
    
      Orangeburgh.
    
    Heard by Chancellor Thompson.
    Thomas Butler, William Butler, James Butler and the heirs of Charles Butler deceased, vs. E. Haskell.
    case bkhx
    The heirs apparent of an idiot, whose estate Was in the hands af a committee, being weak, illiterate and necessitous, and finding a difficulty n procuring and perpetuating the evidence of their relationship, employ an agent to transact the business for them, at a commission of ten per cent on the amount'to be recovered.; tlve agent afterwards purchases their interest in the estate, at about one fourth its ultimate value ; when the estate is recovered, he takes from them in pursuance of the said pui-chase, a conveyance of their interest, and a power of attorney to prosecute the decreej and to receive to his own use their shares of the estate yet to be accounted for. The contract of purchase set aside on the ground of gross inadequacy of price, connepted with the weakness and necessities of the sellers ; and on the further ground that the agent was legally incapacitated to purchase from his p. incipal the estate which was the subject of the agency, so long as this relation of confidence continued.
    
      FEB’Y, 1816.
    The after conveyances held no confirmation, having been made ur>-der the original impression, and a belief that they were bermd by the first contract, and during the continuance of the necessities of the sellers.
    The object of the bill of complaint was to set ■ aside certain sales made by the. complainants to the defendant, of their interests and expectations in a great estate, real and personal, then owned by an idiot, named Margaret Butler, and held and managed for her by a committee ; on the ground of enormous inadequacy of price; extreme indigence and ignorance, in the vendors; great skill and judgment in the defendant, and advantage taken of the incapacity and necessities of the complainants ; and also on the ground- that the defendant was, at the time of the sales, employed as the agent of the complainants, to pursue and establish their claims to the said property, and was consequently incapacitated to become a purchaser from them.
    The bill set forth that Margaret Butler, an idiot from her birth, was seized and possessed of a considerable real and personal estate in the district of Georgetown; and the complainants discovered some time in 1801, that they, together with their brothers and sisters, were related to the said idiot, and wore informed that theywe.ro as nearly related as any other persons, and would be entitled on her death to a proportionate part of her estate. But by reason of their residing at a distance, and being ignorant persons, they knew not the nature or extent of their claims, nor the evidence necessary to establish the Same. That their brother George Butler made some enquiries concerning the said evidence, and advised with counsel on the nature of their claims, without being able to procure any satisfactory information. That while he was pursuing these enquiries, he was counselled by the defendant, (who apparently acted as his friend and ad-visor,) to employ some person of influence and authority, and who was accustomed to business, to discover the necessary evidence, and prosecute the claim.
    In consequence of this advice, the complainants anil their brothers and sisters, applied to the defendant and ^employed him to enquire and discover the evidence of their relationship to tiie idiot, and establish their claim . , , „ . to her estate, and agreed to allow him tor ms services one tenth of what should be ultimately recovered — and gave him a power of attorney, authorizing him to institute a suit in equity, to perpetuate the testimony of their relations!)ip, and to establish their claim. By this agreement it was stipulated that the expense of prosecuting the claim should be borne equally by all parties interested.— That the defendant set on loot an investigation of the said claim — instituted a suit and obtained a decree for the. perpetuation of the testimony relating to the said claim; by means whereof the defendant became fully acquainted with the nature and extent of their rights and expectances, with the value of the estate, and the proba- . ble and estimated duration of the life of the idiot.
    That during the pendency of the said suit, the complainants and their brothers and sisters, (nine in number,) with the knowledge and at the instance of the defendant, entered into a covenant, by which it was agreed, that if they or either of them should survive the idiot, and should be the survivors of each other, and should recover any part of the said estate, they should divide the said estate, after deducting all expenses, into 'ten equal parts, and allot one of those parts to the defendant, and one to each of the other parties, or in case of the death of .'any of them, to his heirs, executors, administrators and assigns. That the complainants were extremely ignorant and illiterate, and totally unacquainted with the nature of legal transactions, and but imperfectly acquainted with the nature of their claim, and their relationship to the idiot, and entirely ignorant of the value of the' estate, or the probability of their speedily succeeding thereto. That the complainants were and still are in the most indigent and necessitous circumstances. That the defendant appearing as their friend and adviser, and acting as their agcnt.and trustee throughout the whole of these transactions, the complainants reposed the most implicit faith and confidence in his representations and up-.Tightness. But that being desirous to take an undue and fraudulent advantage of his knowledge of the nature, evidence and value of their claims, and to avail himself of their ignorance, and necessities, and of the confidence reposed in him, the defendant applied to them to sell and assign to him, their right, interest and expectances in and to the estate of the idiot, representing that their claims were of uncertain value, and that it would be a longtime before the claim could be reduced into possession, and that perhaps they might never obtain any things that as they were in indigent circumstances it was better to take something certain and present, than to wait for a distant and uncertain expectancy. That influenced by these represen tal ions and the circumstances aforesaid, the complainants Thomas Butler, James Butler and William Butler, and Charles Butler, the father of the other complainants, respectively entered into written engagements with the defendant, by which they sold, assigned and conveyed to the defendant all their right, title, interest, expectancy and inheritance in the estate of the idiot: and the defendant on his part agreed to deliver them each, three negroes of the value of one thousand dollars, ami to pay them the sum of two hundred dollars: and and that when he reduced the said claim into possession be would pay them the further sum of two thousand dollars each. That the defendant paid them the $200 each, and the three negroes, but that the said negroes were of little value and different from the description given, which their necessities alone induced them to accept. That at the time of making this agreement, each of the shares in the said estate was worth ¡320,000, which value was rapidly increasing. — That the idiot then lived in a sickly part of the country, avid from her state of health and age, (being 45 or 50 years old) she could not live many years. All this was known to the defendant, and unknown to the complainants.
    That in 1810 Charles Butler died. That the idiot died in 1811 : — and shortly after a suit was instituted in Georgetown court of equity, by the administrators of the idiot, for the purpose of ascertaining who were her next of kin. In this suit the claims of the complainants, and tlieir brothers and sisters, were conducted by the defendant. That the decree of the court established the right of fifteen claimants to the said estate, among whom were the complainants, Thomas Butler, James Butler, 'William Butler, and four of their brothers and sisters, excluding the said Charles Butler’s children, as too remote. The decree ordered a distribution of the real and personal estate, and an account by the administrators. That a short time after the decree aforesaid, the defendant applied to the parties to sign a further instrument, which he then and there produced, and which he represented to be a further power for him to receive the shares of the complainants, Thomas Butler, William Butler, and James Butler; and that siiare to which Charles Butler’s heirs were entitled under the agreement above stated; and ther one tenth to which the defendant was entitled in the shares not sold to him. That the complainants were entirely ignorant of the tenor and contents of the said instrument, except from his representations. That they wore induced to sign it from their ignorance of their rights, and from, supposing they were bound by the sale before made. That the defendant, by virtue of the said powers, has received the whole estate to which the complainants are entitled, to the amount of 80,000 dollars. That coming to a knowledge of those rights, they have applied to the defendant, to deliver up the said estate, to which they are entitled, which lie has refused. The prayer of the bill is for a discovery and relief.
    The answer states, that a day or two previous to the 4th of February, in the year of our Lord 1804, this defendant was met on his plantation by George Butler ami George Barsh, two of the person’s named in the complainants’ bill, who appeared then, and who this defendant still thinks were in search of him. That the said George Butler commenced a conversation with this defendant, in which lie informed him that he had been for some time in search of evidence to show how they (meaning the complainants,) stood in relationship witli Margaret Butler, tiio idiot of Waccamaw, and to have the said evidence perpetuated, but had not as yet effected their object; and named to the defendant, as- witnesses in their favor, the"names of Mrs. Cordcs, Mrs. Repult, (by the name of ®eP[dt,) end Mr. and Mrs. "rahara, of Georgetown. That the said George Butler and George Barsb then ask-e,j ^jg defendant, if be would undertake to perpetuate their evidence for them; and to procure from Mr. Nicholson and others all papers in their possession relating to that business: to which this defendant replied, that they had better get some person of influence, and who understood the law and business better than he did. That the said George Butler and George Barsb then rejoined to this defendant, that they were"very desirous of getting him to he concerned for them, and would give him as a compensation for his trouble; and services one tenth part of whatever might be recovered by them on the idiot’s death $ and if nothing should be recovered nothing should be received. That this defendant, considering their inability to prosecute their claim of themselves, did then agree with them in their said proposal ,* but as some document was necessary for him, to show in what right he acted, the said George Butler and George Barsh sent to this defendant a letter, dated the 4th of February, 1804, by which they authorised him to act on their behalf; and that on or about the ninth day of April following, the said complainants gave to this defendant, as an evidence of-their agreement to allow him one tenth pari of all which, should be received by them on the death of the said Margaret Butler, a certain paper, dated the 9th of April, 1804, signed by them. That some time after, to wit, on or about the 21st day of Nov. 1809, this defendant received from Benjamin Hart, Esq. a letter, enclosing a copy of a certain agreement between the said complainants, dated the 29th day of March, 1804; which agreement stated, that “ certain evidence was soon to bo esca? mined by the Court of Equity in Charleston, which would prove that the said complainants were next of kin, and heirs apparent of the said Margaret Butler.
    The answer admits, that in consequence of the aforesaid agreement, he did, with great industry and perseverance, enquire concerning all persons who,mightgive him ibibrmation about the relationship of the complainants with the said Margaret Butler; and that in addition to •those named to him as aforesaid, he did discover several •others himself; and that ho did institute a suit in equity for perpetuating their testimony, and (lid procure the same to be perpetuated. But then this defendant solemnly denies that he obtained from the said witnesses, as discovered by himself, any evidence at all prior to his purchase of the said shares, or any material information after the .said purchase : or that the evidence given by them was to be compared with the testimony which was given by Mrs. Cordes and Mr. Rcpult, the witnesses named by the said George Butler himself j which witnesses this defendant never saw, and whose testimony was never revealed tp .this defendant after it was taken until it was disclosed at the trial. This defendant therefore denies, that by means of his investigation he becam a fully and perfectly acquainted with the nature and extent of the rights and expectancies of the said complainants. On the contrary he avers, .that all the material information he obtained proceeded from the said George Butler himself, and that so ignorant was this defendant of that information, and its operation in the cause, and such unfavorable opinions he had heard Coming from men of learning and abilities on the subject of this cause, that to the last he was highly anxious, and uncertain as to its issue.
    
    And as to so much of the said bill as charges that;, «bymeans of the said investigation this defendant became fully and perfectly acquainted with the value of the said estate,” he answering saith, he positively denies this charge to be true ,• because he says that on the 23d of June, 1804, he purchased from the Complainant, Charles Butler, his share, and on the same day the share of James .Butler, jun. that on the 9th of July, 1804, he purchased of William Butler his share, and on the same day the share of Thomas Butler ¿ and that in the interval, between the time of his receiving the letter or power of the 4th of February, 1804, and the purchase of the last share from Thomas Butler, on the 9tli of July, 1804, lie had mot discovered any witnesses, or procured any further information on tiio said subject; and that all the informastion which he then possessed camo from the said George Butler himself 3 which information not only exceeded all other information which he ever procured, but exceeded ajgQ y1(} acfuai &moUnt; so that this defendant know no •more concerning the value of the said estate than the said parties did themselves.
    And as to the charge that, “ by means of the said investigation this defendant became fully and perfectly acquainted with the probable and estimated duration of the said Margaret's life,” he answering saith, that he denies this charge to be true, and avers that he never saw her in Ids life, never went into her neighborhood till after her death, and, in short, knew no more on this point at the time of the said purchase, or afterwards, than the complainants themselves did.
    And this defendant further answering saith, that he believes the complainants did enter into the agreement fdod with the bill; but when the same was actually done this defendant does not know, though it purports to be on the 29th of March, 1804. But of this he is certain, that it could not have been-during the pendency of the suit, as is stated in the bill 5 because no suit was then commenced, nor for some time after — the bill to perpetuate not being filed till the 2d of May, 1805; and as to the fact charged, that the same was done with the knowledge, am! at the instance of this defendant, he positively declares, that such fact is absolutely false ; because the first knowledge this defendant received of the same, by a sight of a copy of the said agreement, was by a letter from Benjamin Hart, Esq. dated the 21st day of November, 1809; and although .he had been informed of the fact at the time of the purchase, and notice of the same is accordingly stated therein as coming from them, yet that ho had never advised this measure, nor kne w of it till he had made the purchase, when they informed him of it as aforesaid; and that the information then given concealed from his view the fact, that if he died after every exertion, and before the final termination of the cause, he was to receive nothing for his services.
    
