Lomerson v. Johnston

The opinion of the court was delivered by

"We agree with the learned vice-chancellor who heard this .cause in all his conclusions upon the testimony. The case shows, in the clearest manner, that Lomerson, the appellant, being involved with Mr. Johnston as surety and endorser, visited Mrs. Johnston for the purpose of securing himself against loss through the hus*314band by obtaining from the wife a mortgage upon the house left to her by her father. The case further shows, and the vice-chancellor so finds, that, in attaining this object, Lomerson made to Mrs. Johnston a number of statements, all tending to excite in her mind the liveliest apprehensions that her husband was about to be lodged in jail for debt. The court of chancery by its decree-set aside the mortgage thus obtained, considering that it was executed under a species of duress. With the result reached we agree, resting our decision, however, upon the ground that it is-inequitable to permit the complainant to retain a security for the husband’s debt obtained by allowing a false apprehension as to-the husband’s danger to affect the mind of the wife. That this-apprehension was the sole consideration for the wife’s compliance,, is not more clear than that the efficient element of that apprehension, namely, the belief in the imminence of the anticipated-arrest, was not only false, but was so to the knowledge of Lomerson.

In order to establish a case of false representation it is not necessary that something which is false should have been stated, as if it were true. If the presentation of that which is true creates an impression which is false, it is, as to him who, seeing the misapprehension, seeks to profit by it, a case of false representation. In the present instance, Mrs. Johnston naturally gathered, from the statements made to her by Lomerson that her husband had committed crimes for which he not only could and would be-imprisoned, but that his arrest was at hand. The imminence of the danger was the sole motive for the execution of the mortgage.. In any other view of the transaction her haste is incomprehensible. Notwithstanding the importance of the demand made upon her, she took no time to reflect, held no consultation with her friends, sought no advice. Her one object was to act quickly— to be beforehand. And yet this notion of the imminence of her husband’s arrest was just the one part of the impression produced upon her mind by Lomerson’s statements, which was false, and which he knew to be false. From this time on the case becomes-one of false representation, not -because falsehoods were stated as-if they were facts, but because the state of mind produced falsely *315represented the facts. To take advantage of such a state of minds is to profit by a false representation.

The decree below is affirmed, with costs.

For affirmance — The Chief-Justice, Dixon, Garrison,. Mague, Reed, Scudder, Yan Syckel, Brown, Clement,.. Cole, Smith, Whitaker — 12.

For rev&'sal — None.