
    Whitehorn and Wife and Others, Heirs and Executors of John Clanton, v. Hines and Others, Administrators and Heirs of William Howell.
    Wednesday, May 16, 1810.
    i. Deed — Setting Aside — Grantor of Weak Understanding. — Under what circumstances, a deed obtained from a man of weak understanding (though not an idiot or lunatic) may be set aside in equity.
    3. Chancery Practice — Fraud Presumed from What.— Fraud it seems, may be presumed in equity from strong circumstances; such as gross inadequacy of consideration, breach of trust and confidence, undue influence exerted (especially over a young and weak person by a near relation), over diligénce and assiduity in guarding against objections, and the like.
    3. Hire of Slaves — Interest.—Interest on the hire of slaves disallowed as in Dilliard v. Tomlinson, &c. ante, p. 183.
    4. Fraud — Effect on Bona Fide Purchaser — It seems, that a bona fide purchaser, without notice of fraud, having received a deed from two persons, (one of whom fraudulently induced the other to join therein,) is not responsible in equity; but the loss ought to fall on the fraudulent vendor.  But quaere, if the estate of the fraudulent vendor he not sufficient to make good the loss?
    5. Same-Same. — In snch case, the circumstance that the person defrauded was of weak understanding, hut not an idiot or lunatic, is not sufficient to affect the right of the bona Me purchaser.
    William Hines and John Millison, administrators of William Howell, deceased, and the said John Millison, and Mary his wife, (which Mary is heir at law of the said William Howell,) brought a suit in Chancery, in the County Court of Sussex, for the purpose of setting aside a deed which the said decedent in his life-time had executed to his cousin John Clanton.
    The bill (which was filed in July, 1800) set forth “that, from the time of his birth to the day of his death, the said William Howell laboured under a lamentable and invincible weakness of understanding and intellect, which rendered himself absolutely incompetent to regulate his own affairs, and classed him with propriety among those who are called idiots; that this was universally known and assented to by all who knew him;” that he inherited from his father a tract of land, containing 264 acres, and ten slaves, whose names are mentioned ; that, soon after he arrived at the age of twenty-one years, his cousin John Clanton, to whom his situation had been long and perfectly known, induced him (although the plaintiff Mary, his sister, was then living) to execute a deed to the said John for the land and slaves aforesaid, as his absolute property and estate, for the incompetent consideration of the said John’s finding and providing for the said William 558 ^sufficient and plentiful meat, drink, washing, lodging and clothing, in a comfortable and plentiful manner during his the said William Howell’s life, or his remaining a batchelor; that, after this deed had been thus fraudulently obtained, from an unfortunate and wretched being who was ignorant of its operation, the said John Clanton, having had the same (after several ineffectual attempts) proved and recorded, treated the said Vi illiam Howell, during the remainder of his life, not like a kinsman, and a man from whom he had obtained a handsome estate, but as a vagabond, an outcast, and a slave; his food was of the coarsest kind; his garments were mean, tattered, and filthy; his person was miserably neglected; and himself consigned to the society and conversation of the negroes on the land. In order to manifest more plainly the palpable and infamous fraud practised on this occasion by the said John Clanton, the plaintiffs aver that the deed abovementioned, when offered, at first, and several times afterwards, to the Court for probate, was rejected by the said Court, and not permitted to be recorded, from their individual knowledge of the facts above stated, although no person whatsoever appeared to oppose it.”
    The bill farther stated, “that John Clan-ton, in his life-time, sold the tract of land above mentioned to Isaac Sever and Micajah Hines, and their heirs, whose title to-the same«cannot be good or effectual, because the title of him under whom they claim is founded on a fraud, and the derivative cannot be superior to the original title; that Clanton departed this life, (after the death of Howell,) to wit, in the month of August, 1790, after having made his last will and testament, in which he bequeaths all his negroes (and those above mentioned of course) to his wife Sally Clanton, during her life, or widowhood, and at her death, or marriage, to be equally divided among his children; that the plaintiff Mary, “who is also a person of weak mind, (and on whom, on that account, divers tampering experiments were made by the said John Clanton with a hope to perfect and establish his said iniquitous title,) has for many years past resided in tne state of North Carolina ; and that no administration has been taken of the said William Howell’s estate until ver3r lately; which is the reason why this odious transaction has not been sooner exposed to the view and indignation of the world.”
    The prayer of the bill was, that Edward Whitehorn and Sally *his wife, (late the widow of the said John Clanton,) Drury Clanton and others, his infant children, James C. Bailey and Benjamin Wyche, executors of Michael Bailey, who had been his surviving executor, (after the death of Burwell Eoften, who had also qualified,) and the said Isaac Sever and Micajah Hines, purchasers of the land as aforesaid, should be held, as defendants to answer the same; that the aforesaid “fraudulent” deed should be declared and rendered null to all intents and purposes; that the slaves, and their increase, should be restored, and their reasonable hire, from the date of the said deed, paid to the plaintiffs, administrators of William Howell; that the land should be delivered up to the plaintiffs, Millison and wife, as her absolute estate in fee-simple; that Clanton’s, representatives should account for and pay to them the reasonable rents and profits of the said land, from the date of the said deed, until the same was conveyed to the said Sever and Hines respectively; and that Sever and Hines should account and pay, in like manner, from the dates of their respective conveyances until the decision of this suit; concluding with a prayer for general relief.
    The deed (exhibited with the bill) is dated the 9th of October, 1783, and recorded the-18th of March, 1784; being for, and in consideration of the love and affection which he (the said William Howell) hath and doth bear unto his cousin John Clanton, and for his said John Clanton’s finding and providing for him, from time to time, and at all times hereafter, sufficient and plentiful meat, drink, washing, lodging and clothing in a comfortable and plentiful manner, during his the said William Howell’s life, or his the said William Howell’s remaining a batchelor; as well as for the farther consideration of the sum of five pounds current money.” The land and slaves were conveyed to the only proper use and behoof of him the said John Clanton, his heirs and assigns for ever: provided nevertheless, that, in case the said William Howell shall hereafter intermarry, that the said estate, as well land as slaves, with the increase of the said slaves, (if any,) shall revert unto the said William Howell and his wife during their joint or several lives; and that, in case the said William Howell shall have lawful issue, that the said estate above mentioned, and every part thereof, shall be subject to the disposal of the said William Howell, by deed or will, to and amongst his child or children as aforesaid, or, in case of ■560 his failing to make *such distribution, shall pass, go, and descend agreeable to the act of Assembly in case of his dying intestate; but, in case of said marriage, and the said William Howell and wife dying and leaving no lawful issue of their body, then the property of the said estate, both land and slaves, with the increase of the said slaves, to revert to the said John Clanton, his heirs and assigns for ever. ’ ’
    The joint and several answers of Benjamin Wyche and James C. Bailey stated, that Michael Bailey, their testator, 1 ‘had, previous to his death, fully closed and returned to the Court his executorial accounts; and that they were entirely ignorant of any fraud or iniquity.”
    The separate answer of Micajah Hines alleged, “that he was personally acquainted with the said William Howell, deceased, and, from his own knowledge, conceived him to be a man of weak mind and intellect, but not in so much as to render him incapable of conducting his own affairs, or to class him with propriety and lawfully amongst those called idiots: that the said William Howell, (jointly and first named in the conveyance made to this defendant,) with John Clanton, appeared in Court, and acknowledged the deed, with the said Clan-ton, on the 19th of October, 1786: that as to any fraud or injustice committed by the said Clanton on the said Howell, in obtaining the deed of conveyance for the said Howell’s land and negroes to the said Clan-ton, this defendant cannot conceive that there was any;” that he never heard of the deed’s being offered for probate and rejected by the Court, until very lately: that the deed appears to have been written by Col. David Mason, now deceased, and attested and proved as a witness, by him, “who, at that time, was supposed to be a very good judge of law: this defendant cannot therefore suppose that the said Mason conceived the said Howell to come within the description of an idiot, or he would not have proven a deed, wherebj' himself and his heirs were devested of a handsome estate.” ■
    Isaac Sever, in his separate answer, says, “that he was not acquainted with William Howell, deceased; but, from what he has understood by others, he does not conceive that the said Howell could with propriety be classed amongst those whom the law deems idiots: that the said William Howell and John Clanton, jointly, sold the tract of land which this deifendant at present holds to a certain William Milner, by deed recorded the 19th October, 1786; and from said Milner it was sold to a certain Henry 561 Catón, and *by said Caton’s administrator, at public sale, to this defendant, by deed recorded February 3, 1791: that, as to any fraud or iniquity practised by the said Clanton towards the said Howell in obtaining the deed or conveyance aforesaid, the same to this defendant is entirely unknown; but the said deed appears to be very artfully and subtilly drawn, on the part of the said Howell, in reserving to himself and heirs the right and title to the said estate on his marriage and having lawful issue.”
    The children of John Clanton, by their guardians respectively, say, in a joint answer, that they are not acquainted with the transactions mentioned in the bill, but call upon the plaintiffs for proof thereof. Edward Whitehorn also answered to the same effect; but farther relied, for his protection, on a bond bearing date the 20th of February, 1783, executed by Mary Howell, the feme complainant, to William Howell, the decedent, who went himself to North Carolina, for the express purpose of making a settlement with her, according to his mother’s will.”
    The defendant Sarah Whitehorn saith, that the complainants are very much mistaken in the representation which they have made. The said William Howell was about 19 or 20 years of age at the time of his mother’s death; and this defendant avers, that, for several years before his mother’s death, the said William had been afflicted with sores and ulcers which some time covered a great part of his body: that he continued in this situation, or worse, until he died, which was about the year 1789; that, when the ulcers dried, as they occasionally did, the bodily pains and afflictions of the said William seemed to increase. The defendant believes that the ulcers rose inwardly, because there were frequent discharges of matter from his mouth and nose. These circumstances will account, at once, for the unsightly appearance of the said William, and the society in which he might sometimes be seen. The defendant farther saith, that the said William was afflicted in this way at the time when he came to live with her deceased husband John Clanton; that, when at home, he always dined with the family when he pleased, and Was lodged as comfortably as his diseased condition would admit; that he was not an idiot as the complainants suppose: it is true that, from continued and excessive affliction, his mind was impaired ; but he generally had understanding enough, not only to preserve his person from mischief, 562 *but to converse rationally and sociably, and to guard agaihst any deception or advantage which others might be disposed to take of him. She farther saith, that the said William proposed to the said John to make such a conveyance as is contained in the deed hereto annexed, several times before it was actually executed; and this deed, as well as that which the complainants allude to as having been rejected when offered for record, are attested by Mr. David Mason. That which is dated on the 1st day of October, 1783, was not recorded ; because, as she has been told, it was thought to be informal; and not because there was any suspicion of advantage. This defendant farther saith, that the bargain made by the said William was, in her estimation, a proper one; because the confinement to which his disease often condemned him would have made it inconvenient, if not impracticable, for him to manage his estate.”
    The bond of Mary Howell (now Mary Millison) to her brother William Howell, (exhibited with these answers,) was dated the 20th of February, 1783, in the penalty of two thousand pounds specie dollars at six shillings each; conditioned, that •‘whereas the above-named William Howell having, at the date of these presents, made unto the above bound Mary Howell, her heirs and assigns, a good and lawful right unto three negroes, to wit, a wench named Annekey, and her two children Biddy and Tabby, and their increase; now if the said Mary Howell, her heirs, executors, or administrators shall ever claim, demand, sue for and recover, any part of the aforesaid William Howell’s estate, should he die without issue lawfully begotten, then the above obligation shall be in force, otherwise void and of no effect.”
    her
    (Signed) “Mary [x¡ Howell,”
    mark;
    and attested by three witnesses, namely,
    1 ‘James Nicholson, her
    “Winne M Woodroof, mark,
    “and Urbane Nicholson.”
    The will of Hannah Howell (also exhibited) bequeathed to her son William five shillings; and, after payment of her just debts, gave the remaining part of her 563 estate, of . every kind and *quality, unto her daughter Mary, to her and her heirs for ever, “but it washer will and desire that if her son William, when he should arrive to lawful age, should give and convey unto his said sister Mary two negroes, to her and her heirs for ever, then the estate devised to the said Mary be equally divided between the said William and Mary Howell.”
