to show that this bond was in the appellee’s possession while a suit in relation to the property was pending between these parties in Hinds circuit court, and before the answer of Farr was made; that it was on file in that suit, and was withdrawn by Farr but three days before his answer was made. The testimony on this point seems to be irreconcilable. Foote, who was Farr’s counsel in that suit, states that the bond was exhibited at the trial, but that he advised Farr that it would be injurious to his case to introduce it, because it bore evidence of payment of the purchase-money upon it. It is scarcely probable, then, that it was introduced. Yet Hardwick proves that it was introduced by Farr; that it had been cancelled; that he knows of no written acknowledgments of payment upon it, and that the ground of the verdict in favor of Farr was, that there was no proof of compliance with the terms of the bond by Shields. This witness was one of the jury in the case. The deputy clerk of Hinds circuit court proves that there is a receipt on file in said suit, signed by Farr, dated 16th of December, 1840, acknowledging the withdrawal of certain papers in these words, “title bond and certificate of purchase withdrawn by me; ” and there is also on file in that court an affidavit made by Farr in 1844, in answer to a notice to produce a title bond to be used on a trial between Farr and Moody, assigning as a reason for not producing the bond, that he had it not with him at the time, and that he had not time to go home, which was distant several miles, and return in time to produce it at the trial. If this affidavit has reference to the bond in question in this suit, it goes very far to show that he then had the paper in his possession. Admitting that he had the bond in his possession, the next question is, did it show a receipt for the purchase-money. The testimony on this point is also conflicting. Foote states in substance that the payment of the purchase-money was apparent from the bond, while Hardwick states to the effect that there was no payment written on it. John T. Farr proves that he saw the bond in the possession of the appellee in 1839, after the contract was rescinded, and there was no receipt or indorsement on it. James W. Farr testifies to the same effect. These appear to be all the witnesses who testify upon the point of payment being indorsed upon the bond, and it is manifest that the preponderance is against the receipt of payment appearing upon it. The witness Foote does not speak from positive recollection, while John T. Farr speaks positively that the payment was not indorsed, and Hardwick states circumstances showing clearly the same thing, namely, that this was a material and controlling fact on the trial between Farr and Moody, in which he was one of the jury, and that the verdict was in favor of Farr, which would not have been the case if the purchase-money had appeared to have been paid by Shields to Farr,'by a receipt indorsed on the bond. And the testimony of these witnesses is sustained by the probabilities of the matter. If the contract had been rescinded, it is not to be supposed that Farr would have indorsed a payment on a bond which had not been paid, but simply cancelled. If it was not rescinded, is it probable that he would have possession of the title bond, the property of Shields and his only evidence of title ? And if the purchase-money had been paid in full by Shields, is it in the least probable that Farr would have had possession of the bond, without having executed a deed for the land, which he does not appear to have done; or if he had taken it up by making a deed, is it at all probable that he would have entered upon it that he had received the purchase-money ? These considerations go to strengthen the testimony in favor of Farr, and we are brought to the conclusion from the whole evidence on this point, that the fact of payment indorsed on the title bond is not sufficiently established. Without this, the present bill could not be maintained; for it is immaterial whether Farr had possession of the title bond or not if it did not contain evidence that the purchase-money was paid. The fraud complained of against Farr was not simply the non-production of the bond, for that could have worked no injury to Moody, but it was that the bond so suppressed contained conclusive evidence of payment, which would have secured the property to Moody. When this fact is not sufficiently established, the foundation of the bill is taken away.

2. Upon the point of newly discovered evidence, apart from the alleged indorsement on the bond, the bill does not properly present any such ground of relief. It is neither a bill of review proper, nor a bill for a new trial, but a. bill in the nature of a bill of review to avoid the previous decree for the fraud in suppressing the bond to the complainant’s injury. Story’s Eq. PI. § 426. To that object, therefore, must the case be confined. But if it was a bill for a new trial, the testimony in the record introduced since the former decree to show that Farr had received payment in full of the purchase-money, would be insufficient, because it is cumulative. That was the very point attempted to be established in the former suit, and the additional testimony to the same point cannot be the ground for avoiding the former decree. For it is well settled that courts of equity will not set aside decrees or grant new trials upon .evidence merely cumulative.

We are, therefore, of opinion that the decree dismissing the bill is correct, and it is accordingly affirmed.