Mulock v. Mulock.

(3) That complainant was of unsound mind when the deeds were made. Story's Eq. Jur. ch. 6 and note to § 310.

(4) Fraud is never to be presumed; it must be clearly proved as set out in the bill; if not, no relief granted. The presumption of law is always against bad faith and in favor of innocence. Stewart v. English, 6 Ind. 176; Flint v. Jones, 5 Wis. 424; Turner v. Lambeth, 2 Tex. 365; Hubbard v. Turner, 2 McLean 519; Gould v. Gould, 3 Story C. C. 576; Hildreth v. Sands, 2 Johns. Ch. 35, 1 Story Eq. Jur. § 200; Atwood v. Smail, 6 Cl. § Fin. 232; Kerr on Fraud 382 et seq.; Bigelow on Frauds 500, ch. 17, § 14; Greenleaf Evid. § 80. It must be clearly established. Hildreth v. Sands, 2 Johns. Ch. 35; Laidlaw v. Gilmore, 47 How. Pr. 67, 56 N. Y. 621. Circumstances must be sufficient to overcome the natural presumption of honesty and fair dealing. Courts of equity will not find fraud upon any less proof than what a jury will require. Story's Eq. Jur. § 190 (a). When the circumstances adduced to show fraud admit of a natural and probable explanation consistent with the innocence and good faith of the party charged with fraud, the presumption is in favor of innocence. Garrow v. Davis, 10 N. Y. Legal Obs. 225.

(1) There is no evidence to sustain this charge of fraud. It must be distinctly proved. Kerr on Fraud and Mis. 382 &c.

(2) There is no proof of undue influence used on the part of defendant.

(3) The testimony of complainant, that she did not examine the deeds, or read them, or have them read &c., will not avail her. She had the opportunity to do so. A deed will not be avoided on the ground of fraud or mistake because the whole was not read by the grantor. Jackson v. Croy, 12 Johns. 427. If the grantor can read, he will be presumed. to have read the writing. Suffern v. Butler, 4 C. E. Gr. 202. A party executing a legal instrument is presumed to be acquainted with its contents.

Greenfield's Estate, 14 Pa. St.

Mulock v. Mulock.

489; 5 Bos. & Pul. 415. If a party who can read, will not read a deed put before him for execution, or, if unable to read, will not demand to have it read or explained to him, he is guilty of negligence which is not the subject of protection either in law or equity. Greenfield's Estate, 14 Pa. St. 496. He will be bound by it, though it turn out to be contrary to his mind. Hallenbeck v. De Witt, 2 Johns. 404; Touch. 56; Ring v. Longuor, 1 Nev. & Man. 576. Even though there be proof that the grantor in a deed was very ignorant and illiterate, and could not read writing, and that the deed was not read to him, it is not sufficient evidence of fraud unless he requested it to be read to him. 1b.; Jackson v. Croy, 12 Johns. 427. Nor will a party be relieved merely because he put an unguarded confidence in another. 14 Pa. St. 497; Longley v. Broxan, 2 Atk. 202. In an anonymous case, in Skin. 159, it is held that where one who could read, made an agreement for a lease for twenty-one years, and the lessor drew a lease for one year but read it for twenty-one years, equity refused to relieve the lessee because he could read and would not. When each party has the same information and equal opportunity to ascertain the truth, it cannot be said that one willfully withholds anything from and thereby deceives the other. Hobbs v. Parker, 31 Me. 143. It is not necessary for defendant to prove that the deed was read to the parties unless it was required by her. 2 Johns. 404; 5 Bos. & Pul. 415; 1 Nev. & Man. 576. Fraud is not to be presumed from vague and slight conjectures or supplied by notions of fancied equity. Bigelow on Fraud 202. If the fraud is not strictly and clearly proved, as it is alleged, relief cannot be had, although the party against whom relief is sought may not have been perfectly clear in his dealings. Kerr on Fraud and Mis. 382, and note. If a case of actual fraud is alleged in the bill, relief cannot be had on the bill by proving only a case of constructive fraud. Id. 383, and note. If the relief sought by a bill in equity be based on fraud, the failure to prove fraud is fatal. Id. 500.

Mulock v. Mulock.

4. Complainant is an educated, shrewd, business woman; familiar with law matters, the rights of parties, the modes of executing papers, deeds &c.

V. The attempt to sustain the case by proof of contemporaneous frauds, even if legal evidence, has failed.

VI. All the alleged contemporaneous frauds are fully disproved on the part of defendant.

1. There was no change of possession of property until September, 1875, defendant being a member of complainant's family until that time, supplied by her with such funds as he required, there being an understanding, outside of the deeds, for no definite time, that rents collected from the property should go, first, to the repairs of the property; second, to give the defendant all his personal expenses, and, if any left, complainant to have the surplus.

2. The defendant was unlimited as to the time he should take possession under these deeds. Ryder v. Hulse, 24 N. Y. 372.

3. The policies of insurance on the property being in the name of the complainant, do not affect the title of defendCromwell v. The Brooklyn Fire Insurance Co., 44 N.

ant.