    By articles of agreement dated the 1st of October, 1783, between William Howell and John Clanton, the said Howell “agreed to let the said Clanton have the use of ten slaves (the same mentioned in the subsequent deed aforesaid, dated the 9th of the same month) during the said Howell’s life, as also all his lands, stocks of all kinds, household and kitchen furniture, upon the said Clanton’s finding the said William Howell a sufficient quantity'' of decent clothing, meat, drink, mending and board, with every other necessary for his subsistence, or till the said William Howell lawfully marries, or has issued lawfully begotten of his body, and when the said Howell shall lawfully marry, or have issue, then the said Howell and Clanton shall both be released from this their agreement: and should the said Howell die without lawfully marrying, and having lawful issue of his body, then the said William Howell doth give and bequeath, of his own free will and accord, all his estate, both personal and real, to the said John Clanton, to him, his heirs or assigns for ever: and should the said William Howell marry and have lawful issue, then the said William Howell doth bind himself, his heirs of assigns, to make the said Clan-ton sufficient satisfaction for all his trouble and expense that he the said Clanton has been, or may be at, in finding both himself and negroes a good sufficient maintenance, as also for raising and taking good care of his young negroes; and should the said Howell’s lawful issue die before he marries, then the said William Howell devises and agrees that the whole of his estate should return unto the said John Clanton, to him, his heirs or assigns for ever. ’’ This instrument of writing (which it seems the Court refused to admit to record) was “signed, sealed and delivered” before three witnesses, namely, Gray Judkins, Robert Jones, and Nathaniel Parham, and after-wards, on the same day, “acknowledged” before “Mary Mason, John Mason, 564 and David Mason.” *The subsequent deed (of the 9th of the same month) was attested by
    “John Hawthorn, his
    “Richard ¡x¡ Bailey, mark, his
    “Thomas .¡xj Bailey, mark,
    “and David Mason.”
    The depositions (amounting in number to thirty-three) generally proved, that, in the opinion of the witnesses, (many of whom were intimately acquainted with him, and knew him from his childhood,) William Howell, though not an idiot, was a person of uncommonly weak understanding, and totally incapable of conducting his own affairs with propriety. This opinion was declared by John Massenburg and Cyril Avery, (members of the Court, who rejected the deed, on that ground, when offered to be recorded,) John Chappell, sen. John Chappell, jun. Bevi Rochell, Joseph Rosser, Drury Cooper, Marcus Pennington, Thomas James, Burwell Gilliam, John Key, Frederick Pennington, William Massenburg and Hinchia Rochell. Drury Cooper gave, as an instance of his insanity, that he once saw him endeavour to swallow money, though he did not accomplish it. Other evidence, as to particular facts, tending to shew infirmity of intellect, consisted cf hearsay only; but the opinions of most of the witnesses above mentioned were expressed as founded on their own knowledge ot Howell, and all in a very positive manner: some also mentioned the general opinion as agreeing with their own.
    Robert Jones, sen. (one of the witnesses to the articles of agreement) deposed, that (after reflection) he refused to prove that instrument, and asked Clanton what was its intention? “Clanton answered, it was well known that Howell was not capable of taking care of his estate: this deponent replied the same reason held good, with him, that he was not capable of conveying it; after which this deponent heard the said Clanton had got another deed from the said Howell, (something different from the former, and had got it recorded.”
    Barham Moore was well acquainted with Howell, who lived with John Clanton, at the time he executed a deed to the said Clanton for his estate, and had lived 565 there for some considerable *time before. The deponent “believes the said Clanton had great influence over the said Howell, in his personal conduct, so as to have done almost any thing that the said Clanton requested him to do; and he further says, that he never thought the said Howell to have common sense so as to be allowed to transact his own affairs.”
    Hinchia Rochell’s deposition was nearly to the same effect with this.
    Mary Mason swore that, “on the day the deed of conveyance from Howell to Clanton was written, she asked said Howell if he had neither brother or sister that he had rather give his estate to than a more distant relation; who told her he had a sister who had had her part of the estate, and that he had rather his cousin John Clanton should have his estate than any other person in the world; that said Clanton was to maintain him for it. The deponent then asked said Howell what would be his situation if he was to marry and have children ; who told her, in that case, the estate was to be returned to him.” On being asked whether she believed him to be a man of sound understanding, she said she was not sufficiently acquainted with him to form an opinion.
    Person Williamson deposed, that he thought Howell was a man of sound'understanding, though not as capable of conducting a family as some men, and did not know whether he was as capable as common men. He farther stated that, at the Court when the deed was recorded, three persons who were acting magistrates of the County of Sussex, viz. David Mason, (who wrote it,) George Rives, and George Booth, or Nathaniel Dunn, were called on, at the instance of Howell and Clanton, (but, as the witness was inclined to think, not by order of the Court,) to inquire into the state of the said Howell’s mind; that those persons met at the house of David Mason to make the inquiry, and ‘ ‘were of opinion that the said Howell was capable of conveying his estate.”
    Holt Clanton swore, “that he lived in the family of John Clanton, where the said Howell lived, for a considerable time, and that the said William Howell said it was his wish and desire that, if he died without lawful heir, his cousin John Clanton should have his estate, and, for the time he the said Holt Clanton lived in the family, he thinks there was no reason for any complaint from the said Howell, against said Clanton, for bad treatment; that the said Howell lived as one of the family, and, as to 566 *the cheating him out of his land or slaves, it is not his opinion it could be fairly done from any trial that ever he made, or was acquainted with. He farther saith, that he believes that there was few persons that would have taken the trouble ot Howell for the expectations of the profit that was specified in the articles of the deed of gift.”
    Nathaniel Clanton’s deposition was (so far) the same, word for word, with that of Holt Clanton. They both, however, expressed a belief that Howell’s understanding was inferior to that of common men. Holt Clanton also said that he was subject to bodily infirmities which rendered him troublesome. William Clanton deposed that he had sore legs, or a sore mouth; that,, when his legs got well, his mouth would breakout; and that this indisposition did1 not confine, but rendered him disagreeable. As to this point, the deposition of Hetty Northcross stated, “that he had very sore legs, hands and mouth, which rendered him disagreeable and indecent;” and that of Betty Bailey, “that he was much afflicted with sore legs, ulcers, and the like, which rendered him incapable of seeing to his business, or appearing in a decent manner.”
    On the subject of Howell’s treatment by Clanton, the general result of the testimony seems to be that, before the deed was recorded, and while he stayed at Clanton’s house, he was treated well, but was after-wards removed or compelled to reside at the plantation originally his own, where he was allowanced in food, and that very scantily, badly clothed, and greatly neglected, as was fully proved by the depositions of Barham Moore, Patsy Hutchins, Drury Cooper, Burwell Gilliam, John Key, and Robert Jones, sen. The last-mentioned witness said, that Howell came to him and complained that Clanton did not use him well, and “made the deponent large offers if he would get his estate from the said Clanton for him.”
    As to the bond from Mary Howell to William ; the deposition of John Paulcon, of Warren Countj', North Carolina, proved that that bond was written bjr him, at the request of William Howell and James Nicholson ; but he was not present when it was executed. Urbane Nicholson was one of the subscribing witnesses; but does not recollect any of the circumstances. Mary Nicholson, his wife, was present when it was executed, at James Nicholson’s, in Warren County. Being asked by the 567 *comp1ainant William Hines, whether she thought William Howell to be a man of such sound mind and memory as to be capable of transacting his own business, or conveying his estate in any legal manner, or knowing the value of it, she answered, “from the acquaintance I had with him I do not think he was.” James Nicholson swore, “that Mary Howell lived with him at the time she gave her bond to her brother William; that it was executed in his presence, at the solicitation of William Howell, as an indemnification to the said William Howell, for the delivery of three negroes mentioned therein, in lieu of her proportion of her father’s and mother’s estate, and his own estate; that the said William Howell refused to make a deed to the said Mary for the said negroes, unless she would give him the said bond; that William Howell went to North Carolina to have the said bond executed; and the deponent had no doubt but what he was capable of conveying his estate.” Levi Rochell deposed, “that he was well acquainted with Mary Howell; that she was a very weak woman, and might easily be imposed on.”
    The cause came on to be heard the 4th of February, 1803, when the County Court ‘ ‘being of opinion that William Howell, deceased, the brother of the complainant Mary, was, throughout his life, a person of weak mind, unable to manage his own estate, and easily to be imposed upon, and that the indenture executed by him to John Clan-ton, now deceased, was executed for an inadequate consideration, in consequence of the undue influence which the said John Clanton had over the said William Howell, and of fraud and imposition practised by the former on the latter; being of opinion also, that the bond of release obtained from the complainant Mary Howell, an illiterate person, ignorant of its full import, by the over diligence and assiduity which it manifests, is an additional badge of fraud;” therefore decreed, “that the negroes mentioned in the said deed, with the increase of the females to the present day, be delivered to the complainants, and that the defendants deliver to them the original deed from the said William Howell to the said John Cianton to be cancelled ;” that certain “Commissioners do make up and state an account to the Court of the reasonable hire of the slaves mentioned in the said deed, from the death of the said William Howell to the time of their report; deducting therefrom such sum as to them may seem reasonable for raising and supporting 568 *the young and chargeable negroes; and also do report the sum for which the lands in the said deed mentioned were sold by the said John Clanton to Micajah Hines and Isaac Sever, together with the interest thereon from the death of the said William Howell until the time of such their report; and the Court dismissed the bill as to the defendants Micajah Hines, and Isaac Sever; they appearing to be fair purchasers without notice of the fraud above stated.” The Commissioners reported the sales of the two tracts of land, with the interest thereupon, and the hire of the slaves, with interest on that hire; amounting in all to 7721. 17s. lid. 1-2 after making a reasonable deduction for the support of the young and chargeable negroes; and, in their report, stated that, by the approbation of William Hines, one of the complainants, and of Sally Whitehorn, and Nathaniel Chambliss, who acted as special guardian to the infant defendants, the said sum of 7721. 17s. lid. 1-2 was reported as the balance in favour of the complainants. “The defendants having made no exception to this report, but approving the same, the same was therefore confirmed and ratified;” and the final decree was, for the slaves, against the defendants in whose possession they were, and for the above balance of 7721. 17s. lid. 1-2 against the defendants, executors of John Clanton, deceased, to be paid out of his assets in their hands to be administered.
    Upon an appeal to the Superior Court of Chancery for the Williamsburg District, that Court, on the 26th day of July, 1805, was of “opinion, that the weakness of intellect in the said William Howell; the inadequate consideration in the deed from him to the said John Clanton; the kind of provision, or revocation, (if it can be so called,) contained in that deed; the undue influence the said John Clanton obtained over the said William Howell, his you ng and weak relation; the violation of trust and confidence in the said John Clanton, and the strong presumption of fraud and imposition arising out of the examination of witnesses, together with those presumptions, still stronger, incorporated in the transaction itself, furnish abundant reason for the decree of the County Court; and, therefore, there is no e.rror in the said decree. This Court would have directed an adequate allowance to have been made for the clothing and maintenance of the said William Howell, but that the Court 569 discerneth, by the report of *the Commissioners, that no charge for the hire of slaves, or interest of the money arising from the sale of the land in the proceedings mentioned is made, until after the death of the said William Howell, which hires and interest must have been intended for that allowance, and which this Court considers as a very ample allowance. And, with which report the appellees appearing to be satisfied, this Court is content to approve. Therefore, it was decreed and ordered, that the decree aforesaid be affirmed ; and that the appellants, executors of the said John Clanton, out of his estate in their hands to be administered, pay, unto the appellees, damages according to law for retarding the execution thereof, and their costs by them about their defence in this behalf expended.”
    From this decree an appeal was taken to this Court.
    1-Iay, for the appellants,
    observed, that the testimony as to the treatment of Howell by Clanton (relating to circumstances subsequent to the contract) was foreign to the cause, and introduced merely to excite prejudice. The influence said to have been exerted by Clanton over Howell is not charged in the bill; neither is any fraud alleged, except that of obtaining the deed from an idiot. The plaintiff therefore is precluded from introducing evidence as to fraud or influence; for, both in law and equity, the allegata and probata ought to agree,  The question then is, whether Howell was an idiot? And I contend that, according to the legal definition, he was not.  Following facts, and not opinions, (for opinions of witnesses, I contend, are no evidence,) there is not a tittle of proof of idiocy. And, even as to opinions, not a single witness says that he thinks him an idiot. The testimony, such as it is, only goes to weakness of understanding.
    2. But if proof of weakness of understanding (falling short of idiocy) could be received in support of this bill, there is no legal evidence even of this; the whole consisting of opinions only, except in one solitary instance. The single fact of Howell’s attempting to swallow money is not conclusive; and, indeed, is entitled to no weight, unless all the circumstances were stated, to shew how much was serious, and how much frolic. Opinions are not evidence where facts cán be obtained; according to the maxim, that the best evidence the nature of each case admits shall always be required; for facts are better evidence than opinions. This Court ought to exert its ' own opinions; not depend on the 570 ^'opinions of others. Besides, here are conflicting opinions, and how can the Court decide, without the facts on which the opinions on both sides were formed?
    
