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eBook details

• Title: Hjermstad v. Barkuloo
• Author : Supreme Court of Montana
• Release Date : January 21, 1954
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 63 KB

Description

APPEAL &; ERROR, Duty of Supreme Court to Review Questions of Fact as well as of Law in Equity Cases ? EQUITY, General Rule that Equity Will Not Relieve One Who Executes an Instrument with Reading it when Not Induced by Fraud or Deceit ? CONTRACTS ? DEEDS, Negligence in Failing to Read Warranty Deed before Executing Same ? FRAUD, Actual Fraud a Question of Fact ? MORTGAGES ? REFORMATION OF INSTRUMENTS, Action to Have Warranty Deed Declared a Mortgage ? LEASES ? PLEADING ? EVIDENCE, Sufficiency of, Burden of Proof, to Establish Fraud, Declarations of Persons Now Deceased, Dead Mens Statutes, Admissions Against Interest, Weight of Evidence. 1. Contracts ? Equity ? No excuse in equity for failure to read contract. A party will not be relieved, either by a court of law or a court of equity, where he executes an instrument without reading it, when he has it in his hands and negligently fails to ascertain the contents of it and the other party had not been guilty of any deceit or false representation as to its contents by means of which he was put off his guard. 2. Deeds ? Landlord and Tenant ? Negligence because of failure to real deed and lease. Grantor, who was a college graduate with considerable business experience, was guilty of negligence when he failed to read deed and lease of premises conveyed by deed before signing them. 3. Mortgages ? Fraud ? Burden of proof. In action to have a warranty deed declared a mortgage, wherein plaintiff charged actual fraud on part of grantee in execution of the instrument, burden of establishing such fraud was on the plaintiff. 4. Fraud ? Proof of. Fraud cannot be presumed, but must be proven by satisfactory evidence. 5. Evidence ? Declaration of deceased received with caution. In action to have a warranty deed declared a mortgage, alleged declarations of grantee, who died before action was brought, supposedly inducing plaintiff to sign a partially completed instrument in the form of a warranty deed with understanding that it would be a mortgage, were admissible, but such testimony should be received and weighed with caution. 6. Mortgages ? Leases ? Deeds ? Failure of proof of fraud. In action to have a warranty deed declared a mortgage wherein plaintiff alleged that he signed a partially completed instrument - Page 89 which grantee advised him was a mortgage when in truth it was a warranty deed, evidence sustained finding that plaintiff had failed to prove allegations of fraud in execution of the deed and he was not entitled to the relief sought.

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