Unknown County MsArchives Court.....Dismukes, E 1834
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Deb Haines ddhaines@gmail.com December 8, 2005, 9:59 pm

Source: Reports Of Cases Adjudged In The Supreme Court Of Mississippi
Written: 1834
Recorded: 1818

E. DISMUKES vs. C. TERRY.

Pages 197-204

A court of chancery will grant relief in cases of mistake, as well as fraud, 
and this, as well in aid of a complainant, as of a defendant in chancery. A 
resulting trust may be proved by parol, in opposition to the deed, and to the 
answer denying the trust.

A party endeavoring to perpetrate a fraud, cannot succeed in a court of 
equity, against particeps eriminis, but a party making a deed with the view to 
bar certain suppositiuous rights of his wife, does not commit such an act as 
will prevent relieft, against a party endeavoring to pervert the deed to 
fraudulent purposes.

OPINION OF THE COURT—BY CHIEF JUSTICE HAMPTON.

This cause was argued before the Supreme court sometime ago, and if my 
reccollection be correct, all the judges who presided at the hearing, among 
whom was his honor, the present chancellor, were well satisfied that 
complainant, unless his participation in the fraud which he charges on 
defendant precluded it, was entitled to the relief asked of the interposition 
of this court. Pressed on the one hand by a conviction of the equity of the 
plaint, and deterred on the other, by the suspicious badges worn by him who 
made it, the court not willing too rashly to deny its statutary power, in 
relieving against successful fraud, or too precipitately to employ it, in 
behalf of one who meditated, by the same transaction he complained of, a fraud 
against others, that it might be better informed and enlightened on the 
subject, directed a re-argument. The death of the defendant, with other 
causes, has delayed the discussion until the present term, when owing to the 
changes that have occurred on the bench, only two of us could preside.

To one little conversant with the transactions of human life, and not familiar 
with the exhibition of testimony, before juridicial tribunals, the 
irreconcilable statement in the bill and answer now before us would appear 
strange, indeed. But however it is a subject of regret to the moralist, those 
of us who are called to the frequent investigation of controversies, 
originating in the commerce of man with his fellow men, and to peruse the 
history of judicial proceedings as reported for centuries, have often to 
encounter instances of discrepancy in testimony, so great, that, after the 
most charitable allowance for honest misconception, imperfection of memory, 
and involuntary prepossession, the mind perceives sufficient reason, still to 
believe that there has been on one side or the other, if not on both, a 
voluntary abberration from conscious truth. But should the present case 
present any grounds for animadversion in this respect, so far as defendant may 
be implicated as to all except what duty demands, I desire to stand reproved 
by a recollection of his fate, “and to tread lightly on the ashes of the 
dead." The brief made for the use of the court by complainant's counsel, 
containing for all the purposes of this opinion, a sufficient recital of the 
matters set out in the bill, answer, and depositions.

I will first consider the question to which the attention of counsel was 
particularly invited by the court, when this cause was ordered for re-
argument. Whether by the same transaction which complainant's counsel for he 
himself denies it in his answer, charges as big with the fraud of defendant, 
he does not himself stand convicted of such foul practices, in reference to 
the rights of others, as should cause his banishment from this sacred forum of 
equity and good conscience? The bill assigns as a reason for the conduct of 
complainant in this behalf, the improvidence of his wife, and expressly denies 
all fraudulent intention; and this allegation is supported, by several of the 
witnesses sworn for complainant, and by two of those whose depositions were 
taken by defendant. The charge of fraud rests upon the portulatum, that the 
rites of marriage between plaintiff and his wife, were celebrated in the state 
of Louisiana, where the civil law prevails, civil code, page 336, article 63. 
The answer of the defendant, or any matter adduced for its support, does not 
satisfy the court of this fact. For though the proceedings had before the 
parish judge Osborne, at the instance of plaintiff's wife, who prayed for and 
obtained an order of divorce a mensa et thoro might, at its first aspect, 
favor a belief of this kind, yet, on a more careful consideration, the 
testimony, to speak most favorably of it, is at best very equivocal, and 
standing alone, cannot produce satisfactory conviction on the mind.

