Jones v. Slubey , 5 H. & J. 372 ( 1822 )

Buchanan, J.

delivered the opinion of the court. We can perceive nothing amiss in the chancellor’s decree.

The exhibit A, the instrument of writing upon which the suit at law was instituted, is an acknowledgment on the 12th of May 1809, under the hands and seals of the defendant Nicholas S. Jones, andDavid Jones, (who were partners in trade,) at the foot of an account current between them and the complainant, from the 19th of February 1806, of abalance due' on that account to the complainant'of 810,896 73, with a premise to pay the amount; and according to the account ifsdf it appears, that' on the 25th of April 1808, they were indebted to him upwards of 88,000. ' By the exhibits Cand B J,"which áre accounts rendered by Nicholas S. Jones and Bavid Jones themselves, purporting to be accounts current between them and the c omplainant for the years 1806 and 1807, there’appears to nave been a balance due to the complainant, on the 27th of January 1808, of nearly 85,000; and Nicholas S. Jones, in his answer, admits, thiat at the time of executing the acknowledgment at the foot of the complainant’s account, there was a balance due to him, of 84821 39. So that, whether the amount actually due was equal to the sum claimed by the complainant, and acknowledged by the defendant Nicholas S. Jones, and David Jones, or not, it is manifest that a hirge amount was due. The bill alleges', that the deed to Mary Drown of the 14th of May 1808, was made to evade the payment of the complainant’s cj^bt, or in secret trust for the' use of Nicholas S. Jones; and seeks a disclosure in relation to that deed only, for the purpose of setting it aside, and subjecting the real estate therein mentioned, to be sold to satisfy the judgment obtained by the complainant against Nicholas S. Jone.s,. on the acknowledgment by him and. JÚayid Jones.

The answers, therefore, of Nicholas S. Jones and Mary, Drown, are responsive to the bill-, only so far as they relate to that deed, and so far only can they be received as evidence in the cause, and not as they respect the alleged object of the deed of the 302/i of Jlyril 1807) from Nicholas 'S. Jones, and wife, to 'David Jones, and from David Jones back to Nicholas S. Jones. With that [restriction, grant to them all th.e effect and operation of an uncontradicted answsr, and also, that the matter disclosed is properly the subject of parol evidence, and they only prove, that the deed to Mary Brown was without any valuable consideration, and purely voluntary, in secret trust for the use of the wife of Nicholas S. Jones, and the children of that marriage, which Is clearly fraudulent in law, and void'as to the complainant, who was a creditor to a large amount before and at the time the deed was executed, and has done every thing at law necessary to eiititle him to the aid of a court of equity.

It is not necessary,- as has been supposed, to show that Nicholas S, Jones was in debt to the extent of insolvency, at the time of making the deed to Mary Brown, to enable the complainant to defeat that deed. But it is enough that he was largely indebted to the complainant; and it no where appears that he had at the time any other property than what is contained in that deed. I^it if it should be admitted, that the whole of the answers, as well in relation to'the alleged object oí the deed from Nicholas S. Jones and wife, to David Jones, and from David Jones back to, Nicholas S. Jones, as to the deed to Mary Brown, ought to be considered as responsive to the bill? yet, though uncontradicted, they could not be taken to establish any thing in bar of the relief prayed, which parol testimony would not be admitted to, prove; for it is as evidence only, that they could be received. And as„no parol evidence of declarations or intentions, could be admitted to raise a trust, in,consistent, or at variance with the expressed intention of a deed, where the facts and circumstances would not, of themselves, by implication or construction, of law, be sufficient, on the ground of its contradicting the instrument —so neither cap a trust be set up, for the use or benefit of $ third person, to defeat a complainant’s equity, by an an? $wer alleging declarations or intentions at variance with the expressed intention of a deed.

Therefore, as the facts and circumstances disclosed in this case; that is, that the estate was originally derived to the wife of Nicholas S. Jones, from her father, in fee tail, that she united with her husband in making an absolute deed in fee to David Jones,, that he reconveyed it, by an. absolute deed, in fee to Nicholas S. Jones, and that Nichodas S. Jones, more than twelve month? afterwards, conveyed it to Mary Brown by an absolute deed in fee, are not of thcmselve? sufficient, by implication of law, to raise a trust for the use of his, wife, and her children, by her marriage. with him, in the real estate so conveyed to Mary Brown; the answers alleging the several deeds to havq been made with that intention, cannot be taken to raise such a trust, against the expressed provisions and intentions of the deeds themselves, and in that way, to' sustain the deed to Mary Brown, (which otherwise the l.aw would deem fraudulent,) for the purpose of defeating the object of the 4KÚ11. It is not, as has been contended in argument, like the "ase of a post-nuptial settlement, by a husband on his wife or children, for a consideration moving from the. wife, where the use is expressed in the deed of settlement, and not left to be raised by parol evidence.

If the deed to Mary Mt-own had been executed on, the same day with that to David Jones, by Nicholas J. Jones and wife,' and was expressed to be in trust for the use of his wife, there might 1# a foundation for presuming, that the deed to David Jones, by which the estate tail in her Was destroyed, was the consideration for which it was'.tnade. But it is absolute to Mary Brown, and was executed more than a year after the date of the deed to David Jones-, and there is nothing to show that a settlement on the wife of children of Nicholas S. Jones, was contemplated by any of the parties, at the time of making either of the deeds, except the allegations in the answers, by which such an: intention is attempted to be set up.

Nor can it be assimilated, as has been attempted in argument, to the case of a bill for the specific performance of a parol agreement; where if the defendant admits the agreefiient, without insisting on the statute of frauds, performance will be decreed. There, there is no contradiction of -a deed, the admission is beneficial to the complainant, and against the interest of the defendant, who by not insisting bn the benefit of the statute, is taken to have renounced it. And it is on the ground of his having waived the benefit of the statute, (which is with himself,) that performance will be decreed; for if in that case the defendant admits the agreement, but insists upon the statute, there can be no decree. But in this case, the complainant has not waived the rule of evidence, that parol testimony cannot be received to contradict a deed. And no parol evidence of declarations or intentions could be admitted, to raise the trust attempted to be set up by the answers.

This also furnishes a sufficient answer to the suggestion, that the children of Mrs. Jones should have been made parties to the proceedings, as no interest is shown in them to be affected by any decree that can be given; and it cannot be permitted to a defendant to delay the bringing of a suit to issue, by merely alleging an interest in a third person.

As to the objection, that the judgment obtained at law by the complainant is for more than is actually due, and that the chancellor ought to have made the proper allowance, &c. it will be seen, on reference to the record, that by the decree, the proceeds of the sale of the property are directed to be brought into the court of chancery, to be applied under the directions of the chancellor; aiid the chancellor, in his opinion says, that the amount due will be a subject for the report of the auditor, when all credits to which the defendant, Nicholas S. Jones, may be entitled, will be allowed .him.

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