Kennedy's Heirs v. Kennedy's Heirs , 2 Ala. 571 ( 1841 )

COLLIER, C. J.

— In the examination of this cause, we are to inquire, First: does the law arising upon the bill, answer, 'and the demurer embraced by the latter, entitle the complainants to the relief they seek. Second: has the case of the complainants been made out by proof?

■ First: Where parties have entered into a contract in writing, in the absence of fraud, the law intends, that the writing contains the entire agreement, and consequently, will exclude all parol evidence tending to show, that there were other terms not embraced. [Paysant v. Ware, Barringer, et al., 1 Ala. Rep. N. S. 160.] If, therefore, a party would show, that the contract contains other terms than the writing indicates, it is incumbent on him to lay a foundation for the introduction of such proof. [Prevost v. Gratz, 6 Wheaton’s Rep. 481.] But neither the common law, which accords to writings a higher dignity in the scale of evidence, than mere oral statements, nor the statute of frauds and perjuries, inhibit the admission of parol evidence to vary, or totally defeat, a written contract tainted with fraud. [2 Story’s Eq. 55.]

In Sweet v. Jacocks, 6 Paige’s Rep. 355, it appears, that Ja-cocks, acting in behalf of his eight illegitimate children, effected a compromise with their brother and sister of the half blood, by which the latter released to him eight-tenths of certain property, which they inherited through their mother, for the use of the illegitimate children; but the conveyance on it face, was absolute. Both the vice-Chancellor and Chancellor were of opinion, that the beneficial interest in the property released to Jacocks, belonged to the eight children, and that he could not set up their illegitimacy as a defence to their claim. And that, having assumed to act for them, and actually obtained the property under a conveyance, intended for their benefit, he could not be permitted to insist, that they had no interest in that property, and that he held it discharged of the trust. The Chancellor lays it down as “ a settled principle, that where a person undertakes to act as agent for another, he cannot be permitted to deal in the matter of- that agency upon his own account, and for his own benefit. And, if he takes a conveyance in his own name, of an estate, which he undertakes to obtain for another, he will, in equity, be considered as holding it, in trust for his principal.” [Parkist v. Alexander, 1 Johns. Ch. Rep. 394; Lees v. Nuttall, 8 Cond. Eng. Ch. Rep. 245.] And though the Court in Boyce’s Ex’r. v. Grundy, 3 Peters’ Rep. 219, admitted that, reducing a contract to writing, was, in most cases, an argument against fraud, that it was very inconclusive ; and the doctrine, that a written agreement could not be relieved against, on the ground of false suggestions could not be maintained. Evidence leading to such a conclusion, will not vary the written contract; the allegations of false suggestions and immoral concealment, suppose that the party seeking relief, was entrapped in an agreement, in .which he would not otherwise have entered. “ This is not denying,” say the Court, “ that the agreement in the record was the agreement entered into, but insisting, that it was vitiated by fraud, which vitiates every thing.

In Hutchins v. Lee, 1 Atk. Rep. 447, a bill was filed “ to set aside an assignment of a leasehold estate., and all other the estate and effects of the .plaintiff, upon a ' suggestion, that the same was neyer intended as an absolute assignment for the. benefit of the defendant, but made only .to ease the plaintiff of the trouble and care of managing his ow-n concerns at that time, (being then under great infirmities of body and mind,) and subject to a trust for the benefit of the plaintiff, if he should afterwards be in a capacity of taking care of his own affairs.” The assignment was absolute in its terms. The Lord Chancellor held, that, although there cannot be a verbal declaration of a trust, since .the statute of 29 Chas. .2 ; yet, the par-ol evidence is proper in avoidance of a fraud, which the defendant intended to practice on the plaintiff, by attempting -to deprive him of the benefit of his estate. [See also, Watkins v. Stockett, 6 Har. & J. Rep. 435; Story’s Eg. 197, 8, 9, 200.]

It has been said, that the statute being intended to prevent fraud, its original design would be prevented, if it could be used as a cover under which fraud could be successfully consummated ; consequently, it has been often held, that where such a result would follow the. non-execution of a contract, equity would enforce, or set it aside, though its terms were not attested by writing.

In Podmore v. Gunning, 7 Cond. Eng. Ch. Rep. 509, the Vice Chancellor remarked, “ I have always understood that the Court would interfere to prevent the obtaining an estate by fraud, notwithstanding the statute of frauds. A variety of cases might be put. Suppose a man deputes an attorney to buy an estate for him, and the attorney purchases that estate for himself; the Court would interpose, notwithstanding, the statute of frauds.”

And in Strickland v. Aldridge, 9 Ves. Rep. 518, Lord Eldon said the statute was never permitted to be a cover for fraud upon the private rights of individuals; and though, within the intention, it cannot be said a trust is declared under these circumstances, it is clear a trust would be created upon the principle, on which this Court acts as to fraud. [See Mucklestone v. Brown, 6 Ves. Rep. 69; Roberts on frauds, 79, 102; 3 Walker v. Walker, 2 Atk. Rep. 98; Barrow v. Greenough, 3 Ves. Rep. 152 ; Reigal v. Wood & others, 1 Johns. Ch. Rep. 406; Whelan v. Whelan, 3 Cowan’s Rep. 537; Boyd v. McLean, 1 Johns. Ch. Rep. 582; Clinian v. Cook, 1 Sch. & Lef. Rep. 2; 2 Dess. Rep. 14; 2 Story’s Eq. 78, 9, 746.]

In Brown v. Lynch & Lynch, 1 Paige’s Rep. 147, it appears, that the paintiffs were owners of a farm, which, by a fraud upon them, was mortgaged by their brother. The mortgage was foreclosed in Chancery, and the farm advertised for sale by a Master. Before the sale, the defendant agreed with the plaintiffs, to purchase in the farm for their benefit, for which he was to receive a stipulated compensation. The mortgagee in order to favor the plaintiffs, agreed with the defendant that lie might bid off the property at fifteen hundred dollars. The defendant at the sale prevented others from bidding, by representing, that he intended to buy for the plaintiffs. The defendant purchased the farm at the Master’s sale for fifteen hundred and forty dollars — about one thousand dollars below its value. Afterwards the defendant refused to convey the farm to the plaintiffs, or to account to them for its value, although they tendered to him the amount of his bid, with interest, and the sum agreed to be paid for his services. The Vice Chancellor having decided in favor of relief, the defendant appealed to the Court of Chancery. The Chancellor considered it was a gross fraud under the circumstances, for the appellant to hold out to the appellees, “ that he was bidding off' the property for their benefit, when he .in fact, intended to appropriate it to his own use. If the appellant did, in fact, bid it off fo.r them under the agreement, he held it in trust for them, and had no other interest in it, than that of a mortgagee, to secure the repayment of the purchase money, and the sixty dollars, agreed to be paid him for his trouble. But, if he had no such intention, and did not, in fact, bid off the property in trust for them, he was guilty of a fraud, which this Court will relieve against.” [See Boyd v. McLean, 1 Johns. Chan. Rep. 582 ; Pickett v. Loggon, 14 Ves. Rep. 234; Barnesley v. Powell, 1 Ves. Rep. 289.] And in Mestaer v. Gillespie, 11 Ves. Rep. 626, Lord Eldon said, that, notwithstanding the statute of frauds emphatically declares, that a writing is essential to the validity of certain contracts; yet, it was never intended, that a fraudulent use should be made of the statute; and the cases, are perfectly familiar, in which Chancery has interfered against a party seeking thus to shelter himself, by declaring, that he shall not take advantage of his own fraud. [See Keatts v. Rector, 1 Arkansas Rep. 422, 3, 5, and cases there cited.]

Independent of any statutory provision, fraud does not constitute a bar to an action upon a specialty. The fraud that avoids a specialty at law, must relate to the execution of the instrument. [See Phil. Ev. C. & H. ed., 1449, and cases cited; Jackson v. Hills, 8 Cow. Rep. 290; Swift v. Fitzhugh, 9 Por. Rep. 39; Mordecai & Wanroy v. Tankersly, 1 Ala. Rep. N. S. 100.] A defendant may give evidence tending to show, that the deed was mis-read, read but in part, or mis-expounded to him, or that one instrument was substituted for another, and thus his signature was fraudulently obtained, — this is what is meant by “ fraud in the execution.” [3 Phil. Ev. C. & H. ed. 1449, and cases cited.] But the jurisdiction of Chancery is much more extensive. Courts of equity administer remedies for rights, in cases, in which Courts of law recognize no rights at all; or if recognized, they are left to the conscience of the parties. Trusts, technically so called, are without any cognizance at common law, and their abuse of consequence, beyond the reach of legal process. But they are cognizable in Courts of equity, and an ample remedy ,is there given in favor of the parties beneficially interested, for all wrongs and injuries, whether arising from negligence or positive misconduct. There are cases of losses and injuries by mistake, accident and frauds, as well as undue advantages and impositions, betrayals of confidence and unconscionable bargains; in all which, Courts of equity will interfere and grant redress ; but of which the common law takes no notice, or silently disregards. [1 Story’s Eq. 27, 8, 9 : 194 et post.; 1 Bla. Com. 92 ; Mitf. Pl. 111, et post.]

