Ostrander v. Quin, 84 Miss. 230

Ostrander v. Quin

84 Miss. 230 | Miss. | 1904

Lead Opinion

Calhoon, J.,

delivered the opinion of tbe court.

This record presents a bill by appellant to enjoin a sale of land by tbe trustee in a trust deed to secure appellee, without tender of tbe money bad, on tbe ground that appellant was a minor when sbe made it. Mrs. Quin’s answer sets up igno*235ranee of the age of Mrs. Ostrander, and that she (Mrs. Quin) was a widow, of limited means, and that appellant came to her and said she was in great need and wanted the money for the necessaries of life; that she was of age and competent to make the deed; and that, believing and relying on this statement, she loaned the little money she had, and that otherwise she would not have done so; and that appellant did use it for the necessaries of life. Mrs. Ostrander was a mature woman, over eighteen years of age, and of discretion. The testimony was conflicting, but the chancellor manifestly thought, from the evidence,- that the answer was sustained, and that the misrepresentations were made and relied on, and he decreed for appellees. The willful misrepresentation of age by which money is had of another on a mortgage, and which deceives the lender, is a bar to an avoidance of it, on the solicitation in equity of the borrower, especially where the fruits of the fraud are not tendered back. Ferguson v. Bobo, 54 Miss., 121; Levy v. Gray, 56 Miss., 318; Brantley v. Wolf, 60 Miss., 430; Yeager v. Knight, 60 Miss., 732; Wilie v. Brooks, 45 Miss., 542; Upshaw v. Gibson, 53 Miss., 341.

Affirmed.

Concurrence Opinion

Whitfield, O. J.,

specifically concurring.

I concur on the specific ground that the chancellor found, on the evidence, that the money borrowed was used in the purchase of necessaries.