Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1860-11-15
DECISIONS OF THE SUPREME COURT.
OFFICIAL.
OpintODs OF the Supreme Court OF the SITS
Of Tennessee, at JACKSON, April Ter

Il
Opinions OF the supreme Court of the state
Of tennessee, at JACKSON, April Term
Bradford vs. Cherry and others.
/. We are satisfied that the complainant had
valid title to the property to her sole and separate
use.
?. We are also of the opinion that, under the
power OF the deed from Topp to complainant, she
possessed of the power to dispose of the proper
ty in any mode known to the law.
3. The testimony Of Douglass. P. W. Bradford and
Mrs. Cawdon, tends to esta blish that complainant
did not execute the deed freely and voluntarily, but
yielded to the fear of threat of a criminal prose
cuton against her husband, and was induced to exc
cute the deed to save the disgrace to the family.
But this Is not the ground of the bill. nor Is 1t
consistent with it.
The sole equity of the bill, which is sworn to, Is
the fraud in procuring her to execute an absolute
deed, instead of mortgage, as had been agreed en-
The bill distinctly explicitly and repeatedly, states
that the consent and voluntary agreement OF COM
panant TO execute a mortgage for the security Tor
the six thousand dollars to be advanced by MAXWELL
She does not pretend that her assent to do this was
at all induced by fraud, coercion or threats under
influence, or any improper motive; any such as
sumption plainly repudated on the lace OF me Dill
II il were to be conceded, then the proof sufl'
GENTLY establishes thst the execution of the deed
was procured by threats and undue influence she
could not, perhaps on that ground claim rehef IN
the face of the statement OF the bill. We in
cline TO the opinion that she would be estOpped
as mortgage or security to Maxwell for the $4,000
to be advanced by him.
And even if the fact of threats and undue infu-
ence were sufficiently proved, which we are not
prepared to admit, the complainant would not be
titled to avoid the deed altogether But, uron the
admission of the BILL the property ought to be held
liable to reimburse Maxwell the money advanced.
But in the view we; have taken of the case it is
not necessary to pursue the discussion in this as
lpeet.
Upon the whole case we are of opinion that the
complainant was induced to execute the deed belev-
ing it to be merely mortgage or security, and not
an absolute conveyance and that fraud was prac-
tised upon her in which Maxwell, Cherry and her
husband all participated. The proof of Mrs. Cow
don and the statement Of the Deputy Clerk,
who took her acknowledgement of the deed--as
proved by Messrs. Yerger and Brown-shOws that
the deed was not read nor was she otherwise in
formed Of its contents before signing it.
1t also appears that there concerted and Sc
cret place to procure conveyance from her. This
is proved by Douglas and the subsequent conduct
of the parties strongly corroborated his statement
The husband of complainant in whom she seems to
have had entire eonfdence-deceived her he assur-
cd her that nothing but security tosMaxwell was
required, yet he scarcely be supposed to have
been ignorant Of the nature Of the conveyance He
was in the power of Cherry and in his extremity
he chose rather to practice deception upon his
wife, than to hazard the threatened prosecution for
a felony which he, perhaps, really, feared.
She was deceived by Maxwell, in whom she trust
ed as 8 friend. He was the mere instrument of
Cherry. He was making no loan of his money as
he pretended-he seeking no conveyance for his
own indemnity as complainant indicatedto be-
lieve. But the contrary, while processing to act
as the friend of complainant and her unfortunate
family, really seeking to take from her property
not as security to Cherry but-as the sequel prov
ed-to vest it in him absolutely.
Such we think, is the effect of the proofn this re-
cord.
And upon this state of facts while we do not
think the complainant avail herself of the fraud
to avoid her just liability, are of opinion that
she is entitled to have the decd declared to be oper-
alive a mortgage, and to be let IN to redeem the
same. Asking equity, she must do equity. and upon
her own showing in the bill her plain equity is to be
allowed to redeem the mortgage. This measure of
relief gives her all the benefits she can justly claim.
1t is carrying out her free and voluntary agree
ment and relieves her from the consequences of the
| fraud complained of.
The decree will be reversed, and decree will be
made cOnformable to the right of the parties, as
herein declared.
An account will be stated of the amount advanced
by Maxwell to complainant and also the amount
paid TO Topp with the interest thereon.
The defendant Cherry will be charged with the
| full amount of the annual rents of the property
from the 10Th of April 1851, the date of the con-
veyance to Maxwell with interest at annual rents,
| deducting therefrOm annual taxes and insurance
paid on the property.
That is to say he will be charged with rent for
! part of the first and the second year, after the
date of the conveyance to Maxwell for the rent of
which period Maxwell took the obligations of Simon
Bradford and which were by him passed to Viii
| Hanson, by whom they now held for the use of
| Cherry. He will likewise be charged with rent in
addition from the time of the order of the chancel
lor made by Cherry's procurement putting the pro-
perty in the hands of receiver to be rented pend
ing this litigation. But for the intermediate time,
| between the periods stated while the complainant
was assuming dominion over the property owner,
and receiving or contracting to receive the rents,
she is not entitled to receive rents from the defen
! dant Cherry.
| And if the balance found to be due Of the mort
gage debt shall not be paid within ninety days from
| the confirmation of the masters report, the pro-
perty shall be sold on credtOf twelve and eighteen
months without the right of redemption, security be
required for the purchase money and lien retain
ed until the shall be fully paid, and the resi-
due she'll be settled to the sole and separate of
complainant
The costs OF the cause will be paid by defendant
Cherry. MCKINNEY.
Test II. D. WEIGH, Clerk.