
    DAVID MICHAEL vs. NICHOLAS MICHAEL.
    Ill a suit to sot asida a deed, the plaintiff cannot, against the statements in the unswer, responsive and directly contradictory to the bill, have a declaration of facts in his favor, unless upon very clear proof, that the contract, as made, was different from the representations of the answer, and that the contents of the deed, as written, were concealed from, or, at the least, unknown to tlie plaintiff.
    Generally, when a person makes a deed, who is able to read it, the presumption is, that he did read it ; and, if he did not, it is an instance of such consummate folly, to act upon so blind a confidence, in a bargain, where each party is supposed to take care of himself, that it would be dangerous to relieve, upon the mere ground of a party’s negligence to inform himself, as he so easily might, of what he was doing.
    Therefore, commonly, the Court ought not to act on the mere ignorance of the contents of the deed : but there should be evidence of a contrivance in the opposite party to have the instrument drawn wrong and to keep the maker in the dark.
    If a guardian, agent, or other person, standing in a confidential relation, avail himself of information which his situation puts him in possession of, or of the influence, which is the natural consequence of habitual confidence or authority, to give an undue advantage by getting obligations or conveyances, without adequate consideration, a Court of Equity will not permit them to stand. The Court regards such transactions as extremely dangerous and sets them aside, except as securities for what may have been done under therm
    But that rule does not apply, where a person, claiming an equitable interest in property by an assignment from the father of certain infants, brings a suit in the name of tiróse infants, styling himself their next friend, he not being their guardian nor apppoiiited an agent by any contract or agreement with them.
    Cause removed from the Court of Equity of Orange County, at the Fall Term, 1845.
    
      The following cuso is presented by the pleadings and proofs.
    Jn 1772 Frederick Michael purchased from Henry Eustace McCulloch, a tract of land in Rowan, containing 300 acres, at the price of £200 : of which he paid £23 and McCulloch gave a bond to convey in fee upon the payment of the residue of the purchase money.- Frederick Michael entered into possession and levied on the land until he died in 1780 intestate, leaving several children ; of whom Barna and Nicholas were two, the former being the eldest son and heir at law of the father. The two brothers continued in possession until 1787. In that year Barna left Nicholas in the sole possession and removed to Orange, a distance of about 5(3 miles, and resided there until his death, intestate, in 1794. He left a daughter’, Elizabeth, and an only son, David, the present plaintiff, who was then about a year old.
    The estates of Henry E. McCulloch were included In the confiscation acts ; and one Joseph Cunningham purchased this land, as part of his estate, and took a deed from th§ cQmmissioners ; and he afterwards conveyed a part, containing 102 acres, to John Allen, who evicted Nicholas Michael therefrom about 1801 or 1802. In 1805 a bill was filed by Nicholas Michael, in the names of Elizabeth and David Michael, infants, by himself as their next friend, against Allen and others, setting up the purchase from McCulloch, and claiming the land as belonging to the plaintiffs therein, as the infant heirs of Barna Michael, and in April 1817 there was a decree that the defendants in the suit should convey the land, 162 acres, to the plaintiffs, David and Elizabeth, and pay them the" sum of $250 for profits.
    In 1803 Hugh Cunningham, claiming also under Joseph Cunningham, entered into another part of the land containing about 120 acres.
