Shaffer v. Cowden

McSherry, C. J., delivered the opinion of the Court. We entirely agree with the learned Judge who decided this case below that it is one not free from diffi ³⁹⁵ culty. This difficulty arises, not because there is or can be any doubt as to the legal principles involved, but wholly in consequence of the flat conflict in the testimony of the two contesting parties. The undisputed facts are few.

The appellant purchased from one Snyder, a farm for the sum of six thousand eight hundred and six dollars, paying the whole of the purchase money. Under an arrangement of some sort between her and the appellee, who is her nephew, the «deed conveying the title was made to the appellee who thereupon gave to the appellant a mortgage upon the same property for the whole amount of the purchase money without interest. This mortgage bears date April the third, 1894. On April the fourteenth of the same year this mortgage was released by the appellant and the release was duly recorded the following day.

The release was a short one written at the foot of the mortg'ag'e. Confessedly the debt secured by the mortgage was never paid by the mortgagor. On the eleventh day of January, 1897, the appellant filed a bill in Equity alleging that the release had been procured by fraud and praying that it be vacated and annulled. The defendant answered flatly denying the charges of fraud.

Quite a mass of testimony was taken, and much of it throws but little light on the actual issue between the parties. That issue is whether the release of the mortgage was procured by fraud. There are but two witnesses to the transaction and they are the appellant and the appellee. As might be expected their versions of what transpired at-the time the release was signed differ as widely as contraries can differ.

The testimony of the appellant is to the effect that when the paper which she subsequently discovered to be a release of the mortgage was signed she was sick and suffering with neuralgia — that the appellee was in Hagerstown that day and came home in the evening. “ He said ‘Aunt Jane, I want to borrow one hundred and fifty dollars, I cannot get it unless you go on this paper.’ And I told him I would sign it in the morning, and he said, that would not do, it would have to be signed that ³⁹⁶ night. He said Mr. Wingert had got the paper out of the Court and it had to go back in the morning, and he was going to take it'to Clearspring that night so-that it could go back in the morning.” She was next asked: “What did you do then?” and she replied: “ I signed the paper that night for one hundred and fifty dollars.” She further testified that the appellee did not tell her she was signing a release of the mortgage, and that she did not know she was executing such a paper. The appellee’s account of the occurrence is thus given in his testimony: “ When I took the mortgage home I laid it on the table. I said, here is that mortgage I got out of the Court.

She asked me how it was to be signed, whether with pen and ink or lead pencil. I told her pen and ink; I laid it on the table; she picked up a chair and sat down; took off her spectacles, wiped them off with her apron. I asked her where the ink was. She told me in the front room of the house, the parlor.

I went through two rooms and a hall, brought the pen and ink to her, sat it down on the table; she was reading the mortgage or release at the time I put the pen and ink there. She said, ‘ where must I sign my name? ’ ' I showed her; she signed her name and after getting through signing her name, as I had no blotter, I left it open to dry. She looked at it again and read it over, and she turned around to me and said, ‘ now, John, you have more than Will.’ She said, * you must relinquish your half in your mother’s farm, so that both of you boys might have a farm.’ I said I would; I was very willing to do that. She said: ‘ Now, John, I am going to Chambersburg and your mother is going along with me; we are going to make our wills.’ She told me she had made her will when she returned from Chambers-burg.” Here then, we have the appellant testifying that she did not know she was signing • a release — that she thought and believed she was signing a note for one hundred and fifty dollars — and the appellee swearing with equal emphasis that Mrs. Shaffer did know what she was signing and that she read the release both before ³⁹⁷ and after signing it.

Her signature to the release is admitted by her to be in her own handwriting. The burden of proof to establish the alleged fraud in the procurement of the release is, if no confidential relation existed between the parties, obviously on the one who assails its validity; and it is, therefore, necessary for Mrs, Shaffer to show by a preponderence of evidence that the charge which is the gravamen of her bill is sustained. There is not a particle of testimony tending to show that there existed any confidential relation between Mrs, Shaffer and her nephew, as the term confidential relation is understood in the well-known doctrine of a Court of Equity; and without further comment we may treat that contention as wholly eliminated from the controversy. If the case stood alone on the testimony of the appellant and the appellee — the one alleging the fraud and the other denying it — and if neither one of them were corroborated or contradicted by other circumstances, the assertion of the one would be neutralized by the denial of the other, and, as a consequence, the plaintiff’s allegations would not be proved.

Keller v. Kunkel, 46 Md. 570 . We must turn, then, to the other evidence in the record to ascertain whether the testimony of either of the parties is strengthened; and this requires us to go somewhat more fully into the facts. It appears that Mrs. Cowden who is a sister of the appellant, is, as is the appellant, a widow. She has two sons and owns a farm upon which she and they reside.

The appellant is childless. Mrs. Shaffer shortly after becoming a widow removed from Pennsylvania and took up her abode with her sister. She very soon determined to purchase a farm, and it seems quite clear from the record that she intended this to be a home for herself and that she designed her two nephews to own it after her death. She finally purchased a farm from Henry Snyder, adjoining the land owned by her sister.

The deed as first prepared conveyed the farm to Mrs. Shaffer; but it was not executed and on the same day another was drafted and duly signed and acknowledged; ³⁹⁸ and in this, the appellee was named as the grantee. It