Brady v. Cole

Mr. Justice Phillips delivered the opinion of the court: There are two questions presented in this case for the consideration and determination of this court, being, in substance, whether there were such fraudulent misrepresentations made to appellant, of which appellees Goodrich and Heald had notice, to induce her to make these exchanges of property, as would call upon a court of equity to set aside the conveyances; and also whether or not the second acknowledgment of the Goodrich deed was obtained by fraud, or whether there was, in law, a proper acknowledgment. A misrepresentation, in order to constitute fraud, must be made for the purpose and with the design of procuring the other party to act,—of inducing him to enter into the contract or engage in the transaction. (Pomeroy’s Eq. sec. 879.) It can hardly be contended by appellant, and, in fact, we think is not, that any misrepresentations were made to her by either Goodrich or Heald. On the contrary, she did not have any conversation with either before the transaction was practically consummated. She called at the office of Goodrich with her agent for the express purpose of deeding him her homestead and receiving his lot in exchange. The extent of the conversation, as appears from this record, was, that he asked if she fully understood the matter, and then, if she had time, to wait while he prepared the deed. She alleges she did not have knowledge of the incumbrance on his lot or of the special tax. Both were clearly expressed in the deed which was delivered to her, and it was incumbent on her to take notice of its conditions. Unless it appears that by the fraudulent acts of the opposite party she was prevented from knowing the conditions and terms of the instrument -accepted by her, she is bound by them. It appears, however, from the evidence, that the value of the Goodrich property, after deducting the mortgage and tax, was so nearly equal to the value of her own property above the incumbrance that she was not in any way defrauded -in value. If no misrepresentations were made directly to appellant by appellees Goodrich and Heald before the transaction, then it must sufficiently appear that such representations were so made by Cole for the purpose and with the design of inducing her to act and engage in the transaction, and that such misrepresentations were known to Goodrich and Heald and participated in and taken advantage of by them. It is not sufficient that Cole made statements that she was making a good trade and bettering her condition, and that she could sell enough lots off the tract of land purchased by her to pay for her house. Those statements were mere matters of opinion, and the mere expression of an opinion held by a party cannot, standing alone, be held a misrepresentation. The statement must be the affirmation of a fact. (Hubbell v. Meigs, 50 N. Y. 480.) The reason of this rule is, that while the person to whom the representations are made has a right to rely on them, he is assumed to be equally able, from his own opinion, to come to as correct a conclusion as the other party, and therefore cannot claim to be misled by such opinion. Promises for the future and hope of realizing speculative profits are not present fraud. It must be of a fact at the time or previously existing. Long v. Woodman, 58 Me. 49; Bevit v. Bowles, 69 Ind. 1; Fontz v. Fontz, 34 id. 433; Bethell v. Bethell, 92 id. 318. As we have heretofore said, the deal between Mrs. Brady for her homestead and Goodrich for the Barker avenue property was in no sense unfair, as the record shows the equities were nearly equal. Cole held an option on the Geiger tract, and afterwards made the conveyance himself to appellant. Courts of equity do not aid parties who do not use their own discretion and jud gment upon matters of this character. Tuck v. Downing, 76 Ill. 71. As we view this matter, from the record presented to us, it was not of a character different from an ordinary business transaction. Heald was not willing to use appellant’s homestead property at the value fixed on it in exchange for the Geiger tract, but, when the matter was suggested, agreed to take the equity in the Barker avenue lot. Appellant then, voluntarily and without misrepresentation on the part of Goodrich, traded for his property and was not defrauded. She then exchanged with Cole for the Geiger tract, which he acquired from Heald; but the promises and predictions made by Cole as to the sale of lots off that tract, and other promises made by him, were not consummated, and the exchange resulted unfortunately. Fraud is never presumed. It must be affirmatively shown, like any other fact. (Wright v. Grover, 27 Ill. 426; Boies v. Henney, 32 id. 130; People v. Lott, 36 id. 447; Carter v. Gunnels, 67 