      And as to the charge of the complainants, Thomas Butler, James Butler, William Butler, ami Charles Butler, “ being extremely ignorant and illiterate-, and perfectly unacquainted with the nature of legal transactions,5’ this defendant answering saith, that he never knew that general knowledge or learning, or acquaintance with legal transactions, were necessary to the validity of a contract, and cannot conceive that the possession of those qualifications could ever be considered by the law as necessary thereto; as otherwise most contracts, however fair, would be avoided for the want of one or the other of them: but as to theiriS imperfect acquaintance with the nature of their claims, and of the evidence of their relationship, and their entire ignorance of the value of the said estate, or of the probability of their speedily succeeding thereto,” this defendant says, that he believes and is satisfied that they knew as much on the subject as he did, and that all the information he obtained thereupon, prior to his purchase of their shares, was obtained from themselves, or their brother George Butler. And supposing that this defendant may, in the lapse of time, which has taken place since the period to which he alludes, forgotten any facts of new evidence obtained by himself, prior to the purchase of any of the said shares from them, yet of this one fact he is very certain, and can speak positively- — -which is, that he always communicated the information he had received, concerning the said claim and estate, to the said complainants, orto George Butler, as occasion offered, whether the same was in favor or against their claim ; and therefore, as far as depended upon any knowledge received by himself, the said complainants knew just as much as he did.
    And this defendant further answering saith, that he positively and solemnly denies that he was “ ever desirous of taking, or that he ever did take, any undue or fraudulent advantage of his knowledge of the nature, evidence, and value of the complainants5 claim, or that he ever availed himself of the ignorance and necessities of the complainants, or of the confidence reposed in him; or that he ever, in the first instance, applied to the said Thomas, William, James, ami Charles Butler, to sell and assign to-him their right, interest, and expectancies, in and to the es-tatcof the said Margaret Butler, representing that the c*a*ms were uncertain, that the value of the said Marga-x’et’s estate was uncertain, that it would be a long time before their claim would be reduced into possession, and that perhaps they might never obtain any thing for their said claims j and that it was better, as the complainants were in indigent circumstances, to take something certain and present, than to wait for a distant and uncertain ex.- ■ pcctaucy.” But he avers that the said complainants first applied to this defendant to purchase their shares from thorn, and used the very same arguments themselves, which they have imputed to him, as reasons why they ought to make the said sales ; and that if he ever addressed them afterwards on the subject, and said any thing on the propriety of their opinions, it was only in consequence of their prior application to him.
    And this defendant further answering saith, that the said Charles, James, William, and Thomas Butler, did sell and convey their shares in the said estate to him, upon the days and terms mentioned in the bill; and that he complied with the terms as specified on the said agrees ments by the receipts of the several parties ; but this de, ■fendant denies that to his knowledge he delivered to any of them diseased negroes, or negroes of little orno value*
    And as to the charge, that at the time of the purchase, of the said shares by this defendant, they were worth, in the evént of the idiot’s death, twenty thousand dollars each, or thereabouts; and that the same was annually and rapidly increasing, from the interest on bonds due the estate, and the crops and small expenses of the idiot, this defendant further answering saith, that at the time he purchased the' shares of the said Charles, James, William* and Thomas Butler, ho did not know at what their shares might be estimated, if they succeeded in the prosecution of their claims, nor whether they would succeed at aíl¿ nor had he then nor since any further or better light upon the subject than they themselves possessed at the timo of the-sale, his whole information being derived frpjR-them. But this defendant certainly supposed and believed that the property was considerable; that they had some chance of success; and although others might come in for a share, as six others did, viz. Mrs. Graham, Mrs. Alston, John and Joseph Pyatt, and Joseph aud Ann Labruce; yet that if they succeeded,, their shares ■would compensate him for the property which he had given to them, for the great trouble he was about to undertake, and for the number of years during which he blight be obliged to wait, not only for the death of Margaret Butler, but also for the termination of the disputes of affinity.
    • That as to the place where the said Margaret Butler then lived being sickly and unwholesome, her state of health, constitution and age, at the time of the said sale, this defendant knew nothing more than the complainants did, as his information on the subject was derived from themselves; and some of them, viz. George Butler and James Butler the elder, had been to Georgetown to en-quire into the business; but this defendant denies that she was at the age of forty-five or fifty at the time of the purchase, and believes that she was then only about thirty-five yeárs of age. This defendant therefore avers, that the charge of complainants, stating that the value of their shares in the idiot’s property, at the time of the pur-, chase, the annual and rapid increase thereof, her inconsiderable expenses, her residence in a sickly and unwholesome part of the country, her state of health, her constitution and age — were known to this defendant, and unknown to the complainants, and to Charles Butler, deceased, is wholly false.
    And this defendant further answering saitli, that he believes the said Charles Butler, and the said Margaret Butler, died about the time mentioned in the bill, (the latter in September, 1809 ;) and shortly after her death a suit was instituted in the court of equity at Georgetown, by the administrators of the said Margaret Butler, for the purpose of ascertaining who were the next of kin of tN said Margaret Butler, and legally entitled to her estate j and that the said suit was conducted by this defendant in the’name of tito complainants* and their brothers and sisters ; that their claims were established, the estate or-^ere<' to be distributed, and delivered over to the ■parties interested therein.
    A-nd as to the charge, e( that a short time after the obtaining of the said decree the defendant applied to the said Thomas, 'William, and James Butler, to sign a further instrument of writing, which the defendant then and there produced, and which the defendant represented to be a further power and authority for defendant to receive, from the administrators of the said Margaret Butler, those shares, or proportions of the said estate, to which the said Thomas, William, and James Butler were entitled ; and also that share and proportion of the said estate to which the heirs, executors, or assignees of the said Charles Butler were entitled, by virtue of tbe covenant or agreement aforesaid 5 and also the ■ said one-tenth of the whole amount, which had been, by the said agreement, allotted and given to the said Elnathan Haskell for his trouble and services in the premises” — -this defendant answering says, be admits, that shortly after the said decree, he did apply to the said parties to sign other instruments of writing 5 hut he positively and most solemnly denies, that he ever made such a representation as is charged above; that on the contrary he applied to the said parties for the purpose of signing deeds to complete their agreements with him, and transfer to him those rights formally, which they had already substantially vested in him ; and that, although the said deeds, from their nature, necessarily included powers of attorney, as all transfers of choses in action do, yet that he never regarded a further power of attorney as material, supposing that his original power was sufficient, and that his whole object was to obtain the execution of those deeds which ho supposed were proper, if not necessary, to vest in him formally the rights to which he was then entitled by his agreements with the naid parties ¿ and that he did not represent to them, or any of them, that the said deeds, or any of them, were uniher « powers and authoritybut substantially represented to them, though he cannot now recollect the pro-bise words, that they were deeds to complete their agree-merits with him.
    And as to the charge, that “ the said Thomas, James, and William Butler, at the time of signing the said last-mentioned instrument, were entirely ignorant of the tenor and contents of the said instruments, except from tho representations of the said Elnathan Haskell, and that they are still ignorant of the same” — this defendant an-■sw^ring saitli, that such charge is not and cannot be true: forlmsides that this defendant hopes that he may be able to prove, that the said deeds were read to the parties, or by them, he solemnly avers, that he did communicate the nature of them truly to the said parties ; that he did not represent them as “ further powers and authorities j” and that it is inconceivable, that the wives of these three men should be privately and separately examined before a justice of the quorum, and release all their right and claim of dower to this defendant, in the property mentioned ia the deed to which their renunciation is affixed, and yeE that their husbands only supposed them to be “ further powers and authorities.”
    And as to the charge of the complainants, Thomas, 'William, and James Butler, “that they were induced to sign the said instruments from their ignorance of their rights, and from their supposing themselves bound by the sale and assignment of their claims and interest in and to the said estate formally made to the said Elnathan Haskell” — this defendant says, that it is preposterous for the said complainants to alledge ignorance of their rights, Pot only after they had expressly declared in their own exhibit tliat certain evidence to be examined would prove their rights, but also after the decree of the court had established them. But as to the supposition, that “ they were, bound,” this defendant believes that they did think so at the time, and that they did think they were fairly and legally bound, as he in his conscience thinks they were and arc. And to prove to this court that the said Thomas, James, and William Butler, at the time they sign'. - the aforesaid deeds, must have supposed themselves ucv merely bound, but fairly and justly hound, this dcfcRdniss states, and doubts not to prove, that after the deatii ^ie sa^ Margaret Butler, when the objection arising from an apprehension of a long delay in the re* cc*l}t their rights no longer .existed, this defendant, in a conversation with them, proposed to give up their respec---tive agreements, upon their returning to him the property^ he had actually given to them, and releasing him from the further compliance with the conditions contained in the said agreement; when they objected to the recisior. of" the said contract, and expressed themselves well satisfied, with the same, however the- event might prove.
    And as to the amount of eighty thousand dollars,, stated by complainants to have been received by this defendant out of the estate of the said Margaret Butler, he says he never has received such an amount, but that for -the four shares transferred to him he received the sum of •§52,481, and for his tenth for conducting the business for-all the Butlers Si 1,372.
    
    And this defendant further answering saitli, that he denies with indignation every intention and act of fraud charged in the complainants’ bill, and declares on his oath., -that they arc wholly false. He avers on his oath that he lias conducted himself in the transaction of purchasing their shares, and the share of Charles Butler, openly, honorably, and even generously, in acting on the lights they themselves gave him; in reporting to the said parties whatever information he otherwise received, whether in favor or against their claims j and in offering them, even after the death of the idiot, (when the approach of enjoyment might have altered their minds,) to rescind. their contracts, if they thought proper so to do.
    He avers that he could have purchased other shares,but refused them; that he has offered to soil off those he bought after the death of the idiot for a moderate advance; that whatever impression the abstract statement of the consideration, in contrast with the shares of the complainants, might make on the mind of the court on the first view of the case, he begs that it may be recollected, that on this head all was uncertain on the part of the-complainants at the tipie of the contract. That when the*. idiot would die, whether in five, ten, or twenty years, was wholly uncertain $ that whether the Butlers would prove their affinity after her death was wholly uncertain ; that how many other persons might prove themselves entitled to a distributive part was wholly uncertain ; that what would be the nett amount of each share was wholly uncertain 5 and that in what space of time the suits between the parties claiming distributive shares would be ended was also uncertain; that on the other hand a part of the consideration moving from him was certain, and the residue as certain as the complainants’ claims; that he gave a choice of three young slaves and two hundred dollars for the chance of each of the complainants ; that the worth of this property by increase, produce, and interest, might be doubled and trebled before the death of the idiot tookplaee, which would be to that extent a los» to him, and a gain to them ; that if the claim of the complainants was not substantiated, the defendant had to pay all the costs, which were heavy; and that if their claims were substantiated, be was to pay them two thousand dollars each thereout, although the amount of each might not exceed two thousand dollars, whereby he might receive very little, and possibly nothing.
    The agreement to allow the defendant one tenth of the amount to be recovered for the Butlers is dated the 9th of April, 1804, and recites that the allowance is made in consideration of services rendered by him.
    The original contract with Charles Butler, for the purchase of bis share, is dated the 23d of Juno 1804, ansi is in the following words:
    Whereas it is believed that myself, brothers, and sisters, are as near, or the nearest akin to Peggy Butler of Waccamaw, and tliaj we, some of us, or our heirs, will Inherit the whole or part of the said Peggy Butler’s estate on her demise but, as this is uncertain, or, if true ultimately, it may be many years before the decease of Peggy Butler, and we or any of us got possession of her estate ; and being of opinion that in my circumstances, a certain sum in hand will be moro fijr my interest and hap.-pincss than to take all risks avid delays, 1 have, under those impressions, on mature deliberation, sold, and do hereby sell, to E. Haskell, all my right, or which I or my heirs hereafter may have, in or unto the estate above-, mentioned ; and I do hereby promise and engage to enter into obligations properly drawn up, whenever required so to do by said Haskell, to transfer all my right, or the rigid of my heirs, which I or they may now or hereafter have, to the said estate of the said Peggy Butler, (both real and personal, be the same more or less,) to have and to hold, to him or to his heirs forever; and I promise and engage to execute all such acts, deeds, and writings, as are finally requisite for putting the said Haskell, or his heirs,’ into possession of all the property that I or my heirs may be in any manner entitled to, of the said Peggy Butler, on the following conditions, viz. the said Haskell shall, on or before the fifteenth day of January next, pay to me or my order, two hundred dollars, three African ne-groes about fourteen years old, one of which is to be a female : and on the said Haskell, or his heirs, being put in possession of the estate aforesaid, then he or they' shall pay to me or my heirs two thousand dollars more; this sum shall be in full. It is also agreed, that from and after this day, that the said Butler, party hereto, is to be at no •expense in prosecuting for, or getting possession of, the aforesaid estate. All such expenses are hereafter to be paid by said Haskell, who stands in all respects, as relates to said estate, in Butler’s stead.
    It is likewise to be understood, that the said Haskell is made acquainted with an agreement entered into between the subscriber, Charles Butler, and his brothers and sisters, purporting (as described to said Haskell,) that in case of the death of one or more of them, before the death of Peggy Butler, the heirs of such, or the per_ son to whom he, or she, or they, may have sold their right, (as the.case may be,) shall have an equal proportion of all the property heired or inherited by the survivor or survivors of them, viz. explained — there being nine Butlers, (brothers and sisters,) who have signed said agreement; now if four should die before Peggy Butler,. 
      it is understood that whatever is heired or inherited by the oilier five of Peggy Si idler’s estate, -shall be divided into nine equal parts, and four of which shall be paid or conveyed by the survivor or survivors to the person or persons to whom the deceased have transferred their right, or, if such right has not been transferred, to the heirs of the deceased. This last part is by way of explaining what said agreement contains, or the principles, of it,
    (Signed) Charles Butler,
    E. Haskell,
    Witness — George Butler,
    W. J. Myddleton.
    The following memorandum was endorsed on this-agreement, viz.
    We the subscribers, parties of an agreement men? tioned within, agree to the principle recognised, for dividing whatever is received of Peggy Butler’s estate mentioned within, and did consent to the within Charles Butler's transferring his right to E. Haskell.
    (Signed) George Butler,
    James Butler,
    Thomas But-ler.
    The executor of Charles Butler endorsed on the same agreement the following receipt, viz.
    Received the 1st of March, 1813, of Major E. Has-kell, his obligations for two thousand dollars, being in full of the foregoing obligation, which obligations of the said Haskell are made conformably to the will of the said Charles Butler, deceased, and shall he applied agreeably to it. (Signed,) Wm. Pauling, Qualified Excc’r.
    Witness — Wm. J. Myddleton.
    James Butler sold to tbe defendant, on the 23d of June, 1804, and William Butler and Thomas Bulleron the 9th of July, 1804, by deeds similar to the deed cxe-<-cuted by Charles Butler.
    