    The present bill was filed by David Michael, in July 1834, against' Nicholas Michael originally. It states,' that, soon after obtaining the decree against Allen, (who never conveyed under the decree,) Nicholas Michael sent to Orange for the plaintiff and one Willis, who had married Elizabeth, and informed them of the recovery; and represented, as it had been effected, that it would be necessary to pay McCulloch's representatives the residue of the purchase money and interest, then amounting to some large sum. It states further, that the plaintiff and Willis were unable to pay the same, as Nicholas well knew; and that he, Nicholas, then offered to do so, and also to prosecute for their benefit a suit against Hugh Cunningham for the tract of 120 acres, if they would convey to him the land which had been recovered from Allen : insisting that the}r ought to do so, as he had been at much trouble and expense in conducting the suit. The bill states, that, believing those representations, the plaintiff and Willis assented to those propositions ; and that it was agreed, that they should, on’some appointed day, go-to Salisbury and have the deed there prepared by the Clerk and Master of the Court, in which the decree had been rendered : That in some short time they did so, and_ that the Clerk and Master, Mr. Charles Fisher, readily-agreed to prepare a deed, and immediately, on the 21st of November, 1817, wrote it in ihe presence of the parties ; and the plaintiff and Willis, having unbounded con-deuce-in their uncle Nicholas, and believing that he had properly instructed Mr. Fisher as to the land, which was to be conveyed, executed the deed forthwith, without reading or hearing it read, and in the belief, that it was for the 162 acres only, which had been recovered from Allen. The bill states positively, that the deed was not, by the agreement, to include the 120 aci’es in possession of Hugh Cunningham’s heirs; and that Nicholas Michael engaged, if they would convey to him the 162 acres, that he would institute a suit in the Court of Equity for the other tract of 120 acres, in their names and prosecute it for their benefit, The bill their avers, that the plaintiff had not thq slightest, suspicion that the deed included any but the 162 acres, and that Mr. Fisher, acting under the belief that the subject was properly understood by the parties, did not offer to read the deed, and that the plaintiff and Willis, being young and inexperienced and confiding fully in their uncle, did not request to have it read.
    Elizabeth Willis afterwards executed the deed, but ,, was never privily examined. In 1818, Nicholas Michael filed a bill in the names of David Michael and Willis and wife in Rowan, against Hugh Cunningham’s heirs, setting up for the 3 20 acres the same title, and in October 1881, (it having been noticed, that Elizabeth was not an heir of her father,) a decree was made therein, that the defendant should deliver possession and convey the land in ice to the plaintiff, and also pay him $700 for the profits.
    The bill states further, that, with the view of throwing the costs of that suit upon the plaintiff and Willis, in case the decree should be for the defendants, and also to prevent them from discovering the contents of the deed, Nicholas Michael did not make himself a party to that suit, nor register his deed, but kept it secret until August 1831, after the rights of the parties had been declared in the suit; and that, until that time, the plaintiff had no knowledge that the deed included, as in fact it did, the whole tract purchased from McCulloch. The bill further states, that the land recovered from Allen was worth $1,600 ; that the rent of the land occupied by Nicholas from 1787 up to the period at which he was ejected, was worth $100 a year ; that Nicholas received the sum of $250 decreed to be paid by Allen, and applied it to bis own use ; and that he, took possession in 1831 of the land recovered in the suit against Cunningham, and also received the $700 and applied the same to his own use ; and that those sums greatly exceed the sum paid by him to McCulloch, which the bill states to have been only $600.
    
      The bill thereupon charges, that the plaintiff was deceived into the execution of the deed, under the belief that it conveyed the tract óf 162 acres only, and also that he was induced to convey that tract without any consideration, and was so induced by an uncle, professing to act as a parent and protector, and in fact acting as his agent and next friend, but who availed himself of the advantages of the. relation between them to obtain the conveyance upon those terms ; and therefore it insists that the deed should be declared fraudulent and wholly void, as against the plaintiff; and it prays a decree, accordingly, for a conveyance of the whole tract, and that the defendant should come to an account of the sums received by him, and also for the profits while he occupied the premises. The answer states, that, shortly after the death of Frederick Michael, the agents of McCulloch recovered a judgment against his administrator for the residue of the purchase money of the land, but the same remained wholly unsatisfied for the want of personal assets ; and that application was then made to Barna, the heir-at-law, for payment, who said the land was not worth the money, and refused ; but he told the defendant that, if he chose, he might pay for the land and have it, ■and delivered to him the plots of survey and McCulloch’s bond. It being then uncertain, as he was advised by counsel, what was the effect of the sale of the land as confiscated property, the defendant says he declined paying the purchase money, either to McCulloch or to Joseph Cunningham, the purchaser from the commissioners, and in 1791 Cunningham instituted an ejectment against him, for the 162 acres, which he defended at his own expense, without aid from his brother Barna. In 1801 that suit at law was decided against him ; and a year or two afterwards Hugh Cunningham evicted him from the residue of the tract.
