Stabler v. Melvin

JOHNS, J. — 1. The complaint is voluminous, yet in substance it is an action for money had and received. There are eleven assignments of error, but under the conclusion which we have reached after a careful study of the whole record they all become immaterial and unimportant, except as to the amount of the judgment. It appears from the record that the $650 note and mortgage upon the fifteen-acre tract were exe [230] cuted without any consideration; that in truth and in fact the defendant was the owner of the land at the time that note and mortgage were executed; that Hattie C. Burton is now the owner of that land and of the note and mortgage, and that when she acquired the title and as one of the considerations she assumed the mortgage and agreed to pay the note. Plaintiff has not paid the note, no demand has ever been .made upon her for payment and she might have a valid defense to any suit or action against her to enforce payment of that note. Under such a state of facts we do not know of any principle of law, and counsel have not cited any authority, by which the plaintiff could now recover a judgment against the defendant for the amount of the $650 note, yet it is very apparent that such sum is included in and is a part of the judgment against the defendant for $1,411.69. To that extent the judgment is wrong. The $750 note was executed by the plaintiff to the defendant and secured by a mortgage upon the forty-acre tract then owned and held by the plaintiff, and the defendant sold and assigned the note and mortgage before maturity and appropriated the proceeds to his own use. The mortgage was upon her own land and as the maker the plaintiff is now liable on that note and mortgage according to the terms thereof. 2. The testimony is convincing and the jury must have found that there was no consideration for the $750 note and mortgage and that the plaintiff was deceived and misled into the execution thereof by the false and fraudulent representations' of the defendant as to the terms and conditions by which she acquired title to the forty-acre tract. This conclusively appears from the testimony of Bruce Wolverton, with whom the defendant made the deal and who testifies [231] positively that the only consideration which he ever received for the conveyance of the forty-acre tract to the plaintiff was her deed to the two lots in Westmoreland. Defendant was called as a witness in his own behalf and did not attempt to explain or contradict the testimony of Wolverton. He also admitted that he sold and disposed of the $750 note and mortgage and retained the proceeds. We are of the opinion that there was no consideration for the $750 note and mortgage and that in equity and in good conscience that note and that mortgage when executed were the property of the plaintiff; that the defendant should account to the plaintiff for the amount thereof, and that by reason thereof the defendant is justly indebted to the plaintiff in the sum of $750, with interest thereon from February 14, 1916, the date of the judgment in the lower court, at the rate of 6 per cent per annum. This is an equitable action. The plaintiff is a widow 65 years of age and it clearly appears that she is wholly inexperienced in business affairs; that the defendant took an unfair advantage of her situation and the relations existing between them; that on November 12, 1912, through fraud and deceit he wrongfully and without any consideration obtained the $750 note and mortgage, and that in November, 1913, he sold and assigned them, appropriating the proceeds to his own use and benefit. Plaintiff’s judgment was entered February 14, 1916. 3. Among other things, Section 3 of Article VH of the Constitution as amended in 1911, in speaking of actions at law, provides: “If the Supreme Court shall be of opinion, after consideration of all the matters thus submitted, that the judgment of the court appealed from was such as should have been rendered in the case, such judgment [232] shall be affirmed, notwithstanding any error committed during’ the trial; or if, in any respect, the judgment appealed from should be changed, and the Supreme Court shall be of opinion that it can determine what judgment should have been entered in the court below, it shall direct such judgment to be entered in the same manner and with like effect as decrees are now entered in equity cases on appeal to the Supreme Court.” The judgment appealed from should be changed. There is no dispute as to any of the material facts in this case and under such facts we feel that it would be a gross injustice to allow appellant costs on this appeal. It is our opinion that the power given to this court, under this section, to enter a judgment upon the record carries with it the power to award costs on equitable principles, and to give or to deny costs to either party on appeal. The judgment of the lower court is modified and it is ordered and adjudged by this court that the plaintiff and respondent have judgment against the defendant and appellant and his sureties on appeal for the sum of $750 with interest thereon from February 14,1916, at the rate of 6 per cent per annum, and her costs in the lower court; and that neither party have or recover costs in this court. Modified. J udgment Rendered. MgBride, C. J., and Moore and Bean, JJ., concur.