      The following certificate, without date, was signed by William, Thomas, and James Butler.
    We the subscribers do jointly and severally acknowledge to have received of Elnathan Haskell payment in full of what we fell heirs to lately by a decree of the court in the case of the administrators of Margaret Butler, deceased, against Butlers, and others. And we do also hereby declare and make known, to all whom it may concern, that tho said Haskell did, after the death of the said Margaret Butler, offer to each of us to give up our respective agreements for the sale of our several shares, upon our returning him the property he had actually paid us, and releasing him from the further compliance of the conditions contained in the said agreement. To this vve disagreed, being well satisfied with the contract we had made, let the event prove as it might, his
    (Signed) William + Butler,
    mark.
    James Butler,
    Signed in presence of us, Thomas Butler. . Jacob Hill,
    Nathan Haskell.
    The deeds relied on as confirmations are dated the S>7th of February, 1813. They are in the same form as the one executed by James Butler, which is in the following words.
    State oe South CakoMNA.
    Know all men by these presents, that whereas I, James Butler, of Amelia Township, in the district of Oraugeburgh, in the state aforesaid, planter, one of the sons of Charles Butler, deceased, have, by a late decree of the court of equity at Georgetown, in the case of tl\je administrators of Margaret Butler, deceased, against Butlers and others, been established as one of the heirs or distributees of the said Margaret Butler, deceased, and as such entitled to one undivided fifteenth part (1-15,) 'of the real and personal estate of the said Margaret But-lor; ami whereas I, the said James Butler, did in and by a certain instrument in writing, bearing date the 23d of June, 1804, for the considerations therein mentioned, sell unto major E. Haskell, of the same place, all my contingent estate, right, and title, to the estate real and personal of the said M. B utlei>, and did, by the same instrument, promise and agree to execute all such acts and deeds as might be necessary, upon the decease of the said Margaret Butler, in order to put the said Elnathan Haskell into possession of all the property of the said Margaret Butler, to which I might be entitled as one of her heirs or distri-butees. And whereas the death of the said Margaret Butler having since taken place, and the aforesaid decree given, it is now ascertained to what part of the real and personal estate of the said Margaret Butler 1 am now entitled : And whereas the said Elnathan Haskell has since the execution of the aforesaid instrument in writing, complied with all the conditions in the said instrument contained: Now, therefore, know ye, that I, the said James Butler, of Amelia Township, in the district of Orangoburgh, in the state aforesaid, in pursuance of the said instrument in writing, and in consideration of the true and faithful performance of all the conditions .therein mentioned, and particularly of the payment of the sum' of two thousand dollars to me, before the execution of these presents, have granted, bargained, sold, and released, assigned, transferred and set over ; and by these presents do grant, bargain, sell, release, assign, transfer, and set over unto the said Elnathan Haskell, all that my one undivided fifteenth part (1-15) of ail the real and personal estate of said Margaret Butler — together with all and singular the rights, members, here-ditaments and appurtenances to the said premises belong- - ing, or in any wise incident or appertaining : To have ándito hold, all and singular, the premises before mentioned, unto the said Elnathan Haskell, his heirs, executors, administrators, and assigns for ever. And I do hereby bind myself, my heirs, executors, and administrators, to warrant and for ever defend all and singular tlic said premises unto the said Elnathan Haskell, his heirs, ex< -' ■■■to-- ■% administrators, ard assigns, against my» self, and mv heirs, executors, and administrators, and against every person whomsoever, lawfully claiming or c*a'ni ^10 same or any part thereof, by, from or under me. And for the purposes aforesaid, Í do hereby constitute and appoint the said Elnathan Haskell, his heirs, executors, administrators, and assigns, my true and lawful attorney and attornies, for me ami in my name, as fas1 as may he necessary so to do, but for his and their own use and behoof, to prosecute to full and complete execution the said decree, and to sue for, take, receive, and possess the- said one fifteenth (1-15) part of the said real and personal estate of the said Margaret Butler, to bis and their own use and behoof for ever; and on receipt thereof good and sufficient discharge for the same in nr-, name to give.
    Witness my hand and seal this twenty-seventh day of February, in the year of our Lord 1813, and in the thirty-.seventh year of the Independence of the United States' of America. James Buteer.
    Sealed and delivered in the presence of W. S. Thomson.
    Jno. L. Thomson.
    Nathan Haskell.
    The following is the substance of the evidence given on the hearing.
    George Butler for complainant.
    The circumstances of his brother were needy. Coming from Charleston he met the defendant near his mill. He asked witness how be was coming on in the business he had gone on. Witness told him he had made poor speed. Mr. Barsh rode up. Defendant told him that he would never go on well until they got some person t go on with the business that the lawyers were afraid of — they then parted. After-wards Barsh and himself, and the other heirs consented to employ major Haskell.- They wentto'Bcllville, where ho resided, and made him this offer, that if lie would undertake the business, they would give him an equal share ■with them. The defendant consented, and the contract' was entered into on the 9th April, 1804. William Butler cannot write. Witness bad been in pursuit of evidence to prove his affinity about three yeans. Major Haskell called on the heirs for money to fee lawyers. M‘Kenzie could not raise iiis part. Witness at that time was streightened. His brothers more so. Witness does not know whether his brothers could have refunded when major H. offered to rescind the contract. He does not think that James Butler could have borrowed the money. His brothers bad no negroes but what they got from the defendant. James was in debt. They were satisfied they were the heirs of Margaret Butler. Mrs. Cordes, Mrs. Graham and Mr. Repult were the witnesses to prove, their relationship. Witness told his brothers all the information he could procure. He had frequent interviews with defendant and gave him all the information he possessed. Charles Butler was inferior to major Haskell in understanding. They put great confidence in him. William Butler was needy and wanted his share. James Butler was a weak man and easily imposed on Thomas was not as easy to be imposed on as the rest. Witness does not recollect being present at the signing the covenants of sale. He lias said since the decree that if the tiling was to do over again, he would as soon employ the defendant as any other man. When the witness and defendant were together, the defendant always communicated to him what lie had done.
    John Butler. — This witness lived with major Haskell when he purchased of Thomas Butler, and he wished to purchase of him. He told witness two or three times to tell Thomas to come and sell him his share. The reason that witness did not sell was that he, did not stand in need. Witness told Thomas twice. He hardly thinks his brothers were able to have supplied money to carry on the law suit. James Butler was weak and easily imposed on.
    Henry Traliek. — Charles Butler, (the father of some of the- complainants) died in the minority of some of his--childrenhe was poof and hired out some of his children as ¿ay laborers. William Butler cannot write, and Jamcsi is ignorant.
    Jacob Hill for defendant.
    Proves the certificate 'signed by William, Tbos. and James Butler, without date; it was signed at defendant’s house in May, 1813. Major Haskell read the paper before it was signed. Witness was present at the defendant’s with Barsh, William, Thomas and James Butler, about the last of May or first of Juno of the same year. The defendant asked Harsh if he had ever proposed to these Butlers to enter suit against him concerning this estate, the same suit they have now entered. Barsh said he had proposed it to them, and that he would pay all costs of suit and take one third if he succeeded. Barsh said the Butlers would not, because major Haskell- liad acted honestly and uprightly. After Barsh had gone away, William Butler said that Barsh had often proposed this to them, and rather tried to persuade them; but that they never would do any thing of the kind, nor ever had such an idea.
    Col. Middleton. — He is acquainted with John Butler. He offered .to sell witness his share of Margaret Butler’s estate, after major Haskell had bought. John Butler afterwards sold to Mr. Darby, and he has offered Darby's bond of $>3000 for $500, payable after the recovery. Witness knew Thomas and James Butler well, He went to school with them. The natural-capacity of complainants is upon a level with the generality of the people of the country. James lias impaired his by intoxication. Major Haskell is careful of his interest, and acute in guarding it. Witness has seen George Butler once or twice at defendants. He heard major Haskell tell him some circumstances he heard in Charleston concerning the Butler estate. The complainants came to major Haskell’s with.their wives to renounce their dower in that estate. The deeds were executed and dower renounced. One of the deeds was read aloud in the presence of the complainants and they are all alike. He told them that the deeds were all alike. Every thing that could be 'done to explain the deeds was done, and the complainants appeared to he satisfied. Witness was present at the execution of the deeds of 1813. They were examined : one was read to the parties audibly. They ■understood the nature of them and appeared satisfied.
    John Thompson. — The deeds of 1813 were all executed the same day, and were read aloud to the parties, who were all apprised of their contents and appeared perfectly satisfied.
    Doctor Haskell. — -Witness resided at major Has-kell’s in 1804. He saw three or four of the Butlers (but be does not know their names) come twelve or fourteen times to major Haskell; he understood they were brothers of George Butler. He heard them frequently propose to sell their shares to major Haskell. Ho endeavored to persuade the defendant not to buy. He has seen George Butler very frequently at defandant’s, and heard him before and after the sale converse with the defendant concerning the Butler estate. Witness signed the receipt for them, and they appeared satisfied. John Butler proposed to sell his share to witness, but he declined. He heard George Butler propose to the defendant to undertake to recover the Butler estate for him and his'-brothers. Defendant told him he had better employ an attorney — that a lawyer was best calculated to succeed in it. George Butler replied that he would rather the defendant would employ the lawyer as he was a better judge than himself. The defendant recommended Mr. Parker. The defendant know little about the Butler claim. The capacity of the Butlers was equal to the commonalty of their class.
    After the hearing, chancellor Thompson pronounced the following decree.
    This bill was brought to set aside an agreement entered into between the parties, under the following circumstances. Margaret Butler, who had been an idiot from nativity, and was possessed of a large real and personal estate on Waccamaw, had nonear or immediate kindred known in this state.
    The complainants considering themselves as next of kin, and heirs at law of said Margaret, employed their brother, George Butler, to investigate and ascertain the degree of. relationship that subsisted between them anti the idiot, and after having been engaged three years iti making enquiry, ho acknowledged he had made little or no progress therein.
    The complainants considering the defendant as a man of great experience and skill in the management of transactions of that kind, applied to him and agreed to give him one-tenth part of all he could recover as com--pensation for his trouble and expenses, and on the 29th of March, 1804, entered into an agreement to that effect. That on the 23d of June following, he purchased of Charles and James Butler all their right and title to the said Margaret’s estate j and on the 9th of July, in the same year, he purchased of William Butler and Thomas Butler their respective claims thereto. That on the 2d of May, 1805, a bill was filed to perpetuate the testimony, and that Margaret Butler, the idiot, died in 1811; shortly after which event a suit was instituted in the Court of Equity at Georgetown, for the purpose of ascertaining who were her next of kin, and the decree was in favor of the complainants and certain other persons therein mentioned. It further appears, that after the death of the idiot, and subsequent to the decree, the complainants executed deeds of conveyance to the defendants, with a full knowledge of every circumstance relating to the case, and were apparently satisfied, and expressed themselves to that effect. The first ground contended for by complainants’ counsel is, that they were ignorant of their rights.
    There are cases in which the ignorance of a particular fact will be a ground of relief, but every kind of mistake is not relicvable even in Equity — for although it will grant relief against a plain mistake or misapprehension, yet it will not interpose if the fact was from its nature doubtful, or at the time of the agreement equally known or unknown to both pas ties, or where there has been a long acquiescence.
    As to ignorance in law, it is-Iaid down as a general rule, that it shall not affect agreements or excuse from the legal consequences qf particular acts- But irrthis "case it does not appear the parties were ignorant of their rights, for defendant gave them ail the information he had received from time to time, as is expressly alledged in his answer, and strengthened by the testimony of George Butler. Under this head it has been contended and attempted to be proven, that the complainants are men of very moderate intellectual faculties, and easily imposed on ; but this fact has not been supported by evidence. Colonel Myddleton and Dr. Haskell testify that their capacities are on a level with men of their class generally ; and if this Court was once to sanction the principle that inequality of talents was a ground for annulling contracts, there would be no end to litigation ; upon this ground the complainants must fail.
    It is further contended that this contract ought to be set aside on the ground of misrepresentation and concealment. The defendant unequivocally denies this allegation in the bill, and as no testimony has been adduced in support of it, it must also fall to the ground.
    The next ground upon which the complainants rely for relief is gross inadequacy of price. This principle, although familiar in the English courts, is somewhat novel in this country. The most of the cases there under this head, arise from young heirs selling their expectancy, and the policy of that country seems to require that there should be one great and influential man in a family, to the impoverishment and disinheritance of the others. A similar policy does not prevail here, nor do I think the doctrine should be carried to so great an extent.
    In the cases laid down in the books there is no particular rule by which to ascertain what disproportion will be sufficient to annul a contract. In some cases it is more, in others less. The civil law lays it down at twice as much as the price given. The disproportion in this case is by far the largest to be met with, but it may he observed that in some respects it was contingent and remote ; and being a speculation, the defendants might have lost all, in which event the complainants would have gained and defendant lost to the amount advanced by him. Upon this point it seems to be generally agreed that mere inadequacy of price is no ground for the court to set aside an agreement, — although executory, if it appears to have been fairly entered into and understood $ and there is an abundance of evidence to establish the fact, that they were perfectly apprised, and great pains taken to inform them of their rights after the decree had been obtained, and nothing left in uncertainty; and still less is it to be considered as a ground for recinding a contract already executed, and forasmuch as the ex-orbitancy of price has not been held sufficient to discharge a defendant from the performance of his contract, by the same parity of reasoning, the complainants shall not be relieved if they have disposed of their property for less than the value. It docs not appear to the court that the contract ought to be set aside on the score of inadequacy of price, as there is no actual fraud proven against the defendant 5 and the complainants, eleven years alter the first contract had been entered into, when they possessed every light the case was capable of reflecting, recognized the transaction, and executed a solemn deed of confirmation.
    The last and by far the most difficult and important point in this case is, supposing the transaction to have been fair in every respect, and unpolluted with the least tincture of fraud, was the relative situation of the parties such as legally to allow them to contract ? There caffi'be no doubt but in June and July, 1804, when the defendant purchased of the complainants, that he acted as agent or trustee for them. The question then will arise, can a trustee purchase of his cestui que trust ? I am decidedly of opinion .that such purchase cannot be valid under any circumstances, during the continuation of such relationship. The probable indigence of the cestui que trust, who, under the pressure of necessitous circumstances, would prefer the present enjoyment of a small portion of his estate to a distant and remote expectancy of tho whole; the opportunity the trustee has of obtaining information as to the nature and extent of the trust estate 5 the. undue influence which the trustee may Intve over the cestui que trust, render it dangerous and impolitic that they should be permitted to contract for any thine; relatine; to the trust estate. But here another question arises, will lapse or time and subsequent confirmation render that valid which in its creation was invalid ? It appears that eleven years after the relationship of trustee and cestui que trust had been dissolved, the complainants with their eyes open, with a full knowledge of the nature and extent of their rights, voluntarily executed solemn deeds of confirmation, ratifying and sanctifying the original contract; I am therefore of opinion that this last act of the complainants completely shuts the. door against their recovery. Upon the wholej I am of opinion, that the complainants have failed in establishing the fact of actual fraud, and that there does not exist in this case, those combinations of circumstances to presume a legal fraud: that the parties are not entitled to the relief prayed fox', and that the bill must be dismissed with costs. W. Thompson-.
    From this decree there was an appeal on the following grounds:
    Appeal,
    First — That there was evidence of actual fraud, which rendered the contract void, and incapable of confirmation.
    Secondly. — That fraud was to be implied from the inadequacy of consideration $ especially when the implication was strengthened by the evidence of the weakness and necessities of the complainants, the relative situation of the parties, and other traits of fraud and’concealment.
    Thirdly — That the contract ought to have been avoided, as an unconscionable bargain made with an heir concerning his inheritance.
    Fourthly — That fraud was to be implied from the relative situation of the parties, the defendant having purchased of the complainants while acting as their trustee and agent’.
    Fifthly — That the contract ought to have been declared void from all the foregoing grounds taken in combination, and strengthening each other.
    Sixthly — That neither in the length of time, nor the j{rts of confirmation, was there such a confirmation as WouId render the contract valid.
    Seventhly — That from the principles of the decree
    itself it ought to be reversed, as far as respects the share of Charles Butler, who died before the idiot, and never' did any act of confirmation.
    Harper and Felder complainants’solicitors.
    The appeal came to a hearing at Columbia, before the chancellors Desaussure, Halliard, Waties, James, and Thompson.
    After a very able argument of three days by the counsel, the court took time to deliberate.
    At the subsequent meeting of the court of appeals at Columbia, it was signified by judge Thompson that be adhered to the decree given in the circuit court; and it was also stated, on the behalf of judge Halliard, (who was then absent from the state,) that he was of opinion that the judge, who had heard tire case on the circuit, had taken a correct view of the case, and therefore that the decree should be affirmed.
   The judges Desaussure, Waties, and James, being of a d Ufe rent opinion, Judge Desaussure delivered the following opinion and decree as the judgment of the court.

