Phillips v. Bradford

• Decision Date: 06 June 1906
• Citation: Phillips v. Bradford, 147 Ala. 346, 41 So. 657 (Ala. 1906)
• Parties: PHILLIPS ET AL. v. BRADFORD.
• Court: Alabama Supreme Court

41 So. 657

147 Ala. 346

PHILLIPS ET AL. v. BRADFORD.

Supreme Court of Alabama

June 6, 1906

Appeal from Chancery Court, Lee County; W. W. Whiteside, Chancellor.

"To be officially reported."

Suit by Mary L. Bradford against Clem Phillips, as executor, and others. From a decree overruling a demurrer to the bill defendants appeal. Affirmed.

J. W Strother and R. C. Smith, for appellants.

George P. Harrison, for appellee.

SIMPSON J.

The original bill in this case seeks the cancellation of a note and mortgage made by the complainant (appellee) to the testator of defendant (appellant). Section 3 of the original bill alleges that, "while orator was being pressed on some indebtedness," her brother, Thomas L. Cobb "in whom she reposed confidence and trust, and who was accustomed to aid and assist her in the management of her business, suggested and advised your orator to execute a bogus or false mortgage to him," which he told her would protect her against claims and threatened suits. The fourth and fifth sections relate to the execution of the bogus mortgage, that there was really no consideration for it, and she owed her brother nothing. By subsequent amendments said sections 3, 4, and 5 were stricken from the bill, and substituted by sections which omitted all statements about the complainant being pressed with claims, etc., but alleged that her brother, who attended to all of her business "advised her that, in order to protect her rights in said lot and to preserve the same as a homestead for her and her minor children, it was necessary for her to give him a mortgage on said lot, which he told her at the time would be a bogus or false mortgage, and this would completely protect her against any claim; that complainant was not only a widow, but unacquainted with business methods and wholly ignorant of her rights in the matter; that said Cobb was not only her brother, but a man of intelligence and education, engaged in active business, and advised complainant in all important matters, and in whom at that time she had great confidence." It is then alleged that said brother induced her to execute the mortgage, which he had prepared, "to secure a pretended indebtedness," and that he paid her nothing, and she was not indebted to him. The fourth section was again amended so as to allege that said Cobb "unduly influenced" complainant to make the mortgage, and that it "was executed as the result of undue influence" by him. Then another amendment was made, by adding to said fourth section a statement that "it was not true that it was necessary for complainant to have given the mortgage in order to protect her right in said lot and preserve the same as a homestead, and that she did not voluntarily or of her own accord execute said mortgage, but was misled and deceived by the representations of the said Thomas L. Cobb, and thereby induced to execute said mortgage."

The first point raised by the demurrers, and insisted upon in argument by the appellant, is that the amendments are clearly inconsistent with the original bill and constitute a departure in pleading. We cannot see that there was such inconsistency as to constitute a departure. The purpose of the entire bill and amendments was to obtain a cancellation of the mortgage, and the general reason, running through them all, why this relief is asked, is that it was improperly procured, without consideration, by said Cobb. The relief prayed is the same. In fact, the first amendment, while it omits the statement that complainant was being pressed by claims, yet it carries with it the clear intimation that there were claims which were to be be avoided, and the last amendment, while it alleges that it was not necessary to make the mortgage to save the homestead, does not allege that there were no claims to be avoided. The statements of the amendments are entirely consistent with the idea that the claims did in fact exist, but that the mortgage was not necessary, either because the debts could be otherwise provided for, or because the complainant could have protected her homestead by the simple process of filing her claim as provided by section 2065 of the Code of 1896. Park v. Lide, 90 Ala. 246, 252, 7 So. 805; Winston v. Mitchell, 93 Ala. 554, 560, 561, 9 So. 551; Berry v. T. & C. R. R., 134 Ala. 618, 621, 622, 33 So. 8.

The next point raised is that the evident purpose of the mortgage which is sought to be canceled was to hinder, delay, and defraud creditors, and that, the complainant and respondents' testator being in pari delicto, a court of equity will not exert its powers in favor of either party. This is a clear principle of equity, laid down by the text-writers and adhered to by our own and other courts. Glover v. Walker, 107 Ala. 540, 18 So. 251. There seems to have been some modification of this rule, as suggested by counsel for appellee. It is stated that "when a stronger mind takes advantage of a weaker, and by persuasion and influence procures the unlawful act, or when the parties stand in such a relation that undue influence will be presumed, the reason which denies relief ceases to be applicable. * * * If the superior should be allowed immunity under such circumstances, he would be permitted to take advantage of his own wrong, and therefore equity will not refuse aid to the inferior." 14 Am. &amp Eng. & Ency. Law (2d Ed.) p. 279. Mr. Pomeroy, also, notes several exceptions; one being when "both have not with the same knowledge, willingness, and wrongful intent engaged in the transaction"; also where "there are collateral and incidental circumstances attending the transaction, and affecting the relations of the two parties, which render one of them comparatively free from fault. Such circumstances are imposition, oppression, duress, threats, undue influence, taking advantage of necessities or of weakness, and the like as a means of inducing the party to enter into the agreement, or of procuring him to execute and perform it." 2 Pom. Eq. Jur. (3d Ed.) pp. 1717, 1718, § 942. Where a party to whom a deed was made to defraud creditors fraudulently had other lands than those intended to be conveyed included in the deed, relief was granted. Clemmens v. Clemmens, 28 Wis. 637, 9 Am. Rep. 520. This was based, however, on the fraudulent act of the defendant, not participated in by the plaintiff. Id., 9 Am. Rep. 532. Where a husband represented to his wife that she was liable for certain debts (which was false), and induced her to convey property to him for the...