id. 270; Schroeder v. Walsh, 120 id. 403.) It was not so shown in this case, and it was not error for the circuit court to so hold. Moreover, it was the duty of the appellant, if she was entitled to a rescission of these conveyances, to have tendered back what she had received and offered to place all parties in statu quo. It is a familiar rule, and settled by a long line of authorities, that where a party discovers that fraud has been practiced upon him in the making of a contract, it is his duty at once to repudiate the contract and tender back what has been received by him under its terms, so that all the parties may be placed, as near as possible, in the position occupied before the contract was consummated. (Linington v. Strong, 107 Ill. 295; Dowden v. Wilson, 108 id. 257; Kelsey v. Snyder, 118 id. 544; Greenwoood v. Fenn, 136 id. 146; Brown v. Brown, 142 id. 409; Day v. Fort Scott Investment Co. 153 id. 293.) In this case such rule was not followed, only the mere allegation being made in the- bill that appellant was, and had been at all times, ready to reconvey the property. This was not sufficient. Goodrich had proposed, if she was dissatisfied, to reconvey if she would deed him back the Barker avenue lot. It is contended, however, that even though the proof be not sufficient to authorize a decree setting aside these deeds and rescinding the different transactions, this court should still declare the acknowledgment to the Goodrich deed taken by Frey to be void and not to waive homestead, and that appellant be permitted to retain her homestead interest therein. The circumstances attending the taking of this acknowledgment are not entirely clear, owing to the conflict in the testimony of the different parties. The first acknowledgment had been taken by Goodrich, the grantee. The evidence establishes that at the time he, together with Cornwell and Frey, called upon appellant she admitted the signature to the deed to be hers and that she had given it in good faith to Goodrich, and at the time it was given to him she intended to convey to him her homestead interest. She said she had since understood there was an error in the acknowledgment and had given notice that the deed was void. The certificate of Rudolph Frey, the notary, shows that this deed was acknowledged before him on this date, together with a release and waiver of the rights of homestead. It is a rule that the acknowledgment of a deed cannot be impeached for anything but fraud, and in such cases the evidence must be clear and convincing, beyond a reasonable doubt. The mere evidence of the party purporting to have made' the acknowledgment cannot overcome the officer’s certificate, nor will it with slight corroboration. (Russell v. Baptist Theological Union, 73 Ill. 337.) “To impeach such a certificate the evidence should do more than produce a mere preponderance against its integrity in the balancing of probabilities. It should, by its completeness and reliable character, fully and clearly satisfy the court that the certificate is untrue and fraudulent.” (Monroe v. Poorman, 62 Ill. 523; McPherson v. Sanborn, 88 id. 150; Marston v. Brittenham, 76 id. 611.) The authorities very clearly lay down the rule that evidence offered to impeach a certificate of this character must fully and clearly satisfy the court that the certificate of the officer is false and fraudulent, and even a preponderance of evidence less than sufficient to establish a moral certainty to that effect is not sufficient. In this case the certificate of the officer is supported by his own testimony and that of two other witnesses, (one of them the grantee,) as against the testimony of appellant, the grantor, (an interested party,) and another witness, Mrs. Dikeman, whose evidence, however, is not very satisfactory. Taken as a whole, the evidence offered to impeach this certificate is not of that clear and convincing character required by the rule as heretofore shown to exist. Moreover, we have heretofore held in this case that the exchange of properties between appellant and Goodrich, involving this deed, was valid and free from any taint of fraud. To now hold that she is entitled to an estate of homestead in this property, without requiring her to deed back to Goodrich the property acquired from him, would be manifestly unjust and not in accordance with the principles of a court of equity. It would materially decrease the value of the property conveyed to him. Appellant practically admits she cannot place him in statu quo, having conveyed and disposed of the property she acquired from him. The acknowledgment was valid. It was not error in the circuit court to enter a decree ordering the bill of appellant to be dismissed, and such decree is accordingly affirmed. Decree affirmed.