¶1In the year 1856, Samuel Baldwin owned and resided on a farm in Mississippi county. On the 8th day of May, in that year, he contracted with the-defendant, James H. Bridges, to sell the same for $1,800. The title bond which evidenced the contract, provided that the payments should be made as follows: $900 on the 1st day of January, 1857, and a like sum on the 1st day of' January, 1858. It was also recited in the bond that Bridges had executed his two promissory notes corresponding with the provisions above mentioned, as to the times and amounts-of payments of the purchase money. Soon after this occurrence the parties rescinded the contract, and the title bond was, for the sum of $50, surrendered by Bridges to Baldwin, who thereupon delivered the bond to his wife for safe keeping. Baldwin continued to reside on the premises, treating and claiming them as his own, until his death, which occurred in the year 1857. Bridges resided on an adjoining farm, and never, after the contract was rescinded, made any claim to the land. ‘ Upon Baldwin’s death the bond was found among his papers. There is such an array of testimony on the above mentioned points, as to banish all doubt as to the entire correctness of the foregoing brief' statement.
¶2On the hearing of this cause, and the introduction of the plaintiff’s evidence, the defendants, in support of their answer, introduced in evidence a petition for specific performance, filed by George Whitcomb, the then clerk of the county court, also the bond before mentioned, upon which-was an indorsement which bears date May 26th, 1856, and *653has the name of Baldwin signed to it, and purports to transfer to George Whitcomb all Baldwin’s right in the second note mentioned in the bond, i. e., the one due January 1st, 1858. Thei'e also appears on the bond an indorsement, without date, purporting to be signed by the defendant, James H. Bridges, and to transfer for value received, the bond to George Whitcomb. The defendants also introduced in evidence the promissory notes mentioned in the title bond, one of which had an assignment thereou to George Whitcomb, purporting to have been signed by Samuel Baldwin; and, as appears from Whitcomb’s petition, was assigned prior to the transfer of the bond.
¶3The defendants also introduced in evidence the decree for specific performance, entered by the county court of Mississippi county, April 20th, 1858, on the same day the petition was filed. This decree recites that Drakeford Gray, the administrator of Baldwin, appeared in open court, entered his appearance, and waived any other or further notice, and after making the usual recitals, the decree requires the administrator, Gray, in specific execution of the contract of his intestate, to execute and deliver a deed to Whitcomb. The petition for specific performance alleges that Bridges paid Baldwin, in his life-time, the amount of the first note, and that Whitcomb, on the 26th day of May, 1856, paid to Baldwin the amount of the second note, and that thereupon he assigned to Whitcomb the second note, and made the indorsement to that effect on the bond.
¶4Gray is positive that he never appeared in the county court and waived service of notice as recited in the decree for specific performance, and equally so that neither Bridges nor Whitcomb ever approached him to induce him to waive service of notice. This witness also testifies that Whitcomb was his adviser, and exercised great influence over him about the business of the estate; that at a sheriff’s sale of the interest of one Willett in the land in question, Whitcomb bid it off, and- in a little while came to *654Gray and induced him to sign and acknowledge the deed, which he did without reading it, supposing it to be all right, and that witness never did knowingly and understanding^ sign a deed for the land in controversy under an order of the county court for specific performance. Gray was very dissipated while administrator, and Bridges had him completely under his control.
¶5According to Whitcomb’s own petition, Bridges having paid the first note during Baldwin’s life-time, and the second note having been paid by Whitcomb at the time of the alleged indorsement on the 26th day of May, 1856, and having subsequently received from Bridges a transfer of the title bond, he was entitled at least as early as the decree and reception of the deed made by Gray, to the land in question ; but we find that'he made no claim to the land during the first part of Gray’s administration. Although he knew that Gray was .paying rent to the estate for the land while acting as administrator, yet Whitcomb asserted no title to the land as the assignee of the title bond from Bridges, and only set up such a claim during the latter part of Gray’s administration, and only then by reason of the purchase under execution of Willet’s interest in the land.
¶6As to Bridges, we find hinqyvhen applied to for advice by Mrs. Gray, telling her that Baldwin had no title to the land, that.it was sold to pay George Beeler for the purchase money, and to do nothing with it.
¶7W. G: Cooley, former judge of the county court, who had testified to the contract between Baldwin and Bridges, having been rescinded, and to having with other witnesses found the title b.ond among the papers of Baldwin’s estate,said: “I have no recollection of such a judgment having been made by the county court, although the records -were sigued by me. TIad my attention been called to any such proceeding, it would at once have reminded me of the rescission made between Baldwin and Bridges. I am positive no such decree was ever made by the county court. The record, as it now is, could have been made by the clerk *655and the reading of that part of it omitted. I don’t see any other way it could have been done. I had unbounded confidence in Mr. Whitcomb, and never re-read the record.”
¶8The decree for specific performance, referred to by Judge Cooley in his deposition, was pleaded by defendants as res judicata, and in bar of the present proceeding, and plaintiff’s reply alleged that the decree was obtained by fraud, and this was the charge also in the petition, and this is the chief point for determination.
