farm, of which the defendant executed to him at the same time a lease to run for five years from November 12, 1887, for which lease Wheeler was to pay him $2,000 per year, or $10,000 in all, the same consideration expressed in the bill of sale of the personal property. This transaction is claimed by complainant's counsel to have been made to hinder and delay or defraud defendant's creditors, but this is denied by defendant. With this farm in this situation, the defendant on the 21st day of December, 1887, contracted with Davis in writing, as follows, each keeping a duplicate copy: "Sold to Frank C. Davis and wife as follows [here follows description of land], containing 646 acres, more or less, to be paid for as follows: By paying first mortgage, given Aug. 7, '85, due $20,000 00 By paying interest due July 1, 1887, $700, on 700 00 By paying interest from July 1, 1887, to Dec. ' 661 00 "The above is terms of sale as agreed upon by and between Frank B. Smith and Frank C. Davis, this 21st day of December, 1887. "FRANK B. SMITH. "FRANK C. DAVIS." The land was deeded to the Davises in pursuance of this contract. Davis was a man having, all told, at the time he made this purchase, between $500 and $600. The mortgage of $20,000, on which there was then due $1,394.06 interest, would fall due in less than a year, and the lease running to Wheeler had nearly its full term, less than two months of the same having expired. The sale of this land to Davis has every appearance, upon its face, of a sham transaction for some purpose other than an honest one; and there is testimony and various facts and circumstances tending to show that the conveyance was not a real one, and made with some fraudulent object in view. The purported payment of $12,000 down, consisted of the estimated incumbrance of this Wheeler lease, over $9,000; the interest due on this $20,000 mortgage, which has never been paid; Davis' interest in a span of horses and wagon; a note of Smith; an order for work; and the paltry sum of $133.45 in cash. It is not disputed that Goodrich was informed that Davis paid $12,000 down to Smith upon the purchase of this farm. It is denied that he was told that the payment was made in cash, but it is nowhere shown that he was told in what the payment consisted. An attempt was made to prove that Goodrich wanted a copy of this contract, and was furnished one, which he took home with him, and that he gave a receipt for the same, which was retained by Smith, a letter-press copy of which was put in evidence. The claimed original was in evidence, but during the trial was left in the hands of the clerk and lost. Goodrich denies taking any such copy, or that he ever saw the contract. He thinks the signature to the receipt looks like his own, but denies that he ever wrote it. Why Smith should take a receipt for this copy that he swears he let Goodrich have is not explained very satisfactorily. It would seem to have been unnecessary, unless Smith was preparing for the contingency of a lawsuit, and preserving evidence in view of such contingency. He We think from all the testimony that Goodrich was given to understand expressly that Davis paid $12,000 cash down on the purchase of this land, and that it had its influence in inducing him to make the trade. was also told that Davis and his wife had property, and that the notes were good and collectible against them, which was untrue. Goodrich swears that he was told by both Smith and Davis that the $20,000 mortgage was subject to the ones he received, which testimony, we are satisfied, is the truth. any man, knowing the sale of the land to It does not seem possible that whole circumstances of Smith's Davis, and that this mortgage was then past due, with accrued interest upon it, with no means of his own to meet it, would have taken these later mortgages for his property in Hillsdale. It is testified to by both the Smith brothers and their mother that Goodrich had the abstracts of this farm and examined them; and a man by the name of Drake opportunely happened in just then to pay Smith some rent, and swears that he saw the abstracts in complainant's hands, who was examining them, and, while Drake was there, asked several questions about this $20,000 mortgage, which, if true, would clearly indicate that he knew the situation of this mortgage, and that it was a prior lien to the ones that he received. But Drake's testimony does not impress me as truthful, and his character as developed by his own testimony, and a refusal to answer certain questions touching his life, does not seem to be of the very best. I am of the opinion that Mr. Goodrich never examined the abstracts, and that his story that he only saw them as Smith took them out and put them back again is true. He testifies that, while he usually required an abstract in his real-estate deals, he had never examined one himself, always employing some one else to do this for him; that he could not read and understand one. He was at the home of Smith, where he had been for three days, and, during that time, had been led by the shrewdness and artfulness of Smith to have implicit confidence in him, and he trusted his declaration, and that. of Davis, that his mortgages were all right, and the first liens upon the land. This confidence was not abated until just before he left for home, when he was informed by some one in Three Rivers that he had better look out, and that Davis had paid nothing on the farm, and was irresponsible financially. As soon as he reached his home, disturbed by this warning, he consulted an attorney, placed the matter in his hands, and the result of the attorney's investigation was the beginning of this suit soon thereafter. But, even if he did examine the abstracts, he would not have been likely to have gained much knowledge from them. An abstract of any considerable length, and with a multitude of conveyances, is not an easy matter of dissection by a man of the education or experience of Goodrich, and it sometimes takes a pretty good lawyer to unravel one, and get at the real situation of the title. These abstracts, four in number, were elaborate ones, containing, respectively, 55, 30, 20, and 35 odd conveyances. The circuit judge says in his written opinion that the complainant possessed information that showed him beyond question that the $20,000 mortgage must have been a prior lien to the ones he was getting by this trade. This the circuit judge probably deduces from the fact that Goodrich admits that Davis told him that on the purchase of the place they only gave these two mortgages of $5,000 and $8,000; that he knew the $20,000 mortgage was outstanding against the farm, and ought to have known, it being given by some one else than Davis, that it was a prior lien. This does not necessarily follow when we consider the illiteracy of Goodrich, and the fact that he was informed by both Smith and Davis, as he testifies, that the mortgage was subject to those he was receiving. He says that he paid no attention to this mortgage on the strength of these representations, and relied implicitly upon them. It is a harsh rule that would impose upon Goodrich, and men like him, who are almost invariably the ones defrauded in such transactions as this was, the standard of knowledge of conveyances and titles that courts. possess. It is not a thing to be believed that Goodrich knew the status of this mortgage, and did what he did. An excuse for his action cannot be found in such case, except upon the theory that he was a consummate fool, virtually giving away his Hillsdale property, which was the bulk of his possessions. But we can well understand how his confidence in Smith, and his ignorance of this kind of business, could have led, and did lead, him into this trade, with his eyes shut, as it were, by such confidence and ignorance, so that he could not see as we might have seen. The circuit judge was evidently strongly impressed with the injustice that his decision. would involve. In conclusion he says: "The appearance of the witnesses for the defense, so far as called to certify to the circumstances surrounding the exchange, and the character of the narrative they present, in some particulars, at least, was not such as commended itself very strongly to the court. Some of the evidence of the defense it would be very hard to explain away, however. These considerations compel a denial of the relief prayed. I am impressed with the feeling that exact justice does not follow this conclusion. |