    .The defendant further states, that he instituted the suit in equity against Allen in 1S05 for his own benefit,' though, from necessity, in the names of his brother’s infant 'heirs, as his brother, though not setting up any claim nor advancing any money, had died without executing an assignment of McCulloch’s bond to him. During the twelve years it was pending, neither the plaintiff nor bis sister, ((hen supposed to be an heir,) nor her husband setup any claim to the land or any paid of it, nor advanced anything toward the expenses, or interfered in the suit in any waj", nor had any communication whatever with (he defendant or with the counsel on the subject of the suit. But, after the recovery in their names, it was found indispensable, that the plaintiff and his sister should act in some way in the business ; and the defendant admits that he sent for them to Orange, and, when the plaintiff and Willis arrived at his house, that he made the representations respecting the debt, then ascertained to be going to McCulloch, and respecting the trouble and expense which he had borne in the business, as stated in the bill.
    The defendant says, that in fact he disclosed the truth of the whole transaction to them and the understanding which had existed with his brother, and stated to them that he thought himself justly entitled to the land, upon paying the sum due to 'McCulloch ; but at the same time be explained to them fully the advantage'they bad in the case, and their power of denying him the justice he thought they owed him; and left it to them to determine, whether they would pay him for his trouble and expenses and time, and pay McCulloch and take the land, or let him pay McCulloch and have the land. The defendant avers, that both the plaintiff and Willis fully understood the subject, and preferred giving up the contract, with all its benefits and burdens, to the defendant, with liberty to him to sue for the other part of the land, then claimed by the heirs of Hugh Cunningham; and upon those- representations and that understanding, those two persons executed the deed to the defendant, and subsequently induced Mrs. Willis also to execute it. The defendant denies explicitly, that the plaintiff and Willis executed the deed without its being read, and affirms that Mr. Fisher, as soon as he had written it, read it plainly and distinctly in the hearing of all the said parties, and that the plaintiff, as he believes, knew the contents of the deed as well as the writer of it did ; and he says that in fact the deed is perfectly conformable to the agreement that was made, and also that the plaintiff is able to read writing very well. The defendant denies that, in either of the suits in equity, he professed to be acting for the benefit of the plaintiff or his sister, although he admits, as the suits were in their names, he styled himself “ agent” in affidavits, notices, and other proceedings in the cases in which he acted personally. On the contrary, he says he acted throughout, as if the suits were his own, and he so considered them, and so did the plaintiff in respect to the last suit, which, indeed, was the only one he knew of until after their decision. The defendant states, that the balance, due to McCulloch on the judgment, was about $1900, and that he applied the sum of $250 recovered from Allen, toward the payment thereof, and that he paid the residue out of his other property or cash. He also says, that besides giving his personal attention to one suit after another about the land, for upwards of forty years, he paid more than $300 to the counsel in the causes at different times; and he avers, that from the execution of the deed to him until the final determination of the suit against .Cunningham in 1831, the plaintiffs took no part in the suit and put up no claim to what might be recovered in it. He denies that he concealed the existence,of the deed to him, and says that it was known, though he admits that he did not register it until August 1831 ; and says the reason thereof was, that until that time he had not discovered that Mrs. Willis was not an heir of her father, and he was waiting to have her privy examination taken. After answering, Nicholas Michael died, and in 1839 the suit was revived against his heirs, and by an amendment it was also charged, that, in February 1827, ho had conveyed the land to one of his sons. That son in his answer sets up title under the deed from his father; and all the others disclaim any interest.
    After replication, the parties proceeded to proofs. Elisha Willis and Elizabeth Willis were examined for the plaintiff. The former states, that when the plaintiff and he reached Nicholas Michael’s, he informed them, that the balance of the debt to McCulloch was $1,600, and that ho had paid it and required them to refund it, and said, if they did not, ho would have the land sold for it, and if the land did not pay him, he would have David Michael and the witness put in jail. Nicholas Michael offered to give them $1,300 for the 162 acres, that had been then recovered- He states that the three went to Salisbury, and David Michael and he “ executed the deed to Nicholas Michael hr Mr. Fisher’s office for, as he understood, the one hundred and sixty-two acres of land, but at the time the deed was not read over to David Michael or himself.”
    Mrs. Willis states, that, sometime after her husband and brother returned from Rowan, Nicholas Michael and his son John came to her house to get her signature to the deed, saying that he had paid for the land and wanted to be made safe. She stated to him, that she did not like to sign the paper, unless she could hear it read and explained by some person who understood it: That John Michael then began to read it, when his father said it was not worth while and stopped him, and said if she did not sign it he would have the land sold, and if that would not do he would put her in jail — whereupon she executed the deed. Her husband was present at the time. Both of these witnesses make a mark.
