Abbott v. Alsdorf

Campbell J. The bill was filed to obtain a reconveyance of property alleged to have been obtained by fraud. The bill sets up in substance that on or about December 2, 1864, complainant agreed to sell a parcel of land containing one acre to defendant Henry Alsdorf for one hundred and fifty dollars, of which fifty was to be paid on delivery of the deed and remainder to be secured by note and mortgage payable in two years with interest at ten per cent: — That thereupon on that day complainant executed a deed and left it with Elon Q-. Parsons, to be delivered when the grantee should execute the mortgage security; and that on about the 12th of December, the latter obtained the deed by fraud from Parsons, without executing the papers, and had it recorded about the loth of December, and on being applied to, refused to execute them ¡ — That in December, 1864, Henry Alsdorf moved a house upon the land and, with his father John Alsdorf, moved in and they have since occupied, wrongfully, and that by the agreement possession was not to be given until March, the premises being under lease till that time [161] to one Seely: — That on February 19 Henry Alsdorf. conveyed the land to defendant Haynes, who is charged to have paid no consideration and to have taken his deed with full notice. The answer, beside relying upon some legal points, represents the land sale as part of another transaction, including some horses; and avers that Parsons, as complainant’s agent, delivered the deed voluntarily and without' fraud, and that the grantee was willing, and offered to give a mortgage for seventy-five dollars, which is alleged to have been all that was due or agreed upon. It also alleges that John Alsdorf got license from Seely to move on the ground, and entered under that permission. Complainant’s testimony being in, and defendants not yet having taken any in a regular way, and the time having expired, defendants having failed to obtain leave from complainant to use the informal depositions, noticed the cause for hearing, and complainant entered an order closing proofs. Hpon application to the Circuit Court Commissioner time was granted to defendants to take further proofs, but upon appeal from this order, and after proofs had been taken in the meantime, the order of extension was reversed and rescinded. The Court below disregarded the testimony so taken, and granted a decree for complainant, which is appealed from by Henry Alsdorf. The complainant’s witnesses make out his case, and show that Henry Alsdorf obtained the deed from Parsons upon a written order, which Parsons read over hastily without noticing the clause requiring a mortgage, and that Alsdorf kept silence on the subject of the securities, until afterwards requested, when he declined to give the mortgage. In the absence of evidence for the defendants, the case is substantially maintained. And the only question, seems to be, whether their evidence was properly excluded. The testimony seems to have been regularly closed. The [162] application to extend time was addressed to the discretion of the Commissioner, and when appealed, became discretionary with the Court. When the order was reversed the proceedings to talce proofs fell with it. A stay of proceedings had been granted on the appeal before any of these proofs were taken. Under these circumstances there was no authority whatever to proceed, and it was not necessary to make a rpotion to suppress. The order of reversal was itself a suppression of all that had been done, and no further steps were needed to get rid of the evidence. If an application had been made to the Court to open the case for further proofs, it might very possibly have been granted. But no such leave was sought, and, therefore, it was necessary to decide the cause upon the complainant’s proofs, which are more satisfactory to our minds than the answer of Henry Alsdorf. The other defendants knew nothing of the main facts. And, as neither John Alsdorf nor Haynes have appealed, no ones’ rights are now involved except those of Henry Alsdorf, and the answers are not explicit enough to overcome the plain showing against them. As he knew he was not entitled to receive the deed, it was inequitable in him to retain it, and he was bound in fairness to restore it. Instead of oifering to do justice, and to comply with the terms of the agreement, the defendants all rely on the deed to Haynes as cutting off complainants’ rights, and so repudiate the contract. The Court below was right, therefore, in rescinding the entire claims of the defendants, and we are somewhat at a loss to know how Henry Alsdorf can justly complain. He was the party directly active in the fraud. The decree must be affirmed with costs of this Court against the appellant. The other Justices' concurred.