Smith v. Davis, 49 Md. 470

49 Md. 470 | Md. | 1878

Bab/tol, O. J ,

delivered the opinion of the Court.

The appellee was, on the 28th day of January, 1862, appointed by the Orphans’ Court of V^orcester County guardian of the appellant, then a minor, in the sixteenth year of his age.

By the second guardian account passed on the 17th day of January, 1865, it appears the guardian was indebted to his ward $1703.13, less the sum of $81.36 which had been expended out of the principal, in excess of the profits of the estate, leaving a balance due of $1621.77, with interest thereon from October 22nd, 1864.

The appellant and his elder brother, William L. Smith, each owned a farm contiguous to each other, which had heen allotted to them in the division- of their deceased father’s real estate. ' William L. Smith being largely indebted, several judgments were rendered against him, between the 21st of April and the 16th of May, 1865, and writs of fieri facias were issued thereon, which were levied upon his farm and chattels. The appellant, then being about nineteen years of age, desired to become the owner of his brother’s farm, on which was the family homestead and where the' remains of their parents were buried. In

May, 1865, this farm was purchased for him by the appellee, and he was then placed in possession thereof. He came of age in June, 1867, and on the 9th day of May, 1868, the farm was conveyed to him by the appellee and his wife. A settlement was then made between him and his guardian, and a release executed by him to the latter. At the settlement, he was found to be indebted to the appellee in the sum of $287.00 for which he gave his single bill. A suit was instituted by the appellee against the appellant upon the single bill, and on the 30th October, 1873, a judgment was recovered thereon, which was paid.

On the 24th day of October, 1874, the appellant filed the bill of complaint in this case, alleging that in the settlement made on the 9th day of May, 1868, he was deceived and defrauded by the appellee, and praying that the release then executed by him may be cancelled and set aside, and that the appellee may be required to pay the sum of money or balance due him which the bill alleges is $500, with interest from May 17th, 1865.

According to the averments in the bill of complaint, the alleged fraud charged against the appellee consisted in this, that the appellee agreed to buy the land of William L. Smith for the appellant, and to convey it to him at the same price it cost; hut the bill alleges that the appellee purchased it for the sum of $1200, and that he falsely stated to the appellant it had cost $1700, and in the settlement of the guardian account the sum of $1700 was exacted and received from the appellant as the purchase money for the land.

The defendant denies all the charges of fraud and fraudulent misrepresentation, and avers that by reason of the great lapse of time he is unable to state with precision how much the land cost him; but that the actual cost of the land was ascertained, and the appellant, in the settlement, paid that amount and no more. That the price of the land was ascertained by E. K. Wilson, Esquire, an attorney selected for that purpose, who drew the deed and release. The answer avers that the settlement was fairly made; and that the release was freely and voluntarily executed by the appellant, wTith a full understanding of all matters of account existing between them, which were embraced in the settlement.

The deed from William L. Smith to the appellee, dated May 17, 1865, purports to have been made for the consideration of $1200. The deed from the appellee and wife to the appéllant dated May 9th, 1868, states the consideration therefor as $1700.

The proof on the part of the appellee shows that at the time the former deed was executed, there existed judgments and executions against William L. Smith, which were paid by the appellee, and which constituted the actual cost or price paid by him for the land.

With respect to the deed of May 9th, 1868," the proof on the part of the appellee shows that the consideration of $1700, stated therein, was inserted at the suggestion of Mr. Wilson, as that amount nearly corresponded with the apparent balance due on the guardian account, but did not express the real consideration, or price paid by the appellant for the land. That this was ascertained by calculating the amount of liens thereon, which had been paid and satisfied by the appellee.

To this proof exceptions have been filed by the appellant, on the ground that the same is incompetent and inadmissible. He insists that the considerations stated on the face of the deeds are conclusive, and cannot be contradicted by parol evidence.

Upon the validity of these exceptions the case of the appellant mainly depends.

