delivered the opinion of the Court:
Upon the errors assigned, two grounds of reversal are urged; viz., First, the Superior Court erred in dismissing the cross-bill; and, second, in holding the interest of Alice L. Irwin in the land described in the bill subject to the lien of said mortgage.
To have sustained the cross-bill, the complainant therein would have been required to establish, by a preponderance of proof, that the agreement therein set forth, of November 11, 1886, was entered into by appellee as alleged. The evidence on that subject is conflicting, but we think the weight of it is against the allegations of the bill. The writing upon its face purports to evidence a most singular and unsual business transaction, and is not calculated in and of itself to impress the legal mind with its genuineness.
Appellee swears positively that she did not execute it, and it is quite satisfactorily shown by her own evidence, and that of other witnesses, that at the time it purports to have been entered into she was not in Chicago, where it appears to have been signed and acknowledged.
Counsel for appellants say that fact does not disprove its execution, because the true date of the agreement may have been another than that written. Presumably it was executed, if at all, on the day it bears date. No one says it was not, and the notary’s certificate, relied upon in part to prove its execution, expressly states that it was signed and acknowledged on that day. There are other facts in proof tending to corroborate appellee, and we think the finding of the chancellor in her favor on the issue as to the genuineness of said agreement is in accordance with the weight of the evidence.
The contract, even if its execution had been proved, would not, under the evidence in this record, entitle the complainant in the cross-bill to the relief prayed. According to its terms, appellee only agreed to release said mortgage upon demand of said Paulsen, whenever it should appear that he would suffer loss unless the same was released. The indebtedness to secure which the mortgage was given is shown by the evidence to have been an actual, existing debt due, from said Paulsen to appellee, and all that this bill seeks to do is to enforce payment of that indebtedness.. How, then, can it be said that he will, in a legal sense, suffer loss ?
We are also of the opinion that the writing shows no sufficient consideration for the agreement.
The cross-bill was properly dismissed.
On the second point, it must be conceded that the mortgage purports to convey the one-third interest in the mortgage premises owned by Alice L. Irwin in her own right, there being nothing therein to show that she intended to convey the interest of any other person. When she made the mortgage she held the title to but one undivided one-third interest in the premises. Long prior thereto she had reconveyed to William A. Paulsen all the title she had previously received from him. It is true that reconveyance had not been recorded, but no one will deny that the title passed by the execution and delivery of the deed as effectually without its being recorded as with it. It must be presumed, in the absence of proof to the contrary, that Mrs.,Irwin knew this, and therefore that she mortgaged her own interest, knowing that she could legally mortgage no other.
Prior to the 25th of June, 1886, the title to William A. Paulsen’s interest in the mortgaged premises had been deeded back to him, and yet on that day he deliberately contracted with appellee that Mrs. Irwin and her husband “should execute a mortgage on the undivided one-third,” etc. He certainly knew at that time that Mrs. Irwin could not legally mortgage his interest in said premises. The only ground, then, upon which it could be successfully contended that the mortgage in question did not in equity convey the interest of Mrs. Irwin, would be that, availing himself of the fact that the reconveyance to him had not been recorded, William L. Paulsen, by fraudulent representations, induced his sister to believe, as she states in her answer, “that she and her husband could execute such mortgage without in any way affecting the one-third she inherited from her mother;” and that appellee so far participated in such fraud, or consented thereto, as to be bound by the same. It is clear that such a fraudulent representation would not be, in law, one upon which a party would have a right to rely, and, therefore, it could not be made the basis of a prayer for relief in equity; but the evidence in this record wholly fails to connect appellee with any such fraud. All that Mrs. Irwin claims in her testimony is that appellee’s attorney told her that the mortgage would cover only the interest of Paulsen, and this the attorney denies.
The complainant below made a case entitling her to the decree rendered, by the introduction in evidence of the notes and mortgage described in her bill, and we think it clear that no sufficient evidence was offered by the defendants to overcome that case. The judgment of the Appellate Court will be affirmed.
Judgment affirmed.