Spurgin v. Traub

Citations

• 65 Ill. 170

Syllabus

<p>1. Fraud—to justify the setting aside of a deed of trust. A court of equity will not set aside a deed, on the ground that its execution was procured by fraudulent misrepresentations, without the clearest proof of the same; and where the grantee was not a party to such fraud, it must appear that the grantor seeking such relief was not guilty of any negligence, but used reasonable diligence to prevent being imposed upon.</p> <p>2. So, where a husband and wife executed a mortgage upon their homestead, the title of which was in the wife, to secure a debt of a firm of which the husband was a member, and the wife filed a bill in equity to cancel the mortgage, on the ground that she was induced to execute the same under the belief that it was upon other property; and it appeared that she was unable to read or write'in English, and spoke the language imperfectly; and she testified her husband, and the notary who took her acknowledgment, represented to her that it was upon her husband’s brewery lots, and that the mortgage was not explained to her, in which she was corroborated by her son, a boy 10 or 11 years old, which was expressly contradicted by the testimony of the husband and the notary, the latter also testifying that he read over the mortgage to her, and upon being asked if she understood the contents, replied in the affirmative; and the proof showing that the mortgagee was not present, and failing to show the least degree of bad faith on his part: Held, that the proof fell short of that required in such a case to authorize the relief sought; and that if the wife did not understand the mortgage, it -was her duty to have understood it before she suffered it to be delivered as her valid mortgage into the hands of an innocent mortgagee; and if she did not make use of reasonable diligence to acquaint herself with the facts, equity would not relieve her as against the mortgagee, who was without fault.</p> <p>3. And it seems, where a person, without any fraud on his par