    It appears in the cause, that while the second suit was pending against Cunningham, Elizabeth Willis went on a part of the land under Cunningham, and after the docree, refused to give up the possession to Nicholas Michael. A witness states, that the present plaintiff told Nicholas Michael to turn Willis off, as he had no right. In January 1832, Nicholas Michael brought ejectment upon his own demise against Willis, which was pending when the present bill was filed. In March 1835, the plaintiff got an injunction in this suit against further prosecuting the ejectment, upon the ground, that Willis was his tenant and ought not to be evicted until the right was determined in the cause. The injunction was dissolved in September 1835, and in the succeeding month judgment was obtained by the plaintiff in the suit at law and Willis was evicted. It was pending the injunction, namely, on the 14th of May, 1835, that the plaintiff took the depositions of Willis and his wife.
    Several witnesses prove, that, while Nicholas Michael was carrying on the suit against the Cunninghams, he said that ho was the agent of his brother’s orphans. One witness, Philip Berner, states, that he mentioned to him, that he had recovered a part of Barna Michael’s land from Allen, and he intendéd to bring suit against Hugh Cunningham’s heirs for the other part — for the land belonged to Barna Michael’s heirs, and they had been up a short time before and employed him to act as their agent and bring suit. This witness says that he knew, that David Michael came up to Rowan to sell the land, and agreed to let Nicholas Michael have it, and they went over to Salisbury to have a conveyance made, which was sometime before the conversation between N. Michael and the witness. He says, he never understood that the plaintiff and Willis conveyed the whole tract, but understood that they conveyed the part recovered from Allen; and that he had lived within about a mile from the land and from Nicholas Michael, about thirty-five years. He says the land would now be worth $10 an acre, if it was in the condition it was in, when he first knew it. Other witnesses prove that when the suit was brought, the average value of the tract was $5 DO an acre.
    On the part of the original defendant were examined the two subscribing witnesses to the deed from the plaintiff. John Michael states, that he was sent by his father to Orange, for the plaintiff and Willis; and that after getting up and hearing from his father the circumstances of the case, they came to an arrangement with him to take the land arid pay McCulloch ; and the next day they went to Salisbury to execute the contract, and the witness went with them: tlyxt at Salisbury they met Mc-Culloch’s agent and settled with him; and that Mr. Charles Fisher wrote a deed according to the direction of the parties, and he read it over to all of them, and the plaintiff himself also read it over, and then ho and Willis executed it, and Mr, Fisher attested it. Afterwards, Mrs. Willis executed it in Orange and this witness attested it as to her.
    The other witness is Mr. Fisher. lie says, he wrote the deed, he is sure, as ho finds it in his hand-writing and he has an indistinct recollection of having written it. His recollection is not sufficient to enable him to stale positively from memory, that, after having written the deed, he read it; but he has no doubt that he either read it to the parties or that they read it themselves, as he is confident, from long habit, that he would not have witnessed it, (as be did as to David Michael and Elisha Willis,') ifvhe had hot known of his own knowledge, or heard themdqtoknowledge, that they knew its contents. He states further, that on the day the deed was made, he understood from the plaintiff, Willis, and Nicholas Michael, that. Nicholas was to pay McCulloch for the land ’ and take it; that the debt was a considerable sum, though he cannot recollect the amount, and that it was either then paid or in a short time afterwards, as he heard Mc-Culloch and his agent say it was discharged — who have both been dead many years. He states that Nicholas was the manager and conductor of the suit, and the whole business connected with the land, and that in conducting it he was called agent.
    The deed itself is annexed to those'two depositions. It is a printed deed of bargain and sale, except as to the date, names of the parties, consideration, and description of the land. It is dated November 21st, 1817, and the consideration set forth is $1900, paid. The written parts of the deed are in large, legible, and uncommonly plain hand-writing; and David Michael’s signature purports to be written by himself, and is distinctly written in a good though stiff hand. Willis and his wife made marks. A witness proves, however, that the plaintiff, who is of a German family, has but a defective English education, and does not read writing with ease.
    
      W. IT. Haywood, Norwood and J. 11. Bryan, for the plaintiff.
    No counsel for the defendants.
   Ruffin, C. J.

