Leech v. Hirshman

• Decision Date: 10 June 1907
• Docket Number: 12,717
• Citation: 44 So. 33,90 Miss. 723
• Court: Mississippi Supreme Court
• Parties: STEPHEN LEACH v. HELEN HIRSHMAN

44 So. 33

90 Miss. 723

STEPHEN LEACH v. HELEN HIRSHMAN

No. 12,717

Supreme Court of Mississippi

June 10, 1907

FROM the chancery court of Lowndes county, HON. JAMES F. MCCOOL Chancellor.

Leach appellant, was complainant, and Mrs. Hirshman, appellee defendant in the court below. From a decree in defendant's favor the complainant appealed to the supreme court.

Leach purchased the land in controversy from one Christopher in 1885, giving his note for $ 350 therefor, secured by a trust deed on the property. He took possession, and improved cultivated, and occupied the premises as his homestead. The note was afterwards transferred to one Gross, who afterwards assigned it to Mrs. Hirshman. Leech kept up the payment of interest and taxes from the date of his purchase, and had twice renewed the note, and averred that he had made payments on the principal, for which he claimed credit. In 1900 Mrs Hirshman induced Leech to execute to her a deed conveying the land, the deed reciting a consideration of $ 350. Leech, however, continued to occupy the property after its execution and paid taxes thereon as before and on the trial of the case testified that he had no recollection of ever having executed the deed. In 1904 Mrs. Hirshman began to assert title to the land, and Leech instituted this suit to cancel the deed and for an accounting.

Reversed and remanded.

Thomas J. O'Neill, for appellant.

The case of Culp v. Wooten, 79 Miss. 503, s.c., 31 So. 1, is in many respects almost identical with the one presented by this record. In the language of the court in that case (p. 507) "Whatever the real facts may be, it cannot be gainsaid that there is testimony tending to show that this illiterate old man was the victim of a fraud, by which he was deprived of everything he had on earth, of land and personal property, accomplished by a violation of trust and confidence." Words directly applicable to the case of appellant here. Further from the same opinion: "It might be inferable from the record according to the rationale of human transactions that Hirshman (in this case) wanted this negro's land in preference to the payment of his debt."

The original bill of appellant charges that when called upon in January, 1900, to execute a paper to appellee that by reason of his illiteracy he did not know what it was and the proof shows conclusively that he was infirm, aged and imbecile, and that he was overreached and defrauded, and that he never parted with the possession of his home.

While inadeqacy of consideration is not a distinct ground of defense at law or relief in equity, "Yet it is evidence of fraud which is both; and while, as evidenced it is ordinarily entitled to a very little weight, standing alone yet when it is coupled with other circumstances showing overreaching or oppression, or when the parties stand in such relation that this will be presumed, inadequacy becomes a material element of constructive fraud." Here we have an aged, infirm, illiterate man, who for many years had been trading with the husband of appellant, herself and her son, who was shown by the son to have been, all of his life, peculiar, but confiding in those whom he believed to be his friends, and whose homestead is shown by two or more of his nearest neighbors, themselves large land-holders, to be worth $ 8 or $ 10 per acre, gratuitously making a deed for an alleged indebtednass which the proof in the case shows had long since been overpaid, and after making this deed we have the pitiful spectacle of this old man making his annual pilgrimage to the courthouse to pay his taxes and according to the testimony of the little "Shylock" son of appellee, persisting in paying the taxes when notified not to do so, and the further remarkable act on the part of Hirshman himself in charging the old man up with the tax on the land after he had taken the deed from the appellant and according to his account paid the taxes on the land himself; these and other facts show conclusively that appellant never knew that he had made a deed and that appellee and her son never dared to advise him of the fact until years had rolled by and that the information when given to...