69 Mo. 115 | Mo. | 1878
The object of'this action is to set aside certain transfers of notes and other personal property from plaintiff to defendant, as fraudulently obtained, and to subject certain real estate of the defendant, into which it is alleged this personal property was converted by defendant to the satisfaction of this claim. The facts recited in the petition, upon which the plaintiff bases his claim to relief, are substantially as follows: The plaintiff, as he alleges, was a man of weak mind, easily alarmed and readily imposed on by one who had his confidence. He was married'sometime in 1859, to Mrs. Ann Maxey, and they lived together till about June, 1870, when they parted. Previous to their separation, with a view to settle any claim she might have to alimony, it was agreed between them that plaintiff should give certain property to his wife, which she agreed to receive in lieu of all claims against him. The plaintiff, in pursuance of this agreement, on the 28th day of June, 1870, transferred to one Dougherty, as trustee for her, property of the value of $1,000. Previous to this she had authorized a suit to be commenced against him for a divorce, but the attorney who prepared the petition, not
The defendant’s answer is a denial of every material allegation in the petition. He asserts that he bought the notes referred to in the petition for value, that is, for seventy cents on the dollar, -and that he gave $360 for the horses, mules, &c.
It appears then, fromthis testimony,that after the separation of plaintiff and his wife, and before he had been served with a copy of the petition for divorce, he and his wife had agreed upon an amicable division of property, by his giving her, or rather her trustee, Dougherty, all the property brought by her into the marriage and a satisfactory division of its increase between them, the wife agreeing that she would relinquish, in consideration of this division, all claims whatever against him for alimony, or on any other account. After this, the plaintiff was served with
The circuit court dismissed the bill, manifestly on the ground that the parties were in pari delicto, and, therefore, on a well established maxim of the law, the condition of the defendant should not be disturbed. The general principle, based on the maxim that “ in pari delicto potior est conditio defendentis et possidentis,” is beyond dispute, but there are exceptions to this rule. To say nothing of the exceptions which have been made, when the relation of lender and borrower exists, or that of trustee and cestui que trust, or-that of parent and child, or husband and wife, or attorney and client, Judge Story observes that “the general principle which governs in all cases of this sort is, that if confidence is reposed, and that confidence is abused, courts of equity will grant l'elief.” 1 Story Eq., § 308. “ Courts of equity,” the author continues, “ Do not sit, or affect to sit in judgment upon cases as custodes morum, enforcing the strict rule of morality. But they do sit to enforce what has not been unaptly called a technical morality. If confidence is reposed, it must be faithfully acted upon, and preserved from any intermixture of imposition. If influence is acquired, it .must be kept free from the taint of selfish interest and cunning and overreaching bargains.” “ A breach of trust is, of itself, evidence of fraud; nay, of the greatest fraud ; because a man, however careful otherwise, is apt to be off his guard when dealing with one in whom he reposes confidence.”
The question in this ease is, then, whether both are in pari delicto. A confidence was reposed in defendant which confessedly was grossly abused. Not only did the defendant, as appears plainly from the testimony of Mrs. Boston, fail to act as the friend of plaintiff, but on his return to plaintiff he totally misrepresented the result of his interview. That such was the fact, as stated by plaintiff, is sufficiently apparent from what followed — the transfer of the notes, at the suggestion of the defendant, upon a nom
The principal ground then on which such contracts are set aside is not so much the relative shrewdness and business capacity of the parties, as the breach of confidence, which Sir Joseph Jekyll says is evidence of fraud, and of the grossest fraud. The want of consideration, or the sufficiency of it, is, of course, an important fact in leading to
We base, our conclusions, however, to set aside the transfer solely on the ground that there was a breach of confidence in the Gase, and, although the relations of the parties were not of that character which renders transactions between them on inadequate considerations presumptively void, so as to require satisfactory proof to establish their fairness, as in the case of attorney and client, guardian and ward, and such like relations, yet they were such as required from the party in whom a special trust was reposed, the utmost degree of good faith. It must appear that the contract was fair, just and equitable, and not pro
The plaintiff, it seems, was entirely out of debt. The case of Trimble v. Doty, 16 Ohio St. 118, is in this respect without this important ehai’acteristic. The defendant, in that case, had no special confidence reposed in him, he was one of several creditors, and induced the plaintiff, his debtor, to assign to him all his property, upon his promise to account for the property, and the court refused to aid the plaintiff to recover damages for the fraud, on the ground of his participation in it. But in this case, by the grossest abuse of confidence, a double fraud was perpetrated, an assumption of friendship when the opposite was the character really acted, and a false report of the result of the interview confided to him by the plaintiff', calculated to increase the alarm of one already excited, and to induce an acquiescence in plaintiff’s proposal to put his property in defendant’s hands to escape a liability to which defendant well knew it was not exposed. The plaintiff had no creditors, but was induced to believe that he had one who would pursue him to the last extremity. "We do not regard the parties as in pari delido, and, therefore, reverse the judgment and remand the cause, with instructions to enter a decree in conformity with this opinion.
Reversed.