The bill raises two points of equity. They arc combined in some confusion in the bill; but, as they are in their nature entirely distinct, they ought to be disposed of, each by itself. The first is, that the deed by mistake of the writer, or the contrivance of the purchaser, was drawn so as to cover more land than was agreed to be conveyed, and the plaintiff executed it without a knowledge of the error, and fully believig covered only the tract of 183 acres. But, the plaintiff says that he ought, at all evei^í lieved against the deed, upon the ground, thal him to have known the contents, and to havef/cxccuted : willingly at the time, it is one of those couti^ the policy of the law forbids, because it w^s^xuidulv, obtained from an inexperienced young man, justSif age, by one standing in loco parentis, and acting as his guardian and agent about this property. The natural XT» order of treating the subject is to ascertain, first, what really was the contract, before we consider whether it be obligatory in law or not. There is, in the first place, a presumption that the dealings are fair, and that the deed conforms to the agreement of the parties, unless the contrary is made to appear by satisfactory proof, direct or circumstantial The allegation in the bill is, that the defendant agreed to take the land then recovered, which was 102 acres, and the sum of $250 decreed for the profits, and pay the purchase money to McCulloch, give up any demand for previous expenditures in the various suits, and, at his own expense, prosecute a suit for the other tract of 120 acres and the profits, in the name of the plaintiff and Willis, and for their benefit. Now, this is positively denied in the answer ; and the defendant avers, that his expenses and the payment to McCulloch amounted to more than the full value of the land and the profits, and that, although he claimed the land by contract with bis brother, yet he offered the other parties their choice, either to reimburse to him his expenses and take the land to themselves, subject to the debt to McCulloch and the contest as to part with Hugh Cunningham’s heirs, or let him have their claim. The defendant says, that, without hesitation, they preferred 'the latter, and that the deed, as drawn, was but in completion of the agreement. :

Against those statements in the answer, thus responsive and directly contradictory to the bill, the plaintiff cannot have a declaration of facts , in his favor, unless upon very clear proof, that the contract, as made, wras different from these representations of the answer, and that the contents of the deed were concealed from, or, at the least, unknown to the plaintiff, when he executed it. Generally, when a person makes a deed, who is able to read it, the presumption is, that lie did read it, and, if he did not, it is an instance of such consummate folly to act upon so blind a confidence in a bargain, when each party is supposed to take care of himself, that it would be dangerous to relieve upon the mere ground of a party’s negligence to inform himself, as he so easily might, of what he was doing. Therefore, commonly, tho Court ought not to act on the mere ignorance of the contents of the deed ; but there should be evidence of a contrivance in the opposite party to have the instrument drawn wrong and to keep tho maker in the dark. In this case, however, it may be yielded, that from the confidence arising out of their near blood relationship and from the apparent candor, with which his uncle had eommnicated the information of his rights, .and the fairness with which he seemed to deal with his nephews, that the plaintiff might have executed the deed, prepared under his uncle’s directions, without being so culpable for not reading it or having it read, as to preclude him from being relieved against so much of it as may not accord with the bargain as made. Then, we are to enquire what is the evidence opposed to or in support of the representations of the answer. There are but two witnesses who professed to have been present at the making of the contract. The one is Elisha Willis, a party to it, and the other is the defendant’s son, John, who now claims part of the land; both of whose depositions have been taken and read without objection. The account of each is very barren of details: so much so, as to lead to some suspicion, that they might be afraid to trust themselves to entering on them, or do moi'e than depose to what they thought the main fact, lest they might be exposed to contradiction. Willis, however, says, that Nicholas Michael agreed to give #1,300 for the tract of. 162 acres then recovered, and that the deed executed in Fisher’s office was, “as he understood it,” for that tract, but that it was not read. Ho says also, that the debt due to McCulloch then was #1,600. On the other hand, John Michael says, that the plaintiff and Willis, after hearing from his father the circumstances of the case, came to an arrangement with him to pay McCulloch