Page:Federal Reporter, 1st Series, Volume 4.djvu/872

 858 FEDERAL REPORTBR. �from its being true that said lot contained a valuaMe silver mine, there was not a trace of silver or other precious metal to be found upon said land, and, so far from its being worth $15,000 or $20,000, it was not worth more thanthree dollars an acre, — in the aggregate about $600; and he claims that thence, by reason of said fraud, there should be no decree for complainants on said note and mortgage. �D. F. Hammond and W. B. Hammond, for complainants. �J. B. Estes, Claude Estes, and L. J. Gartrell, for defend- ant. �Woods, C. J. The eTidence leaves no doubt that Henry Irby, in his treaty with Jennings for a sale of the lands, men- tioned in the answer of defendant, fraudulently misrepre- eented the value of lot 133 in Fulton county. The fact that a careful examination of the lot, and an assay of ores found Bpon it, shows that not a trace of any precious metal exists upon it, stamps the statements made by Irby to Jennings, in reference to its value, with falsehood and fraud. So far from being worth $15,000 or $20,000, on account of the depos- its of silver to be found on it, as asserted by Irby, it is not worth over $500 or $600. Irby must have known that his representation was false, for he told Jennings that he had procured an assay of the ore taken by himself from the lot to be made, and that it proved to be rich in silver. The evi- dence shows that the lot 133 formed at least a third of the entire consideration given for ail the lands sold by Irby to Jennings. If this suit were prosecuted by Irby, and if it were based on a note given for the purchase priee of lot 133, there could be no question that the defence set up in the answer and established by the proof, showing the wilful fraud and misrepresentation of Irby, ought to prevail. But the suit is for f oreelosiire of a mortgage, exeeuted to secure a note, given, as expressed on its face, for the purchase money of the Glade mines, and it is prosecuted, not by Irby, but by one of his beirs, to whom he transferred the note in his life-time, and who, at the time of the fcransfer and since his death, has agreed to consider it as an advancement on his share of his father's estate, •: ����