Holt v. Moore

37 Ark. 145 | Ark. | 1881

Eakin, J.

Mary E. Holt, a married woman, applied by bill in Chancery Court, to cancel a deed of land, which,, with her husband, she had executed, in accordance with the-statutory form, to the appellee, Moore. The certificate of her acknowledgment, before a Justice of the Peace, is full and sufficient.

She alleges that the conveyance was procured by the fraud of Moore, in operating upon the fears of her husband, to-induce him to leave the country to avoid a criminal prosecution ; and by the coercion and undue influence of her husband, to induce her to consént, of which defendant was cognizant. She also alleges that defendant, as a part of the inducement by which her consent to the acknowledgment was obtained, promised to reconvey the land, should they ever return to the country and desire it; and that upon request he had refused to reconvey upon the same terms or even for additional considerations.

Upon issues made to the allegations, and upon proof, the cause was heard by the Chancellor, who denied the relief, holding that the fraud did not sufficiently appear, and that the promise to reconvey, even if made, came within the Statute of Frauds and could not be enforced.

3. Married Women: Acknowledgment to h e i cl e c d as evidence. It is certainly true that the acknowledgment of a married woman to her deed duly certified, although prima facie evidence's not conclusive against her, either as to the fact that ¡the acknowledg'tnent was made as certified, or that the facts-which she acknowledged were themselves true, unless it be against a vendee for valuable consideration, who was himself ignorant of the falsity of the facts, and had not participated in the fraud. As to him, she must be held estopped where the acknowledgment was actually made, or there would be no safety in conveyances. A false certificate of acknowledgment, where none was made, would present a different question. (See cases commented upon in 1 Bish. on mar. women, see. 591.)

MAY TEEM, 1881. 149 Holt v. Moore. A parol promise to reconvey, where the sale is absolute, •comes within the Statute of Frauds. The agreement mustlEAUDS: be in writing. Parol evidence may be introduced to show that a deed, absolute on its face, is indeed only, as between the parties, a mortgage when a subsisting debt remains to .support it. But where there is no remaining debt due to the vendee, where the consideration has passed, or the obligation to pay it has been incurred and there is no obligation •of the vendor to repurchase, we know of no case where it has held that this option may be retained by parol agreement, any more than a right to make an original purchase at a future time. The equity doctrine for showing by parol that a deed was in fact a mortgage, has never been extended so far, and indeed could not be without opening the flood gates of perjury in a country where property so often and •unexpectedly increases in value with startling rapidity Nevertheless, the use of such a 'promise in overreaching a weak or ignorant mind might become an element of fraud to be considered in connection with other circumstances. The evidence in this case is voluminous, much of it conflicting, much incompetent and more irrelevant. Yarious portions were objected to before hearing and motions were ■made to strike out and suppress. The Chancellor suppressing one deposition and, for the rest, announcing that he •excluded from consideration all those portions of the others which he deemed irrelevant or incompetent, reached the conclusion stated above. The fraud, which is the single question, must be clearly 3. reato.shown. The ohms is on the complainant. The depositions ¿1° •and exhibits have been carefully reviewed, and it is sufficient r0' to say that, upon the whole case, we do not consider that the allegations of the bill were sufficiently sustained by preponderance of proof to entitle complainant to the relief sought. Affirm the decree.