Wooley v. Fry

Walker, J. The bill of exceptions in this case, does not purport to contain all of the evidence. That being the case, the correctness of the finding of the jury is not involved. It has been uniformly held, that in the absence of such a statement, all of the presumptions are in favor of the. verdict, and that it was supported by the evidence on the trial. No objection is perceived, to the refusal of the court to give plaintiff’s instructions as asked. The first asserts, that the absence of the mortgagee in St-.. Louis at the time, and for the period of two days, after the maturity of the mortgage, was a sufficient excuse for failing to foreclose, by reducing the mortgage property to his possession, until four days had elapsed, after its maturity. It is perfectly obvious that with a very' slight degree of diligence, the mortgagee could have reduced the property to possession. The parties resided in the same county, but a few miles apart, and had the mortgagee appointed an agent, no reason is. perceived, why it might not have been done on the day the mortgage fell due just as well and at a trifling cost. On his return he acted through an agent in reducing' the property to possession. To. allow such a defense, would be to dispense with all diligence, and to permit the mortgagee to consult his own convenience, inclinations or interest, in pursuing his. rights at the expense of other parties. The second instruction asserts that the question is one of fact, and is. only for the consideration of the jury, in the light of all the surrounding circumstances. In cases like this, it is a mixed question of law and fact, and is not wholly within the province of the jury to determine. It is for the court to determine what time under the circumstances is, reasonable» and then the jury will say whether the mortgage was foreclosed within that time. It is, however, urged that the court erred, in giving defendant’s instructions. They assert that the note must have been given for a valuable consideration, to its full amount, and if given for a greater sum than was owing by the mortgagor, that fact rendered the mortgage fraudulent. If this is the correct rule in such eases, the slightest mistake, however honest the purposes of the parties, if made in favor of the mortgagee, would be attended with all the consequences of the grossest fraud deliberately perpetrated with the design to hinder and delay creditors. It is a rule of almost uniform application, that to constitute a fraud in fact, the act producing the wrong must be intentionally performed. If this note and mortgage were executed with design and not by inadvertence, for too large a sum, to enable the mortgagor to shield his property from his creditors, or to enable him to impose upon the public, then it would have been fraudulent and void. In this case there was evidence uncontradicted, intended to explain and show, that the note was taken for too large a sum purely by accident, and that the transaction was entered into in good faith. Whether such was the case was for the jury to determine. The instruction cut off all inquiry into the bona fides of the transaction. Before it was given it should have been so modified, as to inform the jury that if they found the transaction was entered into honestly and in good faith, although the mistake had occurred, the instruments would be valid; but if it was fraudulent, then they should find them void. In this the instruction was calculated to mislead the jury. The judgment of the court below must be reversed, and the cause remanded. Judgment reversed.