Basye v. Basye

• Decision Date: 14 February 1899
• Citation: 152 Ind. 172,52 N.E. 797
• Parties: BASYE v. BASYE.
• Court: Indiana Supreme Court

152 Ind. 172

52 N.E. 797

BASYE

v.BASYE.

Supreme Court of Indiana.

Feb. 14, 1899.

Appeal from circuit court, Henry county; W. O. Barnard, Judge.

Bill by Wilson J. Basye against Mary E. Basye. From a decree for defendant on demurrer to the complaint, complainant appeals. Reversed.

John Lockridge and William A. Brown, for appellant. M. E. Forkner and Adolph Rogers, for appellee.

BAKER, J.

Suit to cancel deed for fraud. The material averments of appellant's complaint are these: The parties are husband and wife, and have been for 20 years. They owned by entireties certain land. There had been small differences between them, and appellee, without appellant's fault, had treated him coldly for a long time. Appellant was a dutiful husband throughout. He was in love with his wife, and she knew it. He desired to live with her in peace, concord, and affection. Suddenly she became profuse in professions and demonstrations of love; she promised to be a dutiful and loving wife for the rest of their days. This conduct of hers was hypocrisy; in shamming she had in mind to defraud him by getting the title, and then deserting him. With this intent, and while making her false protestations and promises, she begged him to make her a deed, stating that the entire title ought to be in the wife, and that he might put the consideration at $2,200, which would always show his interest in the land. He was ignorant of her fraudulent design, and, relying on the apparent sincerity of her actions and promises, deeded her his interest, without consideration other than that the title should be in her as his wife and in trust for him, and that their marital relations should continue peaceful and loving. In a few days she abandoned him, and filed her complaint for divorce, which is yet pending, untried. The charges in the complaint for divorce are untrue. Demurrer to complaint for want of facts was sustained. Judgment on appellant's refusal to plead further. Appellant cites no authorities, and simply insists in a general way that the complaint states sufficient facts. Appellee contends that the complaint is bad, because it shows: First, that the deed was voluntary; second, that it was for a sufficient consideration; third, that there was no fraud; fourth, that the suit is between husband and wife concerning real estate; and, fifth, that a divorce proceeding is pending, in which alone the matters complained of can be adjudicated. Though a voluntary conveyance is valid between the parties, and parol evidence is inadmissible to impress a trust upon an absolute deed, equity affords relief against fraud in the procurement. The $2,200 which was to have been named in the deed would have constituted a valuable consideration, if paid; and appellant could not have proceeded without repaying or offering to repay the amount. But the complaint does not show that this sum was recited in the deed as a consideration, much less paid. It affirmatively appears that appellant executed the deed without consideration other than one he could not tender back. Appellee cites Fouty v. Fouty, 34 Ind. 434,Burt v. Bowles, 69 Ind. 6,Bethell v. Bethell, 92 Ind. 324, and other authorities, to the effect that fraudulent representations must relate to existing facts, and that promises made to be performed in the future, and afterwards broken, do not constitute fraud; to permit a rescission for fraud by one who has no ground for complaint except an unfulfilled promise, a broken contract, would obscure elementary distinctions between remedies, and tend to nullify the statute of frauds. In this case the false representations were made concerning a present fact. Representations may consist in acts as well as words. When appellee caressed her husband, after a long period of coldness, she made a solemn affirmation of present fact just as much as when she told him in words that she loved him and begged his forgiveness of her past indifference. When she caressed him, and promised to be a good wife in the future, her promise, as well as her kiss, was a representation of present fact. A present state of mind is a present fact. Bigelow, Frauds (Ed. 1888) pp. 483, 484. Appellee owed appellant the utmost good faith and frankness. There existed between them a relation of special confidence and trust. The principle also applies here that, whenever the confidence resulting from such a relationship is abused, equity will interfere. 2 Pom. Eq. Jur. § 963; Schouler, Husb. & Wife, § 403; Bigelow, Frauds (Ed. 1888) p. 353. It was a fraud on appellantfor appellee to conceal her intention of...