■ “ It may be correctly said, that the maxim, that equity follows the law, is a maxim liable to many exceptions; and that it cannot be generally affirmed, that where there is no remedy at law in the given case, there is none in equity; or, on the other hand, that equity in the administration of its own principles, is utterly regardless of the rules of law. (1 Story’s Eq. 75; Kemp v. Pryor, 7 Ves. Rep. 249, et post.)

Fraud is defined by the civilians to be any artifice or deception used to cheat, or deceive. This definition would however seem to embrace only actual or positive frauds. But fraud, as understood and denounced in equity, includes all acts, omissions* or concealments which involve a breach of a legal or equitable duty, trust or confidence justly reposed, which are injurious to another, or by which an undue and unconscientious advantage is taken of another. And Courts of equity will not only interfere incases of fraud, to set aside acts done; but will also if by fraud, acts have been prevented from being done by the parties, interfere and treat the case precisely as if the acts had been done. (1 Story’s Eq. 197; Chesterfield v. Jansen, 2 Ves. Rep. 155, et post.

The statute of frauds is binding in all Courts, and the refusal of a Court of equity to give effect to it, according to its letter, is not influenced by any claim of right, to disregard the expressed will of the legislature, but rather from a desire to uphold the sph'it of the enactment. Mr. Justice Story addressing himself to this subject says, “ It is obvious that Courts of equity are bound as much as Courts of law, by the provisions of this statute ; and therefore, they are not at liberty to disregard them. That they do however interfere in cases within the reach of the statute, is equally certain. But they do so not upon any notion of a right to dispense with it; but for the purpose of administering equities subservient to its object, or collateral to it and independent of it.” (2 Story’s Eq. 57.)

If a deed is fraudulently obtained, without consideration; or for a consideration so inadequate as to shock the conscience; dr if by fraud, accident, or mistake a deed, is framed contrary to the intention of the parties, the forms of proceeding in the courts of common law, will not tolerate such an investigation there, as will enable those Courts to do complete justice. On this ground Courts of equity will restrain proceedings at law, until a full inquiry has been made. And if it appears that the deed has been improperly obtained; or that it is contrary to the intention of the parties in their contract; they will in the first case ¡compel a delivery and cancellation of the deed, and make such further order, as may be necessary to dissolve the contract, and place the parties in statu quo. In the second case, they will ■either rectify the deed according to the intention of the parties; or will restrain the use of it, in the points in which it has been framed contrary to, or has gone beyond their intention in the original contract. (1 Story’s Eq. 418-9.

It has been said, that such is the abhorence with which fraud ■is viewed at common law, and such the solicitude of Courts of equity to suppress it, that they have repeatedly declared they will not undertake to enumerate the cases, of which, upon a suggestion of fraud, they will take jurisdiction. (1 Story’s Eq 196 and note.

Lord Hardwicke in his celebrated judgment in Chesterfield v. Jansen, 2 Ves. Sr. Rep. 155, says equity has an undoubted jurisdiction to relieve against every species of fraud; and that fraud may be presumed from the circumstances and situation of .the contracting parties; and may be apparent from the intrinsic nature and subject of the bargain. (Woodhouse v. Brayfield, 2 Vern. Rep. 307.

Among the acknowledged grounds of equity jurisdiction, is the fraudulent prevention of acts to be done for the benefit of third persons; Courts of equity will take from a party, the benefit which he may have derived from his own fraud, imposition* or undue influence in procuring the suppression of such acts. Wherever the relief sought arises from the fraud and imposition of the defendant, it “ has nothing in the world to do with the statute of frauds and perjuries.” (Walker v. Walker, 2 Atk. Rep. 99 ; Devinish v. Baines, Prec. in Chan; Chamberlain v. Chamberlain, 2 Freem. Rep. 34; Driver v. Fortner, 5 Porter’s Rep. 9.)

In Young v. Peachy, 2 Atk. Rep. 254, it appears there was settled on Zaccheus Bredon by the will of his father certain houses in London, remainders to his sons in tail, remainder to his daughters and the heirs of their bodies. Zaccheus had no sons, but had two daughters, Margaret and Lydia. Margaret intermarried with Joseph Fox, who became very -extravagant and in very bad circumstances:. Zaccheus desiring to prevent the property, in the event of his death, going into the possession of Fox; represented to his daughter, that it would be for her benefit -to join in a common recovery of a moiety of the premises, and desired herto persuade her husband to join in the same> and by a deed to be made thereupon, declaring such recovery to be to the use of Zaccheus and his heirs; this moiety would ¡be protected from the creditors of Joseph Fox; and at the same time, promised Margarett, that he would take the estate, ¡so to be created by the recovery and deed, and declare the uses thereof, as a trustee only, for her and her heirs, and that the operation of law would be such thereupon, he not paying any consideration for the same, and that he would not claim Or insist upon any advantage therefrom. A recovery was accordingly suffered and declared by a deed (Margaret and her husband being parties) to be to the use of Zaccheus and his heirs, but no consideration was paid by him, or any one on his behalf to his daughter and her husband.

Zaccheus from the time the recovery was suffered, constantly paid to Margaret an annuity of thirty pounds per annum. Afterwards Zaccheus became a bankrupt, and Sir Robert Peachy and others were chosen his assignees. Zaccheus died, and not long thereafter Margaret and her husband died without issue, intestate.

Lydia and her husband filed a bill against the assignees, and a mortgagee under a mortgage from Zaccheus, after the recovery suffered, praying amongst other things, that the recovery might be set aside as unduly obtained, and that in consequence of this, the plaintiff might be allowed to redeem the mortgage, as entitled in remainder under the will of Zaccheus’ father.— The plaintiffs consenting that the thirty pounds per annum paid Margaret, should be refunded; the Lord Chancellor was of opinion that the recovery ought to be set aside as unduly obtained; and in consequence of this, the plaintiffs were entitled to redeem the mortgage.

Relief was granted, not upon the ground of the absence of a consideration, moving from Zaccheus to Margaret and her husband : for “his Lordship said, the plaintiffs could not be relieved on the motion of a trust; however, he thought they had' a proper ground to be relieved upon, under the head of fraud.”

“ It manifestly appears,” continued his Lordship, that “ the conveyance from Fox and his wife, was obtained in order to answer one particular purpose; buttha.t the father has attempted to make use of it for a very different purpose; and there having been a great many cases, even since the statute of frauds, where a person has obtained an absolute conveyance from another, in order to answer one particular purpose, but has afterwards made use of it for another, that this court has relieved under the head of fraud; for a practice of this sort is a deceit and. fraud, which this court ought to relieve against; the doing it, is dolus malus, and that appears to be the present case.”

• Upon the same principle, if a legatee promises a testator, if he will make a disposition in his favour, he will transfer the subject of the bequest, or demise, to a third person, the person making the promise will be obliged in equity to a performance. [Drakeford vs. Wilks and others, 3 Atk. Reports, 539 ; Chamberlain vs. Agar, 2 Vesey & Beames’ Rep. 259; Podmore vs. Gunning, 7 Sim. Rep. 644; Reach vs. Kennegal, 1 Ves. Sr. Rep. 124; Ambler’s Rep. 67; Thynne vs. Thynne, 1 Vern. Rep. 296 ; Oldham vs. Litchfield, 2 Vern. Rep. 504; Barrow vs. Greenough, 3 Ves. Rep. 152; Goss vs. Traceby, 1 P. Wins. Rep. 288 ; Luttrell vs. Lord Waltham, cited in the case of Huguenin vs. Basely, 14 Ves. Rep. 290.]