    In an action of assumpsit on an account, would an opinion that the money was due, be admissible? Certainly not. Even in the case of proving hand-writing, mere opinion is not evidence; but a witness who has seen the person write must be produced. Opinion is admissible only where matters of fact are not within our reach; as, in the case of a man’s being wounded and dying, the opinion of physicians may be taken as to the question whether his death was occasioned by the wound: but if they differ in opinion, their evidence has no weight.* I admit it to be extremely difficult to tell exactly, in all cases, where fact ends and opinion begins; but the present case is very plainly one of opinion only: the total omission of facts shews that facts did not exist. Indeed, in the case of attacking the character of a witness, opinion only (as to his general reputation) is admissible, and not facts; and this for very good reasons; because the person whose character is attacked, is not prepared to rebut such facts. But in all other cases the rule is inflexible that facts are to be preferred to opinions.
    3. Weakness of intellect, even if fully proved, is not sufficient to vitiate the contract. The witnesses say that Howell was incapable of managing his estate: but many men are subject to this incapacity ; and yet the validity of their contracts is never questioned, 
    
    4. But Howell’s competency to contract is admitted by the plaintiffs in the cause. Mary Howell, the plaintiff beneficially entitled, executed a bond to him as a person competent; and that bond is a bar to her maintaining this suit.
    5. The contract is said to be unequal. But inadequacy of price is not charged in the bill as a ground of relief. Neither will the Court set aside a contract on the ground of inadequacy only,  This contract might have been a good, or a bad one, on the part of Clanton. ■ The value of the consid571 eration must depend upon the feelings of the parties. . Eew would have had such a member in their family for the whole County of Sussex. The land was not only poor, having been sold for 1401. though the quantity was 264 acres, but the negroes were young, and an expense. A contract, too, is never set aside for inadequacy, where, by its terms, the property might be regained by the vendor. Besides, inadequacy of price is only regarded in contracts; and this deed is partly a gift in consideration of affection, and partly a contract. 2 Bl. Com. 297.
    6. The decree was erroneous in allowing interest on the hire of slaves, 
    
