Comegys v. Clarke

Grason, J., delivered the opinion of the Court. The hill of complaint in this case was filed for an injunction to restrain the appellee, Clarke, from selling under a power in a mortgage, certain real estate, and to have the mortgage declared void on the alleged grounds that the mortgage had been obtained from the appellant, Martha S. Comegys, by fraud and that it was executed by her without any consideration. An injunction was granted, and answers were filed by the defendants Clarke and ¥m. H. Comegys, the first denying the fraud and deceit, and the latter admitting the allegations of the hill and consenting to a decree.

Evidence was taken under commissions, exceptions to some of which were taken by each of the parties, and upon final hearing, an order was passed dissolving the injunction, and from that order this appeal is taken. We have carefully examined the evidence and are of opinion that it does not sustain the charge of fraud and deceit, made by the hill. The proof shows that William ¹¹⁰ H. Comegys, the husband of the appellant, leased a hotel from Clarke and purchased certain furniture, &c., then in the hotel, at a price, agreed upon by the parties, and gave his note under seal to Clarke for the purchase money, amounting to two thousand dollars, one-half of which was payable on the first day of January, 1871, and the remaining half the first day of January, 1872. Sometime after-wards Clarke told Wm.

H. Comegys that he would like to have a mortgage on his wife’s property to secure the pay-, ment of the note, and Comegys said he was willing to give the mortgage and that he would see his wife and ascertain whether she would consent to execute it. The mortgage was accordingly prepared, and executed by Comegys, and he then took it to his wife, accompanied by a justice of the peace, and told her that there was another paper to which he wanted her name. The appellant did not ask what the paper was, or seek any explanation as to the character or contents of the instrument, but executed and acknowledged it, and it was afterwards delivered to Clarke. Comegys testifies that he did not tell his wife that the paper was a mortgage because he knew she was opposed to giving mortgages, and she states that she would not have executed it if she had known it was a mortgage.

It appears that Clarke had no knowledge, until long afterwards that the appellant had executed the mortgage in ignorance of the character of the instrument she was executing. It was contended, on. the part of the appellant, that the mortgage, thus executed under