This cause was argued with great zeal and ability' by the counsel on both sides, to the great assistance of the court. As the case involved the discussion of many difficult points, and a vast property depended upon the decision, an unusual length of time has been taken by the judges in making up their opinions. In forming my own judgment, I have, gone deliberately over all the documents anti all the evidence, and I have examined all the decided cases quoted by the bar. I have also reflected on the arguments of the counsel, and deliberated long on the opinion pronounced by the circuit judge who tried the cause. The result has been a very clear and full conviction, which I shall proceed to state.

This suit was instituted by the complainants, who are the present appellants, and who are alledged to bo ignorant and necessitous men, in an humble condition of life, against the defeudant, who is stated to be an intglli-.gent man, of great skill in the management of business, arid of high standing and influence in society. The object of it is to set aside certain contracts, for the sale of a large property, at a very inadequate price, on the ground that these contracts were obtained from them by the superior judgment and skill of the defendant, acting upon their ignorance and distress, when they were under the pressure of necessity : And also on the ground, that the defendant having been employed by the complainants and others, at a great price, to prosecute and establish their claims to the property in question, was their agent, enjoyed their confidence, obtained important information relative to their rights, and then obtained from them the contracts for the sale thereof on the inadequate terms complained of.

It appeared in evidence that the complainants were all in very narrow circumstances, illiterate and ignorant. One of them could not write his name •, another of them was addicted to drink, and nono of them were experienced in business. There was no pretence however of idiocy, or such extreme weakness in any of them, as to amount to legal incapacity to contract. They lived in the neighborhood of the defendant’s country residence, and they appeared to have had high confidence in him. The defendant himself was a man of judgment and experience, of considerable property, and of weight and consideration in society.

It appears that there were nine of the Butler family, brothers and sisters, who learnt sometime in the year '1801, that they were related to a Miss Margaret Butler, who was an idiot, possessed of a considerable estate near Georgetown, at the distance of nearly one hundred miles from them. George Butler, one of the brothers, who appears to have been the most intelligent among them, was employed to make enquiries into the nearness of their relationship to the idiot, and into the probability of establishing their claims. He seems to have acquired some information, and to have discovered some important witnesses 5 but he ivas ignorant of the proper method of pre-ceeding’, and was discouraged by the little satisfactory progress he made in pursuing the claims.

In this state of discouragement two of the claimants met the defendant, and entered into conversation with him respecting their claims, and the little success which had • attended their exertions to establish them. The defendant thereupon advised them to employ some skilful person, who should be competent to manage the business, and bring it to a happy issue. The family seem to have been so much influenced by.his advice, that they resolved to pursue it: and as they knew no person so competent as he was, and in whom they had so much confidence, they determined to employ him in their behalf. Accordingly they applied to him, and after some negotiation an agreement was entered into, by which the claimants agreed to .allow him a tenth part of what might he recovered of Miss Butler’s estate, for his services in establishing their claims.

The first paper presented to the view of tho court was a letter from George Butler and George Barsh (who had married one of the sisters,) to the defendant, dated tho ,4th of February, 1804, in which they request him to act as the agent of the claimants, for-the purpose of perpetuating the evidence they were able to produce to establish their relationship to Peggy Butler of Waccamaw. They stated that they had been about two years flattered with the prospect of being heard before a court, and permitted to ¡¡rovo their relationship, but without effect. They added that their witnesses were very old, and they apprehended that further delay would endanger the loss of the property, which they stood much in need of | and they urged the defendant to lose no time in proceeding on their behalf.

The defendant says in his answer to the bill, that he agreed to the proposition 5 and on the 9th of April, 1804, a paper was signed by George Butler, Charles Butler, and William Sutler, which calls itself a memorandum of an agreement made between them and the defendant, though ,it was not signed by him. This paper was in the hand- „ writing of the defendant, and recites that whereas E. Haskell bad rendered them certain services, they have agreed to compensate him for them by transferring to him and his heirs, whenever they or their heirs should come into possession of the estate in question, one-tenth part of all the estate of Peggy Butler, to which they should be entitled ; and they promised to execute such writings as might be required to give effect to the agreement: the said Has-kell first paying one-tenth part of all the charges which might accrue in establishing them the lawful heirs of the said estate.

Tiie defendant then went to Charleston, and ‘ had some communication with some agents formerly employed, and made some inquiries on the subject of the estate. On I) is return into the country, he entered into agreements with four of the Butlers for the purchase of their claims on the estate. One of the agreements was with Charles Butler, dated tho 23d of-June, 1804, in which (after reciting that it was believed that the .said Charles Butler, and his brothers and sisters, were as near, or the nearest of kin of Peggy Butler of Waccamaw, and that they would inherit the whole or part of her estate — but as this was uncertain, or, if true, it might be many years before the decease of Peggy Butler, and before any of them might get possession of her estate — and that he, being of opinion that in his circumstances it would be more for his interest and happiness to take a certain sum in hand, than to take the risques’ánd delays,) it was agreed that he, the said Charles Butler, should sell to E. Haskell all his rights, or those which his heirs might hereafter have, in and to the said estate, real and personal j and he promised to execute proper deeds to perfect the conveyance to said Haskell and his heirs, on condition that he should pay to the said Charles, on or before the first day of January then next ensuing, the sum of $200, and deliver him three African negro slaves, about fourteen years old ; and ’on the said Haskell’s getting possession of the estate, then he should pay to tbe said Charles §2,000 more, which should he in full, without any expense to the said Charles in prosecuting the claim. This paper also noted, that the said E. Haskell was made-acquainted with an agreement ¡madety and between the Butlers, that in the event of the death, 0j.“ ()11.„ or morc ()¡“ them before Uie death of Pea-ary Butler* the heirs or assignees ot the deceased should have ait ectua^ proportion of all the property inherited by the survivors. This paper was signed by Charles Butler and E.. Haskell, and witnessed by George .Butler and W. J. Myddlcton. A memorandum was added, signed by George,* Janies, and Thomas Butler, acknowledging the agreement respecting the survivorship, and consenting to Charles Butler’s transferring his rights to E. Haskell.

There are. receipts endorsed on the agreement, from June, 1804, till July, 1805, for successive payments of the g200, and of the three negroes ; and on the 1st of March, 1813, for major Haskell’s obligations for §2,000, signed by the executor of Charles Butler, who was dead.

James Butler on the 23d of June, and Thomas and "William Butler on the 9th of July, 1804, entered into precisely similar agreements with major Haskell, for the sale of their respective shares at the same price; on each of which was endorsed similar consent of some of the brothers, and with nearly similar receipts.

The strength of the. charge ailedged by the complainants in their bill lies here — that the defendant being the agent of the Butlers, possessed of all their information and papers, had opportunities of making- discoveries relative to their prospects of establishing the rights of the complainants ; and that availing himself of his knowledge* and of their entire confidence in him, and profiting by their necessities, he made purchases from them of their rights at most inadequate prices. The answer of the defendant, admitting the agency and the purchases from the complainants, denies that ho got perfect knowledge of the na-, ture and extent of the estate, and of the rights of the complainants in.his character of agent; anil that at the time he purchased the shares of four of the Butlers, he had not procured any further information on the subject from the time he had agreed to become the agent; that all the iiir ■formation he possessed he got from the brother, George Butler; that he had made no new discoveries, and the testimony had not been perpetuated aj tlije time of his pi@> 'chases. There appears to be some discrepancy between some, part of this answer and the agreement to allow the defendant a tenth part of what might be recovered of the estate of Peggy Butler : for that paper recites, that the allowance ol a tenth is agreed to he given on account or certain services rendered by the defendant to the complainants. What could those services have been, since the testimony was not yet perpetuated, but some essential discoveries as to their rights, and the proofs in sup-: port of them ? If this were, not the case, and the answer •states it so, then the language of the agreement is incorrect, and the great premium of a tenth part of the estate recovered might be impeached ; as was done in a case ■where similar services were said to he rendered, by the par-y’s assisting a poor and necessitous man in deducing his pedigree, and supporting his claims to an estate. See Proof vs. Hines. Cas. Temp. Talbot, p. 3. And nothing ean show in a more striking light the entire confidence reposed by the Butlers in the defendant, and their igno-'rar.ee and want of capacity, than their signing a paper, drawn up by the defendant in April, 1804, reciting that he liad rendered them services in relation to the Butler estate, for which they agree to allow him a tenth of their rights, though the amount was totally unknown to them, (but believed to be very considerable,) when the defendant himself states in his answer, that as late as June and July, 1804, he had made no discoveries, knew no more than what they had communicated to him, and had not perpetuated the testimony, consequently liad rendered no essential services. Another strong mark of the confidence reposed in the defendant by the complainants is their signature of the agreement for the sale of their interests in the estate, drawn up by the defendant, without any legal adviser, on their part, which has always been considered unfavorable to such contracts. See 2 P. Wms. 205, and 2 Schoales and Lefroy, 474. The reasons assigned in the deed for the sale are very unusual and seem to indicate'a suspicion that some excuse was requisite for so great an inequality. It is alledged that their claims were uncertain, and that many years might elapse before they could get the benefit of them, and that it was better for them to have a certain sum in hand, than to run the risks and endürc the delays they must do. These expressions inserted in the agreements by the defendant indicate’ that ^.jic Qouipjainants were greatly discouraged in their hopes by the clouds thrown over them by some means ,• and it is not wonderful that they were discouraged, when a gentleman of intelligence and judgment, after being employed some months as an agent to investigate their rights, and to take measures to establish them, returns to them without having made any discoveries, and without giving them any encouragement. In this frame of their minds he becomes the purchaser, at a most inadequate price. It is to be lamented that judicious witnesses were not present at the discussion and settlement of the terms of the contracts. The witnesses do indeed prove the regular and voluntary execution of the deeds or papers; but they do not prove the discussions and representations which leil to them. And this is unfavorable to the defendant ; for the rule is quite clearythat in all cases of this kind, where a great advantage is gained in a contract by an agent from liis principal, the proof lies on him to show that the transactions were perfectly fair and pure. See 6 Vesey, 276 ; 9 Vesey, 369; 12 Vesey, 240.