    George K. Taylor, for the appellees.
    Mr. Hay’s first point, that the bill charges idiocy only, and that therefore nothing else must be proved, is not correct in point of fact. The bill charges “a weakness of understanding which rendered Howell incompetent to regulate his own affairs, and classed him among those who a,re called idiots.” The latter part of this clause is only the amplification and deduction of counsel. But if this were a direct charge of idiocy, is it not competent for a party to prove his allegation as far as he can? Even in criminal cases, the prisoner may be charged expressly with murder, and, yet, circumstances may be proved which subject him to punishment for manslaughter. In Bennett v. Vade, 2 Atk. 325, it was decided, that a bill may be framed with two different aspects, that, if one fails, the other may as effectually answer the purpose. In that case, indeed, the bill was amended, in order to insert the charge of fraud; but, here, fraud is originally charged, without the necessity of any amendment.
    2. It is said there is no legal evidence of Howell’s weakness of understanding. But, surely, opinion is the best evidence of a man’s state of mind. No other, indeed, .can be given, To state instances in which weakness of intellect was discovered, is often difficult and impossible. Opinion must be formed from general observations on the conduct of the party. To what would the doctrine lead, that instances must be specified? A witness may have seen him engaged in an equivocal act which might have been the effect of weakness, or of levity. Would this evidence be as strong as that of a person who had known him from his infancy, and declares an opinion that he was uncommonly weak, and incap572 able *of managing his own affairs? The testimony of Robert Jones, sen. proves clearly that Clanton himself was sensible of Howell’s want of capacity. This is a very important fact; and Jones’s refusing to prove the deed, for that reason, together with the Court’s refusing to admit it to record, from their ovtn knowledge of the weakness of Howell, are also important facts.
    It is objected that inadequacy of consideration is not charged in the bill; but if the word “inadequacy” be not used “incompetency” is; which is the same thing. The case then amounts to this; that Howell was and is proved to be a man of extremely weak understanding; that Clanton took him to his house, affecting to be his protector; acquired considerable influence over him, and became, in equity, a trustee; and, instead of protecting, induced him to sign a deed conveying to himself all his estate for a very inadequate consideration: a combination of circumstances fully sufficient to set aside the deed,  In Clarkson v. Han-way, it was considered a badge of fraud that Hanway only took a bond to secure the annuity, and not a mortgage. In our case no security at all was taken; but a tract of land and ten negroes were given for the privilege of breathing in this world. Mr. Hay contends that the land was worth only ten shillings per acre, and the negroes were all young and expensive. But, as to the negroes, this is not probable; and, in fact, the report of the Commissioners proves they were profitable; for it shews they were equal to the support of Howell.
    Again, it is said that Howell’s competency of understanding is proved by his obtaining the bond from his sister I If that act proceeded from Howell it was wonderful indeed 1 From a man who never before had been out of the County of Sussex! But it was, evidently, a mere artifice of Clanton; and Howeli was only his instrument; through abundant caution ; for, if he had gone out himself he might have been suspected. This bond is relied on as a bar I But if the transaction was fraudulent, shall the person who was guilty of the fraud shelter himself under it?
    But there is one damning fact which makes this a stronger case than any in the books. The power of revocation inserted in the deed is relied on shewing that no fraud existed in the transaction. Yet in Bennett v. Vade,  a similar power in the deed from Sir John Lee is relied on as evidence of fraud. But what was the power of revocation in Howell’s deed? In 573 *case of his marriage! A man who was a mere mass of corruption to marry I But, in fact, in less than two years afterwards, Clanton sells the land, and induces this poor ignorant boy to join in a deed! Where then was the habitation for his wife?
    In Filmer v. Gott,  the deed was set aside on account of importunity in obtaining it, inadequacy of price, the vendor living alone and having no friend to consult. But whom did Howell consult? The man interested to receive him. From the death of his mother to the date of this deed, he continued an inmate of Clanton’s house, who abused the confidence reposed in him. A11 the witnesses prove extreme kindness to Howell before the deed, and, afterwards, extreme brutality. Wherever there was a remarkable intimacy, and undue influence, the Court will look with a jealous eye on the transaction, and set aside the deed if "there be not perfect reciprocity; as in 1 Vez. 400,  where the case was of a paren't and child; 1 P. Wms. 118,  of undue influence in prospect of marriage; 3 P. Wms. 129,  of an heir entrusted to a servant who imposed upon him ; (in which case it is said that “a breach of trust is, of itself, evidence ■of fraud, nay, of the greatest fraud ;”) 1 P. Wms. 310,  of a young heir induced to sell an expectancy at an under rate,  So, too, a bond is not obligatory where its effect was not known to the obligor, 
    
    As to Mr. Hay’s sixth point that interest ought not to have been allowed on the hire of the slaves; I shall not contend, after the decision of this Court, that interest on conjectural profits is allowable. But there are circumstances in this case which take it out of the general rule. Both sides consented to the report as it stands. Indeed, the Commissioners made no report, but only signed what the parties had agreed too. It is stated on the record (in the final decree) that the defendants not only made no objection, but approved of it.
    Wirt, on the same side. Admit the fact that Howell was not an idiot; yet weakness of understanding, though not amounting to idiocy, is amply sufficient, when connected with any one of the other circumstances of this case, to set aside the contract. Weakness of intellect alone is not suffi574 cient: but coupled with *any thing else, as inadequacy, fraud, &c. it is. So also inadequacy, per se, is not enough, in general. Yet gross inadequacy is considered as evidence that the mind was under undue influence,  But it is not necessary, in this case, to rely on the principle that gross inadequacy, of itself, vitiates the contract; for it certainly is sufficient to have that effect when combined with Howell’s weakness of intellect, and bodily distress; with his being just of age at the time; or with Clanton’s near relationship and great influence over him; all which circumstances are here united.  Actual fraud, or imposition, in such a case, is not necessary to be proved, but may be presumed in a Court of Equity, 
    
