Oaks v. Harrison

Wright, J. fraud: burden of proof. The testimony fails to sustain plaintiff’s bill, and it was therefore very properly dismissed. To say the least, it is.left in much doubt, whether defendant ever made the representations charged. The presumption is, that the transaction was fair and honest, and as plaintiff affirms the contrary, it is his duty to sustain his allegations by sufficient proof, by such evi [180] denee as will satisfy the conscience of the chancellor. When, upon all the facts, the case is left in equipoise, the party affirming must Jail. Rupert v. Dunn, 1 Rich. 101. When, however, we look at the subsequent acts of plaintiff, all fair room for doubt is removed. After his purchase, he went to Hardin county, looked at the land conveyed to him, expressed himself satisfied, and several weeks later received, without objection, the unpaid balance of the $100, which defendants were to pay him as the difference between the two tracts of land. And thus, with a full knowledge of all the facts, without fraud, mistake or imposition, he accepted the fruits of his contract. If there was fraud he knew it then as well as afterward, and yet this act is utterly inconsistent with his present theory. No explanation is attempted, nor do we well see how any could be made. Upon this subject see Bronson v. Wiman, 8 N. Y. 182; Saratoga and Schenectady Railroad Company v. Row, 24 Wend. 74; Lloyd v. Brewster, 4 Paige, 537; Wilmot v. Richardson, 6 Duer, 328; Masson v. Bovet, 1 id. 69; Brinley v. Tibbets, 7 Greenl. 70; Lawrence v. Dale, 3 Johns. Ch. 23; Selway v. Fogg, 5 Mees. & Wels. 83. Affirmed.