| Wis. | Jul 1, 1858
By the \ Gow%
One of the principal questions presented in this case, is, whether the complainant (Crocker) is in a situation to avail himself of the alleged fraud of Bellangee, upon Casey.
Admitting that Bellangee practised a fraud upon Casey which would have enabled the latter to set aside the deed, does the subsequent conveyance by Casey to Crocker enable him to avail himself of the same fraud ?
It is contended by the counsel for Crocker that the deed from Casey to Bellangee having been obtained by fraud and imposition, is void for all purposes, and that consequently no title passed by it; or that if not void absolutely, it is void at the option of the party defrauded, and that in either case, a court of equity will interfere and rescind it.
On the other hand it is contended by the counsel for Bellan-gee, that admitting the deed to have been obtained from Casey
It is said by the supreme court of Massachusetts, in'deciding the case of Somes vs. Brewer, (2 Pick. R. 184), that “between the grantor and grantee in such cases, the technical difference between void and voidable, is wholly immaterial. Whatever may be avoided, may, in good sense, to this purpose, be called void, and this use of the term void is not uncommon in the language of statutes and of courts. But in regard to the consequences to third persons, the distinction is highly important, because nothing can be founded upon a deed -which is absolutely void; whereas from those which are only voidable, fair titles may flow. These terms have not always been used with nice discrimination ; indeed in some books there is a great want of precision in the use of them.”
It seems to us that there is great truth in the remarks above quoted.
There is found a great want of precision in many of the. authorities ; the terms void and voidable, as applied to deeds, being often used indiscriminately. While it is true that nothing can pass by a deed absolutely void, a deed which is voidable only, may be the foundation of a good title in the hands of one who has taken a conveyance in ignorance of the fraud, The distinction therefore between a void de'ed and one which is voidable only, it is quite important to observe. We are of the opinion that the deed from Oasey to Bellangee, (admitting it to have been obtained by a fraud practised by the latter upon the former,) was not absolutely void, but voidable only at the election of Oasey. (See Somes vs. Brewer, above referred to, and the cases there cited. Ousterout vs. Day, 3 Hill, 513.) But it is claimed by the complainant, that if the deed from Oasey to Bellangee was voidable at the option of Oasey, the act of Oasey in conveying the land to Crocker was the exercise of this option, and had the effect to avoid the deed to Bellangee, and to convey the title to Crocker. We do not see how this effect can be given to the deed to Crocker. This effect would have
But it seems to us that something more was necessary to be done in this case, than to convey the land to another purchaser in order to 'avoid the first deed. It must be remembered that the title was convoyed to Bellangee, subject to be defeated by Casey, if the deed was obtained from him by fraud.
Now we cannot see how a conveyance to Crocker could have the effect to divest Bellangee of his title. The title being in him, some proceeding must be had, to which Bellangee was a party, in order to divest him of the title he acquired by his deed.
The cases referred to by the defendant have satisfied us that the proper course for Casey to pursue, was to avoid the deed by a bill in equity against Bellangee. But we do not see how the complainant Crocker can be permitted to set up the fraud of Bellangee in obtaining his deed, for the reason that he acquired no title to the land by his conveyance, if the views above expressed are correct.
It will be seen that we have expressed no opinion upon the subject of the fraud alleged to have been practised upon Casey by Bellangee. The view we have taken of the matter, rendering an opinion upon that subject unnecessary. The order of the circuit court is affirmed.