Rather than impute fraud on such doubtful proof, it is safer to conclude, 
what, in the absence of more convincing proof to the contrary, I am inclined 
to think is the fact, that the marriage took place in the state of Georgia, or 
elsewhere, before the parties migrated to the state of Louisiana. But even if 
it be conceded, that the marriage occurred in the last named state, I cannot 
think the proof of fraud is by any means satisfactory to the mind. On a 
careful comparison of the articles in the civil code, defining the property of 
the community, superinduced by marriage, page 336. The provisions of the same 
code, ch. III, page 32; indicating "the provisional proceedings to which a 
suit for separation may give occasion," and “the effects of a separation from 
bed and board," exhibited in ch. V, page 34 of the same work, with the 
judicial proceedings, had before the local competent authorities in this very 
case, the conclusion forced irresistibly upon the mind, is, that as regards 
the specific property, now pursued by plaintiff, and which was the premium of 
the fraud charged on defendant, no injury was worked by the acts of 
complainant on the real legitimate rights of his wife. Else why was not this 
property included in the inventory of effects of the community, made out for 
the benefit of his wife?  Or why was not a part of it designated for her 
interest in the division of the goods of the community, when a separation from 
bed and board was decreed? It is manifest, from a careful consideration of all 
the evidence in the cause, that this transfer of his property to defendant, 
was not complainant's own device—the well pondered scientific act of 
deliberate wickedness, but the ready invention of one, able to vindicate the 
appeal which had been made to his benevolent interposition, by the display of 
powers commensurate, not only with the purity and protection sought by 
complainant, but also for the accomplishment of ulterior purposes, which might 
eventually be advantageous to himself. If we deemed this man, who has stood so 
long before us, waiting for an aid to effectuate his rights, as one so 
blackened by the fraud of his own practices, as to dishonor his appeal to the 
conscience, it would not be sufficient for his counsel to deny to defendant 
the right before this court to cry foul! The court itself, in order to 
preserve the sanctity of its own conscience, and the purity of the annals of 
its chancery proceedings, would close this temple forever against his guilty 
approach. But on a long consideration of the facts and authorities, we do not 
feel justified in repulsing from our door, not only without relief, but 
burdened with costs and branded with infamy, one whom we are disposed to 
consider more as "the victim of anothers artifice," than the perpetrator of 
fraud himself, and though we have no disposition wholly to approbate or 
vindicate the motive, which, so far as his wife was in contemplation, appears 
to have actuated complainant, we are compelled to consider his acts, if 
faulty, at worst, only abortive efforts to prejudice the suppositious rights 
of his wife, and cannot, for this cause alone, deny him relief against the 
coin and machinations of one who hoped to have fortified himself in the 
enjoyment of his ill begotten gain, behind these double bulwarks of fraud.

