Catlin v. Fletcher

By the Court Atwater, J. -The Plaintiff brought her action to set aside a mortgage executed by her husband and herself, (upon the homestead of the mortgagors,) upon the ground that she was induced to execute the same from the false and fraudulent representations of the Defendant. The Defendant demurred to the complaint, and the ’demurrer was sustained. The Plaintiff sued out a writ of error. The demurrer was properly sustained upon the ground that the complaint does not state facts sufficient to constitute a cause of action. The Plaintiff alleges that the Defendant told her that if she would sign the mortgage he would never do any thing with [88] it; that he would collect the money out of Swift (the endorser of the note), and that when the money was collected out of Swift tho debt would be pjaid, and the mortgage would be cleared off, and the Plaintiff could have the place for her homestead. That relying upon the said promises of the Defendant, that he would collect the debt from Swift and never resort to the mortgage, and upon hi» representations that Swift could not touch the house and lot for the said debt, Plaintiff finally reluctantly consented to execute tho mortgage, and that if she had not been induced by the Defendant to believe and rely upon his said promises and representations, she would not have consented to execute the mortgage. And upon her belief charges that the Defendant made said promises and representations knowing the same to be untrue, and with the intent and for the purpose of deceiving the Plaintiff and defraud' ing her into the execution and acknowledgment of tho mortgage. This is tho substance of the fraud charged. Here are two false promises or misrepresentations charged — first, that the Defendant would not enforce the mortgage; second, that Swift, the endorser, could not. Suppose the Plaintiff had alleged directly that she executed the conveyance upon tho agreement and condition on the part of the Defendant that ho would re-convey the premises to her, would that constitute a good or sufficient ground for setting aside the mortgage ? Clearly not Such promise would be within the statute of frauds, and this court has repeatedly held that parol proof of such cotemporaneous agreement cannot bo received. Wentworth vs. Wentworth, 2 Minn., 277; Russell vs. Schurmier, Antep., 28; Evans vs. Folsom, 5 Minn., 422. And in the latter case it Avas held that “ fraud cannot be predicated of a promise not performed, for tho purpose of aAmiding a Avritten instrument or bargain of any kind. A false promise to convey land does not taint the proceeding AArith- such fraud as a court of equity will relieve against.” The principle is equally applicable to the agreement to surrender a mortgage or not to use the same. The complaint contains no statement of facts tending to show that the statement of the Defendant, in regard to his not making use of the mortgage, was false at the time it was made, but rests [89] solely in the belief of the Plaintiff. No inference can in this case be drawn to that effect, from the fact that the Defendant commenced to foreclose his mortgage; as a law has been enacted, since the alleged promise, prohibiting the Defendant from proceeding against the endorser until he has exhausted his mortgage security. (Sess. Laws of 1860, 216.) Even if the promise had been originally binding upon Defendant, this act would relieve him from the effect thereof. Chit. on Cont., 604-5, 635, Note 2; 4 Com., 412; 5 Cow., 538; 12 Mass., 94. With regard to the representations of Defendant that Swift could not enforce the mortgage, it may be remarked, that there are not sufficient facts before this court to show that it was false in fact, or that Defendant knew that the statement was false. But assuming that the statement was not true, it. was not a misrepresentation of a material fact, but one in .regard to the legal effect of the conveyance, and such misrepresentations will not avoid the instrument. Chit. on Con., 588; 2 Par. on Con., 274-5; 4 B & C., 506 ; 6 D. & R., 567; 5 Hill, 303; 1 Pet. Sup. Ct. R., 15; 1 John. Ch. R., 512. If that fact was in any wise material to Plaintiff, and she chose to rely upon the opinion or statement of the Defendant in regard to it without consulting any other person, not even her husband, she certainly fails to present a case entitling her to the interposition .of a court of equity in her behalf. The order sustaining the demurrer is affirmed.