Eliza N. Shear, Appellant, vs. William L. Robinson, Appellee, 18 Fla. 379

The Chief-Justice delivered the ¿pinion' of the court. I. The referee properly found upon the testimony in this case that Robinson was in the first instance reluctant to become a creditor of the appellant, and became so because of the importunity of and sympathy for her on account of her embarrassments and misfortunes. II. -We agree also that the lease, and the mortgage of August 1,1877, were not and were not intended by either party to be one instrument, or contract.

The. mortgage is not a qualification of the lease, nor the lease of the mortgage, neither is dependent upon the other ; although it is probable that the lease would not have been entered into but for the mortgage indebtedness. III. The conclusion is inevitable also that the possession by petitioner of the real and personal property, although embraced in the mortgage, was. delivered and obtained in virtue of the lease. IV. The conveyance of January .4, 1878, was executed and acknowledged, as appears by the record, in due form of law. It was attempted by. defendant to show that the acknowledgment of Mrs.

Shear was not taken by the magistrate upon a private examination of the wife separate aud apart from her husband, and that no private examination was had, but that the grantors signed the instrument and the Justice signed the certificate, only asking the wife, at the same table .and seated by her husband where they had signed the paper, whether she knew what she was doing ? She answered yes, she thought she did. The Justice then signed the certificate of acknowledgment. Mr. and Mrs. Shear testify that there was' no separate or private examlnation.

It has been repeatedly held that the certificate of acknowledgment of a deed of a married woman is conclusive, unless fraud be clearly shown by competent witnesses; and that the testimony of' the parties alone was not sufficient to overcome the certificate, nor would the testimony of the magistrate be taken to contradict his official certificate. In Johnston vs.

Wallace, 53 Miss., 331, the court says: “ Whether the officer taking an acknowledgment acts judicially, or quasi judicially, or both judicially and ministerially, he is the person to whom our law, in the effort to protect married women from the coercion of'husbands in the execution of deeds, intrusts the duty of ascertaining by her declaration made apart from her husband that she has acted freely in executing the deed acknowledged ; and when a married woman has appeared before a proper officer, having signed a deed and acknowledged it, he certifies a full compliance with the statute, his certificate, except in cases of fraud, must be held conclusive of the facts which it asserts.

Any other rule would open wide the door for fraud upon the grantees of married women. * * * There is far more’ danger that deeds of married women will be improperly sought to be set aside, if it can be done by questioning the manner of acknowledge ing them, than that wives will be imposed on in acknowledging deeds.” See also Heeter vs. Glasgow, 79 Pa. St., 79; Kerr vs. Russell, 69 Ill., 666; White vs. Graves, 107 Mass., 325; Singer Mfg. Co. vs. Rook, 84 Pa. St., 442; 1 H. & McH, 211; 3 ib., 321; Pick., 184. In Heeter vs.

Glasgow, the court says: “ The true rule deducible from the-authorities is, that the certificate of the Justice of the acknowledgment of a deed or mortgage is á judicial act, and in the absence of fraud or duress, conclusive as to the facts therein stated. A purchaser, bonajidei, and without notice of the fraud, is protected against it; but as to all other persons parol evidence has been admitted to show fraud or duress connected ynth the acknowledgment.” . The same question was considered by this court at the present term in Hart vs.

L’Engle, et al., in which it was held that a. wife’s acknowledgment of relinquishment of dower cannot he impeached by her testimony alone, hut, though it may be impeached,for fraud, the proof to sustain the charge must be of the clearest, .strongest and most convincing character. In the present case Mrs. Shear does not repudiate the execution or acknowledgment of the.deed, either upon the ground of fraud, forgery or duress, and- we must give to the magistrate’s attestation its legal, effect as it stands. V. The next and-more important. question is as to the character of,- the deed of January 4, 1878.

Mrs.- Shear sought Robinson in great distress.to aid her in a small way in her pecuniary -affairs. Afterwards she sought more aid, and excited his sympathies in her behalf to the end that he made advances and assumed obligations for her to the extent of $1,590, for which he took her note payable immediately, and took the mortgage of August 1,-1877, for $2,000, consenting to make further advances up to the .latter amount. At the same time he .took- a lease for five years of her plantation and all the personal-property upon it, and entered into possession under this lease, Mrs.

Shear remaining in the house with her family, and with no means of support beyond the small amount of rent. Mr. Robinson then made further advances, bey-ond the. maximum of his mortgage security,, the amount in November or December, 1877-, being $886.91- in excess of the'amount secured by the mortgage. ., : , . It is difficult to determine at this point which party was most, anxious to increase the amount of' petitioner’s advances, to Mrs. Shear. Now commenced the negotiations which resulted in the deed of January 4 and the foreclosure proceedings.

It seems to have been concluded that Robinson should advance or pay $500 more, which, with previous advances or credits, amounted to $3,836.91, and which he says was the price agreed on for an absolute sale and deed of the entire property, real and personal. She insists that though the conveyance executed by her and her husband was in the form of a deed of conveyance, yet it was the understanding and agreement that the conveyance was made to secure him the money, and that she had the right to redeem the property at any time by paying the amount.

She says the paper in the record bearing the date of January 10 was in fact given her by Robinson the same evening the deed was executed. He says it was given some days later in response to a distinct proposition from Mrs. Shear. The paper in evidence was not the original actually signed in January, but is a substantial copy of the original, and was made by Robinson at Cedar Key in June, copied from the original which had been wet and discolored, and the original was then and there destroyed by him.