Y. 42.

VII. All the deeds were regularly executed, acknowledged and delivered, and must be considered valid until the contrary is proved. (See deeds.) A conveyance which purports to be bona fide and for a valuable consideration, will be taken to be so, until the contrary is shown. Briggs v. French, 2 Sumner 251. It is to be presumed that a grantor knew the contents of the deed he executed, until evidence to the contrary is offered. Kimball v. Eaton, 8 N. H. 391. The court will not presume facts against such a deed, and he who seeks to invalidate the same must impeach it by affirmative proof. Barr v. Galloway, 1 McLean 476. A deed is good between the parties without any attesting witness or acknowledg ment. Wood v. Chapin, 13 N. Y. 509. At common law it was good against all the world. Willard on Real Estate 386.

Mulock v. Mulock.

1. Complainant testifies that the signatures to the deeds are correct, and that she acknowledged them before the notary. There was no necessity for defendant to produce the notary. When public officers are authorized by law to certify to certain facts, their certificates to those facts are competent evidence thereof. Levy v. Burley, 2 Sumner 355. Acts which purport to have been done by public officers in their official capacity, within the scope of their duty, are presumed to be regular. Ross v. Reed, 1 Wheat. 482; United States v. Amenda, 6 Pet. 691; Strothen v. Lucas, 12 Id. 410; Phila. & Trenton R. R. Co. v. Stimpson, 14 Id. 448; Dellassen v. United States, 9 Id. 117; Wilks v. Dinsman, 7 How. 89; Minter v. Cromelin, 18 How. 87; Russell v. Beebe, Hempst. 704; Den v. Hill, 1 McAll. 480; Dunlap v. Monroe, 1 Cranch 536; Ruggles v. Bucknor, 1 Paine 358. The official character of a person taking a deposition will be presumed. Jasper v. Porter, 2 McLean 579. A document under the signature and official seal of a person purporting to be a notary public, may be read in evidence without preliminary proof of his authority. Notarial seals need not be proved, but must be judicially noticed. 1 Greenleaf Evid. §§ 5, 12, Mad. 345; 2 Esp. 700; 5 Cranch 335; Serg. & R. 484; 3 Wend. 173; Bayl. on B. 515; United States v. Libby, 1 Woodb. & M. 221; Suffern v. Butler, 4 C. E. Gr. 202; Ayer v. Little, 5 C. E. Gr. 443, 450.

2. The deeds were duly delivered. C. E. Gr. 319, and other authorities.

Cannon v. Cannon, 11

VIII. The fact that the deeds are voluntary acts from the complainant to the defendant, does not impair their validity. Story's Eq. Jur. § 371 &c. Even though the grantor retain the deed in his possession. Sowerbye v. Arden, 1 Johns. Ch. 240; Besson v. Winthrop, Id. 329. The transfer as a gift is good (Van Deusen v. Rowley, 8 N. Y. 588), even if given by a weak woman or through indiscretion. Story's Eq. Jur. §§ 235, 236; 2 Johns. 177; 13 Id. 430; 5 Cow. 506; 8 Id. 290; Delden v. Davids, 2 Harr. 433. A deed of gift must

Mulock v. Mulock.

stand good unless some direct fraud is practiced upon the grantor. Hunter v. Atkins, 3 Myl. & K. 134.

IX. The deeds, being from a parent to a child, may be considered as an advancement. Sanford v. Sanford, 61 Barb. 293, 5 Lans. 486; Woolery v. Woolery, 29 Ind. 249; Park v. Park, 19 Md. 323; Bay v. Cook, 31 Ill. 336; 4 Kent 445; 15 Wend. 545; McLean v. Button, 19 Barb. 450. Affection and one dollar are a sufficient consideration. Morris v. Ward, 36 N. Y. 587. Blood or natural affection among near relations is sufficient. 2 Bla. Com. 444; Plowden 305; Frisk v. Cox, 18 Johns. 149; Duvall v. Wilson, 9 Barb. 487.

X. The court will not view a deed from a parent to a child with the same strictures as between strangers. Hoghton v. Hoghton, 15 Beav. 283; Cory v. Cory, 1 Ves. 19; Tweddell v. Tweddell, Turn. & R. 13; Kinchant v. Kinchant, 1 Bro. C. C. 369; Prodgers v. Langham, 1 Sid. 133; Brown v. Carter, 5 Ves. 862. In the case of a gift from a parent to a child, undue influence is never inferred; no suspicion whatever attaches to the same. Bigelow on Fraud 261, 264; Millican v. Millican, 24 Tex. 446; Langley v. Jackson, 16 Tex. 579, 584; Kerr on Fraud and Mis. 189; Kimball v. Eaton, 8 N. H. 391.

XI. The deeds in this case are not strictly voluntary, but were made in the performance of a trust.

XII. There is a difference between deeds of advancement and a will.

1. A deed of advancement is absolute, takes effect from its date and cannot be recalled, and, after made by the grantor in person, is complete, and takes effect when made, without any further action.

2. A will takes effect in the future upon the estate on the decease of the testator; it may be changed or cancelled by the testator in his life-time, and has to be probated under the statute, and is carried into effect by other parties than the testator.