207 Ky. 366 | Ky. Ct. App. | 1925
Opinion of the Court by
Reversing.
On October 27, 1914, Lonellen Hargis executed a deed to A. H. Hargis by wbicb she conveyed to him, absolutely, her home in Jackson, Kentucky, in consideration of $8,000.00 cash in hand paid. In February, 1922, she brought this suit against him alleging that the deed was only a mortgage and asking that it be so declared. The allegations of the petition were denied by answer. Proof was taken and on final hearing plaintiff’s petition was dismissed. She appeals.
The plaintiff is the widow of Judge James Hargis, who was killed in 1908 by their only son, Beech Hargis. He was indicted for the murder of his father, convicted and sent to the penitentiary for life. Judge Hargis for a number of years was the partner of his brother, A. H.
“I was down there at Mrs. Hargis’ and she told me how she and Alec had been getting along in their business, and she said, ‘I think more of Alec than I ever did.’ She says, ‘He has furnished me money to redeem my property here.’ That is the best of my knowledge the way she told me and about what she said to me. Then a few days after that I met Alec right on the corner where Johnson’s store is and I told him how Mrs. Hargis was feeling towards him and claiming she was a friend to him and was glad they had gotten along so well and Alec just remarked to the best of my knowledge, ‘She ought to think a heap of me as I furnished her money to redeem her home with.’ ”
The testimony of these witnesses is only contradicted by the testimony of A. H. Hargis. They were disinterested and they were supported by the circumstances. Mrs. Hargis has continued to live in the home since the deed was made and used it just as she did before. The only thing A. H. Hargis has used is the pasture lot. Mrs. Hargis made this transaction upon the advice of her attorney, Hammond, and her brother, Floyd Day, and it is unreasonable that they would have declined a cash offer of $10,000.00 for the property and then deeded it for $8,000.00 to A. H. Hargis. Naturally at such a time she would look for help to her husband’s brother, who had been his lifelong partner and near neighbor, a man of affluence and well able to help her.
If there was nothing more in the cáse we are persuaded this litigation would never be in this court, but there is this further fact: On December 31, 1914, the First National Bank of Jackson brought a suit against Louellen Hargis, A. H. Hargis and Beech Hargis to recover on a note for $10,000.00 which she had executed to the bank. In that petition it was alleged that the deed above referred to was a mortgage and only intended to secure A. H. Hargis in the sum of $8,000.00. The plaintiff prayed a judgment subjecting the property to its
She and A. H. Hargis were not adversaries in that, litigation. The rule is that a prior judgment does not operate as an estoppel where the parties were not adversaries :
“The general rule is that parties to a judgment are not bound by it in subsequent controversies between each other, unless they were adversaries in the-action wherein the judgment was entered. Hence a judgment against several defendants is usually not conclusive as between themselves in respect to their rights and liabilities toward each other, unless the defendants contest an issue with each-other, either upon the pleadings between themselves and the plaintiffs or upon cross-pleading's between themselves. Where two or more defendants make issues with the plaintiff, a judgment determining those issues in favor of the defendants settles between them no fact that might have been, but was not, put in issue by a proper pleading.” 15 R. C. L., p. 1013.
To the same effect see Akers v Fulkerson, 153 Ky. 228.
What weight should be given the pleadings and judgment in that case as evidence in this case must -depend upon all the facts. Mrs. Hargis testifies in substance that she did not understand the paper and that she signed it simply because she was requested to do so by her brother-in-law. It is not clear that the paper was-read to her or explained to her, and it is very doubtful if she would have understood an explanation if it had been made to her, for she was in very poor health, prac
It is earnestly insisted that she joined hands with A. H. Hargis to defeat a creditor in that action and that having done this equity should leave her where it finds her. There would be much force in this position if she •and A. H. Hargis stood on equal footing, but the rule is never applied where the parties do not so stand:
“That conclusion being reached, the inquiry is, does the record exhibit a state of facts that will give a court of equity the right to entertain appellant’s complaint? -
“The general rule is, in cases of executed contracts, where both parties are guilty of actual fraud, a court of equity will not lend its aid to either, but leave each to the consequences, of his own wrongdoing. To apply this rule the parties must be m pari delicto, each equally guilty of the fraudulent intention and the fraudulent acting, with equal knowledge and equal willingness. When that is not the case, when there is imposition, duress, oppression, threats, undue influence, taking advantage of necessities or weakness, the party thus placed at disadvantage, although participating in the fraud, may be relieved in a court of equity as against his co-wrongdoer.” Anderson’s Admr. v. Meredith, 82 Ky. 571. To same effect see Harper v. Harper, 85 Ky. 165.
It is now well settled that, without an allegation of fraud or mistake, parol testimony is admissible to show that a deed, absolute on its face, was executed to secure a debt and is, therefore, a mortgage. Hobbs v. Rowland,
On the whole case, in view of the relationship between the parties, their relative condition and all the circumstances, we think it clear that the deed should be held to be a mortgage.
Judgment reversed and cause remanded for a judgment as above indicated.