In view of the entire facts of the case it is unfortunate this original paper was destroyed by him at a time when he was treating with them in the absence of counsel for important admissions, in regard to this controversy, because if it were produced it would have avoided the dispute as to the day as well as the terms of the agreement. At all events, the paper contains the essence of Mrs.

Shear’s construction of the deed if it was given at the time of the execution of the deed, but if it was an independent agreement it is of no binding value as a contract for the sale of land, as it is without consideration or seal, or mutuality of obligation, a mere naked proposition.

Her position here is that she claims that the deed was a security for her entire indebtedness and the five hundred dollars then, advanced to enable her to go elsewhere to seek a livelihood, and that she was entitled in equity to redeem by paying the amount stated, and is, therefore entitled to the surplus bid over that amount on: the foreclosure sale. If the deed of January 4, 1878, was the result of an absolute sale of the property, it - is difficult to conceive of any plausible reason for the foreclosure of the mortgage.

If the grantors conveyed all their interest, there remained no interest to be cut off by thé-foreclosure. The foreclosure could not affect the rights of creditors or incumbrancers of any sort, because the mortgagors only are the defendants named in the foreclosure suit. It is undisputed that Judge Baker, who drafted the deed and the bill of foreclosure, understood from the parties a month before the date of the deed that the transaction contemplated was an absolute sale and conveyance. He sent the draft of the deed and the bill from Orange county to Robinson, who sent them, and they were delivered, to Mrs.

Shear to be examined before closing the transaction. The introductory part of the deed reads: that “ whereas the said E. E. Shear and L. N. Shear are unable to comply with the terms of said mortgage, or to pay the said sum of money secured thereby, and they being willing and anxious to secure said payments,” therefore, in consideration of the premises and the sum now due by the mortgage, and the further consideration of $1,746.91 paid by Robinson, they granted the property in fee, &c.

Then the bill of foreclosure, which was sworn to by Robinson on the. 3d of January, 1878, the day before the execution of the deed, states the execution of the mortgage to secure the note of $1,590, and that he had “ agreed to assume certain other indebtedness and to make further advances, which have since been made, amounting to the further sum of $1,746.91;” and that the defendants have never repaid any part of said indebtedness, and the-whole amount is now justly due, and -that a sale of the property is necessary- for the raising of the -money, therefore he prays a decree forever barring ánd foreclosing the defendants of all right, title, interest or equity of redemption, and for a decree for said amount and execution thereon, and a sale of the property; and that out of the proceeds the costs be paid, next the amount of the principal and interest of complainant’s claim, “ 'and the balance, if any, be paid to the defendant, Eliza E.

Shear, to her sole and separate use.” " ' . An answer was also sent to Mrs! Shear to be examined and signed, already prepared-, by Robinson or his counsel^ acknowledging that she was indebted, as charged in- the bill, in the sum o.f $3,386.91, including the note ; and defendants •therefore assent to the decree as prayed for by the bill. ' This answer was signed at the same time with the’ deed, January 4th. • . . Now, with this bill' informing Mrs.

Shear that the whole amount .of the consideration of the deed was an indebtedness, claiming that the property must be sold to pay him the amount so due him, which they are otherwise unable ’to pay, .claiming a decree that this debt be paid out of the proceeds of a sale,' and that any surplus over' this amount be paid to Mrs.

Shear “ to her separate úse,” and this bill sworn to by Robinson, and an answer given her to sign and swear to, and which was sworn to by her in presence of Robinson, stating that the $3,336.91'was an indebtedness ,to be paid by a sale of the mortgaged property, and that she would be entitled to any surplus after paying this amount from the proceeds of the sale, how does it lay in ■the power of Robinson to say'that-she did riot understand .the effect of the deed to be precisely -what she now claims, a security for'the whole indebtedness mentioned, for a part of which Robinson, up to the date of the deed, had no security whatever?

Mrs. Shear signed, that deed with these papers before her, prepared for and' furnished to her by Robinson, so that'she could understand what she was doing and what was the professed object and effect of such deed upon her rights in the property.' If the effect of the deed was intended by Robinson to.be other than that, she was so made to understand ; if the sworn bill stated a lie, and she wras induced and invited to sign 'and swear to an answer which he now claims is a lie; then he is guilty of a gross fraud upon Mrs. Shear which will avqid the deed as so much waste paper.

Robinson says now in his testimony that he did not read the bill. He is estopped from this plea of- ignorance by having signed and sworn to it, and by having induced the defendants to consent to a decree in accordance with the prayer of the bill. Again, in furtherance of the prayer of the bill and the submission in the answer that such decree be made as the bill prayed for, Robinson took a decree that the property be sold, and that he be paid the indebtedness of $8,886.91 and costs, and that the surplus, if any, arising out of the sale, be paid to the defendants.

And it was further' provided in that decree that if the property should not sell for money enough to pay the $8,886.91 with interest and costs, there should be execution against the defendants for the deficiency. What does this mean ? It is evident that Robinson’s attorneys and solicitors, who drew the deed and the bill and the answer and the decree, intended to do precisely what was done in accomplishing the purposes and establishing the rights of the parties by the most solemn and deliberate forms and methods.

The only conclusion to be drawn from all the reliable facts in the case is that the deed of January 4,1878, was in its legitimate effect and purpose, and in its execution was intended to be, a security for the sura of $8,336.91, owing by the grantor to the grantee, and that as- between these parties- it must be given such effect. Such, indeed, is the result of the adjudication by which the decree of foreclosure was intetrded by eonsent'or agreement.of these parties, and establishing their several rights. In Glover vs.