and “take the land,” without positively specifying what land, whether the whole tract purchased from McCulloch, or the part recovered from Allen, though the former must he supposed to have been meant. Upon these two statements. by themselves, no one could say he had a clear belief as to the actual agreement; and therefore, upon them it would be impossible to declare, that the deed' 'was different from the agreement. For, in such a case, in order to determine which of the two witnesses is entitled to the more confidence in his memory and integrity, one naturally enquires whether the executory contract was about the lime executed by making a deed > and, if it was, one looks at once at the deed, as the best evidence which is right. Instead of such evidence controlling the deed, that instrument is decisive between the witnesses. But here, it is said, the deed was not read, and the execution of it, when the party was ignorant of its contents, Takes away.all its force, as evidence of the terms of the original contract, and that it is not pretended in the ease, that those terms were intended to be varied by any second contract. That brings-us down to an enquiry into that single question of fact, whether the deed was read or not. The bill says it was not.. -The answer is positive, that it was. Willis supports the bill, and John Michael as directly supports the answer. -If the matter rested there, the decree must ber for the defendant, without taking any notice of the circumstances under which Willis gave his deposition ; for the onus is on the plaintiff, not only to produce a preponderance of proof, but a plain preponderance, leaving no doubt in the mind as to the fact of the case. But the' evidence docs not stop there, for, besides the presumption; that the contenís of the deed were known to the parties-before they, would execute it, there are the testimony of Mr. Fisher, and the circumstances under which the deed was prepared, and also the probability, as will be presently pointed out, that, the bargain would have been as the defendant says it was. There is nothing to induce a suspicion that the instructions to Mr. Fisher, respecting the land to be described and conveyed in the deed, were not given by both of the parties, or, at all events, by Nicholas Michael in the presence of the others. The bargain was made in the country on one day, and the parties all went together the next day to the office of the Clerk and Master, where the boundaries of the land could be ascertained, to have the deed drawn. Willi's does not suggest, nor is John Michael or Mr. Fisher examined to show, that Nicholas Michael alone gave the instructions or had any private interview with Mr. Fisher, and, without particular instructions from some one, that gentleman could not have known at all, how the deed was to be drawn. The open manner then, in which the instructions'must have been given, and the perfect indifference of tbe writer between the parties,-and the capacity of the plaintiff to read tbe deed, and the impossibility of knowing before band that he would not read it or have it read, all go to show, that there was no intentional departure from the instructions, and also the extreme probability that tbe instructions were agreeable to the bargain. It is to be remembered, that there is no pretence that the deed >vas read falsely. The allegation is, that it was not read at all, as an excuse for executing it, notwithstanding its variance from the agreement. Now, how should it happen, that Mr. Fisher should write the deed variant from the bargain ? What motive had he to do so ? How could he have made such a mistake ? But Mr. Fisher says, that he is confident, that either the plaintiff read the deed or that he read it to all the parties. Not that he remembers it absolutely, though he has some recollection of the transaction. But he knows- certainly from his habits, as'a man of business, that he would not have attested the instrument as a subscribing witness, unless tbe contents had been known to the parties. Here, then, is direet'proof of a very satisfactory kind, supported too, by the circumstances, under which the deed must have been drawn, to establish, that the plaintiff knew the contents of the deed, and by consequence, that the contents were according to the intention of the parties. But the 'plaintiff meets this argument by the observation, that it is only an inference from Mr. Fisher’s testimony, that the plaintiff knew the deed covered more than the 162 acres, and that such inference is met and repelled by the opposite inferences, to be deduced from the facts, that the sums paid and to bo paid by the' purchaser were much less,'than the value of the.whole tract; that he did not register his deed, but kept the contents concealed ; and that afterwards the defendant instituted a suit for the 120 acres, in the name of the plaintiff and his sister, and put up no claim to it for himself, but declared he was prosecuting it as agent for their benefit.

