The herald., 1893-05-02
A SNAPPY JUDGMENT.
THE SUPREME COURT ON THE CASE
OF GOULD vs.. WISE.
A Very Peculiar Laud Transaction In
which Chief Justice Beatty Uses
Some Very Plain
Language.

Yesterday Deputy Supreme Court
Clerk Sesnon received q dissenting
opinion by ChiefJustice Beatty for fling
in the case of Frederick S. Gould. ex-
ecutor, respondent vs.. John Wise. ap-
pellant, which is one of the anappisst
documents emanating from the supreme
court for long time.
The history of the case is briefly that
in March, 1888, John Wise, the appel
liant, Charles o. and Asa Adams, en-
tered into an agreement by which Wise
agreed to sell them certain real estate.
When $500 was paid by them Wise was
to give them an absolute deed, and re-
ceive mortgage securing the balance OF
the purchase money.
Charles Adams, March IL, 1889, Quit
claimed to Asa Adams, and on the same
day, he having secured deed from
Charles Adams OF his interest, applied
to Wise for deed. representing that he
would pay $1,000 cash, and that with
$500 paid before would make the $500.
and that he would execute the mortgage
provided for.
Wise was sick at the time and was
taken by Asa Adams to notary's office
and there the deeds and notes and mort.
gage were executed. When the deed
had been executed and before the money
was paid, Adams took the unrecorded
deed to r. W.. Poindexter, who was loan
ing money for Julia D. Gould borrowed
money on it ($l000) giving mortgage.
Wise claimed to be absolutely ignorant
of this transaction. Upon the trial for
foreclosure OF the Gould mortgage judg-
ment went for the plaintiff, postponing
appellants (Wise) lien to that of plain-
tiff's. Justice GRroutte, Justices Hat-
rison and Peterson concurring, reversed
the Judgment of the lower court and de-
MED rehearing.
Chief Justice Beatty in his opinion
dissenting from the order of the supreme
court denying rehearing of the case
takes strong grounds saying, amongst
other things:
upon what principle can it be held
that o trial court must accept the UNI
corroborated testimony OF the grantor
that he did not entrust his grantee with
the possession of his deed, and that he
was not guilty Of culpable negligence in
allowing him to get possession of it2
1t seems to me a sufficiently dangerous
rule to hold that such testimony may be
accepted to defeat the apparent validity
of the deed. / hold that as matter OF
law it necessarily defeats its validity, or
in other words, that when the trial Judge
has found in favor OF the presumption
and against the testimony Of the inter-
ested party In finding of fact must be
reversed, on the ground that il Is con-
trary to the evidence, is going beyond all
reason, and in the face OF numerous de-
cieions of this court. 1t establishes a
new rule which not only puts it in the
power OF q party to relieve himself Of
the consequences of his own folly or
negligence at the expense of innocent
purchasers, but opens wide door to
deliberate fraud, and this in class Of
transactions of every day occurrence.
which it should be the policy OF the law
to guard against every element OF dam
ger or uncertainty.
But, aside from this consideration, I
am entirely satisfied that there ia no
authority for holding that on fair con.
struction of the appellants own state-
ment of the manner in which Adams OBJ
tanned and kept possession OF his deed,
he is not estopped to deny delivery.
In conclusion the court says, in part,
"The appellant knew he WAS running
risk he did not like it, but he permitted
it, and having enabled his grantee to
poIpcbEtJo iEduut uo 10 ttIoWou W hhO~
die its consequences upon an innocent
party. -.
More than this, be is allowed to sub.
ject an innocent party to q serious hard
ship in order that he may reap an adj
vantage from his own wrong. The case
shows that the Thousand dollars Ad-
vanced by the respondant on her mort.
gage was paid over to the appellant as
the second installment of the purchase
price OF the land, and this by the deoree
OF the court he Is allowed to keep, to-
gether with his first payment and his
land. In other words, he comes out of
the transaction with the land that he
sold, with the $500 paid at the date of
the sale, and with the Thousand dollars
OF which the respondent has been 80
frauded by his assistance. Ii Adams
had not been enabled to perpetuate this
fraud by the opportunity the appellant
gave him. it is to be presumed he never
would have made a second payment on
his purchase, and the most the appel.
liant could have got would have been the
first payment on the land. By contrib
uting to entrap the respon ndsnt ne adds
to his gains the precise sum, and the
identical money which the respondents
was induced to advance. He is not con-
tent to be restored to the position he
would have occupied il the fraud had
not been committed. but must make all
the profit OF ii. There is, in my opinion,
no rule OF law or equity that lends itself
to such conclusion"