24 Ala. 355 | Ala. | 1854
It is unnecessary to consider the action of the Chancellor on the motion to suppress the deposition of Basil Adams, for the reason, that if his evidence is rejected, we all agree, upon a careful examination of the whole testimony, that tlio fraud of Isaac T. Smith is sufficiently established.
Neither do wo consider the parties in this case as standing in pari delido. The complainant is shown to have been upwards of seventy years of age, — infirm,—embarrassed,—his property levied upon, and about to be sold; and the defendant, Isaac T. Smith, ivas taking advantage of these circumstances, and of the position he occupied towards him as his son-in-law, to make the transaction have the appearance of an absolute sale instead of a mortgage. Tho party seeking relief was not only acting under circumstances of imposition and undue influence, but also of pecuniary pressure. — 2 Story’s Ecp (3 edit.) § 695 a, and cases there cited.
It is urged, however, on the part of the plaintiff in error, that as the transaction was executed on Sunday, the party, for that reason, has his remedy at law. It is true, that, if the nullity of the instrument appeared upon its face, a court of chancery might refuse to interfere, where no discovery ivas sought, or
It follows that there was no error in the decision, which is affirmed ; the plaintiffs in error paying the costs of this court.
