Stephenson v. Hawkins

Sharpstein, J. The plaintiff as administrator of the estate of Eli W. Hawkins, deceased, alleges that he in his lifetime was induced to enter of record in due form the satisfaction of a mortgage executed by the defendants P. B. Hawkins and Arnold upon certain real estate, of which they were the owners, to secure the payment of their promissory note to said intestate, by the agreement of said mortgagors that defendant P. B. Hawkins [107]should convey his interest in said promissory note to defendant Arnold, and he to defendant Adaline Hawkins, and she to the defendants Edward Hawkins, Effie Hawkins, and Eli Hawkins, minor children of said intestate, to. be held by them in trust for him. The several conveyances were made, but that from defendant Adaline to said minor children conveyed the property to ■them absolutely and not in trust for said intestate. And the conveyance from defendant Arnold to said defendant Adaline, who is and at the time of the execution of said deed was the wife of said defendant P. B. Hawkins, expresses on its face a consideration of one dollar.

It is alleged that the sole consideration for releasing the mortgage was the agreement of the defendants P. B. Hawkins and Arnold that the legal title to the property, by the circuitous method above stated, should be vested in intestate’s said minor children, to be by them held in trust for him. And that said agreement was not carried out. Appellant’s insistence is that the conveyance is in terms absolute; and does not convey any title whatever, because the conveyance from defendant Arnold to defendant Adaline, the grantor in said deed to said minors, expresses a valuable consideration, which, she being a married woman at the time, vested the title in the community. And it is alleged in the complaint that said defendants P. B. Hawkins and Arnold falsely and fraudulently represented to said intestate that the deed of said defendant Adaline to said minors conveyed a perfect legal title to them in trust for him, and that on the faith of that representation he released said mortgage. Therefore the plaintiff prays to have said release cancelled, and for a judgment of foreclosure of the mortgage.

The infant defendants by their guardian deny in their answer all the allegations upon which the plaintiff bases his claim to have the release of the mortgage cancelled. And after the plaintiff had introduced his evidence upon the issues so raised and rested, the court on motion of defendant granted a nonsuit. Plaintiff moved, on a statement, for a new trial, which was denied; and from that order this appeal is taken.