HOSHAW v. COSGRIFF et al., 247 F. 22

CARLAND, Circuit Judge (after stating the facts as above). Counsel for the trustee claim that the facts stated are sufficient to constitute a cause of action for the recovery of the real estate hereinbefore described upon either of three theories: (

a) Neither the bank nor Cosgriff obtained title to the land by virtue of the foreclosure of the Hirsig mortgage, for the reason that the hank or Cosgriff was obligated to' pay off the indebtedness, the nonpayment of which caused the mortgage foreclosure; (

b) that the complaint alleges that the conveyance by the bankrupt to Cosgriff, although an absolute warranty deed in form, was in fact according to the agreement of the parties a mortgage ; (

c) that, if it he conceded that the conveyance by the bankrupt to Cosgriff for the benefit of the bank was absolute, still the complaint alleges facts which would constitute the conveyance a voidable preference. We are of the opinion that the question as to whether the bank or Cosgriff obtained title through the mortgage foreclosure may he put to' one side, as we are of the opinion that the warranty deed by reason of the noncompliance of the bankrupt with the condition in the agreement agreed to be performed on its part became absolute.

The language of the agreement wherein it stated the condition upon which the warranty deed should become absolute was plain and unambiguous, and there is no1 allegation that the parties who executed the agreement in behalf of the bankrupt were not in the full possession of all their faculties.

The agreement between the parties'was put in writing for the very purpose of excluding oral testimony as to the terms of the contract, and it is elementary law that a contract completely reduced to writing cannot be contradicted, changed, ór modified by parol evidence of what was said and done by the parties to it, prior to or at the time it was made.

It is also elementary and the courts are unanimous in holding that a person, having the capacity and opportunity to read a contract, cannot avoid the contract on the ground of mistake, if he signs it without reading, where there are no special circumstances excusing his failure to read it. It is the duty of every contracting party to learn and know the contents of. a contract before he signs and delivers it.

To permit a party, when sued on a written contract, to admit that he signed it, but deny that it expresses the agreement he made, or to allow him to admit that he signed it, but did not read it or know its stipulations, would absolutely destroy the value of all contracts. The agreement is -made an exhibit to the complaint, and the allegations of the complaint must be construed in connection with-the exhibit. The complaint alleges that the bankrupt did not know the contents of the agreement prior to the time of signing tire same.

This allegation amounts to nothing, in view of the law above stated, and the further fact that the allegation above stated, properly interpreted, means that the bankrupt did know, at the time of signing the contents of the agreement. We have no. doubt but that the warranty deed became absolute according to the conditions of the memorandum- agreement. The allegations in the complaint were insufficient to show that the execution and delivery of the warranty deed constituted a voidable preference.

There was a total failure to allege that the bank or Cosgriff had reasonable cause to believe, at the time the warranty deed became absolute, that the enforcement thereof would effect a preference. The allegation as to what the petition in involuntary bankruptcy alleged was not equivalent to a direct allegation of those facts, which would constitute the transfer evidenced by the warranty deed a voidable preference under

section 60 of the Bankruptcy Taw. It also appears, that the warranty deed could not be attacked as a voidable preference, as it was executed more than four months prior to the filing of the involuntary petition. The deed was dated February 21, 1914, and recorded March 5, 1914. The involuntary petition was filed July 3, 1914. The law of Wyoming (sections 3653, 3654, Wyoming Compiled Statutes 1910) did not require the warranty deed to be recorded in order to be valid except as to subsequent purchasers in good faith, and no such person is before the court; therefore the four months mentioned in said

section 60 ran from the date of the deed, and not from the date of recording the same. Carey v. Donohue, 240 U. S. 430, 36 Sup. Ct. 386, 60 L. Ed. 726, T. R. A. 1917A, 295. So far as First National Bank v. Connett, 142 Fed. 33, 73 C. C. A. 219, 5 L. R. A. (N. S.) 148, and Mattley v. Geisler, 187 Fed. 970, 110 C. C. A. 90, announce a contrary rule they have been overruled by Carey v. Donohue, supra. This being our view of the law as applied to the facts, it results that the judgment below must be affirmed; and it is so ordered.