It must bo remembered in the consideration of this question, that the rules at law' and in equity are quite distinct. That eminent chancellor, lord Hardwicke, says expressly, that this court will relieve against presumptive frauds; so that equity goes farther than the rule of law : for there fraud must be proved, and not presumed only — and that to take an advantage of a man’s necessity is as bad as to take advantage of his weakness — 1 Atk. 352 ; and lord chancellor Eldon agrees with him. He says, though there had been a strong inclination in Westminster Hall, in the time of lord Mansfield, persuaded to it by judge JBullcr, to say that whatever is equity ought to be law, this lias been reformed by lord Kenyon — and that the clear doctrine of lord Hardwicke and ail his predecessors Was, that there are many instances of fraud that .Would affect instruments in equity, of which the. law could not take notice. See 1 Vesey, and Beames, 98.

It was insisted that the defendant had not sought or solicited the complainants, but that they had pressed the saloon him ; and this was relied upon'as a circumstance of much weight: more especially as it was said that offers were made to others of a similar nature. The proofs were not very distinct on this point, except as it related to one of the brothers ; and another of them swore that he was requested by the defendant to desire his brother to come to him, and sell him his share. But if the proofs had been unequivocal, it would not have been very conclusive ; for the offers to sell it to others at low prices might be the effect of their necessities.

A good deal of stress was laid upon the signatures of some of the brothers to the deeds by which the complainants agreed to transfer their rights to the defendant, either as witnesses, or as expressing their approbation of the bargain and the terms. And it was insisted that this was clear evidence of the fairness of the transaction. If these men had been intelligent or judicious men, this evidence would have had great weight; but they were generally illiterate, and they were all discouraged and hopeless ; and their judgment upon the subject before them does not seeni to be entitled to the high consideration attempted to be given to it. But certainly it does give the impression that they apprehended no fraud was practi-sing on their brothers who were selling their rights.

Again, great reliance was placed on the fact that the defendant had refused to purchase the share of John Butler, another of the brothers, who offered to sell his share at about the same price which the others got, as evidence that the defendant did not consider the bargain a great one : and undoubtedly it is presumptive evidence of that. But it is susceptible of the view taken of it on the other side, that by’refusing to make this purchase, the defendant expected to give a coloring of fairness to his other purchases. the great inadequacy of which might otherwise bring them into suspicion. On which of these principles the defendant acted, it is impossible for ns to determine with absolute certainty' — that mast be. left to the Searcher of hearts.

It was further urged, that if the defendant had not become the purchaser at the price he gave, others might and probably would have purchased at even lower rates* But 1 do not conceive that because others might have availed themselves of the necessities or doubts of the Butlers, to obtain an unconscientious bargain from them, tliis would form any excuse for the defendant, more especially cloathed as he was with the character of an agent.

We will now proceed to consider whether the great inadequacy of the price alone, or coupled with other circumstances, does not furnish a ground from which the comt is bound to infer, that the bargain was too uncon-scieutious tobe supported in a court of equity ? That the inadequacy was very considerable appears from the com, parison ol‘ the price agreed to be given, and the amount of the value of the estate, and the shares the Butlers were entitled to. The defendant was to pay to the amount of gl ,200 for each share purchased, at all events, and £>2,000 in case of success. The amount of the estate, by the defendant’s exhibit II. was ¡$219,853, not including some expectancies. The defendant makes various deductions, which reduce the value of each share of the nine surviving Butlers tó about $11,372. My view of it would make each share worth, independant of the defendant’s transactions with them, about $12,630 : to which some additions were to be made, which would make each share worth from 13 to $14,000. This exceeds the price to be paid for each share more than fourfold. Great inadc-quecy of price lias every where been considered an evidence of unfairness in the contract, so as to induce the courts of justice to look upon such transactions with a very jealous eye. By the civil law, a sale was declared to be void if the property was sold for less than one half its value. The French code civil has adopted the Roman rule, but enlarged its- limits a little. The seller may obtain a recision of the contract of sale of real estate, not made at public auction, if the property was not sold for five twelfths of its value, even though he had expressly J-’enounml, in. the contract of sale, the action for the rc-pision — See 4th vol. Cod. Civ. p. 370. Loi Relative a la Vente. Ch. 6. Sect. 2. Neither the English nor the American legislators have chought it adviseabie to lay down any precise rule on the- subject. It has been left, perhaps wisely, to the experience of the courts of justice to apply the great principles of equity to each case, according to its particular circumstances ; and thus gradually to form a practical system of pure justice. And the courts have, never decided, as a bread principle, that mere inadequacy of price, unconnected with direct fraud or imposition, or concealment, or advantage taken of extreme weakness, or great necessity, should be a distinct and independent ground of vitiating contracts. But the ■courts have said, that the inadequacy may he so gross as to furnish strong, and even conclusive, presumption of fraud ; and that in this way/thc grossness of the inadequacy may avoid the sale.

In comparing the inadequacy existing in the case under our consideration with the degrees of inadequacy existing in the. decided eases, it seems to come completely within that degree of gross inadequacy which furnished the presumption, a'nd vitiated the contracts. And I should therefore feel obliged by the authorities to pronounce, that the inadequacy was too great to be borne by a court of justice. But there can remain no doubt, when to a most gross inadequacy it is added, that the complainants were uneducated and ignorant men, in very narrow; and even necessitous circumstances, dealing in business out of their depth, with a very intelligent and experienced man, in whom they had great confidence. Í am not aware of any case, containing this combination of circumstances, in which relief lias not been given by the court, it will be/ seen, on an examination of the authorities, that the risk run by the defendant, and which was much relied upon to support the contract, has not been held to be sufficient for that purpose.

Before I go into a short examination of the decided cases, 1 will remark, that timer is a distinction made between tüq parses of young heirs selling expectancies aud {>f 0[|ier persons, which I am not disposed to support. It is said that the former are watched with more jealousy, and more easily set aside than others, on principles of public policy. This was certainly true at first ,■ but the eminent men who have sat in chancery have gradually applied the great principles of equity, on which relief is granted, to every case where the dexterity of intelligent men liad obtained bargains at an enormous and uncon-scientious disproportion, from the ignorance, the weakness, or the necessities of others, whether young heirs or not. This just principle, the safeguard of society, and the tutelary genius of the court, watching over the imbecile and the needy, I adopt in all its extent. It is proper that there should be a perfect accordance between the principles of the contracts of the citizen, and the great principles of constitutional liberty which they enjoy. The former should be as puro as the latter are liberal and extensive. The only solid foundation for the liberty of the country is the virtue of the citizen.

Let us proceed to examine the decided cases, and sec their application to the one under our consideration. The first that I shall notice is that of Barney vs. Pitt, 2 Vernon, 14. The plaintiff was a young man entitled to a great estate on the death of his father, who was tenant for life. He got in debt, and borrowed 2,000L of the defendant, and entered into two judgments, of 5,0001. a-piecc, defcasanced that if the plaintiff outlived his father, and paid the defendant 5,000i. the defendant should vacate the judgment: and if the plaintiff did not outlive bis father, the money should not he repaid. The father lived four years; and complainant filed a bill to he relieved against the judgments, upon the payment of the 8,0001. and interest. The bill complained of fraud, and of the defendant working upon the plaintiff when in dis - tress. Relief was given on the ground of its being an -unconscionable bargain, though there was no proof of any practice used by the defendant, or any on his behalf, to draw the plaintiff into this security. See too 1 P. Wms. 318.

fn the case of Knott vs. Hill, 2 Vern. 27, it was dc-tided, that the sale of an estate in remainder by a son who was in necessity, was void on account of the gross inadequacy, though the purchaser would have lost all if the son had died first. ■ The decree was affirmed on a rc-hear-ing, the lord chancellor declaring it was an unrighteous bargain in the beginning, and that nothing could help it.

In the case of Wiseman vs. Beake, 2 Vern. 121, relief was granted against a bargain on account of gross inadequacy, though the purchaser was to lose all if the seller did not survive his uncle, and get his estate. Wise-man Avas 40 years old, and an experienced man j and an offer hail been made to relinquish the bargain, which he had refused. The court said, that Avhen he had spent the money, then a specious offer was made to relinquish the bargain on payment of the money advanced, Avith interest, which at that time it was impossible for him to do-.

So too relief was given in the case of James vs. Oades, 2 Vern. 402, and of Ardglass vs. Muschamp, 1 Vern. 237. In the latter case the contingency relied upon, in support of the bargain, Avas held to be of no importance in such a case.

In the case of Stanhope vs. Toppe, 2 Bro. P. C. 188, lord chancellor Macclesfield gave relief against an advantageous bargain obtained by Stanhope from a person of weak understanding, though there was no direct proof of fraud ; and the answer denied all fraud : and the decree was affirmed on appeal.

In Twisleton vs. Griffith, 1 P. Wms. 310, lord chancellor Cowper set aside a contract, by which the defendant had got a good bargain from a young man who sold the reversion of an estate tail, his father being tenant for life, and an old man. The hazard run of losing the money paid, in case of the sou’s dying before his father, was not allowed to have any influence in the cause.

In the case of Curwen vs. Miller, lord chancellor King set aside a contract, on which an heir about 27 years of age borrowed 5001. on condition to pay 1,0001. if he survived his father and father-in-law. It atsb said the bargain being hawked about, only shewed the nev ccssities of the party — See note C in 3 P. Wms. 292.

Lord chancellor Taibot gave relief in Bosanquet vs. Dash wood, in Forrester’s Reports, 37, though the party had submitted to the imposition from necessity for fourteen years. In that case, several decisions by lord chancellors Harcourt and King were referred to, in which it was declared, that relief would be. given against all offences against the law of nature and reason.

The case of Proof vs. Hines, Forrester p. 8, was a very important one. The plaintiff was a poor illiterate man, who was supposed to be entitled, to part of an estate | and lie applied to the defendant to assist him in making out his pedigree, and getting such proofs as wore necessary to make out his title to the estate. They advanced some small sums, and took some pains in the affair : and a bond for l,000i. was given, payable after the estate should be recovered. Lord chancellor Talbot- in giving relief said, that the bond was obtained from the plaintiff when under necessity,, and that the plaintiff's poverty is not to be omitted in such a case.

In Baugh vs. Price, decided in the exchequer, and reported in 5 Wilson, 320, relief was given, and actual conveyances set aside, though the inadequacy did not exceed one half the value. This is a very important case-.

In giving relief against a contract for the sale of a remainder in. tail, made by the remainder-man, who was in necessitous circumstances, at a very low rate, lord chancellor liardwicke said, that though the buyer might lose his money, if the remainder-man died before the tenant for life, this risk was immaterial; it was common ■in such transactions. Barnardiston vs. Lingard, 2 Atk. 133.

In Walmsly vs. Booth, 2 Atk. 25, lord Hardwickc gave relief against a bond obtained by an attorney from his client in distress, and reversed his first decree.

In the great case of Chesterfield vs. Janssen, 1 Atk. 301, lord chancellor Hardwicke made many important observations, explaining the doctrines of this Court, He said that the court relieves against all kinds of fraud ; — that frauds may be either dolus malus, a clear And express fraud, or fraud ¡nay arise from circumstances, and the necessity of the person at the time. And there are also hard, unconscionable bargains, which have been construed fraudulent; and this court will relieve against presumptive fraud. To take advantage of another man’s necessity, is equally bad as taking advantage of his weakness. Fraud is presumed from the circumstances and condition of the parties ; weakness and necessity on one side, and extortion and avarice on the other — and merely from the intrinsic nncouscionablencss of the bargain.

The court liad previously given relief in the cases of Clarkson vs. Hanway — 2 P. Wms. 203. Lawley vs. Hooper — 3 Atk. 278.

We come now to the important case of Gwynne vs. Heaton, decided by lord Thurlow — See 1 Bro. C. C. p. 1. By this decision, the grant of a reversionary rent charge, after the death of the plaintiff’s father, who was old and infirm, upon unreasonable terms, was set aside $ though it was contended for the defendant, that he was mot a dealer in such transactions, and was invited into the bargain, and the terms deliberately settled by the plaintiff with his friends; the same terms having been offered to other persons : — also, that Gwynne was not an expensive young man, following his pleasures ; and this Was not like the case of a young man dependant on his father — that there was a contingency too, by which the defendant might iiave lost all his advances; and that the disproportion was not enormous — for if the lather had lived seven years, there could not have been any pretence of such inequality as the court would relieve against» So that it was reduced to the single question, whether this agreement was upon such an inadequate-consideration that this court will set it aside on that ground alone, there being no pretence of imposition. But ail these reasons were urged in vain, as it appeared that the consider ration was grossly inadequate, being, as was stated, three or four for one. — 'The lord chancellor said, the ground for relief was gross inequality — that the charges of fraud and oppression were not proved — that the vendor made tbe offer to the. purchaser, who accepted it in the very shape it was offered, and did not Labor to lower the terms., ’ There was no confidence subsisting between the seller aiK* ^iC buyer; there was no misleading the judgment of the vendor, nor tampering with his poverty. On the other hand, said the lord chancellor, the terms are so very grossly inadequate, as to deserve all that has been said to be necessary to the setting the bargain aside. To set aside a conveyance, there must be an inequality so gross, strong, and manifest, that it must be impossible to state it to a man of common sense without producing an exclamation at the inequality of it. The chancellor then proceeds to take a masterly view of the decided cases, in which he shows that inadequacy alone cannot, as mere inadequacy, be made a ground for setting aside a contract ; yet it was, when very gross, a mark of fraud, and in that way would operate to vitiate the bargain. That was the ground in sir Thomas Mear’s case, cited in Forrester, p. 40. The case of Nott vs. Hill was clear of fraud, except what arose from the inequality. Lord Hardwicke treated gross inequality as a mark of fraud in many cases. Curwen vs. Miller was clear of direct fraud ; but the bargain was set aside, though the inequality was only two to one. In modern cases it is admitted, that the owners of reversionary interests arc as- complete to dispose of them as the owners of other interests, but with this qualification — rihat there is a policy in justice, protecting the person who lias the expectancy, and reducing him to the situation of an infant against the effects of his own conduct. The,court avows the disability, but not the length to which it disables. Its being hawked about is not an objection to the relief; it only shows the necessity the vendor was. under.