Payne, 19 Wend., 518, the court says: “Had it appeared that the deed -was given to secure a pre-existing debt or a loan of money, or that the copsideration -paid.for .the land was greatly below its real value, a question would arise whether it was not a mortgage.” (In that case the grantor had, after the execution of a deed, taken a lease from the grantee.) The circumstance that there was no personal security-taken for the payment of the money does not make the conveyance less effectual as a mortgage. (Russell vs. Southard, 12 How., 139, 152, and citations.) Brown vs. Dewey, 1 Sandf.

Ch., 56, reviews the cases and shows that the absence of personal liability of .the grantor to pay is not conclusive to determine whether the conveyance is a mortgage. Speaking of a conveyance by the mortgagor to the mort. gagee of his equity of redemption, the court in Russell vs.

Southard says: “We think that inasmuch as the mortgagee in possession may exercise an undue influence over the mortgagor, especially if the latter, be in needy circumstances, the purchase by the former of the equity of redemption. is to be carefully • scrutinized when fraud is charged, and that only constructive fraud or an unconscientious advantage which ought not to be retained, need be shown to avoid such a purchase. "* * * A mortgagee in possession may take a release of the equity of redemption.

But such a transaction is to be scrutinized to see whether any advantage has been taken of the mortgagor; especially is this necessary when the mortgagee in the inception and throughout the Whole conduct of' the business has shown himself ready and skilful to take advantage of the necessities of the borrower.” The court: cites 2 Schoales & LeFroy, 673, in which Lord Redesdale declares that courts view transactions of that sort between mortgagor and mortgagee with considerable jealousy, and will set aside a conveyance of the equity of redemption where, by the influence of his incumbrance, the mortgagee has purchased for less than others would have given.

VI. It is insisted that the petitioner should be relieved of his bid because he was -laboring under a misapprehension of the facts of the case. An examination of the record fails to show that he was ignorant of any material fact bearing upon the rights of the parties. The most that can be said is that he did not apprehend the legal and equitable effect of his decree, and that in bidding above the amount of the decree he' did not know that he would be, and was advised by counsel that, he would not be, required to pay the excess.

This is purely a question of law; arising out of facts of which he was fully cognizant. The presumption is that every person is acquainted with his own rights, provided he has a reasonable opportunity and capacity to know them. Eonblanque has laid down the-general proposition that in courts of equity mere ignorance of the law shall not affect agreements, nor-excuse from'the legal consequences of particular acts; and in this he' is fully borne out by authorities. (1 Story’s Eq. Jur., § 111, 139.) It would be superfluous to enter upon a discussion here of this question.

Judge Story and the Supreme Court of the United States have so fully examined it and pronounced the rule in- view of all the -authorities, the question is no longer open. VII. After the sale under the decree the petitioner-went to Cedar Key and sought out the mortgagors. He.first found a Justice of the Peace and informed him that he should require his services in certifying some papers which the Shears would execute when Mrs. Shear should return. The time was fixed at nine o’clock p. m. Robinson said he had the papers all ready, but had not then seen Mrs. Shear.

At ten o’clock Robinson sent for Lutterloh, the Justice, and he went to Mrs. Shear’s door, and Robinson met him and said he was not ready, and he wanted to have “ some further conversation with these people.” At half-past eleven Lutterloh was again sent for, and met the parties, and Robinson commenced reading the paper, explaining as he read, and convinced Lutterloh as well as the Shears that they had no rights in the matter whatever that could be enforced in law or equity, and that their honor and reputation required that they should sign the paper. What Robinson had previously said to Mr. and Mrs.

Shear- Lutterloh does not know. Delia Burkhim testifies that Robinson said all he wanted was the money they owed him. This was when R. copied and signed the paper called the agreement to sell. Robinson paid the Shears on that occasion one hundred dollars, and took from them a receipt commencing “ whereas, in the purchase of W. L. Robinson from us of the land and property described in the deed of January 4, 1878, by agreement the said Robinson did retain for his protection in case he had to pay a certain claim of Dr. John S.

Bond ; and, whereas, being in need of funds, we have applied to said Robinson to pay us $100, and he has paid the same to us this day,” &e.; and the paper further stipulates that they will refund the money to Robinson in case he shall pay the money to Dr. Bond. Mr. and Mrs. Shear state in detail the reasons why they signed the paper at Cedar Key consenting to the execution of a deed and relieving R. from paying his bill, &c. Their statement is more full in regard to' his representations to them of what had transpired at the sale than Robinson gives in his testimony.

They say that Robinson told them that Hopkins and Walker and Williams were engaged in a black-mailing operation to defraud him; that Williams’ bid was the mere act of an enemy to annoy him; that Judge White had decided they had no rights, and counsel had given opinions to the same effect, and they gave their assent to the paper to save Robinson from being ‘cheated and defrauded, as they were led to believe, and to save their own honor and reputation, which R. said was being injured by the conduct of Hopkins, Walker and Williams.

They further say that parts of sáid paper were not read to them by Robinson, who pretended to read it to them. The Shears had no counsel or advisers, were very poor and in desperate circumstances, to whom $100 was a great relief, and it appears by the testimony of several witnesses that they were mentally incapable of managing important business affairs.

It would be doing violence to equity and good conscience to hold them to the provisions of that paper under the circumstance in which they were induced to sign it; their ignorance of the facts, their weakness, the impressions made upon them during the several hours Robinson spent with them in the night in the absence of counsel or friends, and the legal and equitable - rights intended to be affected by it. If the Shears had an interest in the surplus money it would certainly be inequitable that Robinson should deprive them of it by any means whatever without their intelligent concurrence. 1 Story’s Eq.