The Circuit Court overruled these exceptions, for reasons which we think are entirely satisfactory. In support of the exceptions the appellant relies on Bladen vs. Wells, 30 Md., 577. In that case the deed conveyed a parcel of land containing about 230 acres (less 40 acres) for the consideration of $1300. The grantor instituted a suit in chancery to recover on an alleged parol agreement to the effect that if the land exceeded 140 acres the purchaser agreed to pay $10 in gold, or $20 in currency, at the vendor’s option, per acre, for each acre above 130.

The parol evidence was held to be inadmissible. The Court said, “ where the deed expresses the amount of the consideration money as the price of the land thereby conveyed, the grantor will not be allowed to aver that it is not the true contract of the parties in this particular ; nor will a parol contract be admitted to vary the deed in this respect. ’ ’

The Court referred with approval to Howes vs. Barker, 3 Johns. R., 506, also cited by the appellant. In that case it was held that the vendee could not maintain an action of assumpsit, to recover back part of the purchase money paid for land, upon an alleged parol agreement inconsistent with the terms of the contract evidenced by the deed. These decisions rest upon the familiar and well established rule, that where the contract of sale has been executed, by the delivery of a deed, the deed furnishes the best evidence of the contract, and the parties to the instrument will not be allowed, by parol evidence, to contradict or vary its terms where fraud is not alleged, or to set up a parol agreement of sale different from that expressed in the deed. Those cases are in no respect analogous to the present. Here the appellant seeks to avoid the effect of the release, and to recover money alleged to be due from the appellee, on the ground that the latter contracted to buy a farm for him, and to charge him no more than the price actually paid for it by the appellee; and the bill alleges that by false and fraudulent representations made by the appellee, with respect to the cost of the land, the complainant was induced to pay, and did pay, in the settlement of the guardian account, the sum of $500, in excess of the amount payable under his contract. The questions of fact to he determined are first, how much did the appellee actually pay for the land ; and secondly, how much was the real consideration paid therefor by the appellant?

In determining these questions the parties are not concluded by the amounts of consideration money stated in the deeds. The deeds are altogether collateral to the subject-matter of inquiry. They are introduced as evidence only, and the parties are not estopped to show the real truth of the transaction by other evidence outside of the deeds. Carpenter vs. Buller, 8 Mees. & W., 212.

But especially is this so in the present case. Here the ground-of the suit is the alleged fraud of the appellee. To sustain the charge of fraud the deeds are offered in evidence, and the statement therein of the amount of consideration is relied on to establish the charge. In such case it is clear that to repel the charge of fraud the appellee is equitably entitled to prove the actual cost of the land to him, and the real consideration paid therefor by the appellant. It is well settled that where a deed is impeached for fraud, the party to whom the fraud is imputed may show the actual consideration paid, provided it he of the same kind as that stated in the deed, differing only in amount. Betts vs. Union Bank, 1 H. & G., 189; Cole vs. Albers, et al., 1 Gill, 412; Wolf vs. Hauver, 1 Gill, 84; Carr and Wife vs. Hobbs, 11 Md., 285; Cunningham vs. Dwyer, 23 Md., 219; Bladen vs. Wells, 30 Md., 578.

There is no reason why this rule should not apply to the case before us. It would be most inequitable to deny to the appellee the right of repelling the charge of fraud by evidence showing the real nature of the transaction, and the elements that entered into the settlement of the 9th of May, 1868.

The evidence offered by the appellee being admissible, the next question to be considered is as to the facts established by the testimony. And first as to the burden of proof. It has been argued by appellant’s counsel, that the subject-matter of investigation being a settlement made by a guardian with his ward, a short time after the latter attained majority, “ the onus of proof is on the appellee, to show every thing requisite to make the settlement valid and binding.” This is no doubt the general rule; it is so stated in Hill on Trustees, 526 m, who cites a great number of cases in Note 2; all of which we have examined. We refer also to Hylton vs. Hylton, 2 Ves., 547; Hatch vs. Hatch, 9 Ves., 292; Kilbee vs. Sneyd, 2 Molloy’s R., 230; Walker vs. Symonds, 3 Swanst., 69; Solkeld vs. Vernon, 1 Eden, 67 m; Wedderburn vs. Wedderburn, 2 Keene’s R., 722; where the subject has been fully considered. As said by Ch. J., Tilghmabt in Elliott vs. Elliott, 5 Binney, 8; and in Say’s Ext vs. Barnes, 4 S. & R., 114; “ The law looks witli a jealous eye on settlements made by infants soon after their arrival at age, and before they are fully acquainted with their affairs.” And in Wallcer vs Symonds, 3 Swanst., 69, Lord Eldon adverts to the protection which the Court extends to infants, fora reasonable period after their coming of age, until they had acquired all the information which they might have had, if of adult years.

