delivered the opinion of the court.
The bill in this case was originally filed in Baltimore county court on the 29th of September, 1830. Injunction was granted by that court, and the answer of the respondent and several exhibits filed by him, and a motion made to dissolve the injunction nisi, when the cause on the suggestion and affidavit of Elisha Joice, one of the complainants, was removed to the court of Chancery. At December term, 1830, the injunction was dissolved by the Chancellor, and at July term, 1831, a commission was issued to take testimony.
The bill states among other things, that a mortgage had been executed by Sarah Joice, now Sarah Severson, to Elisha Taylor for certain lands therein mentioned, and that upon the application of the mortgagee, a decree had been obtained in Baltimore county court to foreclose the mortgage and sell the land, to pay the sum it was intended to secure. That the mortgagor had no equitable right to make the mortgage. That the lands were held by her in trust for her mother, and that the mortgage was obtained from her by fraud, and the misrepresentations of the mortgage#, in whom great confidence was placed, and by whom they were greatly deceived and misled, &c.
*58If the allegation in this bill, that the mortgage was obtained by the misrepresentation of the respondent, is established by proof, it would render the deed void ¿ and it is immaterial as to its legal effect upon the instrumenty whether the respondent at the time he made the representation knew it to be false. If he made a statement of facts, knowing it to be false, it would clearly be a legal fraud; but although he did not know that it was false, yet if he undertook to state it to be true, without a knowledge of its truth or falsehood, and it operated as a deception to the other party to whom it was made, and thereby induced the mortgage, it would avoid it. The gist of the inquiry is, not whether the party making the statement knew it to be false, but whether the statement made as true was believed to be true, and therefore, if false, deceived the party to whom it was made.
In the examination of this case the attention of the court is necessarily called to the answer of the respondent, and the caution adopted by him in answering, or rather avoiding to answer the allegation of his misrepresentatioñs, is too obvious to be passed in silence. The allegation is in substance, that Elizabeth the mother was entitled to all the real estate, and one-third the personal estate of Isaac Ra* ven deceased. That her husband, Elisha Joice, had purchased articles at the sale of Raven’s estate, from Taylor the executor. That Taylor in order to obtain a mortgage on the lands of the wife, to secure the payment of the debt due from the husband, represented that the mortgage was only intended to enable him to settle up Raven’s estate with the Orphans court, and that as soon as that settlement was made, he would pay over to Elizabeth Joice the portion due to her, by which the mortgage might be redeemed. The respondent answers fully all the minor allegations in the bill, and what does he say to the important charge of misrepresentation ? He admits, “at the time of the execution and delivery of the mortgage, he did promise and assure the said Joice and wife, and Sarah Severson, that if *59upon the final settlement of the personal estate of Isaac Raven deceased, there would be any thing due unto Elizabeth Joice, that then he would set off the amount that might be so due against the said prommissory note, and give up the said mortgage in case the said note was paid.” There he stops. He does not deny that he stated to them, the mortgage was necessary for him to settle with the Orphans court, and that upon that settlement, Elizabeth Joice’s portion should be paid, with which she might redeem the mortgage; and yet that representation is the ground relied on by the complainants for relief. He therefore evades a direct answer to the allegation, and only states facts which may be true, although he may also have made the representations attributed to him. This allegation however, although not particularly denied by the respondent, must be proved by the complainants to sustain their cause.
The court has carefully examined the testimony contained in this record, and without the aid of Sarah Severson’s evidence, (the objection to which was not considered, because there was sufficient evidence from other witnesses,) is compelled to the conclusion, that there has not been fair dealing on the part of Taylor in this transaction. The consideration of this mortgage, appears from the statement or account delivered by Taylor to Israel as directory to him in preparing the mortgage. By that account it appears the principal item of the consideration was the sum of $423 22|-, due from Elisha Joice to Taylor, for articles purchased at the vendue. That Taylor, at or about the time the mortgage was executed, represented to Mrs. Joice that she would be entitled to receive from the estate of Raven, a larger sum than the consideration mentioned in the mortgage, is clearly proved both by W. W. Waite and Frandna A. Joice. Waite deposes to the further fact, that Taylor stated the mortgage was a mere matter of form, there being more money due from the estate of Raven than would pay it, but that it was necessary to have the mortgage to settle *60the estate with the Orphans court. Mrs. Joice had unlimited confidence in Taylor, and no doubt believed the statement thus made by him, and under that belief, that the mortgage was a mere matter of form to enable Taylor to settle his account with the Orphans court, and would immediately be discharged by the money to be paid to her, she was induced to agree to its execution. It cannot be credited from the facts disclosed in this record, that Mrs. Joice would have consented that her land should he sold to pay the debt due from her husband to Taylor. Her husband was embarrassed, and she was desirous to protect this real property from his creditors, and to reserve it for her own separate use.
The court is of opinion that this mortgage was obtained by the false representation of Taylor, and is fraudulent and void.
DECREE REVERSED WITH COSTS, THE INJUNCTION MADE PERPETUAL, AND THE MORTGAGE DECLARED TO BE NULL AND VOID.