Argument for Appellant.

215 U.S.

not known to the plaintiff, but which amount to a large sum of money;" that he had not accounted for the moneys so wrongfully received, and that an accounting was necessary.

The case was tried by the judge without a jury. Several hundred pages of testimony were taken, and on May 19, 1905, a decree was entered finding generally the issues in favor of the plaintiff, Mrs. Herbert, the death of whose husband had been suggested pending the suit, adjudging that the deed of May, 1901, from her to the defendant was a mortgage, that an accounting be had and that she be allowed to redeem. The case was reserved for further consideration and determination of the claims of and an accounting with the other defendants. This decree was, on October 12, 1907, affirmed by the Supreme Court of the Territory, Wagg v. Herbert, 19 Oklahoma, 525, all the defendants joining in the appeal to that court. Thereafter the case was brought here on appeal by the defendant Wagg, the other defendants not joining in the appeal, but named as parties appellees.

Mr. Arthur J. Biddison for appellant:

A general averment of fraud in a bill in equity is limited by the facts set forth to show the fraud. United States v. Des Moines &c. Ry., 142 U. S. 544; Wiseman v. Eastman, 21 Washington, 163. A general averment without stating specific facts presents no issue and no proof is admissible. Kingman Ry. Co. v. Quinn, 45 Kansas, 477; Woods v. Carpenter, 101 U. S. 135; Southall v. Farish, 1 L. R. A. 641; Bardwick v. Dillon, 7 Oklahoma, 535; Lee v. Mehew, 8 Oklahoma, 136; Jackson v. Rowell, 4 L. R. A. 637.

The legal title passed under the conveyances and there was no fraud. Bradbury v. Davenport, 52 Pac. Rep. 301; Vance v. Anderson, 45 Pac. Rep. 816; Seawell v. Hendricks, 46 Pac. Rep. 557; McDonald v. Huff, 19 Pac. Rep. 499; Russell v. Southard, 12 How, 139, distinguished.

It is neither fraud, oppression nor undue influence for a creditor to make claims in excess of his legal rights. Nell v.

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Argument for Appellant.

Carson, 2 S. W. Rep. 107; Schramm v. Haupt, 37 N. W. Rep. 798; Perkins v. Frinka, 15 N. W. Rep. 115; Thompson v. Phoenix Ins. Co., 46 Am. Rep. 357; Insurance Co. v. Warten, 59 Am. St. Rep. 129; Fish v. Clelland, 33 Illinois, 238; Severance v. Ash, 17 Atl. Rep. 69; 14 Am. & Eng. Ency. of Law, 2d ed., 54; Morton v. Morris, 72 Fed. Rep. 392; Stewart v. Miller, 7 S. W. Rep. 603; Walker's Adm. v. Farmers' Bank, 14 Atl. Rep. 823.

Nor is it fraud or oppression to threaten a civil suit. Dispeau v. Bank, 53 Atl. Rep. 868; Hilburn v. Buckman, 7 Atl. Rep. 272; 10 Am. & Eng. Ency. L., 2d ed., 344.

In order to constitute undue influence the grantor must be deprived of free agency. Conley v. Nailor, 118 U. S. 127. Misrepresentations of law only will not vitiate a contract, even if the other party is ignorant of his rights. Allen v. Galloway, 30 Fed. Rep. 467; Abbot v. Treat, 3 Atl. Rep. 47; Kingsberry v. Sargent, 22 Atl. Rep. 126; Jones v. Foster, 51 N. E. Rep. 862; Foster v. Railway Co., 146 U. S. 88; Insurance Co. v. Warten, 59 Am. St. Rep. 129; Wetzel v. Transfer Co., 65 Fed. Rep. 23; S. C., 167 U. S. 237. The transaction was a purchase of part of the property and not an acquisition of the equity of redemption.

The plaintiff was guilty of laches, barred by the two-year statute of limitations, and changed conditions make the avoidance inequitable. Moore v. Moore, 56 California, 89; McMillan v. Cheeney, 30 Minnesota, 519. Knowledge of facts and not of law is all that is necessary to set statute in motion. Commissioners v. Renshaw, 99 Pac. Rep. 638; Black v. Black, 68 Pac. Rep. 662; Piekenbrock v. Knower, 114 N. W. Rep. 200; Donaldson v. Jacobitz, 72 Pac. Rep. 846; Redd v. Brun, 157 Fed. Rep. 190. For cases similar to this in which laches was held a bar see Alsop v. Riker, 155 U. S. 448; Leavenworth v. Douglass, 53 Pac. Rep. 123; Thornton v. Natchez, 129 Fed. Rep. 84; Johnson v. Atlantic Co., 156 U. S. 648; Life Ins. Co. v. Austin, 166 U. S. 699; State v. LaCrosse, 77 N. W. Rep. 167; Grass v. Portland Co., 54 Pac. Rep. 845; Robers v. Van Ant

wick, 58 N. W. Rep. 757; Schlawig v. Purslow, 8 C. C. A. 315; Wheeler v. McNeil, 101 Fed. Rep. 685.