■ In the Lessee of Thomson et ux vs. White, 1 Dall. Rep. 424, the facts were substantially as follows : Dorothy Gordon, being seised in fee of a moiety of the premises in question, intermarried with Lawrence Saltar; and having lived long with him without any prospect of children, she was desirous of making a provision for an only sister of the whole blood, one of the lessors of the plaintiff, whose husband, the other lessor, was much reduced in his circumstances. Mrs. Saltar being upon a visit to her husband’s brother, John Saltar, at some distance from their residence, was taken sick; and after a conversation relative to her estate, it was. agreed by her husband and herself, that it should be settled on them for their lives, and for the life of the survivor of them and afterwards it should go to her sister the'lessor, and her heirs lawfully begotten; and in default of such heirs to the children of her three sisters of the half blood. A deed was accordingly drawn to that effect; but upon its being read to her, she thought the expression “ heirs of her body,” indelicate, as applied to an unmarried sister of the half blood, and for that reason refused to sign it, notwithstanding the persuasions of her friends. Whereupon her husband proposed to her, that a deed should be drawn from them to his brother John, who, with his wife, should convey the premises to him and herself as joint tenants in fee; and he promised as soon as he got home he would make his will, or in some other way settle the estate in the manner projected, — ■ Mrs. Saltar hesitated at this proposition, but on her sister telling her that “ she might rely upon him — for if there was a man in the world, who could be trusted in such a case, it was him ;” — and on her husband requesting her to comply, declaring that “ if there was faith or truth in man, he would honestly perform what he again promised.” She executed the deed to John Saltar, who, with his wife, reconveyed the estate according to the previous stipulations. Mrs. Saltar died about six months after the deeds were executed; and her husband died intestate and without issue, about eighteen months after her decease. Lawrence Saltar, during his life, managed the estate as if it had belonged to the lessors of the plaintiff. In his last sickness, indeed, when near expiring, he told his brother that he was very uneasy on account of his leaving no will; and soon after this declaration he lost his reason. The question was whether this evidence was admissible. /

The court remarked, that since the statute of frauds, it had been a general rule that no estate, or interest in lands, shall pass, but by deed or some writing signed by the parties; and that parol evidence is inadmissible to contradict, add to, diminish or vary a deed or writing. But it was admitted that to this rule there were exceptions. For instance, where a declaration is made before a deed is executed, shewing the design, with which it was executed; the decisions in the court of chancery have been grounded upon parol proof of a single witness against a deed of settlement. And in cases of fraud and trust, it was said that parol evidence bad been admitted to show that a deed absolute in its terms was intended to be in trust. [Hampton vs. Spencer, 2 Vern. Rep. 288.]

The court said further, that the statute of frauds should be beneficially expounded for the suppression of frauds; and. where there had been a fraud in obtaining a conveyance from another, the grantee might be considered as a mere trustee.— [Loyd vs. Spillet Barnard, in Can. 388.] The parol evidence was held to be admissible, on the ground that the breach of trust in Lawrence Saltar was a fraud in law, which was not within the act; and a judgment was entered for the plaintiif. Here it may be observed, that there was no proof from which an actual fraud could be imputed to Lawrence Saltar; for he always managed the property as if it belonged to the lessors of the plaintiff; and even in extremis expressed uneasiness that he was about to die without having made a will. Yet the court considered the failure to perform the promise made to his wife to be a fraud in law, and wrested the property from his heirs.

And in Keatts vs. Rector, 1 Arkansas Rep. 391, it was alledged in the bill, that Rector bought a certain tract of land at auction, and afterwards agreed to permit Keatts to become equally interested with himself in the land, and to receive the deed in his own name, upon condition that he should pay the purchase money, and should reconvey to Rector an undivided moiety, upon his applying therefor in a reasonable time and paying half the purchase money and interest, and half the value of all improvements. The court decided, that Keatts should reconvey according to his contract, although it was not evidenced by writing; and he pleaded the statute of frauds.

But it has been argued for the plaintiffs in error, that it is not allowable to show by parol proof, that the deed of December, 1824, from William E. to Joshua Kennedy, was made upon a secret trust, or that the land conveyed by it, should be disposed of in any other manner, than the grantee might think proper. That such evidence was inhibited by the statute of frauds and perjuries, which declares, that no action shall be brought, whereby to charge any person upon any contract for the sale of lands, tenements, or hereditaments; unless the promise or agreement, upon which such action shall be brought, or some.memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person, by him, thereunto lawfully authorized. [Aikins’ Digest 206, 7.]

And further, that the deed expressing upon its face, a specific monied consideration, and nothing else, it was not permissible to show, that there was any other inducement moving from the grantee to the grantor.

To sustain the first branch of the argument, many authorities have been cited.

The first we will examine, is the case of Lord Irnham v. Child & others, 1 Bro. Ch. Rep. 92. The facts of that case, are these: Lord Irnham treated for an annuity with Child, (who, though, unknown to Lord Irnham,) was an agent for H. Lawes Luttrell, his Lordship’s eldest son. It was agreed, that the annuity should be redeemable; but both parties supposing, that if this appeared upon the face of the transaction, it would make it usurious, it was agreed, that the grant from Lord Irnham to Child, should not have in it a clause of redemption. The grant being drawn and executed according to the agreement, and the annuity assigned by Mr. Luttrell to others of the defendants, Lord Irnham filed his bill to redeem, alledging, that such was the agreement, although, for the reason stated, it did not appear upon the deed.

The Lord Chancellor, considered the rule perfectly clear» both itpon the statute and at common law, that where there is a deed in writing, it will not admit of parol evidence of a contract, which is not part of the deed. If the contract reduced to writing had boon varied by fraud, from the agreement of the parties, the evidence would be admissible ; the Court would not, in that case, overturn the rule of equity, by varying the ded; but it would be an equity dehors the deed. But it having been agreed by both parties, not to introduce the clause of redemption, the deed executed was such as the parties understood and intended it to be ; and the Court rejected the parol proof.

In delivering his opinion in the Marquis Townsend v. Stangroom, 6 Ves. Rep. 331, Lord Eldon said, “upon the question as to admitting parol evidence, it is perhaps, impossible to reconcile all the cases. Lord Irnham v. Child went upon an indisputably clear principle, that the parties did not mean to insert in the agreement, a provision for redemption; because they were all of one mind, that-it would be usurious; and they desired the Court not to do what they intended; for the inser-tion of that provision was directly Contrary to their intention, but they desired to be put in the same situation, as if they had been better informed, and consequently, had a contrary intention. The answer is, they admit it was not to be in the deed; and why was the Court to insert it, where two risks had occurred to the parties; the danger of usury, and the danger of trusting to the honor of the party.” Whether the insertion of the clause of redemption in the deed, would have made the' transaction usurious, there was an intention to evade the statutes against usury, and a reliance by Lord Irnham upon the personal honor of Child; for these reasons, the rejection of the parol evidence was considered by Lord Eldon to have been proper:

The case of the Marquis Townsend v. Stangroom, does not maintain the inadmissibility of parol proof, to establish the fraudulent use of a deed; or that a party receiving an absolute deed, upon a promise that he would dispose of the property conveyed by it, for a particular purpose, refused to perform his promise. But it shows, that Courts of equity receive such proof in some cases, in which Courts of law do not.

In Leman v. Whitley, 3 Cond. Eng. Ch. Rep. 736, it appears, that the son conveyed an estate to his father, in consideration, as it was expressed in the deed, of ¿6400, paid by the father to. his son, the plaintiff. The bill alledged, that the plaintiff not being in good credit, but desirous of raising money upon a mortgage of this estate, was advised by an attorney, employed as well by the father, as the plaintiff, that he could much more, readily procure the money on mortgage, if it appeared, thdt the estate on which the security was to be given, was the father’s property, and that the money was raised for the use of the father, who was in good credit, than if the transaction was understood to be a dealing with the plaintiff; and, therefore the attorney recommended, that the plaintiff should convey the estate to the father, so that it should appear to be his property. In pursuance of that advice, deeds of lease and release were made and executed to the father with his consent; but no part of the alledged consideration was paid.

The father died about five months thereafter, having, by his will, made subsequently to the deeds of lease and release, devised all his real estate in general terms, to an infant son of the plaintiffs, with remainder over.

The attorney had taken steps towards raising money on mortgage in the name of his father; but no' mortgage was completed in his lifetime. The facts were admitted by the answer of, the attorney, who was made a defendant to the bill; and they were also proved by his deposition.

The bill prayed that the devisees of the father might be declared to be trustees for the plaintiff; that they might account to him for the rents and profits since the father’s death; and that the estate might be re-conveyed to him. The question was, as to the admissibility of the parol evidence.