Having admitted complainant to our bar, it becomes our duty to enquire in the 
next place, whether he has made out such a case, as calls for the 
interposition of this court to effectuate his redress? Being met at the very 
threshold of this investigation by the solemnity and ostensible fairness of 
the contract between the parties; it is indispensable to determine on 
principle and authority, how far, if at all, it is competent for the court to 
scrutenize by the light of evidence, aliened and subordinate in grade, its 
imposing character. We have examined the authorities on this point with great 
care, and though there be a difference of opinion, to be found in the books, 
we are satisfied that the weight of authority is in accordance with the 
opinion of Chancellor Kent, expressed, after the examination of many 
decisions, in the case of Boyd vs. McLean. 1 Johnson's Ch. Rep. 582. "That a 
resulting trust may be established by parol proof in opposition to the deed, 
and in opposition to the answer denying the trust” and the opinion of the same 
able chancellor, expressed in a like full and careful examination of 
authorities, in the case of Gillespie vs. Moor, 2 Johnson’s Ch. Rep. 585 – 
where it is decided, “that equity relieves against a mistake as well as fraud, 
in a deed or contract in writing, and parol evidence is admissible to prove 
the mistake, though it is denied in the answer, and this either when the 
plaintiff seeks relief affirmatively on the ground of the mistake or where 
defendant sets up as a defence, or to rebut an equity.” The chancellor says, 
page 596, "It has been the constant language of the court of equity, that 
parties can have relief in a contract founded in mistake, as well as in 
fraud." The rule in the courts of law is, that the written instrument does, in 
contemplation of law contain the true agreement of the parties, and that the 
writing furnishes better evidence of the sense of the parties, than any can be 
supplied by parol, and with this agrees the decision of this court, in the 
case of John Ker, administrator, vs. Thomas Calvit, which was a case on the 
law side of the court, where it was held, that we could not depart from the 
covenant contained in the deed, which settled the contract, to loose 
conversations, long anterior to it. But to return to the chancellor, "Equity 
has a broader jurisdiction, and will open the written contract, to let in an 
equity, arising from facts, perfectly distinct from the	sense and construction 
of the instrument itself." Lord Thurlow held, Vesey 113 to 350, “It must be an 
essential ingredient to any relief under this head, that it should be on an 
accident perfectly distinct from the sense of the instrument." Chancellor Kent 
adds, "I have looked into most, if not all, of the cases on this branch of 
equity jurisdiction, and it appears to be established, and on great and 
essential grounds of justice, that relief can be had against any deed, or 
contract in writing, founded in mistake or fraud. The mistake maybe shown by 
parol proof, and the relief granted to the injured party, whether he sets up 
the mistake affirmatively by bill, or as a defence.” Whatever a court of 
equity would do to relieve against a mistake, so much at least it would do, to 
relieve against fraud, which has long been the subject of its acknowledged 
jurisdiction and against the inequities meditated or inflicted by it, the 
chancellor is ever anxious to afford an adequate remedy. We do not consider it 
necessary to multiply authorities on this point, reposing with confidence on 
the conviction produced in our minds, by a careful examination of many of 
them. That the rule in equity indicated by the cases already cited, is now too 
well established to be lightly disregarded, and that by it, this court can 
admit evidence aliunde, though it be parol, by which to scrutinize the 
character of the conveyance, under which defendant would mask those 
transactions, between himself and plaintiff, which are now the subject of 
investigation before us. Let us now see if in the light reflected from the 
testimony produced in the cause, this written conveyance, is in fact, what it 
purports to be, an absolute conveyance to defendant, for valuable 
consideration, without any reservation or trust of all the plaintiff’s right 
and title to the property specified therein? That it is not, is expressly 
charged in the bill, which allegation is supported by the testimony of four or 
five witnesses, while its denial is made by the answer unsupported by any 
testimony, except the deposition of one witness, a Mr. Pearson, who was called 
with one Samuel Kirkland, to witness the conveyance and delivery of the 
property, remained with the parties only a short time, and heard no 
conversation between them respecting the transaction, but supposed it was in 
good faith. It may be well to state more specifically the testimony of 
plaintiff’s witnesses on this point. Reuben Moore, speaks of defendant's own 
declarations, to the following effect:—"That the defendant would plague 
complainant a while, and then give him his negroes. That the bill of sale was 
only given to keep complainant's wife from the negroes.— Joseph Dunbar states, 
that in a conversation which passed in his presence, between the parties, on 
the subject of plaintiffs difficulties, defendant told plaintiff, he could put 
him in a way to secure his property, and that was to make a sham sale of it to 
some one, until the law suit was determined, and offered to take the property 
himself, and said he would do all in his power to befriend complainant, and to 
prevent his wife from destroying it. William Philipps was present at a 
conversation between the parties, at a Mr. Spiller's, when defendant told 
plaintiff, "Judge Osborne and Charles Bushnell would get all his property; 
that he defendant, had always been a friend to plaintiff, and offered to take 
his property and befriend him and his children;” to which complainant 
assented. "Defendant said that there ought to be some money paid, but he had 
none, complainant said he had some, and defendant said let me have it, and I 
will return it." Heard defendant say he had taken the negroes and other 
property of plaintiff to befriend him." Alexander Bookter states, that 
sometime after he had seen the parties together at Spiller’s, defendant told 
witness, "that he had got the negroes of complainant home in his own 
possession, and had paid for them, and complainant along with them, and 
laughed." William Benis states, that he heard defendant say, he “had taken the 
negroes and other property of complainant into his hands, to secure it for 
him, as it was his intention to befriend him.” After this exhibition of proof, 
it is impossible for the mind to remain in doubt, of the true nature of this 
transfer-that it was made, not for valuable consideration, paid or to be paid, 
but without consideration, under the influence of misplaced confidence and 
credulous simplicity, is abundantly obvious; and the appeal to this court by 
the plaintiff for relief, and the exertion made by defendant, to resist that 
appeal, afford satisfactory evidence, that so far from fulfilling his 
assurances of good faith to the grantor, the defendant meditated a blow, 
prostrating at once all the integrity of private faith, and the long 
jeopardised rights of complainant.