In thecase of Gartside vs. Itherwood, 1 Bro. C. C. 558, lord chancellor Thurlow again gave relief against a bargain obtained from a man of weak intellects, by his agent, on inadequate considerations, though the party came for relief seven years after the transactions. He said it used to he held, that a contract ought not to be set aside merely for inequality in the bargain, or merely upon the ground of the weakness of the person selling $ but the court has since gone furtheiv — inadequacy is the basis of the relief; the thing to be inferred from the inadequacy is fraud — it is evitlohce of fraud,’ but for that purpose it must be gross.

In Heathcoat vs. Paignon, 2 Bro. C. C. 167, a purchase of an annuity was set aside, on the inadequacy, the purchaser haying given only two-fifths of the value. There was no apptHrancc of distress. The chancellor said that mere inadequacy, as a distinct ground, was scarcely sufficient. But, there was a difference between that and evidence arising from inadequacy. Lord chancellor Bedesdale in remarking on this,case said, he did not think that mere inadequacy was a sufficient ground to impeach a contract, unless very gross. — 2 Schoales and Lefroy, 395. In a note to the case of Heath vs. Paignon, that of Herne vs. Mears is stated, in which it appears that an inadequacy of half the value, and the distress the seller was in, induced the court to set aside the contract.' — See 2 Bro. C. C. 176, 7.

In Underhill vs. Horwood, 10 Vesey, 211, the lord chancellor Eldon stated, that if the terms arc so extremely inadequate, as to satisfy the conscience of the court that there must have been imposition, or that species of pressure on the party’s distress, which, in the view of this court, amounts to oppression, the court will order the instrument to be delivered up.

In Moftloke vs. Buller, 10 Vesey, 292, lord chancellor Eldon refused to decree specific execution of a contract for the sale of land, where the inadequacy did not exceed half the value, though there was no imputation on the conduct of the buyer; but the agent of the vendor had not communicated to him the survey and valuation, which would have shown him the true value.

Lord Alvanby refused to decree specific execution of a contract in a case clear of all fraud, where the inadequacy was very gross, being about half the value. — Day vs. Newman, 10 Vesey, 300.

In Tilley vs. Peers, decided in the court of exchequer, and stated by sir Samuel Romilly, 10 Vesey, 301, the di i oí baron said, that laying out of consideration all circumstances of fraud, the court, upon the mere consideration of its being so hard a bargain, will not enforce it. Baron Thompson said, the plaintiff could not be assisted by the court, the consideration not being one -third of the value.

In Morse vs. Royal, 12 Vesey, 355, though the chancellor refused to set aside the contract, on the peculiar circumstances, said that gross inadequacy will go a great way to constitute fraud. In that case the vendor was anxious to sell, and pressed it on the purchaser. An intelligent relation of the vendor, and a trustee, concurred in the transaction. The seller veas not ignorant, weak, or necessitous. There was no imputation on the buyer. • There had been long acquiescence; and a confirmation made on receiving an additional price; and the buyer was dead, who might have explained many things. Yet lord chancellor Erskinc barely sustained the transaction, ami expressed his regret that the rule of policy had not barred more absolutely contracts between trustees ami their cestui que trust, as well as it did in some other cases, such as attornies and clients, trustees selling to themselves, &c.

In Lowther vs. Lowther, 13 Vesey, 103, lord chancellor Erskine agrees with his predecessors, that gross inequality is strong evidence of fraud. The dispropoiv iion was about six to one in that case.

In Pickett vs. Loggon, 14 Vesey, 214, 224, 243, lord chancellor Eldon gave relief to the plaintiffs, and set asido the agreements, and the formal conveyances, and even a fine, conveying the estate to tire defendant, upon-the ground of gross'inadequacy of price, (about one-fifth of the value,,) and the vendors being in distress, ignorant of their real interests and its value, and not properly protected by counsel, though a great lapse of time liad occurred. Sn this case the answer denied, that the plaintiffs were drawn in by any advantage taken of their ignorance or distress; and denied that the defendant was possessed of any informal ion which was withheld from the plaintiffs. The defendant also relied on the risk ran of losing the-Whole purchase, if a nearer heii* should asnear ; and it was known that one formerly existed, though he had not been heard- from for many years. But this was not allowed to be any reason against the relief, according to lord Hardwicke’s opinion in Barnardiston vs. Lingood, 2 Atk. 133. The evidence in Pickett vs. Loggon stated, that the deeds were read and explained to the plaintiffs by the attornies, and they were made to understand the nature and value of the property. But they were in great poverty and distress; they were very ignorant people $ and though some description of the property was given in the deeds, it was not as full as it should have been. The price being so inadequate, the chancellor had no difficulty in giving the relief sought. This case is one of the most important that ever was decided ; and has great weight in settling and illustrating the doctrine as gradually developed by aseries of authorities. It has also many features of resemblance to the case now under our consideration-.

Purcell vs. Macnamara, 14 Vesey, 91, 110, was decided by lord chancellor Eldon, and afterwards by lord chancellor Erskine, assisted by the master of the rolls, conveyance should be set aside, in bargains cl-great inadequacy, on the nature of the deeds themselves, and the circumstances under which they were obtained, from feeble persons reposing confidence in the defendant.

The case of Murray vs. Palmer, 2 Schoales and Lefroy, 474, decided by lord Redesda'c, is in concurrence with the preceding cases. In that case the chancellor decided, that the conveyance of property obtained from a woman, in ignorance of the extent of her rights, and upon a misrepresentation of the circumstances of the property, should be set aside j though she was of full age, had consulted her friends, and had their assent; and she had received the interest on the purchase money for twelve years. The deed was prepared by the purchaser.

There have been few cases decided in our own court:! on this subject. Speculations of this kind do not appear have been frequent; and it is to be hoped that the do-cisión of the court will be calculated to restrain them altogether.

The first of the cases occurring in our courts was that of Clitherall vs. O gil vie, in the year 1792, in which the plaintiff filed a bill for the spocifit performance of an agreement for the sale of a very valuable plantation, of which the defendant and his brother were joint owners. The defendant refused to comply, on the ground that the land was worth three times as much as the agreement stipulated to give; that the defendant Ivas a young man inexperienced, just of age, ignorant of tho value of the land, and rather importuned by the plaintiff, who was an experienced man, and well acquainted with the nature and value of the land. The court decreed against the plaintiff, and dismissed his bill with costs. The judges said that though inadequacy alone is not a sufficient ground to set aside a contract, yet, if gross and palpable, the court will not lend its aid to enforce it ; that the inadequacy was enormous, the defendant was young and inexperienced, ignorant of the value of the. property, was rather too much importuned into the bargain, and had included in the agreement his brother’s half of the land, ■which he had no authority to sell; and that under these circumstances, though there was no direct fraud proved, the court would not decree a specific performance.

The case of Gregor and others vs. Duncan and others, was decreed in May, 1808. The court refused to set aside the contract, though tho price was enormously inadequate. The court said that there was not a tittle of fraud in the case; that the complainants were of full age, competent to transact their business; were as well informed of their rights anti interests as the defendant was, and probably better: for they had an intelligent attorney in this country, who doubtless informed them of their rights, and the value of the property ; and there was no sort of concealment on the part of the defendant — mid it appears from the case, that there was no relationship or confidence, subsisting between the parties. The court also added, that mere inadequacy of price is not a ground to set aside agreements, executory or executed : and it seemed to lay' some stress on the ground that if the purchase had turned out to be a lósing one, the court would not have relieved; and therefore the court ought not to relieve when it was an advantageous bargain. I am not quite satisfied with either of these positions | and am inclined to think, that relief would be given tó a purchaser as well as to the vendor^ on a proper case made out— though there arc strong reasons why the court would relieve vendors, even if it did not the buyers.

The case of Bunch vs. Hurst, decided in the year 1811, and affirmed by the court of appeals, was not decided on the ground of mere inadequacy alone, though that was enormous ; but the bargain was obtained from a poor creature, who was nearly an idiot, though capable of the common transactions of life.

After this long examination of the decided cases, which form precedents to assist our judgment, I come sow to the results, and'the application of them.

I consider the result of the great body of the cases to he, that whereever the court perceives that a salé of property lias been made at a grossly inadequate price, such as would shock a correct mind, this inadequacy furnishes a strong, and in general a conclusive, presumption, though there be no direct proof of fraud, tliat an undue advantage has been taken of the ignorance, the weakness, or the distress and necessity of the vendor : and this imposes on the purchaser a necessity to remove this violent‘presumption by the clearest evidence of the fairness of his conduct; and the relief is given by the court, either by refusing to enforce the contract, or by setting it aside altogether, according to the circumstances of the case. The relief is extended not only to young heirs selling their expectancies; but to all who arc weak, or necessitous, or not perfectly conusant of their rights, whether selling expectancies or absolute estates; more especially where the purchaser is very intelligent and acute, and avails himself of his superiority in an unreasonable manner. And the answer of the defendant denying fraud in the transaction, though entitled to much weight, is by no means conclusive : hut the Court gives relief on strong counter testimony, or on the great intrinsic evidence iff gross inadequacy, coupled with other circumstances, such as weakness or necessity in the seller, confidence-reposed in the buyer, &c. And the decided cases further shew that the hazard run by the buyer of losing - hat he advances on some contingency, does not prevent the Court from giving relief 5 nor have specious offers to rescind the bargain, when the injured party could not refund the money, blinded the eyes of the Court to the real nature of the transaction.

In the case under our consideration, we have seen that the price was grossly inadequate $ at least ten for one •of the money actually paid on the risk, (if indeed there were any risk,) and four for one of the whole sum to be paid when the estate should be recovered. This inadequacy is greater than in many of the cases in which the Court gave relief.

It was relied upon for the defendant, that this great inadequacy was unknown at the time to the buyer as v ell as the seller. But if tin's were established, it would not alter the case under the circumstances. For it was known that the estate was very large ; and it was quite easy for Ihe defendant to have ascertained with some accuracy the value of the estate ; and it was his duty, as the agent of the plaintiffs, to have done so. Besides, this mode of purchasing in the gross, without schedule, or description, or valuation, is itself objectionable; and is a feature in the cases, which has strongly led the Court to give relief, especially to weak or necessitous men. It appears further, that the sellers were uneducated and ignorant men — one of them could not write, and none of them had any experience in business — none of them appear to have had any accurate ideas of the value of the property, though they vaguely thought it large; and they were at a loss as to the mode of pursuing their claims. George Butler, who was said to be the most intelligent of the brothers, was baffled and despondent.. The sellers were also in narrow circumstances and necessitous. One of them could not- raise about thirty dollars to pay his proportion of a counsel fee. None of ■them were wealthy. It seems also, that the purchaser was a gentleman of acute understanding, great experience in business, and much knowledge of men and things, and that he knew the defendants, their situation in life, 'their necessities and their incapacity to cany on their own claims to the estate. And above all, the defendant seems to have had their entire confidence, for they signed all the papers which he drew in their various transactions without ever resorting to counsel. Their necessity and their incapacity to conduct their business, is proved conclusively by all the family consenting to give a tenth part of the estate recovered, to an agent to pursue and establish their claims. Their confidence in the defendant is demonstrated by their selection of him for that agency.

It does appear to me that these circumstances, connected with the great inadequacy of price, are conclusive; and that the Court is imperiously bound to give the relief sought by the complainants’ bill. Much reliance was placed by the defendant’s counsel on the ground that the purchaser ran a great risk of losing his advances of $1,200 to each of the vendors. We have seen by the decided cases that this risk would not in such a case have varied the decision of the Court — .but the risk in this case was really small. The interests of the vendors, whatever they were, could not be shaken, for the estate was the property of a person, pronounced by a jury of inquest to be an idiot; consequently she could neither marry nor alienate her estate by deed or will, or burthen it in any way. Her expenses were necessarily small, and a surplus income was annually put out to interest. The vendors claimed as next of kin, and the chance of any one of them not surviving her, was at least equal, and the chance of a majority of them surviving her more than equal; and the Butlers had entered into a written agreement (of which the defendant was let in to the benefit) that if any one of them should die before the idiot, his representatives should he let in equally with the survivors.

The defendant’s counsel also relied on the risk of not being able to establish the claim by proving the rela--. tionship to the idiot by any evidence ; and of not being able to perpetuate the testimony in the case. But these risks do not appear to have been great, and were all overcome. The defendant states in his ans.wer that the Butlers had furnished him with the names of the material witnesses, to establish, by their testimony, their relationship,* and it seems that this testimony did chiefly establish their claims on the trial. As to the testimony, it was perpetuated in duo form without difficulty, and received on the trial. But it is stated that it was received by consent, and that if it had been resisted, it would have been refused by the Court under the decided cases ,* and that Eepulfc, the principal witness, whose testimony had been taken, was actually dead at the timo of the trial. I do not however agree, that this testimony was improperly perpetuated, and might have been rejected, it was not ■ opposed, and therefore the judge received it and gave no opinion on ¡the point, if it had .been argued, it would have been found that though the rule may .be, as stated, that the interest which the next of kin of a lunatic has in his property, is not sufficient to support a bill to perpetiir ate testimony; yet there is a modification of the rule which enables parties interested to obviate the difficulty. For it is laid down that the next of kin of a lunatic, or an heir at law, may enter into contracts with respect to their expectancies ; the evidence upon which they might perpetuate j for the law would frame an interest in respect of the contract; and with respect to that they would have a right to perpetuate testimony, though they could not as to any interest in the subject itself. See Cooper’s Equity Pleadings, 54, 5 ; and Lord Eldon’s opinion in Dursly, vs. Fitzharding, 6 Vescy 261. And in fact, the Butlers had actually placed themselves in that very situation by their contract to let in the defendant to one tenth of the property of the idiot, to which they might be .entitled ; and this was raising such an interest as would have enabled them to perpetuate the testimony.

