Mulford v. Runk , 8 N.J. Eq. 188 ( 1849 )

The Chancello».

The agreement charged in the bill is not sufficiently established to justify a decree for specific performance. The answer denies it, and there is no substantive proof of it. There is some evidence that the defendants have stated that the agreement was as the bill alleges ; but evidence of these statements only goes to impeach the denial of the answer ; it does not amount to substantive evidence of the existence of the agreement.

From the nature of the arrangement it was necessary to put matters in such' condition that, as between Wm. Todd and those whose claims he resisted, the property purchased by Runk and Tenyck should be or appear to be really and bona fide their property. The idea that the property, notwithstanding the Sheriff’s sale, should, as between Wm. Todd and Runk and Tenyck, be the property of Wm. Todd, was an idea which the very object of the arrangement required should be kept secret, that is, confined to the parties to the arrangement. This, and the confidence which would naturally be reposed by Wm. Todd in his sons-in-law, is very persuasive that no written agreement binding Runk and Tenyck to hold the property in trust for Todd was ever entered into. And there is no proof of any such agreement having been reduced to writing.

Again, the alleged agreement and arrangement are not such as commend themselves to favorable consideration. There is no-ground on which the Court can relieve from a breach of confidence reposed for such a purpose. Every consideration of policy forbids relief.

Another view was presented, though not very strongly; it is, that, from, the age of Wm. Todd and some bodily infirmity alluded to, he was not competent to transact business; and that the case might be put on the ground that the arrangement was fraudulently procured by Runk and Tenyck from one who was incompetent to understand the nature and object of it. I see no evidence of such incompetcncy.

Decree for defendants.