    But it is said there is a farther consideration for this deed besides a support for life; viz. love and affection. .In Gwynne v. Heaton,  very particular care in the wording of a contract is mentioned by Lord Thurlow, as a sign of fraud. But the consideration of affection must be for a near relation. 4 Cruise’s Digest, 25, carries it no further than to brothers, or children of brothers; which does not extend to a first cousin, or father’s brother’s child. But the consideration of blood is a mere nonentity, where a deed is drawn from a weak man.
    As to the objection that the charges in the bill are not sufficient to let in our evidence as to weakness of intellect, inadequacy of consideration, undue influence and fraud; the result of the authorities is, that where there is a single insulated charge, the plaintiffs shall not be permitted to surprise the opposite party, by shifting their ground. But a charge of fraud in general terms is sufficient,  In Jones v. Jones, 3 Atk. 110, forgery was the single charge in the bill. But here the separate badges of fraud are expressly mentioned; and the bill concludes with a prayer that the deed may be set aside for fraud.
    Again, it is contended that opinions of witnesses are not admissible evidence to prove weakness of understanding. But as to this point, opinions are the best evidence. Mr. Hay admits that opinions may be given by physicians and artists. So also opinions are admissible as to hand-writing; because in. such case the witness has had opportunities of forming opinions, which the Court and Jury had not, and which are not susceptible of description. If he should attempt to specify, he would have to state the manner in which the writer cut 575 each particular letter. So, in *cases of weakness, opinions are formed from a variety of circumstances; frequently not so much from active, as passive. If insulated facts were taken as evidence, Sir Isaac Newton might have been convicted of lunacy; for he has been seen to go into company with only one stocking on. To oppose this unfavourable circumstance by other facts, a witness must read his principia.
    In 2 Atk. 337,  it is even doubted whether particular facts can be given in evidence at all. But at length it is held that you may give evidence, both as to general opinion and particular facts, in an issue on non compos mentis. So, witnesses to a will are only called upon to speak of the general state of the testator’s mind. The circumstance, that Howell told Mrs. Mason the object of the deed, is no proof of his having capacity to make such a contract as ought to bind him; and does not make the case stronger than that of Gartside v. Isherwood, 1 Bro. Ch. Cas. 560. Great reliance is placed upon his trip to North Carolina, and obtaining the bond from Mary Howell; but, taking that fact with all its circumstances, it is rather a proof of additional fraud practised by Clanton, who must have instigated him to such an uncommon exertion. That Howell acted under Clanton’s influence, and did not understand the nature of the bond, is evident; for a condition.was introduced into it which made him an instrument of fraud upon himself.
    Hay, in reply.
    A cousin is unquestionably within the degrees of consanguinity to raise a use on a covenant to stand seised to uses, 
    
    Fraud is never to be presumed. If all the Chancellors from the time of Adam to this day were to say that it may be presumed, my judgment would still rise in rebellion. 1 Vesey, jun. 20,  2 Com. Dig. 314, and 1 Fonb. 399, shew that fraud is never to be presumed; though, Í admit, it may be inferred from circumstances calculated to justify such inference.
    The clause in the bill charging idiocy, is improperly subdivided by Mr. Taylor. The first part of that clause ought to be taken in connection with the last. Idiocy is not the consequence of weakness of understanding ; but the converse is true: and saying that a man is “classed with idiots” is. equivalent to saying that he is an idiot.
    *Monday, June 4.
    
      
       Deed — Setting Aside — Grantor of Weak Understanding. — See principal case cited in Samuel v. Marshall, 3 Leigh 576. See also, foot-note to this case; mono-graphic note on “Deeds” appended to Fiott v. Com., 12 Gratt. 564; monographic note on “Contracts” appended to Enders v. Board, 1 Gratt. 364.
    
    
      
       Fraud — Effect on Bona Fide Purchaser. — See mono-graphic note on “Fraud” appende'd to Montgomery v. Rose, 1 Pat. & H. 5.
    
    
      
       Note. In. this case the measure of relief was the money for which the land was sold, with interest; no other evidence of its value appearing-. — Note in Original Edition.
    
    
      
      So in the record; but the Reporter presumes there must be some mistake. — Note in Original Edition.
    
    
      
       Coop Eq. pl. 7; 11 Ves. jun. 240, Clarke v. Turton; 3 Atk. 110, Jones v. Jones.
    
    
      
       1 Tuck. Bl. 2d part, p. 303; 1 Fonb. 56; 4 Com. Dig. 361.
    
    
      
       Doug. 530, Syers v. Bridge; 12 Vin 86; 3 Vin. 8; 1 M’Nally, 262.
    
    
      
      Note. See also Peake’s N. P. Cas. p. 25, Thornton v. The Royal Exchange Assurance Company; and ibid. 41, Chaurand v. Angerstein, also cited by Mr. Hay. as examples of cases whet e opinions of persons skilled in particular trade's or business are admissible evidence. — Note in Original Edition.
    
    
      
       1 Fonb. 65, 68; 3 P. Wins. 130.
    
    
      
       Sug. Haw of Vend. 169, 170; 2 Powell on Contracts, 152; 1 Fonb. 116, n. (v); 9 Ves. jun. 246, Coles v. Trecothick.
    
    
      
       Ante. p. 183, Dilliard v. Tomlinson, &c.
    
    
      
       2 P. Wins. 203, Clarkson v. Hanway.
    
    
      
       2 Atk. 326.
    
    
      
      Cb) 7 Bro. Parl. Cas. 70.
    
    
      
       Cocking v. Pratt.
    
    
      
       Duke of Hamilton et ux. v. Lord Mohun.
    
    
      
       Osmond v. Fitzroy &c.
    
    
      
       Twisleton v. Griffith.
    
    
      
       See also Heathcote v. Paignion, 2 Bro. Ch. Cas. 167—175.
      
    
    
      
      See on this subject a very comprehensive note of the editor. 3 (Coxe’s) P. Wms. 15th edit.) p. 131; in which the authorities generally are collected.— Note in Original Edition.
    
    
      
       2 Pow. on Cont. 203; 2 Bro. Ch. Cas. 150, Evans v. Llewellyn.
    
    
      
       White v. Small, 2 Ch. Cas. 103; Clarkson v. Hanway, 2 P. Wms. 203.
    
    
      
       1 Bro. Ch. Cas. 6, 8, 9. Gwynne v. Heaton; 2 Bro. Ch Cas. 167—175. notes, Heathcote v. Paignton; 10 Ves. jun. 209, Underhill v. Horwood.
    
    
      
       Heron v. Heron, 2 Atk. 161; Young v. Peachy, ibid. 257; Chesterfield v. Janssen, 1 Atk. 301; 2 Vez. 155, S. C., Cole v. Gibson, 1 Vez. 503; Proof v. Hines, Cas. temp. Talb. 111.
    
    
      
       2 Ves. 155; 1 Fonb. 124, note (b).
    
    
      
       1 Bro. Ch. Cas. 1.
    
    
      
       Coop. Eq. pl. 7.
    
    
      
       Clarke v. Periam.
    
    
      
       Saund, on Uses, 436.
    
    
      
       Lewis v. Pead.
    
   The Judges pronounced their opinions.

JUDGE TUCKER.

This is a bill to set aside 'a conveyance of lands and negroes, made the 20th of February, 1783, by William Howell to his cousin John Clanton, both deceased, on the grounds stated in the bill.

The bill states, that “Howell, from the time of his birth to the time of his death, laboured under a lamentable and invincible weakness of understanding and intellect, which rendered him absolutely incapable of regulating his own affairs, and classed him, with propriety, among those who are called idiots;” that this was universally, known, and assented to, by all who knew him; that, soon after he arrived at the age of twenty-one, his cousin John Clanton, to-whom his situation had been long and perfectly known, induced him, although he had a sister then living, who is one of the complainants, to execute a deed, for all his lands and slaves, as his absolute property and estate, for the incompetent consideration of finding and providing for him sufficient and plentiful meat, drink, washing, lodging and clothing, in a comfortable and plentiful manner, during the said Howell’s, life, or remaining abatchelor; as will more fully appear by the deed, in which there is. the following clause, not mentioned, or in any way noticed in the bill; “Provided nevertheless, and it is hereby agreed on by and between the parties to these presents, to be the true intent and meaning of these presents, that, in case the said William Howell shall hereafter intermarry, that the estate above conveyed, as well land as slaves, with the increase of the said slaves, shall revert unto the said Howell and his wife, during their joint and several lives; and, in case the said Howell shall have lawful issue, that the said estate, and every part thereof, shall be subject to his disposal among them, by deed or will; or, in case of his failing to make such distribution, then it shall pass, and go, and descend agreeably to the act of Assembly, in case of his dying intestate; but if no such issue, the same to revert to Clanton and his heirs, after the death of Howell and his wife.” The bill then proceeds to state that, after this deed had been thus fraudulently obtained from an unfortunate and wretched being, who was ignorant of its operation, the said Clanton having had the same, after several ineffectual attempts, proved and recorded, treated Howell as a vagabond and outcast, and a slave; and, in 577 *order to manifest, more plainly, the palpable and infamous fraud practised on this occasion by the said Clanton-, the complainants aver and offer to prove that the deed above mentioned when offered, at first and several times after, to the Court for probate, was rejected by the Court, and not permitted to be recorded, from their individual knowledge of the facts before stated; and after stating some other circumstances not material to be noticed in this part of the cause, they pray that the Court may declare and render null to all intents and purposes the aforesaid fraudulent deed, &c.