Some stress was laid on the labor, time, trouble and expense bestowed by the defendant in the prosecution of the claims, as a set-off against the inadequacy of the price, all which would b,e lost if he did not succeed. But the defendant bad stipulated for a tenth part of the claim of all the nine Butlers, as a reward for his agency, his time, his trouble and his labor in the pursuit of their claims, and therefore these cannot be placed to his account in his absolute purchase of their'rights. He was bound to do as much under the first contract for the tenth, as he afterwards did under the contract for the whole of the four shares he purchased.

There is one other feature in this case which has struck my mind very forcibly as evidence of the want of sound understanding and capacity in the Butlers, and that they were as ignorant and weak as they were necessitous. When the decree of the Court had established their relationship to the idiot, and their claims to nine fifteenths of her estate, they were called upon to execute other papers and deeds, to complete the transfer of their rights to the defendant. And so little did they understand their rights, and what they were bound to do, that they were induced by the defendant to prevail on their wives to renounce their dower in the valuable lands of the estate, without any new consideration, although the contract for the sale did not stipulate for the renunciation of dower. And they all joined in the execution of deeds prepared by the defendant without the plaintiffs’ having the benefit of counsel.

It was insisted, that the offer of the defendant to the complainants, on the death of Miss Butler, to rescind the contracts, on their repaying him the $1,200 a piece, which he had advanced them, was conclusive evidence of the fairness of the conduct of the defendant to them. Undoubtedly it is calculated to give that impression, but it is very far from being conclusive. We have no evidence of the manner and circumstances of the offer— Whether they were to refund the advances immediately or to have time given to them to do so. The certificate of the offer says the money was to be first repaid-. They were not in better circumstances than when their necessities obliged them to sell, nor coukl they repay him his advances. They were under the same necessity that they were at first, and they were compelled to ,go on as they had begun. Of their real situation the defendant could . , \ , not be ignorant.

Upon the whole, after long and mature deliberation* A. . „ , . ... my opinion is firmly made up that the inadequacy m this case was so gross, and the ignorance and necessities of the parties selling their rights so great, that the court is bound to set aside the contract.

There is also anotiicr ground of very great importance in this cause, on which I rely in forming my judgment. The defendant was, at the very time of his purchase of the rights and interests of the complainants, their agent and trustee, to take care of those very interests’, and support those rights, for which he was to receive a very large compensation.

It is quite unnecessary to multiply authorities to jprovc that his agency made him a trustee. It is laid down, as an universal maxim in Legará & Hodges, 1 Vesey, jun. 478, by lord chancellor Thurlow, that whereever persons agree concerning any particular subject, that, in a Court of Equity, raises a trust, as against the party himself, and any claiming under him voluntarily or without notice.

But whether his agency precluded the defendant from becoming the purchaser from the Butlers, under ■any circumstances however fair, is a question of considerable difficulty. There seems to be two classes of decided cases on this subject; one where the relation of the parties is such that no contract can be permitted to subsist on any terms, if sought to be relieved against, as the case, of attornies dealing with their clients, or trustees selling to themselves : the other where the relation of the parties does not interdict all contracts on the subject of the trust, but where a confidence being reposed, the court looks with a jealous eye at the conduct of the. agent, and will set aside the contract, if there bo any considerable inadequacy of price in the transaction; and the more especially if there be any Weakness or necessity in the vendor*

The decided cases will illustrate the doctrine and 'the distinctions. In Gartside v. Itherwood. See 1 Bro. C. C. 558, the lord chancellor decided that leases for lives obtained by agents from a person of weak intellects, on inadequate considerations, should be set aside. He referred to the case of Filmer v. Gott, 7 Bro. P. C. 70, as supportable on the principle that a confidence was-reposed, and that confidence abused, by obtaining an advantageous purchase from the principal. And he added, that fraud may be collected from gross inequality ; especially if one of the parties employed and confided in the other, or was pressed by necessities which made him more readily give way to the other.

The case of Fox v. Mackreth, 2 Bro. C. C. 400, was one of the most contested causes ever tried in the English courts. It was there decided, that an agent or trustee, for the sale of an estate cannot become the purchaser, at any rate,; and on his making a profit of only twenty per cent, on a resale, he was compelled to account for it to his principal. Mr. Fox was a young man, but there was no pretence of weakness — 'the estate was absolutely his own, and though his estate was greatly encumbered, and he was therefore necessitous, he had an immense estate. He reposed confidence in the agent to make a good sale. There was no proof of any direct fraud, and Fox had signed the. agreements most deliberately, after twenty-two days’ reflection, and he had a valuation of the estate in his own hands, made by his own agent. The master of the roils, the lord chancellor Thurlow, and the house of lords, successively decided, that the contract could not be supported, and that the agent must account for the profit made on Ms purchase.

In the case of Crow v. Ballard, 3 Bro. C. C. 117, it was decided, that an agent employed to sell a contingent legacy, and buying it in for himself, though in the name of another, the contract was void, though the gain of the agent was less than half the amount. The agent could not be permitted to be the buyer and the seller, oven if the .sale had been perfectly fair.

In Gibson v. Jeyes, 6 Vesey, 266, 271, it wag decided, that the sale of an annuity by an attorney to his client should be set aside. The disproportion was considerable, but not so great as- necessarily to involve ° ** fraud ; but there was a confidence in one party, and a gain made by him which could not he supported. There was some imbecility in the party, but she knew what she was about. The lord chancellor said he did not mean to contradict the cases of trustees buying of their cestui que trust — but then the confidence in the party must be withdrawn, and the relation changed. It is a great rule, of the court, that he who bargains in a matter of advantage, with a person placing confidence in him, is bound to show that a reasonable use has been made of that confidence.

In the case of Coles v. Trecothick, 9 Vesey, 234, 244, the same doctrine is laid down. A trustee may purchase. of his cestui que trust; but he must have divested himself of the character of agent or trustee, and he must prove the utmost fair dealing. The same doctrine is in 10 Vesey, 385, exparte Bennet.

In Morse v. Royal, 12 Vesey, 371, lord chancellor Erskine stated the law of the court to he clear, that certain contracts may be avoided as being contrary to the policy of the law — such as gifts obtained by an attorney whilst engaged in the business of the donor: a deed by an heir just of age to his guardian; trustees selling to themselves ; purchasers of reversions from' young heirs; and assignees or solicitors under a commission of bankruptcy. In all these the contract is void by reason of the relation of the parties, or the policy of the law; and he added, that he should have been glad to have added to this list the case of trustees purchasing from the cestui quo trust. He thought the difficulty was so great for a trustee to make out a case where the purchase at a low price could be supported, that it would have been better to have embraced that class of cases under the rule; but the rule had not been carried so far. In fact, the rule is so rigorous in requiring demonstrative proof that the confidence has not been abused, where tbs trustee becomes the purchaser from the cestui que use, that it seems almost impossible for him to do so ; and very few have ever been able to do it. It would therefore be wiser to shut the door altogether, and to exclude all such contracts absolutely, as has in reality been done by some of the cases.

Again, in Lowther v. Lowther, 13 Vesey, 95, lord chancellor Erskine recognizes the principle, that an agent to sell shall not convert himself into a purchaser, unless he can make it perfectly clear that lie furnished his principal with all the knowledge he possessed; and that groáó inadequacy is strong evidence of fraud.

The case of Purcell v. Macnamara is a very important one — See 14 Vesey, 91, 107. It was decided, first by lord Eldon, and afterwards affirmed by lord chancellor Erskine, assisted by the master of the rolls, who delivered a most elaborate and luminous opinion. It was deci’eed, that the deeds complaint d of should be set aside, upon the nature of the deeds themselves, the circumstances under which they were obtained, and the confidential relation of the person by whom obtained.

I am hound then to say, that if the agent in the case under consideration was at liberty to become a purchaser from his cestui que use, under any circumstances, however fair, it is incumbent on him to shew demonstratively that he had not abused the trust reposed in him; that he had given all possible information to 3ns employers ; that he had enlightened them as to their interests ,• and had advised them as he would have done against a third person, offering to become the purchaser at such an enormously inadequate price $ and some of the authorities say the connection should have been entirely dissolved ; and that he had given a fair price for the property. Instead of this the contract was made whilst the agency subsisted. It is not made out in proof that the agency was at an end at the time of the contract; or that he advised the principals as he would have done against a stranger; or that he gave, any thing like a full price for the property in question. It does appear to me therefore, that the contracts cannot be sustained and that this Court is bound to give relief against them.

But it was insisted for the defendant, that whatever may have been the character of the original transaction» the various acts of acquiescence and confirmation by the complainants, bound them completely, and rendered it improper for this Court to interfere. This point deserves particular consideration, because it was on this ground that the Judge, who tried the cause on the circuit, decided in favor of the defendant, and 1 have long paused on it.

Acquiescence from the time of the original contract in 1804, to the time of filing the bill in this cause, ivas relied upon by the counsel. It will be remembered, however, that the idiot neier died till the year 1809; and that the absolute rights of the complainants did not accrue till that event. And that is the true time, from which the acquiescence should be reckoned. But count from either date, the time of the contract, or of the death, of the idiot, the acquiescence, as it is called, does not' exceed the time in many cases in which relief was given. In Walsmley vs. Booth, 2. Atk. 25, lord chancellor Hardwicke relieved the representative, after six years’ acquiescence by the party aggrieved, who died without seeking relief. In Gartside vs. Itherwood, lord Thurlow relieved after seven years’ acquiescence, from the time the right accrued.

In Beaumont vs. Boultbee, 5, Vesey, 485, the Chancellor relieved, after many years’ delay, in the case of an agent, in whom confidence had been placed; stating that though lapse of time might he a good objection for others, it was not so for one so situated. And lord Eldon affirm* ed this decree on a rehearing- 7 Vesey, 599.

In Purcell vs. Macnamara, 14 Vesey, 91, lord Eldon gave relief after 14 years had elapsed, though the deeds were solemn, and repeatedly acknowledged.

So in Pickett vs. Loggon, 14 Vesey, 214, relief was given 12 years after the transaction. And in Murray vs. Palmer, 2. Schoales & Lefrov, 474, after 12 years. In Hatch vs. Hatch, 9 Vesey 292, after 20 years; and in Deloraine vs. Brown, after 20 years. Thus we per-eeivr that mere laj)se of time will not bar a claim, otherwise good, unless it be so extremo as to furnish very strong presumptions against the claim $ which the Court will attend to more readily, if some of the witnesses or the party whose acts are impeached, are dead; as was done in the case of Morse vs. Royal, in 12 Vesey, 355. That being one of the very few cases in which the pur-«hase of a trustee from his cestui que use, at an inadequate price, was supported ; for the acquiescence had been long, and there had been a full confirmation (on an increased price) by a gentleman of full age and sound understanding, deliberately made, not in necessitous circumstances» and not at all ignorant of bis lights, and the trustee was dead, who, if living, might have explained many things.

We come now to the consideration of the direct acts of the plaintiffs, which are relied upon by the defendant, _ as amounting to a confirmation.

The first paper relied upon, is signed by William, James and Thomas Butler. The first of them signing hy a cross or mark. Charles Butler was dead. The paper bears no date, but it was signed after the decree at Georgetown, in February 1813, for it refers to that decree. It then recites or declares, that the defendant did, soon after the death of Margaret Butler, the idiot, offer to each of them, to give up their respective contracts or agreements, for the sale of their shares, upon, returning him the property he had paid, and releasing him, &c. And it is added, that they had disagreed to the offer, being well satisfied with the contract, let the event prove as it might.

I confess it does not appear to me, after full consideration, that this paper is at all calculated to strengthen the defendants’ case, in any point of view, either as affording evidence of the fairness of the transactions, or directly as an act of confirmation.

The declaration obtained from the plaintiffs, and couched in the defendant’s own wrords, he being the penman, was signed several years after the verbal offer was said to have been made. It seems not to have bceta called for; but to bo obtained to support transactions,. the fairness of winch might be questionable. It is sign-e<^ a^so two witnesses, but no evidence is given, that at the time of the offer made the defendant explained to the complainants the true situation of affairs; that the death of Miss Butler had opened the door to the speedy establishment of their rights j that the testimony had. been perpetuated which it was believed would establish their claims ; that the property was immense; and that it was greatly their interest to accept such an offer. — ■ There is no evidence that the defendant, knowing as he did, their poverty and necessity to be still bearing hard on them, and rendered them incapable of returning the money advanced by defendant, offered them to forbear his demand for reimbursement, till they should recover their property. On the contrary, the paper states that tho offer was made, provided they would return the money | which, it was well known, it was out of their power to do. Such an offer was exactly what the decided cases, we have seen, call a specious one; which the party knew could not be complied with. And an offer like this, relied upon as an act of confirmation, in a case not sustainable on its original ground, ought to be supported by the clearest and strongest proofs of the utmost purity and good faith. It should not have the appearance of being an illusory act, done, not to give the other party an advantage, but to bind faster on them the chains already twisted round them. The signature of such a paper drawn up by the defendant, at such a time, shews the continued confidence reposed, and the continued influence which governed the Butlers through all these transactions.