Jur., Sec. 128; 1 Peters, 15, 16. VIII. Another reason given by the petitioner why he should be relieved of his bid is. that the property is not worth it, and not worth more than the amount named in the deed ; that Williams run up .the price in bad faith and for the purpose of annoying aim. It does not appear by the testimony of the several respectable witnesses that the land and improvements were worth less than the amount hid. Some estimate them at a higher and others at a less amount. The fact remains that Robinson refused to accept a bid of $7,900. and bid higher himself. Judge Bernard and Mr..

Perkins heard Williams say that he would not have bid it up if Robinson had paid him one or two hundred dollars. Williams says, however, he was. bidding for the pui'pose of buying, and was ready and willing to buy and pay for the property.- Other witnesses state facts showing Williams’ intention and ability to become a purchaser at the amount of his bid. What Williams may have said in jest or in earnest afterward does not affect the ■fact that he was a responsible bidder.

Nor do we see why such a bidder should “ annoy ” Robinson, while he was at all times pi-ofessing to. be unable to spare from his business .the money he had invested and assumed to pay for the Shears. It would be very natural to conclude that Robinson, instead of being annoyed, would be. rejoiced at the opportunity of doubling his investment in a few months, and if not for his own sole benefit, at least to the advantage of the unfortunate people in whose behalf his sympathies had been so actively aroused.

He persists that the property is not worth more -than he has invested, but a better test of his estimate of its value is his refusal of $7,900- for it. These conclusions are the result of a careful and patient •examination of the voluminous.record laid before us and of the authorities at hand. The decree setting aside the sale must be reversed and the cause remanded, with directions that.further proceedings be had therein in accordance with this opinion and the practice of the court.

Leave having been obtained at the January Term, 1881, at which the foregoing opinion was rendered,, the appellee filed, within thirty days after the adjournment, the following petition for a rehearing The appellee respectfully asks .for a- rehearing in this cause, and in support thereof submits the following: I.

It is held by the court that “ the only conclusion to be drawn from all the reliable facts in the case is that the deed of January 4,1878, was in its legitimate effect and purpose, and in its execution was'ibtendéd.to be, a security for the sum of $8,886.91-100 owing by the grantor to the grantee, and that as between these parties it must be given this effect. ” In this the petitioner respectfully submits there is error.

Judge Baker who drew the deed says that he was employed to act for both parties in drawing an absolute conveyance; he had full consultation with them, together and separately, and each understood that an absolute sale of the property was to be made, and he prepared the paper for this p"urpose, and as an absolute conveyance. In the opinion of your Honors, prepared by the Chief-Justice, it is expressly stated that “ it is undisputed that Judge Baker who drafted the deed understood' from the parties a month before the date of the deed that the transaction contemplated was an absolute sale and conveyance.

He sent the draft of the deed and the bill from Orange county to Robinson, who sent them and they were delivered to Mrs. Shear to be examined before closing the transaction.” There is no doubt, unless Judge Baker is not to be believed, and certainly I am justified by the above quotation in saying the court believes him, that both parties up to their last interview with him, or his last interview with either of them, intended an absolute conveyance, yet notwithstanding Judge Baker’s testimony as to . interviews with them together and separately, and the understanding and instructions communicated to him, Mrs.

Shear says it was on the 4th of January, 1878, at Glenwood, at the signing of the papers, that Robinson first informed her that the paper he wished her to sign was a bill of sale, and not an agreement to foreclose the mortgage. I understand Mrs. Shear as meaning by the statement that she had never-heard from Robinson, or had with him any agreement to execute an absolute conveyance. If, Mrs. Shear is to be believed then Judge Baker is not to be relied on; but it is too clear that Judge Baker is to be believed and Mrs. Shear not to be, as to the arrangments agreed on.

It is clear also that the papers executed, including the foreclosure proceedings, were prepared and sent by Baker as the agencies for perfecting the title in Robinson.- Robinson understands them so; when he goes to Glen-wood to have them executed he expresses the same understanding which he had always had. To hold that the deed was in its execution intended to be. a security for the purposes stated is to rely upon a part of Mrs. Shear’s testimony, who has certainly not spoken the 'truth as to another stage of the negotiations, if Baker is to be given the credence accorded .to him and merited, by him.

The petitioner respectfully submits that even if any credence is to be given to Mrs. Shear’s statements as to the negotiations at Glenwood on the day mentioned, the effect of her testimony is not that the transaction was a security for ’ merely the $3,336.91-100, or this sum and interest, for the agreement she claims to have been given to her by petitioner on that day, as set out by her, (pages 400, 401,) is an agreement of'petitioner to sell to her for $3,336, “with interest and full value for any improvements, with interest at 16 per cent.” Mrs. Shear is either to be believed or not to be believed.

If the former, then her understanding and agreement was not that she could get back the property by paying the $3,-336 or $3,336.91 and interest, but by paying him one of these amounts and interest and the' full value of improvements and interest. The interest to be at the rate of 16 per (jent. There can be no doubt that Robinson understood that he was to get the absolute title, unless Mrs.

Shear is to be believed, and if she is to be believed then he was to have the legal title, subject, however, to an agreement to sell to her, not for the debt and interest but for these and an additional consideration, the full value of all improvements. She could not, according to her own testimony, claim the property upon paying the $3,336.91 and interest; nor should be allowed to claim the proceeds of the property over, and above" the same amount. Although the bill and answer were drawn as they were, yet in point of fact, taking Mrs.

Shear’s testimony and believing it as a whole, (and it is to be believed as such or not at all) and assuming she had carefully read all the papers, Robinson was then expecting and claiming an absolute conveyance, and believing the papers Baker had drawn would secure it to him. Whether Baker or Bernard originally suggested the foreclosure, he “ concurred in the opinion for the reason that there was a prior mortgage which Robinson had paid, and it was thought best to foreclose against all persons claiming by, through or under Mrs. Shear in order to perfect the title under the absolute deed from Mrs.