Silence, delay, acquiescence or use or retention of fruits of contract amounts to ratification. Scheftel v. Hays, 58 Fed. Rep. 457; Kinne v. Webb, 54 Fed. Rep. 54; Parson v. McKinley, 57 N. W. Rep. 1134; Paine v. Harrison, 37 N. W. Rep. 588; Grymes v. Sanders, 93 U. S. 55; Shelby v. Creighton, 91 N. W. Rep. 369; Hoyt v. Latham, 143 U. S. 553; Oil Co. v. Marbury, 91 U. S. 537; Litchfield v. Brown, 17 C. C. A. 28. A delay of three years or less was held fatal in Blackman v. Wright, 65 N. W. Rep. 843; Straight v. Junk, 59 Fed. Rep. 321; Sagadohoc Land Co. v. Ewing, 65 Fed. Rep. 702; Curtis v. Lakin, 94 Fed. Rep. 251; Day v. Ft. Scott Co., 38 N. E. Rep. 567; Perry v. Pierson, 25 N. E. Rep. 636; Land Co. v. Neill, 6 So. Rep. 1; Hatch v. Ferguson, 57 Fed. Rep. 959; aff'd 14 C. C. A. 41; Curley v. Rue, 35 N. E. Rep. 824; Arnold v. Hagerman, 17 Atl. Rep. 93; Fraker v. Hauck, 36 Fed. Rep. 403; Goodell v. Deivey, 100 Illinois, 308; Bedford v. Moore, 54 Missouri, 448; Learned v. Foster, 117 Massachusetts, 365; Schadski v. Abright, 5 S. W. Rep. 807; Kline v. Vogel, 1 S. W. Rep. 733; Schlaing v. Flechenstein, 45 N. W. Rep. 770; Hamilton v. Lubukee, 99 Am. Dec. 562; Parkhurst v. Van Courtland, 7 Am. Dec. 427; Ward v. Sherman, 192 U. S. 168; § 761, Wilson's Ann. Stat. 1903.

Mr. E. M. Clark and Mr. Watson E. Coleman for appellee submitted.

MR. JUSTICE BREWER, after making the foregoing statement, delivered the opinion of the court.

The petition charged that the defendant Wagg was guilty of fraudulent, wrongful, oppressive and unjust conduct, and that through such conduct he obtained the deed of May 28, 1901. The trial court, as stated, found generally in plaintiff's favor. The Supreme Court, in an elaborate opinion, in which it

narrated fully the details of the transactions between these parties and the testimony given on the hearing, closed its recital in these words:

"It must therefore follow, as an irresistible conclusion, that the allegations in the petition, of fraud, oppression, undue influence, and inadequate consideration were fully sustained by the evidence, and we are unable to perceive how the trial court could have reached any other fair, just, and rational conclusion upon the entire evidence as disclosed by this record."

The testimony as to the value of the property at the time of the settlement in May, 1901, was conflicting, some placing it at $100 per acre. In reference to this conflict the court said:

"It is a settled rule of this court, and one which we have reiterated and reiterated time and again, that where the evidence reasonably sustains the finding and judgment of the court, or where the evidence is conflicting, it will not be disturbed by this court."

Evidently the Supreme Court believed that the defendant had acquired in settlement of a debt a tract of land of far greater value than the amount of the debt, and that this was accomplished by fraud, oppression and undue influence. Upon these facts a decree setting aside the conveyance was undoubtedly right.

Counsel for defendant, on his appeal to this court, has filed a brief of over 150 pages, in which he narrates the facts as they appear to him, and cites many authorities as to the circumstances which will uphold a conveyance upon such or similar facts. Of course, upon the face of the papers the deeds of May, 1901, vested in the defendant the title to the fifty-five acres, but it is well established that in a suit in equity between parties, in which fraud, oppression and undue influence are charged, the court is not concluded by that which appears on the face of the papers, but may institute an inquiry into the real facts of the transactions. So thoroughly is this doctrine established that any discussion of the cases in this and other courts affirming it would be useless. They rest upon elementary

principles of equity. It is sufficient to refer to Russell v. Southard, 12 How. 139, and the many authorities cited in the opinion.

Counsel further contends that the decree is erroneous, in that it adjudges that the deed of May, 1901, to defendant was a mortgage, and as such only a lien upon the property; that there is no evidence that this deed was not intended as a conveyance or that it was intended as a mortgage, and that courts do not make contracts for parties. But this contention presents a mere technical matter. The petition alleges, in addition to the averment that the deed was obtained wrongfully and fraudulently, "that the only consideration received by said plaintiff for the said purported deed, marked 'Exhibit E’ (the deed to defendant of May, 1901, of the entire tract) was a relinquishment of the said mortgage herein referred to as ‘Exhibit B' (the original mortgage given by Mr. and Mrs. Herbert to defendant)." In other words, whatever technical criticism may be made upon the form of the decree, it was in substance a finding and decree that the deed of May, 1901, was void, as having been obtained by the fraudulent conduct of the defendant, and that being set aside, left the property subject to the lien of the original mortgage given October 24, 1898. Of course, the act of Wagg in taking from the bank the deed placed in escrow and having it recorded may, in view of his assurances to Mrs. Herbert, be regarded as immaterial. Equitably, the relation of mortgagor and mortgagee was not disturbed. The court did not make a new contract for the parties, but, leaving the mortgage valid and binding, decreed the invalidity of a subsequent conveyance, and also ordered an accounting by the defendant as a mortgagee in possession.

There is in this case no lapse of time, no matter of estoppel, which, so far as the defendant Wagg is concerned, forbids a court of equity from investigating and determining the real facts. Mrs. Herbert's deed to defendant was executed May 28, 1901, and this suit was commenced June 13, 1903, less than two years and a month from the date of the wrong complained