Forman v. Thomas

1. Quieting Title <&wkey;34(l) — Bill—Showing of Possession. Bill to remove cloud on title by complainant, who alleged that she was induced to execute deed in blank by fraud of deceased husband’s nephew, an attorney, and husband of grantee, held sufficiently to show complainant’s possession at time it was filed. 2. Deeds <&wkey;32 — Mortgages <&wkey;153 — Execution in Blank bt Fraud — Rights of Mortgagee. Where execution of deed was procured by fraud of grantor’s deceased husband’s nephew, an attorney, when no grantee was named therein, such deed was void, and, grantor having been guilty of no conduct estopping her, mortgagee, claiming through deed, was not protected as innocent purchaser.

Appeal from Circuit Court, Marengo County; Robert I. Jones, Judge. Suit by O. C. Thomas against Charles For-man and another. From a decree overruling demurrers to the bill, respondent Forman appeals. The bill of complaint in this cause was filed by appellee (C. C. Thomas) against Charles Forman and Gertrude Taylor for the purpose of removing a cloud from the title to certain lands, therein described, situated in Marengo county. In substance, the bill charges: That on and prior to September 9, 1916, the complainant (appellee) was the owner of the lands involved in this suit, and was in possession of the same. That E. E. Taylor— the husband of respondent Gertrude Taylor and a nephew of complainant’s former husband, and a practicing attorney at Linden— approached complainant with a view of renting said land from her for a term of years, to which she agreed. Whereupon the said B. B. Taylor wrote out and delivered to complainant an instrument in writing by the terms of which he (Taylor) agreed to pay complainant on November 1,1917, and on the 1st day of November of each year thereafter, so long as complainant lived, annual rent for said tract of land. That at the same time said E. B. Taylor presented to complainant a blank instrument in writing — which was partly printed, with blank spaces therein— and informed her that it was a lease of such tract of land, asking her to sign her name thereto, which she did. The bill then avers that at— “the subscription of her name to said document it did not contain her name as grantor therein, and did not contain the name of Gertrude Taylor as the grantee therein, and did not express the consideration of love and affection and $1,-000, nor did it contain any description of the lands above described; but said instrument was entirely blank, except for the printed portion thereof, and that your oratrix, relying upon the representations of the said E. E. Taylor, who was a nephew of her deceased husband, and an attorney at law, that said instrument was a lease, and being further misled by the fact of the execution and delivery to her of the rent obligation above described, she subscribed her name to said blank instrument, and said Taylor took and carried the same away with him.” The instrument was attested by one Canterbury, and a copy thereof is made an exhibit to the bill, and purports to have been acknowledged before one Small, justice of the peace in Marengo county. The bill avers that she (complainant) did not appear before said Small and acknowledge the execution of said instrument at any time, that she had never, to her knowledge, met the said Small, that he is an absolute stranger to her, and that she has never acknowledged the instrument before any officer whatever; that the consideration of $1,000 expressed in the deed was never paid to complainant by any one, and that the irurported acknowledgment to said de'ed is false. The copy of the deed attached as an exhibit to the bill recites a consideration of “love and affection and $1,000 in hand paid by Gertrude Taylor,” and purports to convey to said Gertrude Taylor the land, the subject-matter of this suit, consisting of 685 acres in Marengo county, described by government numbers. The deed bears date September 9, 1916. The bill charges that the said deed was by the said Gertrude Taylor and husband, B. E. Taylor, acting for her, caused to be filed in the probate court of Marengo county. The bill alleges that subsequently, on March 15, 1917, while in the house of said Gertrude Taylor where she had been persuaded to stay for awhile, and while engaged in, assisting in the housekeeping, she accidentally discovered this instrument, which was marked on the back “Warranty Deed from C. C. Thomas to Gertrude Taylor,” and upon examination thereof she found it was the paper she had signed on September 9, T916, but that the same had been filled out with pen and ink, in the handwriting of E. E. Taylor, while the description was typewritten. She thereupon immediately consulted an attorney, who informed her of the absolute conveyance of her tract of land. This bill was filed within a few days after said discovery — on March 24, 1917. The bill further avers that the discovery of said paper accidentally, as above described, was the first intimation of any fraud having been practiced upon her. A short time after September 9, 1916, to wit, October 9, 1916, the said E. E. Taylor, acting for his wife, Gertrude Taylor, procured a loan of $3,000 from Charles Forman, and a mortgage was executed on the land here involved to secure said amount. Complainant was without any information or knowledge whatever of any acts of said parties in regard to procuring said loan, no portion thereof was received by her, nor did she know of the execution of said mortgage until after the discovery of the paper aforesaid. The bill alleges that at the time of the execution of said mortgage she was in the actual possession of said land through her tenants; that said Gertrude Taylor had never at any time asserted any claim or title to said land, nor had she been in possession thereof; that Charles Forman was chargeable with notice of complainant’s claim of ownership and title at the time of taking said mortgage, by and through the continued possession and occupancy of portions of said 'land by her tenants. The bill further avers that complainant— “is at the time of the filing of this bill of complaint in the possession of said land, and avers that neither the said Gertrude Taylor nor Charles Forman are now or have ever been in the actual possession of said land.” The bill prays that the court decree that no valid deed was ever executed by said complainant to Gertrude Taylor, and that the title to said property is still in complainant; and that the deed — Exhibit A — be canceled, set aside, and held for naught, and removed as a cloud upon complainant’s title; that the mortgage of E. B. Taylor to Charles For-man be canceled and held for naught. There is also prayer for general relief. Demurrers were filed by respondent Charles Forman, attacking the bill for want of equity, and that it.does not aver that complainant is in possession of the land, and further that it shows that respondent Charles For-man is a bona fide purchaser to the extent of $3,000, find fails to show that said Forman had any knowledge that the deed from C. C. Thomas to Gertrude Taylo'r was not in fact what it purported to be, and that said For-man, paid value for said mortgage without notice of any imperfection of said title. Decree was rendered overruling the demur-' rers, and from this decree respondent For-man prosecutes this appeal.