Harshaw v. . McCombs and Others

Battle, J.

The bill was filed for the purpose of procuring the cancellation of a certain deed of conveyance therein mentioned. The demurrer presents the question whether the plaintiff has set forth such a case as entitles him to call on the -defendants for an answer.

It is now well settled that the grantor or donor cannot call :in the aid of a Court of Equity to have his deed cancelled, unless he can show that it was obtained from him by surprise or mistake, want of freedom, undue influence, the suggestion of a falsehood, or the suppression of the truth, Gunter v. Thomas, 1 Ire. Eq. 199; Green v. Thompson, 2 Ire. Eq. 365, and other cases collected in 3 Battle’s Digest, title “ Fraud,” Subdiv. 2. If fraud be the ground of relief, it must be distinctly and positively alleged, and either admitted, or, sup ported by proof, Witherspoon v. Carmichael, 6 Ire. Eq. 143; M cLane v. Manning, Winst Eq. 60. If the deed now in question' had been undoubtedly delivered, such would be the rule-of equity in relation to it, and we cannot conceive why the rule should be varied merely because the delivery of the instrument is a matter of doubt, or because it has not been duly stamped. The question then is, does the present bill contain sufficient allegations either of surprise, mistake, want of freedom, undue influence or fraud? We cannot discover any whatever. On the contrary, the bill states that the deed, was prepared by or for the plaintiff, of his own free will and. for a very commendable purpose, to wit: the reclamation from vice of his son, who was an only child. It is true that in au amendment, which the Court subsequently permitted to be made, the plaintiff says, by way of recital instead of positive-averment, that he had done or forborne to do certain things, “ all the time being subject to the control and influence of improper advice, constraint and duress of pretended friends, so that he was not permitted to exercise his free will and free-judgment in the making of the said deed of conveyance, or-having the same registered, being at the infirm and advanced age of seventy years.” Surely such loose and general statements cannot be allowed to have any effect in an attempt to-impeach a deed, which the grantor avers that he had signed, sealed, and procured to be registered. It is scarcely necessary for us to say that the failure of the main object of the-conveyance caused by the untimely death of the plaintiff’s son, 'cannot alter the character of the transaction. The true rule was laid down in the case of Green v. Thompson, above referred to, and by that must the present case be governed. “ A Court will not annul dispositions of property because they are improvident or such as a wise man would not have made, or a. man of nice honor have consented to receive; but all the contracts of an individual, even his gratuitous acts, if formally executed, and no power of revocation reserved, are binding, unless they can be avoided because of surprise or mistake, want •of freedom, undue influence, the suggestion of a falsehood, or the suppression of truth.”

The demurrer must be sustained, and the bill dismissed with •costs.

Pee Curiam. Bill dismissed.