The appellant filed his bill against Frederick W. Krause, and the children of said Krause and his deceased wife, Josephine M., the children being her heirs-at-law, to foreclose a deed of trust in the nature of a mortgage made by her with her husband upon her property, to secure the payment of promissory notes made by Frederick W. for the principal part of the purchase money of a Texas plantation, sold to him by the appellant. There were other defendants, but nothing in the case is affected by that circumstance.
The appellees tiled a cross-bill for the cancellation of the notes and deed of trust, upon the charges that the sale was procured and Mrs. Krause induced to make the deed of trust by false and fraudulent representations made by appellant as to the character of the plantation, and that afterward, by mutual consent,- the whole transaction was rescinded. The sale of the plantation was in March, 1884. In April the Krause family moved to it, and in June she died there.
On the question of fraud, while the testimony of Frederick W. Krause and his son, Frederick F. Krause, is justly subject to the severe criticism of the apipellant’s counsel, because of the alleged inconsistency between it, and their silence as to any misrepresentations during all the residue of the year 1884 after their arrival at the plantation and knowledge of its real character, yet it is so strongly supported by collateral circumstances and intrinsic probability, that, at least with some allowance for exaggeration always attending strong feeling, it ought to be taken as a true history of the interview between the appellant and Mrs. Krause. It is not necessary that the evidence in the case should be repeated, or even summarized at much length. It is hardly disputable that, as a fact in the case, the plantation itself was such a one as no prudent mother would consent, with knowledge of what it was, to take her family to; that not merely as a business enterprise was the purchase foolish, but as a home the plantation was wholly unfit for a family caring for health and accustomed to the ordinary comforts of life. There is but little evidence in this record as to her capacity, but that little is strongly in her favor. The appellant put in evidence a great many letters written by F. W. Krause. October 22, 1888, in relation to a contract for the purchase, which he had made a few days before, but which was afterward abandoned, he writes:
“Ton will remember I told you, when here, I hardly ever make a contract without sleeping over it, and to get it right. Deviating from this resolve has caused me sleepless nights and regrets in this case ever since my return from St. Louis. When I returned to my house and explained to my wife what I had done, she exclaimed with surprise, and apale countenance, Ton risk all we have in this enterprise. That will never do and upon due reflection I must admit she is right.”
October 19, 1884, in another of those letters, he says: “ In the stillness of the night I can not suppress my tears and bewail my misfortune, but among the memories of my departed wife, the most prudent, sagacious and industrious woman which ever honored Texas with footsteps, I found this : ‘ Complain not of thy woes to the public; they will not more pity thee than the hunters of prey pity the wounded deer.’ ”
The many letters of Krause show him to have been of a very ardent disposition. That after a life of thirty-five years in a machine shop here in the north, he had become infatuated with the idea of an open air life, in a warmer climate. He visited the plantation in August, 1883, but, as it would seem,' made very little examination of it, and that little with a mental incapacity to see any defects that should hinder the indulgence of his desire to live in the south. But she saw nothing of the plantation until she went there to die. The appellant testifies that before the sale of the plantation he was one evening at the residence of Krause for an hour and a half, and saw his wife and children, and he admits that there was conversation; that they “ talked the subject over, and about the climate. Hover spoke about the condition of the house on the plantation. We talked about everything; all sorts of subjects; the question as to whether it was a place for a residence of his family was not seriously talked of at the time.” And again he says: “ I told him generally as to the actual condition of things;” but whether that is meant to refer to the evening visit, does not appear.
The appellant thinks this was in Hovembor, 1883. F. W. Krause says December 4th, and F. F. about December 1st. How, why did the appellant go to the house of Krause at all ? The only re asonab’e explanation, there being no previous acquaintance, is, that Mrs. Krause was yet hesitating or objecting to the purchase. But leaving the purpose out of view, the undisputed fact in the case is, that the appellant spent an hour and a half, as he says, about three hours, as F. W. and F. F. Krause say, at the house of Krause, in conversation to which she was a party, when the topic most absorbing to her was, whether she should consent to a purchase, far beyond their means, of a Texas plantation, and with her children, go there to live, and when the only subject mutually interesting to the appellant and the Kranse family was, whether that purchase should be made. Under such circumstances the conversation must have been, as the Krauses say it was, upon the subject of mutual interest.
They say that she did not wish to complete the purchase without further examination by the father or son, or both, but that appellant dissuaded her from that as a needless expense, assured her of the truth of his statements and praised the place and enumerated its good qualities, extolling it as a paradise of comfort, luxury and health. Upon these representations she made the deed of trust. In her lifetime she would not have been, since her death her heirs are not, bound by it.
' While it may b'e presumed that F. W. Krause did tell his wife what he saw in visiting the plantation in August, 1883, yet his description must have been of such aplace as his hopes and desires made it. It is not credible that with a true picture of it before her, she would have consented to the pledge of all that her family had in the world for the' purchase of such a place as the evidence shows this to have heen. The charge of fraud, upon which, without reference to the subsequent rescissions, Mrs. Kranse in her lifetime, and her heirs since her death, are entitled to be relieved from the deed of trust, is amply sustained, and her silence and acquiescence, and that of her children, is excused by her brief life and their infancy.
F. W. Krause, as well as his son, testifies that he took to the plantation machinery and a saw-mill of the value, or in his words, which “ inventoried,” $10,000. And they both testified that in November, 1884, Mr. Dodd, who was the senior partner of the firm of Dodd, Brown & Co., to whom at the time of the sale to Kranse the plantation belonged, the title being, it seems, in Brown for the firm, came to the place, and by agreement then made between Krause and Dodd, Krause abandoned everything he had upon the plantation, made a bill of sale to Dodd, Brown & Co. of the sugar and molasses of the crop of 1884, and that Dodd accepted this abandonment and bill of sale as a rescission of the relations between them. Dodd denies the rescission, but his recollection of the incidents of his visit to the plantation at that time seems to be very vague. That he took the bill of sale, he admits. That Krause left the place, with his machinery upon it, is not denied. Dodd saw the machinery but has no explanation of why it was left. He simply denies that there was any agreement for a rescission. That in equity and good conscience there ought to have been a rescission, is a fair deduction from all the facts' in the case. If there was one, it was not carried into execution by proper papers. Krause stayed until spring and finished and shipped the crop, which he says was part of his agreement. Dodd admits that Krause agreed that, as he could not continue any longer to conduct the place, he would turn it back, but he says that was to be done in pursuance of the original contract, which contained a provision, upon special terms, for such a contingency.
It is difficult to reconcile all the conduct of either party with the version of either, and it is not altogether satisfactorily established that as to the notes themselves the parties ought not to be left to their remedies and dofensés at law. The notes, however, seem to be of little value if separated from the deed of trust. The personal obligations of a man in the last ten years of the three score and ten, bereft of all property, are not very valuable. The real substance of the controversy is the deed of, trust. The decree, as a whole, will therefore be affirmed.
Decree affirmed.