Weir v. Jones

84 Miss. 602 | Miss. | 1904

Truly, J.,

delivered the opinion of the court.

No principle of equity jurisprudence is more firmly established than that, where fraud is relied on as a basis of relief sought from a chancery court, the facts of which the charge of fraud is predicated must be specifically stated with full definiteness of detail. No general averment of a fraudulent course of business, and no bare statement of a corrupt design on the part of the defendant, is sufficient. The acts themselves which are claimed to be fraudulent must be clearly set out. It must further appeal’, by definite averment, in what manner the fraudulent acts wrought injury to the complainant. Fraud cannot be inferred, but must be distinctly charged, and with such fullness and precision that a court of chancery would be enabled to grant full and complete relief and redress should the bill of complaint be taken as confessed. A court of equity, from a mere vague and indefinite statement that a certain course of conduct was in pursuance of a fraudulent scheme, will not infer fraud on the part of the defendant, and consequent injury to the complainant. M. & C. R. R. Co. v. Neighbors, 51 Miss., 412; Watts v. Patton, 66 Miss., 54 (5 South., 628); McInnis v. Wicassett Mills, 78 Miss., 52 (28 South., 725).

In the bill of complaint in the instant ease, there is no compliance with the rule of equity pleading announced. While many vague, uncertain, and indefinite charges of a general character are made, averring that in the entire course of business between complainants and the defendant the defendant was actuated by a corrupt and fraudulent design, no specific fraudulent acts are set out with that distinctness and certainty which is demanded in charges imputing fraud, nor is it shown in any manner that the complainants were by this course of dealing wronged or injured. While the allegations were so vague as to scarce require a denial, the record discloses that appellant filed an answer expressly denying all fraud on his part. True it is that the denial is in broad and general terms, but the bill of complaint charged the fraudulent conduct in such an uncertain way as to furnish the defendant no definite information whereby he could make his denial any more specific. With the charge of fraud answered and properly denied, the bill of complaint states no facts showing that complainants were injured or suffered any such wrong as would authorize a court of equity to grant the relief prayed for. More than this, conceding as true all the well-pleaded and relevant facts, the bill of complaint affirmatively shows such a state of case as would prevent the complainants from obtaining relief in the manner they seek. The bill admits that the land in question was sold in a strictly legal manner, under a perfectly valid trust deed, for the collection of an indebtedness acknowledged to be just, true, correct, and past due. It further appears that complainants were advised of this sale in ample time, had they so desired, to have invoked the aid of a court of chancery to prevent the sale, had there been any valid objection thereto, but that, acting on the advice of their attorney, they decided to permit the sale to proceed, intending to institute suits in reference to the subject-matter thereafter. The bill, it is true, does aver that the mortgagee did not desire to foreclose its lien at that time, and that the foreclosure sale was the result of a conspiracy between the substituted trustee and the appellant, who was a junior mortgagee of the property; but this charge cannot avail, for the reason that the written appointment of the substituted trustee, which appears as an exhibit to the bill of complaint, distinctly states that the said mortgagee — the British & American Mortgage Company — “does now, moreover, request and direct that he will forthwith proceed to execute the trust therein contained.” Under this appointment and direction the substituted trustee was not only empowered, but it became his imperative duty, to make the sale of the property under the trust deed, which appellees in their bill of complaint confess had been defaulted and the entire indebtedness' secured thereby justly due by them. .'Nor does the bill of complaint state any fact which justifies the intimation that the substituted trustee was guilty of any wrongful act towards the complainants or was guilty of any oppression or disregard of their rights. The fact that he refused to receive the interest and postpone the sale of the land was in accordance with his duty toward the mortgagee, by whom he had been substituted as trustee, and, so far as this record shows, he was clothed with no authority at the time the money was tendered to exercise any discretion or to act in any manner other than as he was specifically directed by the letter of his appointment. The entire indebtedness under the terms of the trust deed was due and collectible, and the expense incident to the preparation of the necessary papers and the advertisement of the proposed sale had already been entailed. Under such circumstances, and at such a time, it would have been a willful and deliberate disregard of duty on the part of the substituted trustee to have acted in a manner otherwise than he did. Nor would it avail •the appellees aught, assuming it to be true that both the appellant and the substituted trustee intended, in making the sale, to thereby further the interest of the appellant. The law cannot concern itself with the motives of parties when their acts are legal and violate no principle of right. As was said by the supreme court of the United States in the case of Dickerman v. Northern Trust Co., 20 Sup. Ct., 311 (44 L. ed., 435): “If the law concerned itself with the motives of parties, new com.plications would be introduced into splits which might seriously obscure their real merits. If the debt secured by a mortgage be justly due, it is no defense to a foreclosure that the mortgagee rwas animated by hostility or other bad motive; Davis v. Flagg, 35 N. J. Eq., 491; Dering v. Winchelsea, 1 Cox, Ch. Cas., 318; McMullen v. Ritchie (C. C.), 64 Fed., 253, 261; Toler v. East Tennessee, V. & G. R. Co. (C. C.), 67 Fed., 168.

Tn this case the hill shows affirmatively that the mortgage was legal, that the debt secured thereby was due, aud that the complainants, acting under legal advice, decided to make no further payment on the first mortgage debt, and voluntarily refrained from making any effort to prevent the sale for the satisfaction thereof; and there is neither averment nor proof that the mortgagee was influenced by any other motive than a desire to collect the money due. To disturb a sale made under such circumstances because of the fact that the substituted trustee and a junior mortgagee expected or intended to profit thereby would be an unwarranted extension of the legal principles applicable to such cases. From this view it is not material whether the junior mortgage was in fact for a just and legal indebtedness or not. Appellant purchased at a foreclosure of a senior mortgage at a sale regularly and legally held, and appellees cannot now set aside this sale for the purpose solely of having the property resold, with the bare hope that it might realize more than is justly owing thereon. We are unable to see from the facts disclosed by the bill of complaint how the fact that a junior mortgage rested on the property at the time of the sale could in any manner have prejudiced the rights of appellees. Whether fraudulent in whole or in part, it could in no legal way have deterred bidders, for the reason that the purchaser under a senior mortgage sale takes to the exclusion of all junior incumbrances. The bill of complaint shows no cause of action which would authorize a court of chancery to set aside the sale of the land under the circumstances detailed, and the demurrer should have been sustained.

Wherefore the decree is reversed, the demurrer sustained, and the case remanded, with leave to amend within sixty days from filing of mandate in court below.