The Master of the Rolls thought that there was no pretence of fraud, nor any misapprehension of the parties with respect to the effect of the instruments. It was intended that the father should, by legal instruments, appear to be the legal owner of the estate; and to allow the trust to be established by parol evidence, would repeal the statute of frauds. The case was then considered as a purchase from the plaintiff by the father; and it being stated and proved, that no part of the consideration of £400 was ever paid by the father, it was held that the plaintiff was entitled to a lien on the estate for that sum.

And in Morris v. Morris, 2 Bibb’s Rep. 311, it was held, that a verbal promise from a son to a father, at the time of receiving a conveyance of land, to execute and deliver a bond to a third person, conditioned for the conveyance of one-half of the estate to the infant children of another son, could not be enforced in equity.

In respect to the case of Leman v. Whitley, Mr. Justice Story remarks, that it stands upon the utmost limits of the doctrine of the inadmissibility of parol evidence as to resulting trusts; and it will be seen that both that case and Morris v. Morris are opposed to several of the authorities cited above; especially, the Lessee of Thomson et ux v. White.

' The second branch of the argument supposes it not permissible to vary, by parol proof, the character of the consideration expressed- To sustain this conclusion, several decisions have been referred to. The case of Mead v. Steger, 5 Porter’s Rep. 498, it is insisted, is decisive of the point. That was a cause at law; and it wqs not pretended that fraud was imputable to the plaintiff. The Court held, that parol proof of another and different consideration than that expressed, was inadmissible; but stated some of the cases in which such evidence would be received in a Court of law, in addition to, and in contradiction of, the writing. In a suit in equity, where fraud is charged, it cannot be regarded as an authority.

In Young v. Peachy, 3 Atk. Rep. 355, the Chancellor, in setting aside the recovery which had been suffered, laid stress upon the generality and looseness of the terms in which the consideration was expressed; and says it follows from (hence, that it is competent for the parties to aver any other consideration. In that case, there was no, allegation or proof of fraud in fact; and though we infer from the reasoning of the Chancellor, that he would, upon other grounds than that stated, have admitted the evidence; yet he doubtless considered that his opinion acquired strength by calling to his aid a principle, which even Courts of law acknowledge.

In Watt v. Grove, 3 Sch. & Lef. Rep. 500, Lord Redesdale, speaking of the conclusiveness of deeds, says: “Solemn instruments, duly executed, are prima facie conclusive on the parties. Where they state truly the transactions on which they are founded, they are binding in equity, as well as at law, if the consideration s.tated is sufficient for the purpose. But if it appears, that transactions are not truly stated, the instruments may.lose all their binding quality in equity, even if conclusive at law. Instruments may be so wholly false and fraudulent, that they may be avoided at law and become mere nullities. A court of law can hold no middle course. But if instruments are impeached in equity, the party who seeks to avoid them, although he may demonstrate that they are false and fraudn-lent, that they do not contain the real dealing between the parties, yet resorting to a Court of equity for relief, he must submit to the rule of equity, and in the language of the Court, must himself do equity.” Now here is a' decision directly upon the question we are examining. All the authorities cited to show that where fraud is proved, a deed shall be set aside, or in the case of an absolute deed, equitable relief shall be administered, proceed upon the idea that the consideration expressed, is inconclusive. So the decisions which maintain that an absolute deed may be turned into a mortgage, whether they require proof of fraud or not, impliedly admit that the statement of a specific consideration interposes no barrier to the administration of an extrinsic equity. Slocum & wife v. Marshall et al., 2 Wash. C. C. Rep. 397; Dane’s Ab. Ch. 9 art. 1 sec. 4.

It was argued for the plaintiffs in error, that even conceding the complainants were eutitled to relief upon proof of fraud, yet the Court could not extend its decree so far as entirely to annul the deed of December, ’24. That the only redress which the complainants could claim, was the recovery of the amount of the consideration expressed in the deed, (if unpaid,) with interest thereon. In refusing to set aside deeds for land upon an allegation of fraud, Courts have sometimes treated the complainant as a vendor, and upon proof that the purchase money was not paid, have given him the benefit of an equitable lien on the land for its recovery. See Leman v. Whitley, cited above; 'to which might be added other cases to the same effect. But in Boyce’s ex’rs. v. Grundy, 3 Peter’ Rep. 220, which was' a suit in equity, by a purchaser, to be relieved from a purchase of land, on the ground of a fraudulent misrepresentation by the seller, the Court remarked, “It has been further argued, that the misrepresentation, if at all established, was but of a personal character, and susceptible of compensation, or indemnity, to be assessed by a jury. On this, there maybe made several remarks ; and first r That if the facts made out such a case, yet the law, which abhors fraud, does not incline to permit it to purchase indulgence, dispensation, or absolution.” And this, both upon principle and authority, we consider the true doctrine. [See also Podmore v Gunning, 10 Conl. Eng. Ch. Rep. 219.]

It was further objected by the plaintiffs, that the bill does not charge Joshua Kennedy with having been guilty of a fraud, either in inducing Wm. E. Kennedy to execute the deed of December, ’24, or in using it for a purpose other than that contemplated by the agreement of the parties.

It was not necessary to alledge the commission of a fraud in iotidem verbis. If the bill states, with distinctness and precision, facts and circumstances which in themselves amount to a fraud, it is quite as unobjectionable, as if the very term itself was employed.

In Whelan v. Whelan, 3 Cow. Rep. 576, which was a bill to set aside two conveyances of land, on the ground of undue influence and fraud, it was objected, that the pleadings were not sufficiently explicit to admit proof of undue influence. But the Court said, “The bill charges the respondents rvith fraudulent artifices, management and undue influence, in obtaining the deeds. It is however sufficient if, from an examination of the whole bill, the facts shew that the respondents’ necessarily had undue influence or control over the appellant, so that the appellant did not treat on equal terms. The rule that requires every thing essential to the appellants’ right to be alledged, is then satisfied. His equity will then appear, and the Court may administer the relief to which he is entitled.” To the same effect, see Story’s Eq. Pl. 212.

While it is proper that every material fact to which the plaintiff means to offer evidence, should be distinctly stated in the premises, a general charge or statement is sufficient. It is not necessary to charge minutely all the circumstances which may tend to prove the general charge ; for these circumstances are matters of evidence, and need not be charged with particularity. [Story’s Eq. Pl. 24-5; Smith v. Burnham, 2 Sumner’s Rep. 612.]

It is stated in the bill, that William E. Kennedy died on the 9th May, 1825, at the house of Joshua, his brother — That after the death of his wife, (which occurred three or four years previously,) himself and children, with the exception of Delphine, went to reside with Joshua — That William at all times reposed great confidence in the honesty, integrity and faithfulness of his brother, who was in the habit of acting as his agent, con-suiting and advising, him in all things as to the management and disposition of his property — And after the death of his •wife, Joshua assumed the place of guardian to him during life.

In the latter part of his life, William became intemperate, and was frequently intoxicated; and when in that condition, would convey his property without any, or for a very inadequate consideration, to any one who would ask him.

It is further stated, that Joshua, together with other relatives of William, after consultation, came to a conclusion that it would be best to advise him to convey his property, or the greater part of it, to Joshua; and that after repeated solicitations by them, he executed the deed of December, 1834. That deed, though absolute on its face, and purporting to be for a moneyed consideration paid in hand, was made in trust for the children of William, without any other consideration than confidence in Joshua, and so admitted by him up to a short time previous to the commencement of this suit. The deed was not recorded until November, 1828. The bill then states some circumstances tending to show that the means of Joshua could not have been very great; and alledges, he could not have paid ten thousand dollars, or any considerable part of it. It is also averred, that the expenditures uf William from December, ’24, to May, ’25, were not extravagant; and th'at he left but one hundred and one and eighteen one hundredths dollars in cash at the time of his death.

It is stated, that Joshua received the conveyance from William upon an assumption and promise, that the property conveyed should be held or disposed of in trust for the children of the latter; that notwithstanding all which, he failed during his life to convey it to the children, or otherwise dispose of it for their benefit, but asserted an absolute title in himself.

The facts recited clearly amount to an allegation — 1. That William was very much under the influence of Joshua, in the management of his property, at the time the deed of December, 1824, was executed. 2. That Joshua and other relatives advised William, as a means of securing his property to his children, to execute that deed; that it was executed under the influence of an assurance from Joshua, that the property should be held and disposed of for the benefit of the children; that he not only failed to perform his promise, but set up a title in himself. That these allegations are equivalent to a direct and positive charge of fraud, it seems to us is scarcely disputable.