The answer of Sarah Whitehorn, who was the wife of John Clanton, saith, that the complainants are very much mistaken in the representation which they have made; that Howell was about nineteen or twenty when his mother died; and she avers that, for several years before his mother’s death, he had been afflicted with sores and ulcers which sometimes covered a great part of his body; that he continued in that situation, or worse, until he died, which was about the year 1789; that, when the ulcers dried, as they occasionally did, his bodily pains and afflictions seemed to increase. She believes that the ulcers rose inwardly, because there were frequent discharges of matter from his mouth and nose; which will account for his unsightly appearance, and the society in which he might sometimes been seen: that he was afflicted in this way when he came to live with her deceased husband Clanton; that, when at home, he always dined with the family when he pleased, and was lodged as comfortably as his diseased condition would admit; that he Was not an idiot, as the complainants suppose. It is true that, from continued and excessive affliction, his mind was impaired ; but he generally had understanding enough, not only to preserve his person from mischief, but to converse rationally and sociably, and to guard against any decepition or advantage which others might be disposed to take of him. She further saith, that the said William proposed to the said John to make such a conveyance as is •contained in the deed, several times before it was actually executed; that that deed, as well as the one which the complainants alluded to as having been rejected when offered for record, is attested by David Mason ; that which is dated the first of October, 1783, (which is admitted by consent, and appears at the end of this record,) was not recorded, because, as she has been told, it was thought to be informal, ¿78 *and not because there was any suspicion of advantage. She adds; that the bargain was, in her estimation, a proper one, because the confinement, to which his disease often condemned him, would have made it inconvenient, if not impracticable, for him to manage his estate.

About two thirds of the witnesses (of whom there are near thirty) testify either their own, or the general opinion of the neighbourhood, that Howell was a person of extremely weak intellect; but it was conceded by the appellees’ counsel that there is no proof that he was an idiot. The rest of the witnesses corroborate the account given of him in the answer. There is, however, this obvious distinction between the answer and the depositions taken in support of the bill. The answer states facts; the latter, in general, opinions only. If it be objected, that the answer is not entitled to the same credit as the deposition of a witness, who is supposed to be disinterested ; there are circumstances apparent upon this record, that, in my opinion, place this answer, in point of credibility, upon very high ground. Hirst, it is perfectly responsive to the bill, and stands uncontradicted even by a shadow of evidence, in a most material point, which I shall hereafter notice. Secondly, it appears from the will of John Clanton (among the exhibits) that his widow, upon her marriage with the defendant Whitehorn, forfeited every provision made for her in Clanton’s will. She, therefore, is presumably a defendant without interest in the cause, whose answer, where it is responsive to the bill, is thereby entitled to the utmost credit; especially, where it stands uncontradicted as to the fact alleged.. It states, then, in my opinion, in a very candid manner, a good and sufficient inducement to the contract on the part of Howell. Helpless and forlorn, as he appears to have been, from the whole current of the testimony, it was certainly an object with him (if he had any intellect at all) to secure to himself, during his miserable existence, 1 ‘sufficient and plentiful meat, drink, washing, lodging, and clothing, in a comfortable and plentiful manner.” These are the cogent inducements to the bargain, and some of the considerations (and certainly the principal) mentioned in the deed. That he possessed sufficient intellect to know this, appears not only from what passed between himself and Mrs, Mason, when he came to her husband to draw' the deed; but from his subsequent complaint to Robert Jones, one of the complainants’ witnesses, “that Clan-579 ton *"did not use him well; and from the large offers which he made to Jones, if he would get his estate from Clan-ton for him.” But a farther and more convincing proof that he was not a person of such weak understanding as not to know what he was about, when making a bargain, appears from the singular and uncontradicted fact of his taking a journey by himself, (as far as appears to tne contrary,) to the house of James Nicholson, in North Carolina, where his sister (one of the complainants) lived, for the express purpose of giving her three instead of two negroes, which his mother, by her will, had required of him to give that sister, before he should be entitled to any part of the mother’s estate. The bond of relinquishment which he took from his sister on that occasion, was drawn by John Haulcon, of North Carolina, and executed at Nicholson’s house, where she resided, and attested by Nicholson, his wife, and a third witness. Not a syllable is heard of Clanton on this occasion ; and, yet, this very transaction is imputed to him as an evidence of fraud, although neither charged as such (nor even hinted at) in the bill, nor mentioned by any other of the witnesses. This transaction, therefore, as it appears by this record, is conclusive evidence, that Howell was neither an idiot, (as the charge in the bill imports,) nor yet a person of such weakness of intellect, as not to be able to understand the nature of his own interest, or of any bargain he might be about to contract.

But it is insisted, that an advantage was taken of him by his relation Clanton, immediately, or very soon after he came of age; and, although weakness of understanding alone may not be sufficient to set aside a contract fairly made, and for an adequate consideration, yet,- when it is coupled with such a circumstance as that just mentioned, or with previous dependence; (as appears to have been the case, in some degree, at present;) or with trust and confidence; or with unbounded influence; or with gross inadequacy of price or consideration ; or with extreme distress of situation ; or with the pretermission of an unoffending sister, who was his nearest relation and heir; that a Court of Equity, will rescind tlie contract.

I shall not enter into a minute discussion of all these several points, all which I conceive to be put completely out of the question, either by the facts apparent - in the record in support of the defendants’ right, or the want of such facts on the part of the complainants; or the want of charges 580 in the bill upon some of *these subjects. The only direct charge in the bill (except that invincible weakness of understanding, of which there is no proof) is, that Clanton induced Howell to execute the deed for the incompetent consideration therein mentioned. Now the answer of Sarah Whitehorn (which is expressly responsive to this charge of Clanton’s inducing Howell to execute the deed) states, “that Howell proposed to Clanton to make such a conveyance several times before it was actually executed.” There is not a scintilla of evidence to the contrary in the whole record: on the contrary, Mary Mason’s testimony may well be considered as 'corroborating this assertion in the answer. Neither Howell’s supposed youth, nor previous dependence, nor his trust and confidence in Clanton, which seem rather to have sprung from his affection and a sense of gratitude, than from any other cause, nor his unbounded influence, (of which there is no sort of proof,) can derive any strength, in opposition to this uncontradicted testimony, so perfectly responsive to the most material charge (except idiocy) in the bill.

I shall therefore proceed to the inadequacy of consideration, as the next subject of inquiry.

Neither the value of the land, nor that of the negroes, is stated in the bill; nor in either of the answers; nor in any of the depositions, that I can discover. An obvious reason for the omission in the latter appears to be, that it was not put in'issue by the former. The Commissioners appointed by the Court of Sussex County to state an account of the reasonable hire of the slaves mentioned in the deed, (from the time of the death of Howell to the time of their report,) and to report the sum for which the lands were sold, (by Howell and Clanton jointly, as appears from one of the answers, though neither the consideration money, nor the person to whom the same was paid, or, if to both, in what proportions such payment was made, anywhere appears,) have furnished some data by which a conjectural estimate of the actual fee-simple value of the lands, when sold, and the annual worth, or hire of the slaves, during the .whole period that elapsed between the date of the original deed in October, 1783, and the date of the Commissioners’ report, the 1st of October, 1804, a period of one and twenty years, may be guessed at. They state the sales of the two tracts of land, containing, as alleged in the bill, 264 acres, at 1451.; which is just eleven shillings an acre. They estimate the negro- hire for the year 1789, due 581 January 1, *1790, nothing. This might be because Howell died late in 1789; but whether it were so or not does not appear; nor are we informed when he died. The next year we find the value of their hire (reasonable deductions for their maintenance and support being first made by Commissioners) charged at six pounds. The next year 121. 17s. 6d., the third year, 191. 9s. Id. 3-4; the average value of those three years being 121. 15s. 6d. 1-2 per annum : but, if the year 1789 ought to be taken into the account, (as it would seem, from the Commissioners’ thinking it necessary to notice that year,) the average value of the slave hire, after making due deductions for the support and maintenance of such as were young and chargeable, for those four years, was only 91. 11s. 7d. 3-4. Taking it, however, at the highest average, and adding thereto the interest of 1451., for which the lands were sold, amounting to 71. 7s. 6d. more, the average value of Howell’s whole annual income for those three years amounts to 20i. 3s. Od. 1-2. But we have no reason to rate it so high, at any period during his life. Eor the value of the slaves being only 61. the first (or second year) after his death ; upwards of 121. the succeeding year; near 201. the next; and, so on, graudually increasing from year to year, till we find it valued to 371. 4s. 6d. in 1802, which is the highest estimate of the whole; we are well warranted in supposing that the greater part, or the whole of them, consisted of young negroes, who were either chargeable, or, at most, not very profitable. Taking it either way; and, even supposing the annual profits of Howell’s estate, at that time, to have been equal to 201. 3s. the average for those three years, I should not deem that sum, by any means, a sufficient consideration, for the comfortable and plentiful accommodation and support of a miserable object, such as Howell is described to have been.

Objection. That it was not the yearly value of the lands and negroes only that Clanton was to have by this deed, as a consideration for the maintenance of Howell; but the absolute property therein.