Shear to Robinson,” and after Robinson consulted Judge Bernard, who had been his attorney in other business, he (Baker) said to Robinson that he saw no necessity for immediate foreclosure of the mortgage; that he considered the deed he was instructed to prepare a sufficient title to the property, but that as Alexander & Maxwell held a prior mortgage, but transferred to Robinson or purchased by him, he (B.) concurred with Judge Bernard that a foreclosure of the mortgage to Robinson was the safest mode of extinguishing all prior incumbrances;” The purpose of Mr.

Baker in advising it, however mistaken it may have been and. however crudely carried out, was not that it was necessary as between the grantee and the grantor, but as to third, parties ; that as to these the mortgage should be kept alive. It is competent for one to purchase of his mortgagor the legal title and still keep his mortgage alive and foreclose it against other lien holders. The courts, in the absence of evidence of express intention to keep it alive or not, will look to the interest of the purchaser, and assume that he so intended if it appears to be to his interest to do so.

With proper deference it is with confidence asserted that the testimony carefully considered shows that neither Mrs. Shear nor Robinson understood or intended, at the execution of the papers on the 4th of January, that the deed was or should he a security as stated and found by your Honors, but to say the most for Mrs. Shear it was at least intended as a conveyance to Robinson of the legal title, a satisfaction of her debt to him, and that the other paper should give Mrs. Shear the right to repurchase on the terms therein stated.

In view of all the testimony it cannot be believed that Robinson would have permitted the commencement of the foreclosure proceedings if he had understood they would have-the effect sought to be given them ; nor that Mrs. Shear when she signed the papers believed they would have such effect.

The fact that the Shears never made or attempted to make any arrangements for having some one look, after her interests at the sale when she .left Tallahassee, goes of itself to show that she did not regard herself as having any interest in the property; unless through a right to purchase it back under the terms stated in the additional paper referred to. 'Why, if Robinson' or Baker intended or understood the deed1 of January 4 as a security, was not it foreclosed instead of the old mortgage ? The foreclosure proceeding is, we respectfully submit, accounted- for by Baker.

It is a thing Eobinson would never have suggested himself as a means of getting title. It-is a proceeding, however crude* which on its face shows that a. lawyer advised it and not a layman. II. With proper respect petitioner believes and urges that it is error in the court to hold that he in bidding acted under mere mistake of law. (Story’s Equity Jurisprudence, §141.) He believed as a matter of fact that the ownership of the property as against the Shears was in him. He had negotiated to this end, and believed it to be consummated. Eobinson cannot be said .to have acted solely on Mr.

Bernard’s advice as to bidding. He was also acting on the belief that in bidding he was carrying out the purpose of both parties, a belief made strong by the dealings between him and the Shears, and by the opinion and advice of the chosen counsel of both-parties. Moreover, it is not always the case that equity will refuse to grant relief against a mistake of law.

If if be a mistake of law it cannot be said to arise from a mere misapprehension of the effect of the decree, for he was not relying solely on the foreclosure proceedings; in fact the foreclosure proceedings in the-light of Baker’s advice were not instituted for the purpose of having any effect as between him and the Shears. 8 Wheaton, 211-16; Kerr on Fraud and Mistake; Story Eq. Jurisprudence. III.

In regard to the transactions at Cedar Key, Eobinson and the Shears differ in'their statements as to some features, but looking, to the testimony of-Lutterloh, who was with' them for two hours, and to its statements of facts as contradistinguished . from mere • opinions, wfe find that Eobinson ‘ there claimed that he had formerly bought the land, and that the Shears did not deny it.. Miss Burkhim’s testimony that Robinson said all he wanted was the money they Owed him, taken in connection'with the paper before him, can bear no other reasonable

interpretation than that he meant that the money which would be payable to him under that paper would satisfy him and secure a return of the property. Robinson denies the statements as to Hopkins and Walker imputed to him by the Shears. He does state that they were interfering and trying to make him pay that which he had never expected to pay, and it is clearly shown by the testimony that the knowledge of Hopkins’ interference was the cause of Robinson going to Cedar Key.

Robinson further says that Williams had run the property up on him, and Robinson’s testimony shows that when he was bidding he believed that Williams was not bidding in good faith but to annoy him.

As to the Shears signing the paper to save Robinson from being cheated and defrauded, “ as they were led to believe, and to save their own honor and reputation,” it is clearly shown that they did not deny that Robinson had previously purchased the property from them, and that they understood that Robinson was to be released from the payment of the balance of the bid over and above the purchase price named in the decree, which was to be credited on the decree. ' Whether the paper dated January 10,1878, was executed on the 4th or 10th, Robinson believed it ■ to be binding upon him, and. he believed, and so did they, that he had become the purchaser in January from them, and the great purpose of the paper executed at Cedar Key was to secure a release from the bid which he had made on property he naturally believed, and they admitted, to be his.

As to not reading all the paper to them, this'Robinson denies. As to the Shears having “ had no counsel or advisers,” and being “ very poor and in desperate . circumstances to whom $100 was a great relief,” the interference of one of their counsel before this court was the -cause of Robinson going to Cedar Key, His letter had advised them that they could claim the money over and above the amount of the decree. Right here it is to be observed that there is no denial on the part of the Shears of their having written Mr. Hopkins thé lettér which plainly tells, him they can attend to their own business and he to his.