It was argued for the defendants in error, that the great confidence which William manifested in the integrity and prudence of Joshua, and the control which Joshua seems to have exercised over him and his property, should go far to warrant the conclusion, that William was overreached in executing the the deed of’24. (There was certainly no confidential relationship, such as trustee and cestui que trust, principal and agent, &c., existing between the parties, from which Courts of equity are apt to presume fraud. (2 Phil. Ev. C. & H.’s ed. 301, 336 -7.) But even if Joshua could be regarded as occupying such a relation to William, yet he might have made a purchase of him, if he made a full and fair disclosure of his knowledge, and took no improper advantage. [Randall v. Errington, 10 Ves. Rep. 442; Lord Selsy v. Rhoades, 1 Cond. Eng. Ch. Rep. 339; Lovell v. Briggs, 2 New Hamp. Rep. 218; Bolton v. Gardner, 3 Paige’s Rep. 273.]

But it is said there are other relations of a miscellaneous character, from which Courts of Equity have gone far in presuming fraud. To this point, Whelan v. Whelan, 3 Cow. Rep. 537, is a leading case. There it appears that a man aged 74 years, whose wife was sickly and irritable, was troubled for several years with dissensions among his children about the man-agempnt of his property — his wife taking part with all his children on one side, except two of his sons, who took part with him. The dissension was so great, that the wife, and children taking part with her, departed, leaving the husband and two sons with him. The father being sued for a debt contracted by his wife, became alarmed by a belief that she would dissipate his estate; one of his sons induced him to convey' to them in fee more than nine thousand dollars of real and personal property — they agreeing to secure to him and his wife a maintenance and fifty dollars a year for life. Among other grounds on which the conveyance was set aside, it was held to be void, as being caused by fraud, undue influence and unfounded alarm, excited or countenanced by the son. The doctrine in regard to undue influence exercised by a vendee, is most extensively examined in the léarned arguments of counsel and in the opinion of the Court; and it was decided, that “ a conveyance obtained by children from a father, will not, be sanctioned by a Court of equity, if it appear to have been caused by an abuse of confidence reposed by him in his children, who for the purpose of procuring it, took advantage of his age, imbecility and partiality for them”; more especially, if the consideration is inadequate.

In Slocum & wife v. Marshall et al., 2 Wash. C. C. Rep. 397, it appears that a daughter, at the request of her father, had made a conveyance of her real estate to him, under the belief that her interest would be thereby promoted, and that the property conveyed would become hers after the death of her father. But the operation of the conveyance was to deprive the daughter of the estate. The Court decreed a re-con veyancc of the property, and an account of the proceeds of the part which had been sold, so as to effect the justice of the case, and to give to the daughter th'e property to which she would have been entitled if no conveyance had been made. The Court thought there was abundant evidence in the cause to repel the imputation of a fraud intended by the father; but thought it obvious that the conduct of the daughter in the affair was influenced altogether by his declarations and advice, in which she^appeared to “have placed the most implicit and respectful confidence.” Yet as the conveyance, instead of being promotive, was destructive of her interest, the relief sought against the act of the daughter was granted.

The case cited is an authority to show, that where one who is so much under the influence and control of another as to regard his advice as almost authoritative, is induced to make a deed for land to that other, under the promise of some benefit which is never received, the deed will be set aside, although a positive fraud is not shown. And if precedent has ascertained the law eorrectly on this point, there can be no doubt but the undue exercise of an influence resulting from confidence and friendship, exerts great potency upon an application to equity to rescind a contract. The doctrine being, says..Mr. Justice Story, that wherever confidence is reposed, and one party has it in his power, in a secret manner, for his own advantage, to sacrifice those interests which he is bound to protect, he shall not be permitted to hold any such advantage. [1 Story’s Eq. 819-20.] The reason of the doctrine being this, that while one party has. been put off his guard by his confidence, the other by the aid of that confidence, has gained an advantage, that would not have been voluntarily yielded to him. [Hall v. Perkins, 3 Wend. Rep. 626; Gore v. Summersall, 5 Monroe’s Rep. 505; Bates v. Graves, 2 Ves. Rep. 287; Ex parte Fearon, 5 Ves. Rep. 644; Norton v. Kelly, 2 Eden’s Rep. 286 ; Watkins v. Stockett, 6 Har. & John’s Rep. 442 ; Watt v. Grove, 2 Sch. & Lef. Rep. 492 ; Young v. Peachy, 2 Atk. Rep. 258 ; Purcell v. McNamara, 14 Ves. Rep. 91.]

It was further insisted for the- plaintiffs in error, that the Chancellor should have sustained their demurrer to the bill on the ground that it was multifarious in seeking by the same suit to set aside the deed 'of 1824 from William to Joshua Kennedy, and to obtain a settlement of the accounts of the latter as the executor of the will of William — that though the heirs were necessary parties to a contestation upon the first branch of the complaint, yet the executors could only be called upon to answer the latter.

In a litigation respecting the real estate of a testator or intestate, it is necessary that the heirs should be parties; and perhaps where the powers given to the executors are as extensive as those conferred by the will of Joshua Kennedy, the executors should be joined as defendants in equity. But in order to coerce a settlement of the accounts of an executor, his executor is the only necessary party, inasmuch as the personal estate is primarily liable to the payment of what may be found due.

In the case under consideration, the amount of the decree in money must depend upon the fact, whether the deed of December, ’24, is set aside as being intended for the benefit of the children of William; for the bill alledges that considerable sums of money have been received for rent of the property conveyed. The question then is, shall the validity of that deed be tried in a separate suit, and in the event it is set aside, the accounts of Joshua as executor be finally adjusted in a proceeding against his executors.

Equity delights to prevent multiplicity of suits; and with that view, frequently entertains bills by complainants, between whom there exists no privity of contract; and against defendants, between whom there exists no connection whatever, except a community of interest. Thus it is in the case of a bill by creditors, to subject a fund to the payment of debts, and of “ bills of peace ” generally.

The first branch of the argument upon this point assumes it as a correct principle, that distinct matters cannot be united in the same suit. This “ proposition, if carried to its full extent, would go to prevent the uniting several instruments in one bill, although the same parties were liable in respect of each, and the same parties were interested in the property, which was the subject of each.” “ It would be extremely mischievous if such a rule were established, in point of law. No possible advantage could be gained by it, and it would lead to multiplication of suits in cases where it could answer no purpose to have the subject-matter of the contest split up into a variety of separate bills.” (Campbell v. Mackay, 1 Milne & Craig’s Rep. 603.)

The objection of multifariousness, it is said, must be confined to cases, where the case of each defendant is entirely distinct and separate in its subject-matter from that of the other defendants; for the case against one defendant may be so entire, as to be incapable of being prosecuted in several suits; and some other defendant may be a necessary party to' some portion only of the case stated. In the latter case, multifariousness would not be an available objection. [Story’s Eq. Pl. 2nd ed. 225; Attorney Genl. v. Craddock, 3 Milne & Craig’s Rep. 85.]

It is indeed difficult, if not impracticable, to reconcile all the decisions on this subject, or to educe from them general rules by which to test the objection. Without attempting to cite them, it may be said with truth, they are extremely various; the Courts seeming to be influenced by what was convenient and just in the particular case, rather than lay down any inflexible rule; always discouraging the objection, where, instead of advancing, it would defeat the ends of justice.

By thé term multifariousness, as applied to a bill, we are to understand, that a defendant has been made a party, though he has no connection with a large portion of the casé státed in the bill. [See Story’s Eq. Pl. 407, 2nd ed., note.] But where there is a common liability in the defendants and a common interest in the plaintiffs, different grounds of complaint may in general be united in one record.

. But it is said that although the plaintiffs and defendants are parties to the whole transactions which form the subject of the suit, yet those transactions maybe so dissimilar, that the Court will not allow them to be joined together; but will require distinct records. [Story’s Eq. Pl. 406, 2nd ed.]

In Kensington v. White, 3 Price’s Rep. 164., a bill was filed by seventy-two underwriters to restrain several actions on different policies effected upon different ships. The defendants had a common interest in all, because they were the owners of the ships and plaintiffs in all the actions; but here-were seventy-two individuals all not only liable to separate actions, but actually defendants in separate actions, united together against the parties who were plaintiffs in all the actions, for the purpose of obtaining by one bill a discovery in aid of the defence against all the actions; yet the Court of Exchequer held, that the suit was not multifarious.