Is there no energy in the whole compass of chancery power, which can afford to 
the plaintiff the protection he implores? The evidence satisfactorily proves 
the statement in the bill, in regard to the perturbation of mind plaintiff was 
subject to at the time of the transfer; some of the witnesses considered it so 
great, as to have amounted to a partial derangement; nor are we to wonder at 
the effects, when we are told, that the cause was family discord, adequate to 
the production of results, more awfully melancholy, than the condition of 
complainant.

It is manifest, from a consideration of all the facts, that plaintiff acted in 
this affair, under the influence of an exigency, of afflictive domestic 
circumstances, which, connected with great imbecility of mind, rendered him an 
easy dupe to the treachery of proffered friendship. Though there is not that 
particular relation between the parties, which presupposes, on the one hand, 
an ascendancy, which, when impelled by self interest, was capable of exerting 
undue influence, and on the other, the habitual exercise of implicit 
confidence and passive acquiescence, which, taken in connection with great 
imbecility of mind, would, as in the case of Lord Southhampton, justify relief 
against voluntary conveyances, obtained under such circumstances, yet we 
consider the great distress of mind plaintiff was in, and the proffered 
assistance of defendant, as circumstances not unworthy the consideration of 
the court. Vide Pickett vs. Loggan, 14 Vesey, 234. In first Maddox, 211, the 
author says, "If a conveyance of lease and release, or bargain and sale has 
been obtained, which, in a court of equity, have the character of imposition, 
fraud, oppression, or undue advantage, which indeed may be all comprehended, 
under the general term fraud, a fine constituting a part of that conveyance, 
which is so affected, whatever may be the effect at law, is no bar to relief 
in equity. The person deriving title under it, is a trustee, and the species 
of relief is by directing a re-conveyance;” and cites the above case from 14 
Vesey, with many others. As to the difficulties said to arise in embarrassment 
of the court, from the statute 29, Car. II, it is considered, that if nothing 
be said in regard to its being in force in this country, farther than its 
provisions have been adopted or re-enacted by our own legislatures; or of its 
provisions so far as they relate to trusts, being inapplicable to personally, 
it is sufficient for the present case to adopt the language found in Roberts’ 
on frauds, page 102:—"That whenever the declaration of a trust has been 
presented by fraud and deceit, or whenever the creation of a trust has offered 
itself as the means of frustrating fraudulent contrivance, and affording 
substantial justice to the victim of another's artifice, courts of equity have 
not suffered the letter of the statute to embarrass the relief, and to protect 
what it was framed to prevent." Thym vs.
Thym, 1 Vern. 290.

In every point of view, in which we have examined this subject, we feel fully 
persuaded that it becomes our duty to consider defendant as holding the 
contested property, and its increase, in trust for plaintiff and to decree a 
re-conveyance thereof, by those who represent him, and if it would be 
available to complainant, an account of the profits since the delivery of the 
property under the sale. But in justice to those who have labored for 
complainant, in maturing his cause for hearing, and who would else be 
uncompensated, he must take this decree encumbered with his own costs.

Judge Black concurred.


Source: Reports of Cases Adjudged in the Supreme Court of Mississippi, June 
Term, 1818, By R. J. Walker, Reporter of the State. Natchez: Printed at the 
Courier and Journal Office, 1834.

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