But the great reliance of the defendant’s counsel was on the deeds executed by the three Butlers, in February and March 1813, which are called deeds of confirmation. These deeds refer to the decree which was delivered at Georgetown, early in February 1813, which established the rights of the Butlers. They'recite the agreement in June 1804, by which four of the Butlers contracted f» transfer their rights to the defendant; and that, in pursuance of that contract, they severally transfer and convey their shares of the estate in question to the defendant. These deeds were executed in the presence of respectable witnesses, who prove that the deeds were explained to the plaintiffs. But there is no evidence that tiie Butlei*s were more enlightened or less necessitous than they were originally. There is no evidence that they were informed that their rights being established, and no appeal made, each share of the estate was worth from 12 to 14,000 dollars. It is not pretended that these men were informed that they were free to confirm the original contracts or not; and that the original transaction not being sustainable at law or in Equity, they could be relieved from it. On the contrary, they seem to have gone on, under a persuasion that they were so bound by the original contracts that they could not be relieved; and they therefore executed any papers drawn up and presented to them by the defendant, in order to get the stipulated price.

That the complainants thought themselves legally bound to go on, appears by the wording of the deeds, and they allege the fact in their bill. The defendant in bis answer admits, that they thought themselves bound-, both legally and fairly. Now I understand the doctrine,* as to confirmations, to be quite settled, that the party who gives them must be shewn to be no longer under those circumstances of necessity, or of overbearing influence, or blind confidence, which led into the first agreement; and that he is aware that he is not bound by the original contract, but may be released from it; but that nevertheless he chooses deliberately, and without imposition, to confirm what he had first done. To this it must be added, that in many cases, particularly of great abuses of confidence, confirmations are not allowed to have any effect. A short examination of the decided cases will illustrate the doctrine.

In Ardglass vs. Muschamp, 1 Vern. 237, a release' and confirmation were decided to be of no avail, in a ■case of great inadequacy, and imposition on a weak mam Tlie loud keeper hesitated at first about interfering will* contracts, however unjust; but upon searching for pre* cedents, from tlie time of lord Bacon, he became satisfied, and, after two re-hearings, decreed that the contract, though executed and confirmed, should be set aside-adding emphatically, that if he were to dio immediately he would make that decree. So in Ardglass vs. Pitt, 1 Vern. 439.

In Wiseman vs. Beake, 2 Vern. 121, the court relieved against an uncouscicntions bargain, by which the plaintiff, aremaimh r-man, had agreed to pay ten for one of the money advanced, if his uncle, who was tenant for' life, with remainder to his issue male, should die without -such issue in the life-time of the seller. The vendor was a man of thirty years of age, trained to business, anil not «’(-ak ; but he was necessitous, and the price grossly inadequate. The confirmation in this case was of the strongest kind ; for the defendant Beake had filed a bill, in the uncle’s life-time, against the plaintiff Wiseman, to compel him to repay the money advanced with interest, or to be foreclosed from relief against the bargain; and in his answer thereto he said, that he elected to stand by the bargain, which had been fairly made, and that he would not seek any relief against it — -and this confirmation was relied on. But the court said, that when he had spent the money, a specious offer was made him to relinquish the bargain, on payment of principal and interest, which it was impossible for him to do, and that this was a contrivance to double-hatch the cheat; and the court set aside the contract.

In this case there was no pretence of weakness in the plaintiff, or imposition practised on him; nor was he a young heir. But he was necessitous, and selling an expectancy at a most inadequate price. This was considered conclusiveand the confirmation made whilst the necessity lasted, was of no avail.

In Taylor vs. Rochford, 2 Vesey, sen. 281, 2, the court of exchequer decided that a bargain of about three for -¡lie was anconscicntous, and should be set aside. The vendor was a poor ignorant sailor, selling his primar íttoney. A very deiib. rate r<.:dU*m«Om vv.ih set aside, and the court said that confirmations though made over and over again, would be broken through, if they were not obtained property. ."

In the case of Stanhope vs. Toppe, 2 Bro. P. C. 183, the lord chancellor Macclesfield decreed, that deeds obtained by artifice, (though no direct proof of fraud,) from a weak man, who confided in the other party, should be set aside; notwithstanding a subsequent release, and notwithstanding the answer denied fraud. The decree was affirmed on appeal.

Baugh vs. Price, 3 Wilson’s Reports, w as decided by the court of exchequer ; and it was decreed, that several successive articles, deeds and conveyances should be set aside. It was the case of an attorney, who purchased an estate for half its value, from a man who was tenant in tail in remainder, (his father being tenant for life, but old and infirm,) and in necessitous circumstances. The attorney had been previously employed, confidentially, by the family. He drew the deeds himself, and the other party had no council or attorney concerned for him. It was relied upon for the defendant, that letters from the vendor to defendant, written after his father’s death, shewed that he thought the bargain a fair one; but the court said that the letters were written soon after his father’s death, before his eyes were open, and before he knew the real value of the estate. Reliance was also placed on this, that the party alleged to be injured, had filed a bill after his father’s death to be relieved,' and defendant liad put in an answer denying the fraud charged ; and afterwards the plaintiff* consented the bill should be stopped, and he then executed a deed reciting that the purchase was a fair one, and he confirmed and released the premises to the vendee — and the party lived several years, without ever questioning the last transactions. But the court said that under the circumstances of the case, the release and con* firmation could not be supported : for the party was never fully apprised of his rights. The whole transaction was set aside? though the party was of competent ago capable of - transacting ordinary business* not at ail-intoxicated. But he was in necessitous circumstances, and bad confidence in the other party. In Walmsley vs. Booth, 2 Atk. 25, lord Hardwiclce on a re-liearing, disregarded an acquiescence of six years by the party aggrieved, and by his representative, who allowed a judgment to be obtained on the bond, improperly obtained; and the chancellor set aside the bond and judgment. At the first hearing the lord chancellor refused to interfere, but on a re-hearing he used these words, so honorable to his candor. “ Upon the case being re-argued and rc-considered, I am thoroughly convinced that my former decree was wrong.” In that case there was no weakness, but the man was in distressing circumstances.

In the celebrated case of Fox vs. Mackreth, 2 Bro. C. C. 400, decided by lord chancellor Thurlow, affirming a decree of the master of the rolls, it was decreed, that several successive deeds amounting to recognitions, and intended to operate as confirmations, should not he binding on the party who made them $ over whom an advantage had been gained by another person, in whom he had confidence, and had employed him to sell his property. The advantage gained was not above one fifth of the value of the property, and there was no direct proof of fraud : which was also denied by the answer. The lord chancellor said the executing the subsequent deeds, did not amount to a confirmation, “ as it was done without any knowledge in Fox, that he could impeach the transaction and he cited the cases of Baugh vs. Price, Taylor vs. Rochford, and Cole vs. Gibson, 1 Vesey, sen. 503. In this case of Fox vs. Mackreth, a distinction was taken, which was important. It was stated that in the case of Janssen vs. Chesterfield and others, in which confirmations had been supported, there were clear acts of'confirmation. But that in Fox’s case, the parties executing the second deeds were only carrying into effect the original contract, (vide p. 419) ; and that the execution of the duplicates shewed how much Fox: was in tlie power of Mackreth,. It was done foA the purpose of getting something which might be called an act of confirmation — and Fox did not think he had not been fairly dealt with, for several years after the transactions. So, in the case under our consideration, the execution of the papers, after the decree, now relied upon as acts of confirmation, were not intended as acts of confirmation, but as an execution of the original articles of agreement. The defendant expressly says, that neither lie nor the plaintiffs thought an act of confirmation necessary to give validity to the agreement 5 for' •that they thought themselves already bound.

In Crow vs. Ballard, 3 Bro. C. C. 117, 118, and I Vescy, jun. 220, the lord chancellor refused to permit a confirmation to prevail, though made with such deliberation that one of the most eminent counsel arguing for the defendant said, if the confirmation in this case does not prevail, there never can be a confirmation.” But the lord chancellor said, if a person, conceiving he has made a hard bargain, and knowing that the bond is bad, will give a new bond, that will maintain the right of the holder, and that shall be a good confirmation ; “ but not any act done under the influence of the former transaction, and under the opinion that that bond is good.” That the bond was given under the influence of the former' transaction, arid the payment of interest on it, is of no avail, being still under the same impression. Surely this was precisely the case of the plaintiffs, the Butlers. They believed themselves bound, and signed any papers presented to them; and such acts cannot amount to confirmations.

In Deloraine vs. Brown and other's, 3 Bro. C. C. 633, which was the last case decided by lord chancellor Thurlow, tire hill charged fraud. A demurrer was put in on tire ground that the transaction had been confirmed by deed twenty-three years since. But the chancellor* disallowed the demurrer. He said it did not appear that the complainant was undeceived at the time of the confirmation, which was made whilst the party remained in the same distress that he was originally. But he algo disallowed the demurrer, because proprio juro, length 6f time was no reason for a demurrer.

The case of Purcell vs. Macnamara was decided by-lord Eldon, and afterwards by lord chancellor Ers-kine, assisted by the Master of the Rolls. It was decided and affirmed that several deeds executed at large intervals, should not prevail as confirmations ; the other party being throughout under the same influence, control and ignorance of their rights; and every instrument signed under the same blind confidence.

In Picket vs. Loggon, 14 Vesey, 214, conveyances,, releases, and even a fine, were set aside on great inadequacy, combined with misrepresentation, to parties in great distress, and ignorance of their rights. A bill had been filed, and dismissed on the plaintiff’s not appearing to prosecute it, which was a very strong act of acquiescence. The answer denied all misrepresentation, or that the defendant possessed any knowledge withheld from the plaintiffs. But all this was of no avail, when it appeared that the plaintiffs were poor and ignorant, and that the defendant had extracted conveyances for property, worth 5,0001. for about 1,0001. The chancellor said-, that this court protected on public principles, persons in distress, who, acting under the influence of that distress, though with knowledge of the circumstances, are to have the same protection as if they were entirely ignorant, being compelled by hard necessity.

The same doctrine is laid down by lord chancellor Redesdale, in Murray vs. Palmer, 2 Schoales and Lefroy, 474. He says that nothing will amount to a confirmation of a fraudulent transaction but an act done by the -party, after he has become fully aware of the transaction. He must at least be aware that the act he is doing, is to have the effect of confirming an impeachable transaction $ otherwise the act amounts to nothing as a confirmation,

The application of the doctrine of these cases, to which our reason assents, is conclusive on the case wo arc to decide upon. The Butlers thought themselves legally bound to go on and complete their ruinous bargain, •and therefore signed these papers, which are called con-<ñrraatious; but which do not como under that character, as stated by the Judges; for they were not aware, that the original acts and contracts were impeachable, and. from which, they could be released. The papers executed, were a mere completion of the original agreements, By which they thought themselves bound; and not new and substantive acts of voluntary confirmation. Their ignorance and their necessities remained in fuil force.

I am, therefore, obliged to say, that they were not Bound by these last deeds, any more than by the first.

The few cases in which confirmations have been allowed to prevail, have been cases of the greatest fairness and deliberation, where very intelligent men-, fully aware of their rights and of their title to relief, have nevertheless thought proper to confirm contracts impeachable in their character, or of very doubtful character: And this after the necessity which led to the first bad bargain Bad ceased : such were the cases of Cole vs. Gibbons, 3 P. Wms. 290. Chesterfield vs. Janssen, 1 Atk. 314 to 354. Morse vs. Royal, 12 Vesey, 355, and some others* But these have no similarity to the case under our consideration.

Upon the whole, after a very long and laborious examination, and after the maturest deliberation, my judgment is clear that the complainants are entitled to relief, both on principle and on the authority of the decided cases ; because the inadequacy of price in these contracts was so gross as to shock the conscience, and raises that violent presumption against the correctness of the transaction, which amounts to intrinsic evidence. This coupled with the ignorance of the complainants, their necessitous situation in life, and their want ot full and correct information of their rights, and of the value of the property, makes a case of the highest claim to relief-Again, the defendant was the agent of the vendors to support and establish their claims to the estate ; and if the agent is allowed to become the purchaser at all, under any circumstances, from the cestui que use, it is of •the most imperious obligation on him to shew that the purchase was perfectly fair to all respects* and is not liable to any sort of objection. But he has not done thisk for the objections of gross inadequacy of price, ignorance and necessity on the part of the vendor, and skill on the part of the purchaser, are made with irresistible force by the principals, against their agent, the purchaser. And finally, this very strong case is not weakened by the acts relied upon by the defendant as confirmations ; for the ignorance and necessity of the complainants remained, and they were not aware that the contracts could be impeached, and that they could be relieved — > what they did was in compliance and submission to the original contracts.

Henry W. Desaussure.

We concur in the.foregoing opinion, on all the grounds1 and in all the views which it has taken of this case,

Thomas Waties,

Wiiiiam Dobbin James.

It is therefore ordered and adjudged, that the decree of the circuit Court be reversed.

And it is further ordered and adjudged, that the agreements and deeds executed by William, Thomas* James and Charles Butler, for the sale, transfer and conveyance of their shares of the estate of Margaret Butler, be and the same are hereby declared to be null and void, set aside, and cancelled.

It is further ordered and adjudged, that the defend-, ant do account with the complainants, before the commissioner of Orangeburg district, for all the monies received by him from the estate of Margaret Butler, on account of the said shares, with interest, and pay over the sanie to the complainants, after deducting one tenth part thereof, conformably to the original agreement. And that the defendant do also deliver over to the complainants, or their representatives, such negroes, bonds, notes, or other property, as he has received on account of the said shares, and account for the hire of the negroes with a similar deduction.

And that in accounting before the commissioner, the “defendant shall be allowed credit for the sum of threb-thousand two hundred dollars, advanced or paid by him to each of the said Butlers, with interest thereon from the time of the payments.

And that the defendant be also allowed credit in his account, proportionably, for all just expenditures and disbursements in the prosecution of the claims of the «aid Butlers, under the direction of the Court, or by consent of parties, and the costs and counsel fees paid th the solicitors.

The costs of this suit to be paid by the defendant.

Henry W. Desaussure,

Thomas Waties,

‘William Dobbin James?,  