Richard's Appeal

Mr. Justice Gordon

delivered the opinion of the court, March 13th 1882.

It is alleged that the inducing cause for the making of the deed of September 8th 1871, by the appellant to James Cherrington, was the fraud of the latter by which Richard was induced to believe that Clierrington had been instrumental in procuring the settlement of a suit which the appellant was made to think a certain Dr. Hoffman had brought against him. The facts, however, do not impress us with this view of the case.

It is difficult to comprehend how a man of age and experience, in the full possession of all his faculties, could be imposed upon by a trick so simple as that of the reading of a subpoena in his presence, purporting to have issued in a suit against himself of which he had never before heard. Nor, if he were at all alarmed thereby, is it any less difficult to understand why he was not induced to make some inquiry as to the probability or possibility of a suit having been commenced against him without any show of process.

Be this, however, as it may, it is, nevertheless, next to impossible to make the alleged fraud fit the case, for when the deed was executed the farce was fully played out and at an end ; Clierrington professed to have settled the suit; if the old man ever had any anxiety upon that subject, it was wholly allayed by the production of a pretended settlement, concocted, like the suit, by Clierrington, and which he did not pretend cost him, or was to cost Richard, a single dollar. How then, could this cause, no longer operative, induce the execution of the deed ? It may, indeed, have led the appellant to believe that Clierrington was a very smart man, and so induced a confidence to which he was not entitled, but we cannot see liow it could have been productive of any other effect. But, in view of the evidence, it is difficult to concede to it an effect even of this kind. The papers before us seem to have been but the present execution of a preconceived testamentary design. Clierrington was married to Richard’s granddaughter, and they, whom he regarded as his children, had lived with him for several years, and had taken care of him during the illness caused by the accident which had crippled him. It was, therefore, but natural that he should have sufficient affection for, and confidence in, Clierrington to make with him the contract we have before us of which the deed in controversy is part.

Nor do we regard this as a transaction of either haste or fright. There was first a deed executed before Esq. Stewart; this, because of objection made by Mrs. Ilimmelberger, the grantor’s daughter, was abandoned, and some two weeks after-■wards, the one in controversy, drawn by M. S. Thirwecliter and acknowledged before Esq. Tice, was substituted. With this deed, if we believe the plaintiff, Cherrington had little or nothing to do, for at this time the daughter, Saliie, seems to have been the directing spirit. Concerning this transaction the appellant speaks as follows: “ Then Saliie, my daughter, was not pleased with the arrangement. Don’t recollect whether Saliie got the deed and took it to Thirwechter, or whether Jim took it there. I don’t know whether it is destroyed or not, but I think it was. Saliie was not pleased about her bond. I guess that was the chief difficulty; am not sure whether she had the bond, or whether Thirwechter just made it. Then Thirwechter made a deed, and wrote these things as Saliie liked it; this was another deed.” Here we find Cherrington put entirely into the background, and his influence and interest wholly eclipsed by the superior power and skill of his mother-in-law, who arranges all things to suit herself.

It does seem to us-that by this time, any little effect which Cherrington’s small trick might have produced on the mind of Richard must have wholly disappeared, or if still remembered was utterly barren of results. Furthermore, when we come to look at the deed, we cannot find in it any evidence of imposition on the grantor. The land conveyed by it was valued at ten thousand dollars; doubtless all it was worth, for in this, as in other things connected with this transaction, the daughter, Mrs. Ilimmelberger, was not to be imposed upon, however it might be with her father. Rut the one half of this valuation was charged upon the land in favor of Mrs. Ilimmelberger, to be paid to her on the first day of April next succeeding the appellant’s death, and it was further charged with his maintenance during life. It cannot, therefore, be said, that in this transaction, the old man was not wise enough to provide both for himself and his daughter, neither can it be said that Cherrington, in view of what he might reasonably expect by way of testamentary disposition, made much of a bargain.

Considering, then, the manner in which the vendor’s interests are provided for in the deed, and the deliberation and caution exorcised in the execution of that instrument, we cannot believe that the fraud of Cherrington exercised any material influence over the mind of the plaintiff.

Nor is the length of time, some eight years, that passed before the discovery of the alleged fraud, and the circumstances attendant upon that discovery, altogether without significance. It is passing strange that Richard never so much as mentioned, or alluded to, Cherrington’s services in the settlement of the suit about which he professed to be so much alarmed, and it does seem strange that he did not, at the time, manifest interest enough in the matter to inquire liow an action at law could be brought against him without service of process. Neither are these questions robbed of the force given to them by the Master, .by the fact that the discovery of the fraud was made just at the time when it became necessary, to withdraw, if possible, this property from the grasp of Oherrington’s creditors.

We may add by way of conclusion, that as the hill, in this case, requires not only a cancellation of the alleged fraudulent deed, but also a decree for the restoration of the possession of the land, now in the sheriff’s vendee,- the court might have dismissed it as an ejectment bill. In this particular the case is covered by Long’s Appeal, 11 Nor. 171.

The appeal is dismissed, and the decree affirmed with costs, to be paid by the appellant.