There is no denial of Robinson’s statements as to what passed or occurred as to Mr. Hopkihs. They had been advised of Mr. Hopkins’ views of .their legal right to the excess of the bid. In view of the letter of.Mr. .Hopkins can it be said they were without-counsel or advisers? The $100 was, as the Shears says, not paid in consideration of the execution of the instrument signed by the Shears. - It was not mentioned till after the execution of the paper by the Shears. The renewal of the paper of January 10 at Cedar Key was requested by the Shears, on account of its stained condition.

There is nothing to show that Robinson had sought or suggested such a thing. The destruction of the old paper is what any sensible man would have done. Certainly it would not have been business-like or reasonable to leave both outstanding. The only substantial difference, Mrs. Shear alleges, between the renewal and the original is two per cent, interest. This change Robinson denies, as he does all others. There is no witness to the contrary but Mrs. Shear. Robinson’s conduct in going to a Justice of the Peace on his getting to Cedar Key is alluded to by the court.

In transacting the business there he had either to do it secretly or openly. Had he introduced no witnesses to such -transactions the secrecy native to fraud would have been imputable to him. Had he, when the -witnesses were present, had no'conversation or explanation with the Shears before them, but only a reading of the papers, or had he enjoined any secrecy on them, there would have been circumstances usually indicating fraud. There is no testimony by the witnesses to a single substantive act of fraud, or circumstance ordinarily showing fraud, upon, the part of Robinson. Mrs.

Shear has pronounced everything a fraud, it is true, from beginning to the end, but it is confidently submitted that she is not to be believed. Nothing is plainer than that she applied to Baker, and separately and with Robinson instructed and advised Baker that an absolute sale was intended, yet she swears that Robinson never- said anything to her about ah absolute conveyance until January 4,1878. “ Falsus in uno, falsus in omnibus.” Robinson’s acts at Cedar Key show no intention to obviate the agreement to permit Mrs. Shear to purchase.

Had such been his intention, he would have desired and attempted to take up instead of renewing the agreement of January 10th. We respectfully submit that the conclusion of the coui’t as to the transactions here are not borne out by the testimony. IV. We respectfully submit that the court has erred as to the value of the land and property as shown by the testimony. The great weight of the testimony is with Robinson in asserting the property is not worth the bid. Pearce and Houstoun do not get square down to the question as to what this land >is worth.

Pearce says the committee agreed not to put a fixed value on it, and what he would take for his own land. Houstoun’s idea is that land which brings so much is worth so much. The fact that Robinson refused to accept the Williams bid of $7,900 is taken hold of by the court as a strong circumstance of his valuation of the property.

The testimony shows that Robinson regarded his agreement of January 10th as one to be kept; that he was regarding it in his bidding, and that it was his duty under, it to bid. in the property and secure, the Shears the privilege . of availing themselves of that agreement. >-He had never shown any disposition to evade:or break it. They say that under it they were to have the privilege for at least five years of repurchasing.

He had made great improvements on the-place, and the agreement- provided, for his being repaid for them" as well .as the Shears getting these improvements at their. cost and interest in case they repurchased. Even admitting this agreement was not executed till January 10th, and was not binding on.him, still he believed it was, the Shears believed it, and he acted oh it, and in bidding he was doing so as much for the Shears as for himself. In asking for the sale to be set. aside' Robinson is seeking nothing that the Shears did not contemplate when they took the agreement.

If not set aside, is he to lose all the benefit of his improvements ? Is it natural to suppose that Robinson would have made any improvements if he had understood that he was merely securing the $3,336.91-100 when the papers of January 4th and 10th were executed ? Robinson has not broken faith with the Shears. - He has stood ready to carry out the agreement of January 10th, and merely desires that the Shears will stand to it and not break faith with him.

For the Shears to insist upon anything else is, we respectfully submit, fraud in them, and Robinson is but seeking to carry out the agreement- which they say was made in good faith. ■ In consideration of the premises, your petitioner prays that he may be fully reheard upon the points above stated, and to that end and that full justice may prevail your Honors will grant a rehearing, and, as in duty bound, your petitioner will ever pray. Geo. P. Raney, Solicitor for Petitioner. At the June Terra, A.

D. 1881, the following opinion denying a rehearing was delivered by the Chief-Justice : The appellee petitions for a rehearing upon several grounds. 1. It is insisted that our conclusion “ that the deed of January 4, 1878, was, in its legitimate effect and purpose, and in its execution was intended to be, a security for the sum of $3,386.91, owing by the grantor to the grantee, and that as between these parties it must be given this effect,” was erroneous and not supported by the law and the facts.

It cannot be expected that we shall recapitulate all the salient points of the testimony in deciding upon this petition.. In the opinion already given we announced the conclusions arrived at upon a view of all. the facts upon the equitable rights of these parties. Upon a patient review of all the testimony we have failed to reach any different conclusion. The testimony of Bolling Baker leads to the conclusion that, according to his understanding of the parties, the Shears were to give Robinson a deed conveying to him a title in' fee simple. Robinson says that was the intention of the parties. Mrs.

Shear insists from first to last that the purpose of the deed was, whatever the form of the conveyance, to relieve herself from the embarrassment of her situation, to provide that her other creditors should be paid, that Robinson should be paid, and that whenever the property should be sold she might have the benefit of any advantageous sale. Baker’s last interview with the parties resulted in his drawing up and forwarding to Mr. Robinson the deed and the bill of foreclosure. These papers, after Robinson had made oath to the bill, were sent to Mrs.