After an extensive examination of the subject, Mr. Justice Story says : “ The conclusion to which a close survey of all the authorities will conduct us, seems to be that there is not any positive inflexible rule as to what, in the sense of Courts of Equity, constitutes multifariousness, which is fatal to the suit on demurrer. These Courts have always exercised a sound discretion in determining whether the subject matters of the suit are properly joined, or not; and whether the parties, plaintiffs or defendants, are also properly joined, or not. And it is not very easy, a priori, to say what is, or what ought to be, the line regulating the course of pleading on this point. All that can be done in each particular case, as it arises, is to consider whether it come nearer to the class of decisions, where the objection, is held to be fatal, or to the other class where it is held not to be fatal. And in new cases, it is to be presumed that the Court will be governed by these analogies which seem best founded in general convenience, and will best promote the due administration of justice, without multi-' plying unnecessary litigation on the one hand, or drawing suit,ors . into needless and oppressive expenses on the other.” And such is substantially the language employed by Lord Cottenham, in Campbell v. Mackay, 1 Milne & Craig’s Rep. 603.

The object of the rule against multifariousness, says Lord Cottenham, is'to protect a defendant from unnecessary expense. (The Attorney Genl. v. Craddock, 3 Milne v. Craig’s Rep. 85.) In the case at bar, by uniting in the same record the heirs and executors, instead of increasing the expense, such a consequence will be prevented. So long as the executors have assets to pay costs, it is unimportant to them individually what the amount of costs may be; but to the heirs, it is all-important, as their ancestor’s estate must ultimately contribute to its payment. Again; by contesting the validity of the deed, and asking an adjustment of the accounts of William Kennedy’s executor in the same suit, a final settlement and division of the estate of Joshua Kennedy will be expedited. So that upon the score of expense, as well as the speedy administration of justice, the plaintiffs are really benefitted. Upon this consideration then, as also the fact that the settlement of the accounts of Joshua Kennedy as executor are intimately connected with the controversy in respect to the deed, we are of opinion, that the bill is not objectionable for mullifariousness. (Story’s Eq. Pl. 224 to 234, and 405, ’6, ’7 — 412 ’13, ’14, 2nd ed. and cases cited.) This view closes our opinion upon the law of the cáse, and we are now to consider the second question raised, which opens an inquiry into the facts.

Second: The lands conveyed by the deed of December, 1824, are such parts of the MeVoy and Price grants, (as they are designated,) as .then belonged to William E. Kennedy. These grants emanated from the Spanish authorities exercising jurisdiction over the city of Mobile and country adjacent, at the periods of their respective dates.

The land embraced by the grant to William MeVoy, was conveyed by the grantee in 1814 to William and Joshua Kennedy jointly.

In 1798, Thomas Price obtained his first grant from Got. Gayoso for six hundred arpents-of land.

On the first of September, 1806, Joshua, as the agent of Thomas Price, petitioned the Intendant General at Pensacola for five hundred arpents of land, “ by way of sale.” The petition was granted, and the usual order made for-a survey.

On the 20th November, 1806, Price, by his memorial addressed to the Commandant at Mobile, admitted that he had appointed Joshua an agent at Pensacola to obtain for him a further grant of five hundred arpents of land, in consideration of the arrears of his salary for three years as interpreter, and of other claims which he had on the Government. But he disavowed the authority of Joshua to purchase lands for him; and stated, that the land granted upon the petition by Joshua, was embraced-by the grant made by Gov. Gayoso in 1798, and solicited in consideration of the premises, a grant for five hundred arpents adjoining the then town of Mobile, (the boundaries of which he particularly described.) The memorial was granted by the Commandant, and confirmed by the Intendant General of Pensacola, who directed the usual order for a survey to be issued. This tract, on the 22d November, 1806, was conveyed by Price to William E. Kennedy; and on the 24th of the same month, he made to William an irrevocable power of attorney to cause the necessary survey to be made. The consideration of this deed was two hundred dollars.

On the 25th August, 1813, Price executed a deed to William for the land granted by Gov. Gayoso in 1798; which deed recited as its consideration the sum of five hundred dollars paid by the latter to the former. Both the grants to Price were confirmed by Congress after the death of William E» Kennedy.

It is argued for the plaintiffs in error, that although William received conveyances from Price for the two grants to him, yet the purchase was made by William for the benefit of, and with the money of Joshua — that the latter not being a Spanish subject, was not authorized to purchase lands within the territory of Spain, while Wm. possessed the necessary qualifications; and therefore he acted as his agent. If this argument was sustained by proof, a resulting trust would probably have arisen in favor of Joshua; but so far from being sustained, the evidence against such a conclusion strongly preponderates.

The deeds from Price to William are prima facie evidence (and conclusive until disproved) that the purchases by William were made on his own account and with his own means ; and opposing evidence should not be merely conjectural, but clear and satisfactory.

It may be that Joshua Kennedy was not authorized to purchase land within the dominions of the king of Spain, as has been suggested. Be this as it may, the record shows, that in the year 1806, he received several conveyances before the Spanish Commandant at Mobile for lands within or contiguous to that city.

Between the years 1815 and ’20, William conveyed small portionsof thePrice grants to Joshua,at different times. Insome of the deeds, the consideration expressed is money paid — in others, the general terms, “valuable consideration.” And on the 20th November, 1818, he conveyed to Joshua eighty arpents of land, part of the Price grant, in consideration “of the sum of five hundred dollars to me (him) formerly paid at the time of purchasing a tract of land from Thomas Price by William E. Kennedy.” William also made nearly one hundred deeds to other persons to portions of the Price tracts, between the years 1817 and the latter part of 1824; and during the same period, some portions of the land were conveyed by William and Joshua jointly, and some by Joshua individually.

In ISIS or ’19, it appears that a deed dividing the Price tracts between William and Joshua, was executed by them. The deed was accompanied by a map prepared by one Mathews, on which the lots set apart to each, were marked with the initials of their names respectively. The deed was not produced at the hearing, nor any proof offered as to its existence or loss; but a map, the counterpart of that supposed to have been made by Mathews, is still extant, and forms a part of the record of the cause.

Again; although some of the witnesses go so far as to express the belief, that William’s purchase of Price was made for Joshua, yet there are others who express an opposite opinion, and state, that William was able to have paid for the land .without the aid of Joshua. Sefroy Dolive, a connection, and doubtless intimately acquainted with William's business, says confidently and almost positively, that the purchase was made' by and'for William individually.

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Thus stands the question upon the proof; and we think that, apart from the potency to be accorded to an absolute deed in the scale of evidence, the circumstances greatly preponderate against a resulting trust for Joshua.

Let it be conceded that, in consequence of a want of citizenship in Joshua, he could not have purchased the land granted to Price during the continuance of the Spanish Government, and still it will avail him nothing. That cause did not exist in August, 1813, at the time William received the conveyance for five hundred arpents; for the Spanish had given place to the American flag in April of that year; and the ordinance of Congress and the legislative acts of Mississippi became the law of property ; and consequently the right of Joshua to hold land, undoubted.

Can it be supposed, that a man so well informed of his rights, and watchful of his interest as Joshua Kennedy, would not, if William had been his agent in 180®, as soon as the Spanish Government had ceased to exist, have endeavored to obtain an absolute conveyance from him; But the record, instead of authorizing the inference, that the beneficial interest was in Joshua, tends to a different conclusion; for between 183 5 and ’20. Joshua received conveyances for money and other-valuable consideration from William, for small portions of the Price grants. These deeds are, at least presumptive evidence of the facts recited, and are recognitions of the proprietorship of William, and of his right to sell.

The consideration of both deeds from Price -to William, is stated at seven hundred dollars — two hundred for one, and five hundred for the other. In 1818, we have seen that a deed was made from William to Joshua, for eighty arpents of land, in consideration of five hundred dollars, paid by Joshua to William, at the time the latter purchased “ a tract of land from Thomas Price.” Now suppose, that Joshua had actually ad-’ vanced to William the sum stated, it does not follow, that the latter agreed to invest it in land for the benefit of the iormer; but even, if there was such an agreement, did not Joshua absolve William from all obligations to perform his promise, by receiving payment in the eighty arpents of land conveyed to him ? Such, at least, is the natural conclusion.

But if it be trae, that William’s purchases of Price were made for Joshua, and with his money, why did Joshua execute with William a deed of partition to the Price tracts, and cause a survey and map, to be made to designate the property of each. If, entitled to all, why receive a deed for a part. Here, we think, was a distinct recognition, that William was entitled lo a moiety of these lands, which then remained unsold.