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¶10But passing this point, as the transcript before us may possibly be imperfect — let us look to the very merits of this cause.
¶11There is no pretense that there was but one transaction between Baldwin and Bridges, or that the latter ever received from the former but one title bond, and that for land on which Baldwin lived and died. Taking this, then, *656as established, that there was but one title bond, the same one that was recorded by "Whitcomb, on the 10th day of May, 1856, and read by both Judge Cooley and John M. Utterback, when they, together with James Husk, the first administrator of Baldwin’s estate, and Eelix L. Mills, went to examine the papers of the estate, shortly after Baldwin’s death, let us see what bearing and weight is to be given to the decree for specific performance, as well as the indorsement appearing on the original title bond and one of the promissory notes, when contrasted with and confronted by the great amount of positive testimony that the contract was rescinded, the title bond surrendered, and that Baldwin continued, after the rescission, to live on the farm, claiming it as his own, and died in possession of it as owner; when contrasted also with, and confronted by, the other testimony and evidence of the bond having been delivered to the wife for safe keeping, and found, as before stated, among Baldwin’s papers and read by two of the witnesses, at sucl/ examination. In thus contrasting the evidence offered by the opposing parties, the danger before mentioned must not be lost sight of, that of overthrowing and invalidating the judgment of a court of competent jurisdiction, apparently entered in due observance of legal requirements. But in considering this danger let us not lose sight of one equally great, if not greater, that of permitting flagrant fraud to be successful when it arrays itself in the garments of justice and apes the solemn forms of the law.
¶12Perhaps it will be found, upon a careful examination, that the learned judge who heard this cause, and decided adversely to plaintiff’s claim, had his attention directed too much to the former, and not sufficiently to-the latter danger. .
¶13The annual settlement of Gray, filed December 10th, 1858, offered in evidence by defendants, shows that “ one note, due January 1st, 1858, on J. H. Bridges, for $900,” had been inventoried as belonging to Baldwin’s estate. *657This note was the second one mentioned in the title bond, and the very one that the indorsement on that bond, made May 26th, 1856, states Baldwin had “sold and assigned to George Whitcomb,” and the petition of the latter for specific performance alleges that “ said Baldwin then and there assigned the note on Bridges, for the last payment, to petitioner, and also indorsed the same upon said contract in writing.” Now, if, as the indorsement recites, Baldwin, on the 26th day of May, 1856, assigned to Whit-comb the second note, then Baldwin or Whitcomb must have been in possession of the bond, and Baldwin must, after assigning the second note, have delivered it to Whit-comb; and' Baldwin also must then and there have made the indorsement on the title bond, and left that too in Whitcomb’s, possession. Now, if there was but one title bond executed and delivered by Baldwin to Bridges, and Bridges afterward surrendered this bond to Baldwin, and the bond was afterward found in Baldwin’s papers, and this we are compelled to believe, or else human testimony is no longer reliable, then it must follow that the indorsement on the title bond, if honestly made, was made prior to the surrender of the bond by Bridges to Baldwin. Can this be regarded as at all probable? Would Bridges, with such an indorsement staring him in the face, informing him that the second note had been assigned to Whitcomb, cancel the contract with Baldwin and surrender the title bond ? Credulity itself could not, to this last question, frame an affirmative answer.
¶14Again, Baldwin, if an honest man, and there is nothing to impeach his honesty, would not have accepted the surrender of the title bond from Bridges without informing him that the title to the second note was in Whitcomb; that the note had been assigned to him and was in his possession. Moreover, if the second note was assigned and delivered to Whitcomb, how comes it that the same notéis found among Baldwin’s papers? As it certainly was. The carelessness of Bridges might account for the *658second note remaining in Baldwin’s possession, if it had not been assigned to Whitcomb; but the latter, after taking a formal assignment of the note, and after Baldwin had made a formal recital of such assignment on the bond, would never have surrendered the note to Baldwin. Nor would the latter have accepted the title bond when the very indorsement thereon informed him that it had been assigned for value received to George Whitcomb.
¶15These considerations constrain us to the opinion that the indorsements were not made prior to the surrender of the title bond, and, therefore, were not honestly made. And it is especially noteworthy in this connection, that although Baldwin’s signature must have been well known in the community where he lived, no attempt was made, on the part'of defendants, by testimony, to show at the hearing that Baldwin’s genuine signature was subscribed to the indorsement before spoken of. Nor was any attempt made to show by testimony that Baldwin’s signature appeared as assignor of the second note.
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¶18Many of the circumstances above detailed, would not, perhaps, when singly considered, be sufficient to carry con*660viction to the mind that fraud had been perpetrated, but they each have a decided tendency in that direction.
¶19In conclusion, after a careful examination of the evidence adduced, the substance of which we have stated, we have been able to reach no other result than that the charges of the petition have been amply supported by the evidence. Viewing the matter in this light, we reverse the judgment and remand the cause, with directions that the circuit court enter a proper judgment in behalf of the beneficial plaintiff', who is now of age, after having first taken the usual account as to rents and profits.