Shear to read, and these papers are, as they bear upon each other, when signed, the highest evidence of the agreement of the parties. The peculiar language reciting the consideration of the deed of conveyanee (as before quoted) may well have given Mrs. Shear the idea that it was carry iug out an. intention to “ secure ” the payment of money which she could not then pay.

Its language is, “ being willing and anxious to secure said payments,” referring to the mortgage indebtedness of $1,590, “ and in consideration of the premises and the sum now due by said mortgage, and the further consideration of $1,746.91 paid,” &c., the grantors convey the property, real and personal, in fee.

Then, as we before remarked, the bill of foreclosure which he had sworn to alleged that the sums of $1,590 and $1,746.91 were a subsisting indebtedness ; that it had never been paid, “ and that the whole amount is now justly due,” &c.; and then asks the court to decree a sale for the purpose of satisfying such indebted-: ness; and that after paying the money so due to Robinson the residue of the proceeds he paid to Mrs; Shear “ to her ■sole and separate use.” Then the answer furnished by Robinson was before her, admitting all the allegations in the bill and joining in the prayer for such decree, which she was, in view of her understanding of the transaction, willing to swear to, and did swear to in his presence before a Justice of the Peace brought there by him for the purpose.

What avails it that- there had been an agreement to sell the entire property for the amount due him ? Here is the entire agreement between the parties reduced to writing and sworn to by both parties. • What was in her mind on reading and signing these papers except that they expressed her intention, and his at the moment of the consummation, and without forgetting what she says was the first intimation as to a “ bill of sale ” in the early part of the interview, the true character of the contract as closed by the signatures and oaths of both parties, agrees with her testimony in the case.

Judge Baker was not present at this execution oí the papers. He understood, according to his testimony, that Mrs. Shear was to sell the property to Robinson. If that was his understanding at the time of preparing the bill and answer, we fail to comprehend him. If, at the time of the execution of the deed by Mrs. Shear and the making oath to the bill and obtaining her answer agreeing to the decree prayed for, he supposed the transaction was merely a conveyance to him in fee, we fail to comprehend him. The facts stated in the bill are true or false. Mrs. Shear says they are true.

The bill, answer and decree corroborate her in this respect. If neither of them is to be believed, thecase, in the respect of the character of that deed, stands upon the writings executed with it as a part of the transaction and declaring its purpose as unmistakably as though they were written on the same piece of paper. The paper signed by Robinson only agreeing to sell the property to Mrs. Shear, and which seemed to satisfy her at the time, if not a part of the transaction is of no moment for reasons before stated.

The foreclosure of the mortgage may have been intended as one of the agencies for “ perfecting the title,” but if the title was conveyed by the deed we fail to discover the object of foreclosing and obtaining by the oaths of the parties a decree judicially establishing the fact that the expressed consideration of the deed was still a subsisting indebtedness. This cannot be a matter of fraud, accident or mistake. The suggestion that Mrs.

Shear, when she left Tallahassee, made no arragements to have her interests looked after at the sale goes to show that she did not regard her. self as having any interest in the property. Her situation at Cedar Key is shown by the testimony, as is also her capacity for transacting this kind of business. Whether she knew of the time and place of the sale we do not know, but it seems some one informed her afterwards. II.

The second ground of the petitioner is that it was error to hold that in bidding he acted under a mere mistake of law, while in reality he believed the ownership of the property was in himsef; that he did not act solely on the advice of his counsel as to bidding ; he was also acting on the belief that- in bidding he was carrying out the purpose of both parties, a belief made strong by the dealings between himself and the Shears, and by the opinion and advice of the counsel of both parties.

All which means that he was bidding under ah impression that the Shears had no interest, while his decree informed him that he was enforcing a subsisting indebtedness, and that his deed was a security for the money. We do not see that he was ignorant or misinformed of any fact whatever upon which his whole conduct or action was based. It was stated in the opinion that as a general.rule equity would not relieve from the legal consequences of acts under a mistake or ignorance of law.

True we did not state that there are exceptions to this rule in so many words, but said in the language of the books that the presumption is that every person is acquainted with his own rights, provided he has a reasonable opportunity to know them. (1 Story’s Eq. Jur., §111.) In Cullen vs.

Ready, 2 Atk., 591, Lord llardewick says: “ It is said they might know the fact, and yet not know the consequence in law, but if parties are entering into an agreement and the very will out of which the forfeiture arose is lying before them and their counsel tvhile the drafts are preparing, the parties shall be supposed to be acquainted with consequence of law to this point, and shall not be relieved under a pretence of being surprised, with such strong circumstances attending it.” Chancellor Kent, in Storrs vs. Baker, 6 Johns.

Ch., 169, says: “ It is rarely that a mistake in point of law, with a fall knowledge of all the facts, can afford ground of relief, or be considei’ed as a sufficient indemnity against the injurious consequences of deception practiced upon mankind. * It would seem therefore to be a wise principle of policy that ignorance of the law, with knowledge of the facts, cannot generally be set up as a defence.” There is a class of cases citel in Story’s Eq.

Jur. and in Kerr on Fraud and Mistake, p. 399, et seq., where persons have entered into agreements and there was a mutual mis. apprehension or ignorance of legal rights; or where one party had imposed upon another by misrepresenting or concealing the existence of legal rights; or where a person supposing himself liable, through ignorance of law, had assumed a liability; or where one gave up a good security for another which was void ; or where a sister, being ignorant of her rights under a settlement, released her rights to a brother; or where a daughter accepted a legacy and released her orphanage which was much more valuable; and like cases, the result of imbecility or gross improvidence or imposition, each case depending upon its peculiar circumstances, equity has given relief. “Upon a close survey,” says Story, (1 Eq.