The rule above stated is based on considerations of public policy, to prevent fraud and imposition by guardians upon their wards, during their minority, or soon after their minority has ended ; while the influence of the guardian and the subjection of the ward may be supposed still to continue.

But the rule which imposes the burden on the guardian to furnish the data, and to prove that the settlement with his former ward was in all respects just and correct, has no application to this case, for several reasons.

In the first place, it appears from the proof that owing to the lapse of time the vouchers and papers showing the elements that entered into the settlement have been lost or mislaid, which circumstance has been considered in all the cases as a sufficient reason for exempting the guardian from the obligation to furnish evidence to establish the correctness of the settlement. In the next place, the proof shows that the ward had been virtually emancipated from the government and control of his guardian as early as May, 1865, when he was about nineteen years of age. At that time he went into the possession of the farm purchased for him by the appellee. When he was nearly twenty-two years of age, the.settlement was made and his release executed. The state of his account with his former guardian was very simple, and perfectly understood by him.

To carry out the contract between them, with respect to the farm, it was simply necessary to ascertain the amount of liens thereon which had been paid by the appellee, and which determined the cost thereof to the latter, and the price to be paid therefor by the appellant. For this purpose the parties had the assistance of an able attorney, by whom the estimate was made and the deed and release prepared. There remained other matters of account to be settled between them, consisting of charges for board bills paid by the appellee, for articles furnished to the appellant, and articles'purchased for him at the constable’s sale of his brother’s chattels on the farm.

This account, it appears by the proof, was completed and settled by the parties on the 9th day of May, 1868, at the house of the appellee.

At this settlement three witnesses were present, Elisha H. Davis, and Peter L. Davis, Jr., sons of the appellee, and Henry A. Smyth, Esq., a justice of the peace, before whom the deed of that date was acknowledged, and who was the attesting witness to the release, and to the single bill for $281, then given by the appellant, before referred to. Henry A. Smyth, Esq. is dead ; but the other two witnesses testify to the deliberation and care with which the settlement was made ; Elisha assisted in making the calculations, states some of the items which were taken into the account, and both these witnesses state that Squire Smyth went over the calculations, and found no mistake in them. Books of account and papers were produced and examined, which have since been mislaid, or lost.

(Decided 23rd July, 1878.)

Under these circumstances it would he inequitable to hold the appellee bound to recast the account, or to impose on him the burden of proving that the settlement was in all respects free from error. Especially after the lapse of more than six years after the settlement was made.

In disposing of the case we do not consider it necessary to enter into a statement of the several items of account between the parties, as disclosed by the evidence. It would be impossible now, with the imperfect data before us, to state the account with any degree of accuracy. The counsel on each side have attempted this, hut their statements are in many respects speculative and conjectural, and of course differ widely in their results. This is not strange when wo consider that many of the papers and memoranda have been lost; one of the witnesses to the transaction is dead, and the memory of those who survive, after the lapse of eight years, has naturally become dim and imperfect. We may add, that after a careful examination of the testimony, we have not discovered any material error in the settlement. This appears to have been carefully and deliberately made, and the release was executed voluntarily, when the appellant was of full age, and acquainted with his affairs.

Under these circumstances, the onus of proof is on the appellant to show some mistake or error in the settlement, or that some fraud had been practised on him by his guardian. This has not been shown by the evidence, and the decree of the Circuit Court will therefore he affirmed.

Decree affirmed.