Answer. That is not the case. If Howell had married, the annual profits were all Clanton was to have till the death of Howell and his wife both; and, if he had lawful issue, the property was gone from him for ever. And, though it may be supposed the chance of Howell’s marriage was not great, yet he was free to do so, and 582 *thereby to put an end to the present, and, possibly, to the future interest and hopes of Clanton; who had during the life of Howell, no more than an estate upon an express condition in deed, which it was in the power of Howell to avail himself of at any moment, and thereby defeat the estate, if he thought proper so to do.

Objection. Howell was not supported and maintained in the manner he ought to have been by Clanton. This, if true, might have been some ground for an application to a Court of Equity by Howell, in his life-time, either to rescind the contract, or to compel Clanton to pay him a stated allowance for his support, as, from all the circumstances of the case, might have been most proper: but it furnishes no ground for the representatives of Howell to apply, at this time of day, for the rescisión of a contract, the beneficial provisions of which terminated, on his part, with his life. If the person to whom he complained that Clanton did not use him well, had applied to a Court in his behalf, to permit him to sue in forma pauperis, the case might have appeared such as to entitle him to some relief; but, what it ought to have been, this Court cannot, at this time, bjr any possibility, judge. It appears to me, therefore, that there is neither a gross inadequacy of consideration, nor, under all the circumstances of this case, any inadequacy of consideration at all. Neither is there any evidence in this record, of any advantage being taken, by Clan-ton, of the extreme distress of Howell, nor of his exerting, at any time, any improper influence over him; nor is there, that I can perceive, the smallest proof of fraud, or any undue practice whatsoever on the part of Clanton; unless we are to presume it from the face of the deed itself, which has not even the slightest colour of it, in it; or, unless we infer it from what has been said of Howell’s complaints of not being well used, which the answer of Sarah White-horn, and the depositions of several of the witnesses to the same effect, render questionable at least; and certainly, those complaints, if true, fall very far short of establishing a charge of fraud, unless we were to denominate every breach of a positive contract, a fraud; which no Court of Equity has yet ventured to do, that I know.

I have preferred considering this case upon the real merits, as it appears upon the face of the record, to an investigation of the practical points which have been argued at the bar; because I would never wish to reverse a decree of a Court of Chan-£83 eery, upon *any other ground than the merits of the cause, where they can be fairly got at. In the present instance, my opinion is, that both decrees be reversed, and the complainants’ bill dismissed with costs.

But if the complainants were entitled to a decree in their favour, I am still of opinion that the present decree is erroneous.

My first objection to the present decree is, that the Commissioners have allowed interest on the hire of the slaves, from year to year, from "the period of Howell’s death, to the day of making their report.

In giving my opinion in the case of Dilliard v. Tomlinson, this term, I stated several instances, where I thought an executor or administrator could not be chargeable for interest upon money, actually received by him. Much less with interest upon the hire of slaves, which, peradventure, he may never have received, or not for several years after it became due. I beg leave to refer to what I then said, as containing my deliberate opinion, and the reasons for it.

Objection. The report states that the same was made in the presence, and with the approbation, of the defendants.

That is not the case. Sally Whitehorn, wife of one of the defendants, and Nathaniel Chambliss, who acted as special guardian to the infant defendants, are stated to have been present. But the executors are neither stated as being present, nor even as having notice to attend. The consent of the others, who were present, therefore, cannot possibly affect the executors. Neither (I presume) could Whitehorn be affected by the consent of his wife, unless it were proved she acted as his attorney, under a special power and authority from him. Nor will this Court, sitting as a Court of Equity, suffer the interest of infants to be committed, by a careless or ignorant guardian ad litem. And I must be permitted to doubt whether a Court of Equity ought ever to sanction the report of its Commissioner, when he mistakes the law; although the parties may submit to his decision, without filing any exception to his report. Eor his office is to state facts for the consideration of the Court; where he undertakes to do more, I conceive that his report is no less open to impeachment for error than the decree of the Court, proceeding upon a mistake in law, is. For a contrary doctrine would be putting the Commissioner’s report, in point of legal obligation, upon higher ground than the decree of the Court itself. Upon these 584 grounds, I think *the charge of interest on the hire of the negroes is utterly erroneous; for this suit was not brought till near eleven years after Howell’s death, and, until a very short time before it was brought, there was no administrator to whom any debt due to him from any person whatsoever could be paid or tendered. The legal right in the slaves being in the executors of Clanton ; had there been an executor of Howell, how could Clanton’s executors have been justified in paying them for the negro hire, until the decree should fix their right to demand it. How then are the executors to be made chargeable for interest upon money which they had no right to pay? The most that equity can do, as to make them accountable for the hire of the slaves, free of interest upon that hire.

But here a question occurs. From what period are the executors to be charged with the hire, if, indeed, in this case, they are chargeable at all?

John Clanton died before the second of September, 1790; this suit was not brought until April, 1800. Burwell Eoften and Michael Bailey, who qualified as his executors, were at that time both dead; Michael Bailey, the surviving executor, had, before his death, fully closed and returned to the Court his accounts as executor of Clanton, as is positively stated by the defendants, J. C. Bailey, and Benjamin Wyche, his executors, in their answer; to which there was no replication, that I can discover; nor are there any depositions taken which bear any relation to this fact. So that the answer, if not actually admitted to be true, in all its parts, stands uncontradicted in this particular. If Michael Bailey, the surviving executor, had been alive when the suit was brought, and had put in an answer to the same effect as that of his executors; and the cause had been heard in the same manner as it was; the bill against him (I conceive) ought to have been dismissed. Ror, surely, when an executor has settled all claims against his testator’s estate, (of which he had no notice,) and has settled his accounts with the Court which granted the probate of the will, and made distribution, he ought not to be affected by any dormant equitable claim, which may rise up against his testator’s estate, at any distance of time afterwards. Much less ought his executors, who, under such circumstances, cannot be supposed to be conusant of the affairs of the first testator, as the present defendants expressly state in their answer. And, yet, the S8S decree **in the present case must be understood as against them for nearly 8001. 'On this ground, therefore, I consider the decree as palpably erroneous.

Objection. Clanton appointed his wife Sarah (now the defendant Sarah Whitehorn) his executrix, together with Eoften and Bailey, his executors. '

But she did not qualify; they did; and, on her marriage with Whitehorn, which was previous to the commencement of this suit, she forfeited every benefit under her husband’s will. And it does not appear that she renounced the will, nor that she ever qualified as Clanton’s executrix. The decree, therefore, which, in its terms, imports to direct the executors -of the said John Clanton, “out of his assets in their hands to be administered, to pay to the complainants the money reported by the Commissioners to be due, for the hire of the slaves, and the sale of the land,” must be understood (I conceive) as against the executors of the surviving executor of Clanton.

Objection. The executors, before distribution, made, ought to have taken an indemnifying bond of the distributees to answer any future debts or demands against the testator’s estate.

I do not know that the law requires this of an executor. In the case of an administrator, the law will not compel him to niake distribution, until bond with security be given, by the distributees, to refund their proportional parts of any future debt or demand against the estate. This is a security which the law gives to the administrator; but as it does not give it to the executor, and as he is bound to perform the will, I am not prepared to say that he can refuse to pay a legacy, or to make distribution of the residuum, unless the legatee or distributee will give him a similar bond. Walden v. Payne is to that effect. Be that as it may, the complainants in this cause have followed the effects of Clanton into the hands of his children, and for aught that appears to the contrary, they are the proper persons, not only' to make restitution of the slaves, but compensation for their hire. The question then recurs, from what period ought they to be charged with it. And my opinion is, that they ought not to be charged with the hire of the slaves, or with the interest on the sales of the land, until the commencement of this suit. Por, first, this is a dormant equity, of which these defendants, who are infants, cannot be presumed to have had any notice; nor, if they £>86 *had, could they, or their guardian in their behalf, have given up the slaves or paid their hire. Por neither the infants themselves, nor their guardian, were competent to do this of their own mere motion, without the authority or direction of a court. Secondly, they could not know to whom to make restitution or payment; there being no legal personal representative of Howell until a short time before the suit brought. And surely, there is as much reason to adopt this rule, in this case of a dormant equity against infants, as in the case of a widow who come into a Court of Equity to demand her dower; in which case the rule seems to be, that she shall not be allowed for the rents and profits which accrued previous to the filing of her bill; although, at law, she is entitled to recover damages, equal thereto, from the time of the husband’s death until the day of the judgment, whereby she recovers seisin of her dower,

Admitting, then, that the complainants are entitled to a decree in their favour, this decree appears to me to be manifestly erroneous, for the reasons last mentioned. It ought, therefore, (in any event,) to be reversed, I conceive, and sent back to be reformed by the Court of Chancery, agreeably to the preceding principles.

