Stevens v. Moore , 73 Me. 559 ( 1882 )

Danforth, J.

To this bill a demurrer lias been filed, as well as answers, upon which evidence has been taken upon both sides. The bill seeks a remedy for damage resulting from an alleged fraud.

Under the demurrer several defects are apparent, some of which may be amendable, but other’s are clearly fatal. It appears from the bill that the wrong purpose to be accomplished is to deprive the female plaintiff of certain specified real estate, while the act accomplished and from which relief is asked is the obtaining two promissory notes secured by a mortgage of the real estate described.

The more important defects, however, are found in the substance of the bill, in its failure to set out any case of which the court can take cognizance.

It must now,be considered as well settled that a general charge in a case where fraud is relied upon is insufficient. Here the evidence to be introduced, or the minute facts which are important only as they bear upon others which are relied upon, need not be recited; but those which constitute the fraud and enough to to show that a fraud was committed or attempted must be alleged. Story’s Eq. Plead. § 251.

In this case there is an entire failure in this respect. There are indeed certain definite representations set out which are alleged to be fraudulent. But it is evident that of themselves they are not fraudulent. If true they are not so. If honestly made believing them true, they are not. They are only fraudulent when false and made with a knowledge of their want of' truth, or made by the party as of his own knowledge when he has no knowledge as to their truth or otherwise. Pratt v. Philbrook, 33 Maine, 17 ; Clark v. Robinson, 58 Id. 133. In this bill we find no allegations of these necessary constituents of fraud. For aught that appears the representations may be literally true, and if so, there can be no fraud in making them so far as regards this plaintiff.

Some reliance seems to be placed upon the allegation that the consideration in the deed represented to be void as against the . grantor’s creditors, was a marriage with the grantee. This would undoubtedly be a valuable and sufficient consideration as to creditors. But this alone would not necessarily make the deed valid as to them. Much less is it a sufficient allegation of the dishonesty or knowledge of the want of truth in the representation of its invalidity. The substance of the representation is that the grantor was in debt and notwithstanding the deed, the property would be liable to be levied upon by his creditors. There is no allegation that the grantor was not in debt and it is not alleged that the conveyance was hot made to keep the property from the creditors.

But even both these allegations would fail to show any dishonesty or fraud on the part of the defendant in the representations set out. It will be noticed that although the consideration alleged is sufficient, it also appears from the bill that such consideration was not named in the deed, but the only one there expressed is, "affection and services to be performed.” What these services to be performed were, does not appear, nor is it hecessary now to inquire whether such a consideration is so inconsistent with that of marriage as to prevent the latter being shown by parol evidence as an additional consideration so as to keep the property from creditors. It'is enough for present purposes that so far as appears, the defendant had no other ■knowledge than that gained from an inspection of the deed, ■though the circumstances were such that he might well, have expected it, if there had been any facts inconsistent with, or in .addition to what there appeared. If then the statement that the property was still liable to attachment was not true, from the knowledge obtained by the defendant from the deed, and the absence of information from the party, he would seem to be justified in the statement made. There would seem to be then, no allegations in the bill, independent of the usual, formal and general statement of fraud, inconsistent with the entire honesty .of the defendant, who is charged with having made them.

Thus much for the issue formed by the demurrer, from which it clearly appears- that the process cannot be maintained under the allegations in this bill.

From the evidence in the case the plaintiff stands no better. That overwhelmingly shows that at the time of the conveyance, the grantor was deeply in debt and probably insolvent, and by a preponderance that the notes and mortgage were obtained under a claim of a balance of account due the defendant and as security therefor. Whether for a larger amount than was justly due appears more doubtful. But of that we have no occasion to inquire, as the bill puts the claim for relief upon another and entirely different ground, and the question as to the amount due is open upon a bill for redemption.

Demurrer sustained.

Bill dismissed.

Arrleton, C. J., Walton, Barrows and Peters, JJ., concurred.