Turner v. Davis

AlleN, J.

The court could not, in any event, have granted the motion of the plaintiff for judgment upon the whole record, because an order had been made, to which no exception was taken, setting aside all orders in the proceeding affecting the rights of the defendants, and an answer was on file raising an issue of fraud; but we are also of opinion that the order of the clerk was fully authorized by Revisal, sec. 2494, which, after providing for confirmation of the report of commissioners appointed to divide land in partition proceedings, says: 4"Pro-vided, that any party, after confirmation, may impeach the proceedings and decrees for mistake, fraud, or collusion by petition in the cause.”

Tbe exception tbat there is no evidence of fraud in procuring tbe execution of tbe deed under wbicb tbe plaintiff claims is without merit. There is evidence tbat tbe defendants bad employed the plaintiff to get them a deed for tbe land; tbat be came to them and asked them to sign a paper, wbicb be said it was necessary for them to sign before they could get a deed and wbicb was tbe deed under wbicb tbe plaintiff- claims; tbat he was asked to read tbe paper, and be said.it was not necessary, and tbat be would not wrong tbe defendants out of anything; tbat tbe defendants did not know they were signing a deed; tbat tbe plaintiff paid nothing for tbe land, and tbat be denied to tbe defendants claiming any interest in the land after tbe execution of tbe deed.

There was evidence to tbe contrary, but we cannot pass on tbe weight of tbe evidence.

No error.