Jur., §120,) “ many, although not all of the cases, [where the party, knowing all the facts, has acted upon a mistake of the law,] will be found to have turned, not upon the consideration of a mere mistake of law, stripped of all othér circumstances, but upon an admixture of other ingredients, going to establish misrepresentation, imposition, undue confidence, undue influence, mental imbecility, or that sort of surprise which equity uniformly regards as a just foundation for relief.” And where an instrument was acknowledged to have been entirely misunderstood by both parties to it, equity may afford relief. 8 Wheaton, 216.

We find no rule announced by the courts which gives ground for relieving the petitioner from the burden assumed by him, under the circumstances of this case, upon the ground of mistake. As to the transaction at Cedar Key we think, upon a review of the testimony, that the conclusion of the court were correct. The signing of the paper there by the Shears was, considering their condition and all the circumstances preceding it, not such

an act of deliberation and freedom from the influence of their peculiar condition as to commend it to the conscience of the court as one determining any material, legal or equitable rights. Several hours of the night were spent by Robinson with them before they were induced or persuaded to assent to the signing of a pa7 per prepared in advance for them by his counsel, and not as the result of a conference in which they should have had the aid of prudent counsel.

Nor was any one present with them, but after the long private conference in which they agreed to sign the paper the magistrate and witnesses were admitted and the paper then signed and attested as stated in the former opinion. And we perceive no reason for refusing to believe the testimony of Mr. and Mrs. Shear and for giving credence alone to that of Robinson as to what transpired between them alone. TV. The fourth point made is in regard to the value of the land and other property.

As to the value of the land, while some of the witnesses did not fix any definite money value, yet their comparison of it with other lands in the vicinity and their value give a fair means of estimating it. Taking in this connection the house, outbuildings, farming tools, wagons, carriages and appurtenances, pictures, books, ornaments and furniture, Mr. Robinson’s estimate of the value at the time of the sale, refusing to let it go at $7,900, is a better criterion by which to judge of it.

That his object was to give the Shears the privilege of purchasing it from him on the terms mentioned in the memorandum he had given to Mrs. Shear, and for this reason he refused to sell to Williams, (who was a responsible bidder even if he did desire to “ annoy ” Robinson by endeavoring to purchase) is not substantial or plausible. If his desire was that Mrs.

Shear should have the benefit of the market value of the property, over and above the amount due and interest and value of his improvements, there and then was the opportunity to befriend them by selling for a good price property which he now says he did not consider worth the amount of that bid. His expressed desire was to be reimbursed, and that Mrs. Shear might be benefited by the opportunity to purchase, or to find a purchaser on the terms named in the memorandum. The opportunity presented itself, and he declined to give them the benefit which he admits they were equitably entitled to.

While the case was pending on petition for rehearing there was a motion for the appointment of a receiver of the property, but it was denied. The following decree was entered: (2 Daw. Ch. Pl. & Pr., Cooper’s Ed., 1,282; Harding vs. Harding, 4 Mylne & Craig, 514; Saunders vs. Gray, ib.; Tanner vs. Radford, ib., 515, 524.) The appellee having by leave of the court filed his petition for a rehearing of this cause, and the court having duly considered the same, it is ordered that the said petition be denied.

And thereupon it is ordered, adjudged and decreed that the order and decree made by the referee in this cause setting aside the sale of the mortgaged premises, be and the same is reversed and set aside, and that this cause be remanded to the Circuit Court for the county of Leon, with directions that a decree be entered in said cause that the said William L. Robinson, within thirty days after the entry of said decree, be required to pay to the master, W. K.

Beard, or to such other master as may be appointed, the balance of the purchase-money bid by him at the sale of said property, after deducting the amount due tó him under the original decree, which amount shall be ascertained by said master, and interest at the rate of eight per cent, per annum upon said balance from the date of said sale.

Whereupon the said sale will stand confirmed, and said master is directed upon such payment to make deeds to said Robinson of all- of said real and personal property, but that should said Robinson fail to pay said master said sums of money in the time above specified, said master shall sell all said real and personal property in the manner directed by the said original decree for cash, to be paid on the day of sale, and that the said sale shall be at the risk of the said Robinson, and if the highest bidder at said sale shall fail then and there immediately to pay the purchase-money the master may reject said bid and sell said property again, or postpone the sale to some other day, and that said master is directed to deliver to the purchaser -when he shall have complied with his purchase all of said property.

And that said master, with the proceeds of said resale pay first the costs incurred since the filing of said petition to set aside the sale, including the costs adjudged against said Robinson in the Supreme Court, and the remainder towards the payment and satisfaction of said amount which shall be found by said master to be due Eliza E.

Shear by the effect of said original decree, and interest as aforesaid, by deducting from the amount of Robinson’s bid of $8,000 the amount due to him at the time of said sale, and if there should not be enough for that purpose, that execution be issued against the said Robinson for any balance that may remain after applying said proceeds, to be levied as other executions at law, and that should there be a surplus over and above the said sum which shall be found due said Eliza E. Shear and said costs, together with interest, the master shall hold said balance subject to the order of the Circuit Court.

And that said master, when he shall have fully obeyed this order, forthwith report his doings thereon to the Circuit Court for confirmation, and that such further proceedings be had thereon as are consonant with the rules of pleading and practice in chancery in that court and this decree. And it is further ordered Ity this court that said William L.

Robinson be and he is hereby ordered and enjoined that the said personal property be not sold, or in any manuer removed or disposed of by him, his servants or agents, until he shall have complied with the terms of the sale made to him by the master by paying the amount found to be due to Mrs. Eliza E. Shear as aforesaid to said master, or until the further order of the Circuit Court.