As to the relative amount of tho value and the price, the inference is clearly tho other way, even upon Willis’ testimony. The plaintiff does not examine a witness, as to the value of the land, except one, who says, that, if the land was as he knew it thirty-five years before this suit . — meaning, we suppose when nearly all uncleared and with its virgin soil — it would now be worth $8 per acre. But other witnesses prove the actual value of one half to be $5, and of the other half $4 an acre, making an average of $4 50. Now, Willis says, that the debt to McCulloch was $1,600, as he understood, 'and this was to be paid off by Nicholas Michael, out of the price of the laityl, which was sold to him — which, he understood, was the 152 acres, taken at $1,300. In the first place, it is to be noted, that he does not say one word about what was to become of the remaining 120 acres, or that any suit w^s to be brought for it by Nicholas Michael for his benefit and the plaintiff’s. That statement is found in the bill, but not in the deposition of the witness, and is denied •in the answer. But it is clear, that the witness must also be mistaken, as to (he price of the parcel of land purchased by the defendant. For, to make the 162 acres bring $1,300. it mast be valued at upwards of $8 per acre; and, if that was all the purchaser was to have, in ■ eluding even the $250 then in the office for profits, there would still remain unpaid $50 of the debt to McCulloch, and Nicholas Michael be out of pocket all his expenses, besides the loss of time and trouble. If to that be added (as must be according to the allegation of the bill) the expense and further loss of time and trouble of carrying on the projected controversy with the Cunninghams, it would appear to have been one of the most disadvantageous bargains, that a silly old m an ever made. One cannot readily contradict a tale, if there were precise evidence to the several circumstances supposed. But when the computation is made, upon the basis of the true value of the land, it is seen, that it would be utterly impossible it could be true, if Nicholas Michael had any sense at all. The 162 acres, at the actual value, $4 50 an acre, came only to $720, and the profits of $250 added, only made $079 ; and it is pretended, that for that land and money the purchaser was to pay McCulloch upon the spot $1600, and pay himself for all his outlays. Even if the other 120 acres be added at $4 50, making $540, and an aggregate of $1510, there would be left $81 due to McCulloch, and all that the uncle had, himself, been out of pocket; which the parties might expect to be covered by the profits to be recovered from Cunningham, but which was not thus covered; for, at the end of fourteen years more, only the sum of $700 was received therefor. But. computing the debt to McCulloch at $1900, as the defendant swears it was, and as is rendered probable by that sum being inserted i,n the deed as the consideration, the badness of the bargain is so palpable, that, on the part of the purchaser, we can only account for his making it by the attachment to the property, which might have arisen from his long contests for it, and the final triumph as to the most important portion of it. Tima we should suppose, if the transaction had been considered by the parties as really a purchase, upon a new contract then made. But upon the footing upon which the answer puts it, we readily understand why the business should hávé taken that course. The answer says, that the defendant and his brother had, thirty years before, understood each other, that the defendant was to pay for the land and have it; and therefore, that he had been contending all along for himself, though in the names of his brother’s children, and hence he felt bound to treat the land as his own, and, of course, to bear the whole burden.

The deed is, therefore, not impeached by the least probability from the price, that the purchase was of less land than was conveyed, but, on the contrary, the circumstances most strongly sustain it in that point of view. Then, as to the circumstances, that the defendant did not register the deed until 1831, and called himself “ agent,” and said he had been employed to sue for the land for those parties : they furnish, at best, but feeble and inconclusivé arguments, in opposition to the other circumstances and to the allegation of the bill, that the contents of the deed were not known to the plaintiff. But the answer gives a reasonable explanation, why the deed was not registered sooner, which removes the inference from that; and to the other part of the argument, it is plain, as the answer states, that the defendant would naturally hold himself out as agent, when suing in the names of the others, though to his own use. But whatever weight there might be in those circumstances and in the testimony of Willis, the whole is completely overthrown by the deductions' necessarily to be made from a few other undisputed and indispensable facts. One is the fact, that, pending'the suit with Cunningham, Willis entered into a part of the land under Cunningham and as his tenant. Now, if it had been understood', that Nicholas Michael was suing for the benefit of Willis and his wife, would he have attempted to defeat his own bill by becoming the tenant of his adversary ? Undoubtedly not. The other is, that the suit against Cunningham pended fourteen years, and, during the whole time and. for three years afterwards — until this bill was filed — the plaintiff did not look after it at all, made no enquiries as to its progress or result, and had, indeed, no communieation whatever with the defendant, or with the solicitor or counsel in the cause, except that he once expressed his indignation that Willis should pretend any right to the land, or go in under the opposite title. If the suit had been for his benefit — as he says he understood it — it cannot be believed, that he should have been so totally regardless of his own interest, as not to have opened his mouth about it, for upwards of seventeen years. On the opposite supposition, that he had agreed, that his uncle should take the whole of the land, and that he had conveyed his claim to him, and that the uncle was carrying on the suit for his own benefit, every thing is consistent.

The Court has no doubt, therefore, that the plaintiff well knew, when he executed the deed to his uncle, that it included the whole of the land, which had been purchased from McCulloch: as well that then in the possession of Hugh Cunningham’s heirs, as that which had been recovered from Allen. And we are well satisfied, that this pretence would never have been set up, if the plaintiff had not hoped, that he might have had some ground of relief in the doctrine of the Court of Equity which forbids undue advantages being made in contracts between persons standing in confidential relations.