JUDGE ROANE

observed, the case appeared to him so plain on the testimony and principles of law, that he did not think it necessary to give a detailed opinion. He then read the decree of the Chancellor, and said; so far the decree relates to and decides upon the principles of the cause, and I can only say, that, on examination of the record, most, if not all, the positions taken by the Chancellor are correct. If the decree, so far as it respects the account, defended upon the report only, perhaps I might not be disposed to sanction it; on account of the incompetency of some of the parties to consent before the Commissioners ; but it appears from the decree of the County Court that the defendants not only made no objection, but approved of the report. With respect to interest on 587 hire of negroes, I cannot *conceive it to be improper on general principles. Negroes are generally hired, taking bonds payable at the end of the year; which bonds carry interest, if the money be not paid; and “it is natural justice that he who has the use of another’s money should pay interest for it.” I should therefore be of opinion to affirm the decree in omnibus, except (the executors having, perhaps, parted with the estate) to correct it so as to make the property liable in the hands of iiic legatees.

JUDGE FLEMING.

With respect to the principal point in controversy, to wit, the invalidity of the deed from Howell to Clanton, I have no doubt, for the reasons stated in both decrees of the Courts. 1. The extreme weakness of intellect and want of capacity in Howell, (though not a prefect idiot,) manifested by the depositions of a number of witnesses, who were acquainted with him from his early infancy, and, particularly, the rejection of the first deed (offered to be recorded in Sussex Court) from the magistrates’ personal knowledge of the imbecility of Howell’s mind; 2. The consequent undue influence Clanton had over him, which appears through the whole course of the transactions; and especially in his prevailing on him to join in the absolute sales of the land to Milner and Micajah Hines, in October, 1786; when a principal and most important covenant in the deed of 1783 was, “that in case the said William Howell should thereafter intermarry, that the said estate above conveyed, as well land as slaves, with the increase of the said slaves (if any) should revert unto the said William Howell and his wife, during their joint and several lives,” &c. And, if such an event had taken place, after the sales in 1786, he would not have had a hovel to shelter his wife from the inclemency of the weather; 3. The inadequate considerations in the deed; besides Clan-ton’s subsequent harsh and ungenerous treatment of Howell, very different 588 from what was '^stated as a consideration therein. It was, however, contended by the appellants’ counsel, in the argument, that that circumstance, if true, ought to have no influence with the Court: but, to me, it appears a circumstance among many others, to shew that the principal object of Clanton was to secure to himself the estate, and, after he had effected his purpose, he cared very little what became of Howell himself; which, in a case like this, has, I confess, considerable weight with me.

But it appears to me that the decree is erroneous in allowing interest on the hire of the slaves; and, on that ground, the decree in the case of Dilliard v. Tomlinson was lately reversed in part, by this Court: and the reasons fo'r disallowing the interest in the case before us appear much stronger than in that case. Here the slaves came to the possession of infants under the will of their father, John Clanton, upon the marriage of his widow Sally Clan-ton with the appella'nt Whitehorn, several years (but how long doth not appear) before the_ commencement of this suit; and, though I am of opinion that those who have had the benefit of the negroes’ labour, ought to pay a reasonable hire for them, they ought, according to precedents of this Court, and especially in this particular case, to he exonerated from the payment of interest, as it does not appear that the negroes were ever actually hired out; and the contrary is to be presumed; but the Commissioners justly thought proper to charge a reasonable hire for their labour in the possession of the legatees, under John Clanton’s will.

I have, also, a doubt with respect to the correctness of the decree in ordering that the executors of John Clanton do, out of his assets in their hands to be administered, pay to the complainants the sum reported to be due for hire of slaves, &c.

It appears by the record that John Clan-ton, who died before the 2d of September, 1790, appointed two executors who qualified, and that the survivor of them (Michael Bailey) died, and made the defendants Benjamin Wyche and James C. Bailej7, his executors; who, in their answer, say, that their testator, the surviving executor of John Clanton, had, previous to his death, fully closed and returned to Sussex Court a statement of his executorial accounts, and conceive that the complainants have no cause of complaint against them; they being entirely ignorant of any fraud or iniquity, and pray to be dismissed with their costs, &c.

*As it appears also, from this answer, that no part of John Clanton’s estate ever came to their hands, their testator, as surviving executor of Clanton, having closed and returned his executors’ account to Sussex Court many years before the commencement of this suit, can it with propriety be said that they have in their hands any assets of John Clanton unadministered to pay the sum of money decreed to the complainants?

It seems to me, therefore, that an account ought to be taken, and that the legatees of John Clanton pay their ratable proportion of the money due, for hire of negroes, and on the sales of the land, with interest at 5 per centum per annum, on the latter from the death of William Howell to the time of payment.

The following was entered as the decree of the Court. “A majority of this Court is of opinion, that the said decree of the Superior Court of Chancery is erroneous in affirming the decree aforesaid of the said County Court, whereby it was adjudged and ordered that the appellants, executors of the said John Clanton, deceased, out of his assets in their hands to be administered, should pay to the appellees the sum of 7721. 17s. 11d. 1-2 it appearing by the report of certain Commissioners appointed by a decretal order of the said County Court of Sussex, made the 4th day of February, 1803, to make up and state an account to the Court of the reasonable hire of the slaves, named in a deed in the proceedings mentioned from the death of the said William Howell to the time of their report, that the sum of 1031. Is. 2d. 3-4 part of the said sum of 7721. 17s. lid. 1-2 reported by the said Commissioners to be due from the appellants to the appellees, was charged for interest on the hire of the said slaves from the 1st day of January, 1791, until the 1st day' of October, 1804; which said report was approved and established in the whole by ,the said County Court. Therefore it is decreed and ordered, that the decree aforesaid of the said Superior Court of Chancery be reversed and annulled; and that the appellees, administrators of the said William Howell, out of his goods and chattels in their hands to be administered, if so much thereof they have, pay to the appellants their costs in this Court. And this Court proceeding to make such decree as the said Superior Court of Chancery ought to have rendered; it is decreed and ordered that the decree aforesaid of the said County Court 590 be reversed *'and annulled;” “and that the appellees, administrators of the said William Howell, out of his goods and chattels in their hands to be administered, of so much thereof they have, pay to the appellants their costs in prosecuting their appeal in the said Superior' Court of Chancery. And it is further decreed and ordered that the appellants, in whose possession the slaves in the bill mentioned are, do deliver the said slaves and their increase to the appellees. And, it appearing to this Court by the answers of the defendants Benjamin Wyche and James C. Bailey, executors of Michael Bailey, deceased, who was the surviving executor of the said John Clanton, deceased, that their testator had, previous to his death, fully closed and returned to Sussex Court a statement of his executorial accounts, (which answers, not having been denied nor replied to, must be taken as true,) it is therefore presumed that the said defendants, executors of the surviving executor of the said John Clanton, deceased, can have none of his assets in their hands to be administered. It is therefore further decreed and ordered, that an account be taken of the legacies bequeathed to the other defendants by the last will of the said John Clanton, deceased, and that the said legatees pay to the appellees their respective ratable proportion of the balance of the said 7721. 17s. lid., 1-2, after deducting the said sum of 1031. Is. 2d. 3-4 charged in the Commissioners’ said report for interest on the money due for the hire of the slaves. And the cause is remanded to the said Superior Court of Chancery for further proceedings to be had therein, agreeably to the principles of this decree.” 
      
       2 Wash. 7.
     
      
       Vid. Burnley v. Lambert, 1 Wash. 312.
     
      
       1 Rev. Code, c. 94, s. 4.
     
      
       Note. In a subsequent case of Clarke and White, Executors of White v. Johnson and others, June 12th, 1811, the Court (consisting- of Judges Roane, Brooke, and Cabell) unanimously decided, that reports of Commissioners, which are not erroneous upon the face of them, shall not be impeached in an appellate Court, (where not specially excepted to in the court below.) “on grounds, or in relation to subí ects, which maybe affected by extraneous testimony.” In that case the question was, whether interest ought not to have been charged against White’s executors, in the settlement of their administration account by Commissioners, in a suit brought against them by the legatees. The Commissioners made no charge of interest; (without assigning any reason;) and. no exception being taken to their report, the County Court decreed accordingly. The ¡Chancellor reversed that decree, and allowed interest against the executors. But this Court reversed his decree, and affirmed that of the County Court; declaring, in the decree of affirmance, “that the report, so far as It related to the interest claimed against the appellants, was ot a nature to he affected by extraneous testimony, and. not being-objected to, was conclusive between the parties.” - Note in Original Edition.
     
      
       2 Call, 102, Jones v. Williams.
     