Gross v. McKee , 53 Miss. 536 ( 1876 )

Chalmers, J.,

delivered the opinion of the court.

The defendant in error executed to the plaintiff in error, as trustee for Loeb & Co., a trust deed on two horses and a growing crop, to secure payment of a note for $214 then due and future advances to be made during the year to the amount of $100. After having obtained the trust deed, Loeb & Co. refused to make any advances whatever, and at the end of the year caused their trustee to bring this action of replevin for the two horses and seventy-five bushels of the corn grown by the mortgagor. The jury rendered a verdict for the mortgagor (defendant in error). The case is brought here by writ of error on a special bill of exceptions taken to the action of the court in granting instructions.

The court charged the jury for the plaintiff that he was entitled to recover by reason of the note for $214 being unpaid, although Loeb & Co. had refused to make any further advances, unless they believed that the defendant had been fraudulently entrapped into executing the instrument by the promise to make further advances.

For the defendant the .jury were substantially charged that if they believed that the promise to make the further advances had been fraudulently used by Loeb & Co. as a means to decoy the defendant into securing the old debt, and with no intention in fact of making such advances, they must find for the defendant.

We see no objection to these charges. They announce a principle sound both in law and morals. Fraud vitiates every thing into which it enters, even the solemn judgments of a court; and certainly it would be a gross fraud for a creditor to induce his debtor to secure an old debt by mortgage, upon the condition of advancing a further sum, and when he had obtained the instrument to refuse to make the advance. In such a case a court of equity would unquestionably annul the conveyance.

We fail to appreciate the force of the argument of counsel, that, conceding that a fraud has been committed, no loss has been shown, and that therefore it is damnum absque, injuria. The mere existence of an outstanding mortgage fraudulently obtained is of itself an injury, and certainly the enforcement of one by action of replevin would be a still greater.

The testimony is quite meagre, but the case is before us upon a special bill of exceptions to the charges, only, and the record does not purport to set forth all the testimony in the case. We must presume that the jury, who, as we have seen, were properly instructed as to the law, found correctly as to the facts. Judgment affirmed.