There is no doubt about the rule of the Court. If a guardian, agent, or other person standing in a confidential relation, avail himself of information, which his situation puts him in possession of, or of the influence, which is the natural consequence of habitual authority or confidence, to gain an undue advantage by getting obligations.or com veyances without adequate consideration, they cannot stand. The Court regards such transactions as extremely dangerous, and sets them aside, except as securities for what may have been done under them. Even if that were done here, the plaintiff, it would seem, would not profit by it, as it is fully clear, the land cost the defendant the value to the last farthing. But the difficulty is, to make the principle of equity roach this case, by finding such a confidential relation between the parties as comes within the sense of the rule, or, if there was, that any undue advantage was taken of the defendant. It may, however, be remarked, in the first place, that the plaintiff’s witnesses, Willis and wife, completely disprove the statements of the bill, as to the pretended professions of paternal regard on the part of the uncle, and the compliance with the demands on the part of the plaintiff being the effect of confidence or induced by personal influence: They make out a case, in which the defendant insisted upon his rights, and threatened to enforce them against the properties and bodies of the-plaintiffs, and his witnesses. But, passing by that contradiction, we will come to the other point. There was no guardianship in fact of the plaintiff by his uncle, nor any agency7 constituted by the contract. The whole matter is, that the uncle had been suing for the land for his own benefit, in the names of the infant heirs of a former equitable owner. Whether his claim of a purchase or donation from a former owner was well or ill founded, makes no difference to this purpose. He represented a case to the plaintiff, in which, if true, he had really been suing for himseli and not for the plaintiff, though he had been proceeding in the plaintiff’s name. Now, he candidly told the plaintiff, that he could not establish the contract with the plaintiff’s father; and therefore it was at the plaintiff’s option to claim the land and take it under certain known incumbrances, or let the defendant have it as his own,, under those encumbrances, according to the alleged understanding writh the plaintiff’s father. The latter arrangement the plaintiff preferred, and very properly, if he had any faith in the assurance of his uncle, because he was but fulfilling the engagement of his father, under which his uncle had incurred much expense, and had vast trouble. Thus viewed, the transaction was not a sale of the plaintiff’s property. Neither party so regarded it, for not a cent was offered by the one or received by the other. It was a mer.e surrender of a legal title, and, as it were, to the equitable owner, of the land — a title which au honest man could not have withheld. The bill puts the case upon the assumption by the defendant of the title of next friend of the plaintiff, in the bill filed in his name, and calling himself agent in conducting the business. But that is a poor quibble ; for .those titles the defendant was obliged to assume, because he had to sue in the plaintiff’s name, and he was at the time an infant. The question is, for whose benefit he was suing. Was he really endeavoring to recover the land, as land equitably belonging to the plaintiff or himself. Upon the record, he said, necessarily, that it was the plaintiff’s ; but every body understood, as Mr. Fisher states, that the defendant was the sole manager, and conducted the case as if it was his own. If the defendant had meant anything unfair, and his object had been to make a profitable bargain out of his nephew, he would have made his proposals before the suit was decided, when he might have expected au advantage. But, instead of that, he waited until the decision, and then made a' representation to the plaintiff and his sister, which does not appear to have been in any respect unfounded, except in a mistake as to her being an heir; and, under the influence of the representation, they agreed to convey their formal title, and the plaintiff has acquiesced in that arrangement seventeen years without a murmur — while the defendant was prosecuting a doubtful litigation at great expense for nearly half of the property. It is as clear, that the defendant prosecuted the first suit upon a claim, of his own to the land, as that he did the second, though his title in the first instance was not established by such apparent proof as it was in the second, when he had obtained a deed from the plaintiff for the whole of the land. It is a total perversion of the rule of equity, to apply it to such a case. There had in fact been no confidential relation between the parties, nor any previous communications even; and there was no purchase, as of the plaintiff’s right in the land. lie simply gave up a nominal claim to it, as ail the parties understood. Besides, if it bad been a sale, it would have been one, as-we have already seen in considering the other point, in which the land stood tbe defendant in the fullest value.

Upon the whole, therefore, the Court deems the suit to be entirely groundless, and dismisses the bill with costs.

Per Curiam.

Bill dismissed with costs. '  