Atkins v. . Withers

Ashe, J. (after stating the facts). The defendant having abandoned his first exception, which was assigned as a ground for a new trial, we will consider the other grounds assigned in the order in which they were taken. The first in order was, that His Honor refused the instructions asked, the first and second of which were, that if the jury should believe that the plaintiff was the confidential friend and adviser of the family, including the feme defendant, that any advantage taken of the defendant in any business transaction between the plaintiff and defendant, would constitute fraud; and secondly, if any such confidential relationship should be established, the burden of showing that the transaction was fair, and no advantage was taken, is on the plaintiff. His Honor properly refused to give the instructions as prayed. He instructed the jury, that the execution of the note sued on being admitted, and the defence relied upon being fraud and undue influence, exercised in pi’ocuring its execution, the burden was upon the defendant to show to the satisfaction of the jury, that its execution was so procured. The proposition contained in the instructions asked by the defendants was, that if such a relationship as that alleged should be proved to have existed, and any undue influence was used by the plaintiff to obtain it, then the bond was void in law, but his Honor denies the proposition, and charged that it was a question for the jury to determine and the onus was on the defendant. There is a well marked distinction in transactions between persons standing in fiduciary relations to each other, and those between persons who do not bear such relations. In the one case, the law presumes the fraud, and the Court pronounces the transaction void, as a legal question, unless the presumption is rebutted, and in that case the owns is upon him who alleges the fraud of the transaction. In the other case, it is a question of *590 fact for the jury, and the onus is upon him who alleges the fraud or undue influence. This distinction is clearly recognized in the case of Huguenin v. Basely, 2 White and Tudor L. cases Eq., 406 and notes. The cases in which the law will presume fraud, arising from the confidential relations of the parties to a contract, are, executors and administrators, guardian and ward, trustees and cestui que trust, principal and agent, brokers, factors, &c., mortgagor and mortgagee, attorneys and clients, and to those have been added, we think very appropriately, husband and wife. The rule is founded on the special facilities which, in such relation, the party in the superior position has of committing a fraud upon him in the inferior situation, and the law looking to the frailty of human nature, requires the party in the superior situation, to show thas his action has been fair, honest and honorable, not so much because he has committed a fraud, but that he may have done so. Bigelow on Frauds, ch. 5; Baily on Onus Pro-bandi, 324. The class of cases here mentioned are the only cases in which the Courts have assumed to declare void, a contract arising out of the confidential relations of the parties. But the learned counsel for the defendant insists, that there should be added to these classes, the relation subsisting between a lover and his affianced, and has permitted his wonted zsal, in behalf of his client, to lead him to the unchivalrous conclusion that, in that relation, the man holds the superior position, and the affianced is so much under his influence, that the law looks with suspicion upon any contract made between them, and will throw the burden of showing its fairness upon him. We know of no such principle of law, and the counsel has failed to furnish ns with any authority to support his position. Fraud in such a contract, like all others not falling within one of the above-mentioned clauses, where undue influence is alleged, presents a question of fact for the jury, and the onus is on the plaintiff. It is not in the province of the Court to pronounce it fraudulent, as insisted by the defendant, *591 in the second and third instructions asked. There was, therefore, no error in the Court’s refusing to give the instructions, and submitting the question of undue influence to the jury. The defendant offered some evidence tending to show the exercise of undue influence on the part of the plaintiff, growing out of his being the friend and adviser of the family, and the delicate relations in which he stood to the feme defendant, but the plaintiff, on the other hand, offered his own testimony, which, if believed, the transaction was shown to he fair and honorable, and the jury gave credence to his testimony, and rendered a verdict in his behalf. That was conclusive upon that point. The third instruction asked, was, that if the note sued on was obtained by the plaintiff upon false representation to the defendant, that the same was for her benefit, it was void. Upon the facts of the case, his Honor could not have given this instruction, for it was a transaction which has certainly enured to her benefit. The deed for the land, which is the consideration of the bond, was executed by the plaintiff to the feme defendant, on the 23d of February, 1876, and she has had the possession of it ever since, without paying anything for it, except a small sum paid by her mother, and the land, which was worth at the time of the conveyance $450, was sold to her for the sum of $259.77, being the amount of the debt due originally from her father to the plaintiff. The defendants keep the land, worth twice the amount of the sum agreed to be paid for it, and, without offering to return it to the plaintiff, endeavour to escape the payment of its price, by charging the plaintiff with falsely representing that the transaction was for the feme defendant’s benefit. The exception was not worthy of consideration. The third ground assigned for a new trial, was, that the feme defendant was under age when she gave the first bond, and she was not bound on the same when she attained her majority, and the fact that the possession of the land was not changed, the price inadequate, and the relationship of the parties, were each and all badges of fraud. There is not the shadow of merit in this exception, and the counsel here did not press it. *592 The contract made in defendant’s infancy was ratified by her giving a new bond and keeping the land after she became of age, and it is the first time we have heard the position seriously urged in a court of justice, that a bargainee could set up the inadequacy of the price paid by her for land as a badge of fraud. There is no error. The judgment of the Superior Court is affirmed. No error. Affirmed.