It was, however, said, that Joshua must have been the owner of the Price tracts, previous to the execution of any deed by William to him, or he would not have conveyed portions of it in fee-simple. The conclusion by no means follows the premises. None of these deeds are made to William, so that fee does not recognize the title of Joshua, and his heirs cannot be concluded by the act of a third person. The proof shows the greatest intimacy to have existed between Joshua and William — the latter to have reposed the fullest confidence in the former; the active interference of Joshua in the management of his brother’s business; and the inconsiderable value of real estate in Mobile, previous to 1824. These circumstances incline us to think that the deeds were made by Joshua, in virtue of the general authority, which William yielded to Joshua over his property. We are then, constrained to conclude, that the purchases made by William E. Kennedy from Price, were not only conveyed to him individually, but for his own account and benefit.

This brings us to an examination of the deed of December, 1S24. The question in regard to that deed is, was it made upon the consideration it imports, or upon some secret trust, that the land conveyed should be disposed of, for the benefit of William or his heirs.

The testimony of both Sefroy and Louis Dolive is exceedingly direct and explicit. These witnesses being nearly connected with Wm. E. Kennedy, and feeling as they must, the deepest interest in the welfare of his children, it was natural. that they should have been advised of any disposition made by him of his estate. It was quite as natural, that Joshua always a devoted brother, should have been equally desirous of seeing the children of Wm. provided for, from their father’s estate. Circumstances had then recently arisen, and were still increasing, to awaken the solicitude of .relations. Wm. quite advanced in life, abandons as a means of livelihood,, the practice of medicine, which he had hitherto pursued — the home at which he had lived with his wife and children, was broken up — in short, he almost loses his individuality in society, and abandons himself to habits of intemperance. In this condition of aifairs, his fortune is likely to become a wreck ; when his two brothers, brother-in-law, and other friends, consult together, with the view of devising means to save his estate for his family. Joshua is made the organ of communicating to Wm. the result of their deliberations. Wm. follows their advice, and executes the deed of December, ’24, for the benefit of his children. Joshua admits that Win’s, property has been secured to his children, and that they will be wealthy. Such, in substance, is the evidence of the Dolive’s. The testimony of Samuel H. Garrow, Daniel Robertson, Cyrus Sib-ley, Chester Root, Joseph Krebbs, John Shelton, Gorham Davenport, and Thaddeus Sanford, are strongly confirmatory of the Dolives’, and relate facts utterly incompatible with the idea, that in receiving the deed of ’24, Joshua Kennedy occupied any other position than that of a mere representative of William’s children.

The testimony of a witness, who speaks postively to a fact is entitled to more consideration than several witnesses, whose statements are merely negative. Of the former character, is the evidence of the Dolives’, and most of the witnesses who sustain them, — while the greater number of those who testify in opposition to them, merely state, that they were well acquainted with William and Joshua Kennedy — never heard them say that the deed of ’24 was intended to secure the property conveyed to the children of the former; that had such been their intention, they believe they would have heard it. Such evidence is too loose and inconclusive to overturn, the positive declarations of respectable witnesses.

But it is argued for the plaintiffs, that the health of Joshua was so bad at the time the deed bears date, as utterly to forbid the idea, that Wm. had conveyed to him in trust for his children. That Joshua Kennedy was in delicate health ’both previous and subsequent to 1824, we think, is apparent from the proof; but that there was about that time a rapid decline, which seemed to forbode an early death, is hardly probable. True, some of the witnesses suppose, that there were symptoms of the rapid approach of a pulmonary disease ; while others equally well acquainted with him, discovered no material change. Again, some of the witnesses suppose, that the object of his visit to Havanna, was the improvement of his health; while some suppose, that the end proposed was twofold, viz: the restoration of health, and the examination of Spanish archives touching land titles at Mobile; and others believe that the sole object was the examination of land titles.

That Joshua’s health was bad, cannot be questioned, but that it was such to induce an anticipation of a speedy dissolution, on the part of his brother and family, is what we cannot believe. The vessel on which he went out, and others leaving about the same time, carried for him eighty thousand feet of lumber, for the Havanna market; yet there accompanied him no member of his family, agent, or servant, to dispose of his lumber, or to attend him in his affliction. That Joshua Kennedy’s means well enabled him to bear the increased expense of an agent or servant, cannot be doubted; that the affection which his family and brothers cherished for. him, should not have prompted some one of them to accompany him, if his health was so desperate as is now represented, is indeed unaccountable.

It was quite natural after the deed of 1824 was executed, for Wm. to refer persons desiring to purchase to Joshua; the object of that deed was to divest himself of all title, and to provide for his children. Louis Dolive explicitly states that he was informed by Joshua, that Wm. had conveyed to him all his property by a deed of trust; that he had the entire management of it, and the children would have plenty of land. Many of the witnesses testify as to the great influence of Joshua over Wm. — some say he leaned on Joshua — others say Joshua seemed necessary to his support — one says that he hafl as much influence over him as a father over his child ; and many concur that Joshua had the entire iSanagement and control of William’s property. . Considering thenj the confidence which William -reposed in Joshua; the uncertainty and comparatively small value of his title to the Price tracts; the knowledge which Joshua possessed of Spanish titles, it is not at all surprising that William should have invested him with his right, upon an assurance that he would endeavor to consummate the title, or otherwise dispose of the property for his children. Upon the consultation between Joshua, Joseph and the Dolive’s we are informed that it was thought best that William should couvey to Joshua. This shows that William’s friends considered such a measure proper and likely to meet his approbation, or they never would have advised it. Joshua in repeated conversations, not merely casual or accidental, but sometimes with friends, with whom he most probably communed freely, spoke of the conveyance from William to him, for the children of the former. The credibility of none of these witnesses has been assailed, and the majority of them, so far as the record informs us, are not connected with either party. The repeated declarations of Joshua, together with the circumstances we have related, all tend to show, that the deed to him was not made upon the ground of a purchase, but was intended as a means of securing to the children the property of their father.

But is argued for the plaintiff’s in error, that the declarations ofWra. E. Kennedy show that Joshua paid him an adequate pecuniary consideration for his interest in the- Price tracts, at the time the deed was executed, or that the conveyance was induced by the extinguishment of claims which Joshua had against him.

Several of the witnesses examined by the plaintiff’s in error, speak of admissions by William after December, ’24, that a settlement had been made between Joshua and himself. Mr Kitchens, the elder, states, that he was in Mobile after the departure of Joshua for Havanna, when a report reached there, that he had died on the outward passage ; upon which occasion he liad a conversation with William, who told the witness that a settlement had been made between himself and his brother. William seemed pleased that he had settled with his brother; inasmuch (as he said) there could be no controversy between himself and Joshua’s children, should the rumour of their father’s death be true.

Mr. Lane testifies that in the latter part of 1824, he met with Win E. Kennedy, who told him, that he had come across the bay (to Mobile we suppose) to settle with Joshua — that he had effected a settlement with him; and that any of his lands he might desire, he could purchase of Joshua, whose title would be good.

De Large states that in the latter part of ’24 or early in ’25, he applied to William to purchase a piece of land, who told him he had sold all to J oshua, and had nothing to do with it, but would go with him to Joshua and ask him to sell witness, the land. They looked for, but could not find him.

It is difficult to reconcile the testimony of Kitchens, with the repeated declarations of William and Joshua, previously and subsequently made to other persons, upon any other supposition, than that a writing was executed declaring the terms on which the deed was made. But let it be conceded, that the declaration was made by William in the terms in which the witness has stated, and yet, it cannot be allowed to outweigh the statements, both of himself and Joshua often made as to the inducement.to and purposes to be effected by the deed of 1824.

In respect to Laue’s testimony, instead of opposing the idea of a secret trust for William’s children, it is entirely consistent with it. The testimony of the Dolive’s show a settlement by the conveyance to Joshua; and other witnesses show, that Joshua was in the habit of selling parts of the Price tracts, and that William recognized his right to sell — but for the benefit of the children doubtless. Now, as to the testimony of De Large, it can exert no influence against the declarations of Joshua, and other witnesses which serve to explain and direct its meaning. It is clear that William did not after December, ’24, undertake to soli any part of the land convoyed to Joshua. Such an act on his part would have been incompatible with the purposes of his deed. As to the expression that he, William had “ sold” to Joshua, if in itself entitled to any force, it is sufficiently shewn by the evidence of the Dolive’s and others, what was meant by it. But we should think, that at this distance of time, the witness would not undertake to say, that William in the' conversation referred to, did not use the term “ transfer” “ assign” or some other of equivalent import in common parlance.

