Levick v. Brotherline

The opinion of the court was delivered, March 2d 1874, by

Williams, J. —

If Ross was the owner of the Bell warrants, as the jury must have found, then, under the ruling of this court in Shearer v. Woodburn, 10 Barr 511, he had such a title as authorized him to redeem the land sold for the non-payment of the taxes assessed in their name. If his title was invalid as against that acquired under the prior warrants and surveys, his redemption of the lands enured to the true owner ; and it was not in his power to defeat or annul it by withdrawing the money paid the treasurer after the time allowed for redemption had expired. To hold that he might, would open the door to fraud and collusion by which the title of the real owner might be swept away after the land had been .actually redeemed. There was no error, therefore, in admitting the evidence of the redemption of the land by Ross, and in instructing the jury, in effect, that as owner of the junior interfering warrants and surveys he had the right to redeem, and his redemption avoided the treasurer’s deeds.

But there is more ground for the complaint that the jury were misled by the manner in which the question of fraud in obtaining the conveyance from Mrs. Cloke and her husband to the plaintiff was submitted to them. Under the evidence the court should have instructed the jury in clear and explicit terms that if Heylman, the plaintiff’s agent, falsely represented to Mrs. Cloke and her husband that he was procuring the deed for Levick — to whom Mrs. Cloke had previously sold and executed a deed for the land —for the purpose of perfecting his title; and if relying on these representations they executed the deed believing it was to Levick, then the conveyance was void by reason of the false representations by which it was obtained, and vested no title in the plaintiff as against the parties affected by the fraud. But if they were not induced to execute the deed by false-representations of Heylman, if, knowing that it was to the plaintiff, they executed it for the purpose of conveying to him their interest in the land, it was valid and vested in him a good title.

Undoubtedly the money which they received as a consideration for the conveyance was an inducement to its execution. . But if, trusting to the false representations of Heylman, they executed it believing that it was to Levick, and would not have executed it if they had known that it was to the plaintiff, it was just as fraudulently procured as if it had been obtained for a nominal consideration. The fraud consisted in procuring the conveyance to the plaintiff by falsely representing that it was to Levick, and by the offer and payment of the money as an inducement to its execution. _ The payment of the money did not render the transaction honest and valid if it was one of the means used to accomplish the fraud. And in this aspect of the case we think the charge was calculated to mislead the jury. The court said: “If Heylman, the agent of plaintiff, falsely represented to the Clokes that they were merely making a deed to confirm the possession of the land to Levick — land which she had before sold to him and of which he was in possession — and by means of such false representations, and these alone, obtained a deed for Brotherline, it seems to us that it would be iniquitous to permit Brotherline to use that deed to dispossess Levick.” Undoubtedly the deed was void if it was obtained “by means of such false representations;” but it does not follow that if it was not obtained by “ these alone,” it was not fraudulent and void. Can there be a doubt that if Mrs. Cloke and her husband were induced to make the conveyance by the false representations of Heylman that it was to Leviek and by the consideration they were to receive for its execution, that it was fraudulently obtained, if they would not have executed it if they had known that it was to the plaintiff? But if the consideration which they received for the deed was an inducement to its execution, then it was not obtained by means of the false representations alone. And if not, the jury were left to infer that it was not void and that the plaintiff might recover upon it. Under the evidence the jury could not have come to any other conclusion than that Mrs. Cloke and her husband were more or less influenced in making the deed by the pecuniary consideration they were to receive, and that they were not induced to execute it by the false representations of Heylman alone. In this respect the charge was calculated to mislead the jury, and in all probability did mislead them, unless there was some reason for disbelieving the testimony in relation to the fraud not disclosed by the record. And this misleading instruction was substantially repeated at the conclusion of the charge where the jury were told: “If Heylman falsely represented to the Clokes that they were perfecting a deed to Leviek, and they believing him, and acting under this belief, and this alone, executed the deed to Brotherline, it was such a fraud as will prevent Brotherline from here using that deed to dispossess Leviek.”

The court may not have intended to tell the jury that if the deed was obtained by means of the false representations of Heylman, "and these alone, it was void and vested no title in the plaintiff; but if it was obtained by the false representations and the payment of money as an inducement to its execution, it was not void, and the plaintiff might recover upon it. But if the charge was calculated to leave this impression on the minds of the jury, as we have endeavored to show, it was not such a charge as the defendants were entitled to under the evidence. If the testimony is believed, the deed was obtained by gross fraud; and Leviek has a right to complain of it, because he is affected by it. The deed was procured for the purpose and with the intention of using it to dispossess him, as this ejectment shows. Why, then, has he not a right to set up the fraud in avoidance of the deed? He bought the land of Mrs. Cloke — then Mrs. Fuller — and paid her a full consideration for it. It is true that, being a married woman, her deed vested in him no title to the land, because her husband did not join with her in executing it. But he was in possession of the land under his contract of purchase, and but for the fraud of the plaintiff, his possession would not have been interfered with or disturbed. If the deed wa,s made for the purpose of perfecting his title and confirming his possession, what right has the plaintiff to use it to dispossess him ? To permit him so to use it would be iniquitous and a scandal to the administration of justice.

Judgment reversed, and a venire facias de novo awarded.