It is further argued for the plaintiffs, that the deed of 1824, is sustained by the consideration expressed on its face; that in 1797, Wm. E. Kennedy was prosecuted, tried and acquitted in South Carolina, for the murder of Colonel Maxwell; that the expenses consequent upon that prosecution amounted to near ten thousand dollars, and were paid by Maxfield Kennedy his brother; and that upon a settlement at Mobile in 1820, between William and Maxfield, Joshua undertook to pay the latter,-between nine and tea thousand dollars (sixteen hundred of which has been paid.) In consideration of Joshua’s promise, William was to convey to him real estate in Mobile. These facts are all related in a deposition of Maxfield.

Waddy Thompson, sen’r. who (though it is not shewn by the record) has been a distinguished lawyer of South Carolina, states, that he was present at the Court, when Wm. E. Kennedy was tried for the murder of Col. Maxwell; and that the expenses of his defence could not have exceeded five hundred dollars, ¿hidfurther, that he knew Maxfield Kennedy, and that-he could not have paid either in cash, or with his credit the one-hundredth part of the sum that he says Joshua assumed for William.

Mr. Aikin had a conversation with Joshua Kennedy in 1836, in which the latter spoke of his advance to Maxfield, not as the payment of a debt, but as the witness understood, solicited by Maxfield and given by Joshua as a mere gratuity.

Several witnesses, who testify to Maxfield’s condition as to property at this time and many years back, represent him as never having had much, and for many years very poor.

We will not undertake to say, that Maxfield Kennedy’s testimony is not literally true ; but opposed as it is by other witnesses, whom it is prestunable are quite as free from bias as himself, it defies all credence.

' Can it be believed, that if Joshua had been the debtor of Maxfield, and the kind and affectionate brother, which Max-'field and others represent him to- have been,- that he would not long since have paid him to the uttermost farthing. Joshua was wealthy, while Maxfield, since his residence in this State (which perhaps exceeds twenty years,) has never, says a witness well acquainted with his situation, had more property at one time than would pay his debts — he was always straitened with a large family to support. If Joshua owed him nothing, an extended benevolence would have prompted him to do quite as much as he did.

In conversations of Joshua Kennedy, which are related by the different witnesses, he never intimated that he had purchased the Price tracts, or that they had been conveyed to him in consideration of his engagement to pay Maxfied a demand against Wm. E. , Kennedy. But he insists that he had obtained the grants for Price, and purchased them from him; and that William was made a mere depository of the title, because he was a Spanish subject. This pretension, instead of being sustained by evidence, we have seen is entirely disproved.

The idea that. Joshua Kennedy should have paid the consideration expressed in the deed, is incredible in the extreme. Wm. E. Kennedy was a man of frugal habits; cultivated a small farm, and was a' popular practitioner of medicine, especially among the native population ; he also received with his wife several slaves, an.d from her father’s executor at one time more than two thousand dollars. These sources of income, together with the large ■ amount of money he must have received from the sale of portions of his land, doubtless furnished him a competency for the support of his family.

So far from William being the debtor of Joshua, the reverse would rather seem to be true. Several deeds accompanying the record show, that Joshua between 18.18 and 1824, sold parts of the Price tracts, allotted on Matthews map to William, for considerations expressed in the deeds, amounting to more than five thousand dollars.

Without extending this argument, we think it may be said, that it has been sufficiently shewn, that Joshua paid no consideration for the deed of 1824, but received it upon a promise, that the land conveyed should be held or disposed of for the benefit of the heirs of Wm. E. Kennedy.

We here close the view, which we have felt it our duty to take of this very interesting and important cause, with some general remarks. As we are of opinion, that the facts establish a fraud in obtaining the deed of December, 1824, or in perverting it to a purpose in opposition to the agreement between the grantor and grantee, and that it should consequently be set aside; the doctriné of trusts, or rather'the manner in which they shall be declared need not be examined.

.The failure of the proof to show with exactness, the terms on which the conveyance was made 'and received, can interpose no objection to setting it aside, though it may render it impossible to execute entirely the intentions of the grantor. If the law were otherwise, the grantee and his heirs might have acquired an indefeasible estate, without having paid any equivalent therefor. The objection then, that the parol stipulation in regard to the property conveyed, does not appear, has no foundation in moral justice; the more especially, 'as it was entirely competent for the plaintiffs in ei;ror, to have shewn every term which they esteemed beneficial ■ to themselves.

Upon setting aside the deed, the rights of both parties must be protected. r If Joshua Kennedy expended money, in order to perfect a title to the Price grants or other part of the land conveyed, these expenditures so far as they were necessary or proper must be reimbursed with interest, together with a just compensation for his time, &c.

So if in the settlement of his guardianship accounts, his liberality in providing for the maintenance of his wards without charge, was not intended as a mere boon, but was induced in consideration of the deed of 1824; that deed being set aside, his executors will be allowed to exhibit a proper charge against the-defendants in error.

Though there is nothing in the record to cause us to doubt, that the deed in question was made upon a secret trust, for the benefit of the complainants, yet we desire in nothing we have said, to reflect upon the memory of Joshua Kennedy. It is an ignoble and disingenuous spirit which prompts one to speak unkindly even of the living, and it is much more reprehensible to indulge terms of harshness óf the dead. Joshua Kennedy in common with other men had his faults, and may have been the victim of temptation; but he has left behind him the remembrance of some noble traits of character; he was industrious, temperate, energetic, persevering and affectionate to his relatives. These are virtues which stand out in bold relief and cover a multitude of faults.

Without extending this opinion to greater length,'by a recapitulation of the points decided, we have only to say, that the decree of the Court of Chancery is affirmed.

After the delivery of the foregoing opinion, Geo. N. Stewart, one of the counsel for the plaintiffs in error, presented to the Court a petition for a rehearing; in support of which he cited the following authorities Gresley’s Eq. Ev. 401, 123 ; 3 Swanton’s Rep. 344; 1 Tamlyn’s Rep. 63 ; 2 Sim. & Stu. Rep. 301; 16 Ves. Rep. 156; 2 Bro. Ch. Rep. 345; 9 Ves. Rep. 168; 2 Ves. Rep. 486 ; 1 Merivaile’s Rep. 308; 3 Bro. Ch. Rep. 228; 1 Eden’s Ch. Rep. 256; 1 Bro. Par. cases 140; ibid 134; ibid 426; 6 ibid 364; 1 Ball. & B. Rep. 548; 2 ibid 387; 3 Merivaile’s Rep. 466; 4 Ves. Rep. 769 ; 6 Ves. Rep. 671; 13 ibid 95; 1 Russell’s Rep. 301; 2 Paige’s Rep. 482 ; 1 Hopkin’s Rep. 436 ; 2 Munford’s Rep .412 ; 4 ibid 450 ; Gilmer’s Rep. 211; 1 Rand. Rep. 249; 2 ibid 109 ; 2 Brock. Rep. 256 ; 1 ibid 266; 1 Dana’s Rep. 93; 4 Call’s Rep. 416; 6 Munford Rep. 245, 385, 459, 464; 6 H. & Johns. Rep. 24 ; 1 Bro. Ch. Rep. 92; 1 Porter’s Rep. 349 ; 1 Gall. Rep. 170; 5 Johns. Ch. Rep. 1; 5 Ohio Rep. 255 ; 2 Ves. Rep. 196 ; 6 Ves. Rep. 327, 333, 4; 1 Ves, Rep. 317 ; 1 Bro. Ch. Rep. 341; 1 Johns. Ch. Rep. 252; 4 Rand. Rep. 54; 11 Vermont Rep. 138; Gresley’s Eq. Ev. 205; 1 Johns. Ch. Rep. 598; 2 ibid 412; 6 ibid 19 ; 10 Ves. Rep. 517; 6 Wend. Rep. 277; Aik. Dig. 2 proviso to 11 sec. p. 287; 2 Stewart’s Rep. 214 ; 8 Dana’s Rep. 212; 7 Gill & Johns. Rep. 193; 9 ibid 97; 6 Johns Rep. 222 ; 5 Cow. Rep. 714; 4 Munford’s Rep. 450; 2 Rand. Rep. 109; Pamp. Acts of 1840, p. 46; 2 Fonblanque’s Eq 720 ; 2 Ball. & B. Rep. 444 ; 1 P. Wm. Rep. 734 ; ibid 504; 2 ibid 403, note; 2 Atk. Rep. 487, 532 ; 2 S. & P. Rep. 427.