
    John Somes, by Nathaniel P. Loud, his Guardian, versus William S. Skinner.
    
      Cestui que trust of a mortgage cannot maintain an action for possession of the land mortgaged.
    The demandant in a real action, for the recovery of several parcels of land, may by leave of Court discontinue, or enter a nolle prosequi, as to one or more of the parcels demanded, after verdict.
    It is competent for a demandant, in a real action, wherein the tenant claims to hold by force of a conveyance from him, to show that such conveyance was obtained by fraud and imposition; and for that purpose to show that he, the demandant, was of feeble understanding, so that he might be defrauded by artifices, which would not have prevailed against common men; and that the tenant had acquired an extraordinary influence over him. To prove such influence, transactions before and after, as well as at the time of the conveyance, may be properly admitted in evidence.
    Entry sur Disseisin, in which the demandant counts upon his own seisin of sundry parcels of land, and upon a disseisin by the tenant. At the trial upon the general issue, before the chief justice at the last November term, the title of the demandant in the several parcels of land demanded was admitted, the tenant claiming to hold under a title derived from him.
    One of the parcels demanded had been conveyed to the demand-ant by one Samuel Dillaway in mortgage, and there had been no entry for foreclosure. The tenant objected, that as the count was general, without setting forth the nature of the estate, but only de daring upon the demandant’s seisin, the tenant having [ * 349 ] the equity of redemption, * he could not recover for that parcel. But the objection was overruled by the judge. Another parcel had been conveyed in mortgage by the present tenant to a former guardian of the demandant during his minority, in trust for the demandant; and it was objected, that no action could be maintained by the representative of the demandant, who ivas cestui que trust. But as the tenant defended under a deed from the demandant, and as the action was not against any one who held the legal estate, or claimed to hold it under the trustee, this objection was also overruled.
    The tenant, then, being put upon his defence, produced several deeds executed by the demandant, bearing date the 25th of November, 1815, assigning to the tenant the said mortgaged estates, and conveying to him the others, purporting to be for a valuable and adequate consideration. Minot Thayer, a subscribing witness, testified to the execution and delivery of these deeds by the demandant; whose acknowledgment of them he took as a magistrate. He also testified that the consideration was paid in four promissory negotiable notes, payable in four successive years, of 10,000 dollars each, signed by the tenant, without p.ny surety or endorser; and that no security, by way of mortgage or otherwise, was given. The same witness also testified that the demandant took the notes, and expressed himself satisfied with the bargain; and that before this transaction, other deeds had been made by the demandant to the tenant, which had been cancelled.
    The title of the tenant, under these deeds, was resisted on the ground that the demandant had been prevailed upon, by the arts and persuasions of the tenant, to convey these estates to him, he having acquired an influence over his mind by flatteries, and indulgence in immoderate expense, while a ward of the tenant; who, it was alleged, took advantage of the imbecility of the demandant’s mind, and his intemperate habits, to cozen him out of his estate without any substantial consideration ; the tenant being * possessed of no property, and having before this time [ * 350 J failed in business, and having no credit.
    Much testimony was gone into, to establish these points; and the jury were instructed upon the whole matter, that considering the connection between the parties as guardian and ward, the transaction was to be looked upon with a suspicious eye; that if the demandant was of sound mind, and acted freely, without any undue influence on the part of the tenant, he had parted with his estate by his deeds; but if advantage was taken of the control which the tenant had over him as guardian, or of his weak powers of mind and little knowledge, to induce him to pass away his estate without a full and valuable consideration, that his deeds might be avoided by any person legally representing him. They were further instructed to consider all the circumstances proved, as well those which took place relative to these estates before, as after the conveyances; and to consider the improbability of a man of competent understanding, conveying the whole of a valuable estate to a man without property for no consideration but his promissory notes, and those payable at distant days, so that the estates might be sold, without any power to commence a suit until a year after the transaction ; and if, upon the whole, they were satisfied that the tenant had, while guardian of the demandant, acquired an influence over his mind, which was used for the purpose of getting the demandant’s estate into his hands; then, although the demandant was not actually non compos. so as to be liable to guardianship on that account, nevertheless his deeds were voidable by himself, or by any person legally acting for him.
    The jury returned their verdict, “ that the said John Somes was not competent to bargain for, sell, convey, or part with his estates, at the time of the sale to said Skinner; and for which said Skinner’s notes were given, to the amount of 40,000 dollars; and [ * 351 J they further *find, that the said notes were not a valuable nor adequate consideration for the estates in question.”
    
      [Note. The chief justice said that this verdict was merely an answer to certain specific questions, and not intended as the whole ground of the verdict, or the whole facts found;—a general verdict having been afterwards taken and entered for the demandant.]
    After the verdict, a new trial was moved for by the tenant, on the following grounds. 1. Because the tenant having proved the execution and delivery of the deeds of the demandant, under which the tenant claims to hold the demanded premises, the judge permitted the demandant to go into evidence to impeach the' consideration expressed in the deeds. 2. Because in so far as the verdict was founded upon want of consideration, it was against evidence; as it was proved that the tenant, at the time of the conveyance, and as a consideration therefor, made and delivered his four negotiable promissory notes for 10,000 dollars each, with interest. 3. Because the judge permitted the demandant to go into evidence of the pecuniary situation of the tenant, to impeach the value of the notes as a onsideration; and directed the jury, that they might infer from that evidence, that the said notes were not a good consideration. 4. Because, in so far as the verdict was founded upon want of value in the notes, it was against evidence, as there was no proof that the tenant was in debt to any person at the time of the conveyance; and the estates conveyed to him and in his, possession were equal in value to the amount of the notes. 5. Because, to support the allegation of the demandant of fraud to avoid the conveyance, he was permitted to show in evidence the settlement of the tenant’s guardianship account, which had no relation to the conveyances intended to be impeached ; and because the judge admitted, as evidence to impeach the deeds on the ground of fraud, a transaction fifteen months subsequent to the conveyances, viz. a release made by the demandant to the tenant in March, 1817, and the facts * connected with it; which transaction arose from [ * 352 ] circumstances subsequent to the delivery of the deeds, having no connection with the contract or conveyances intended to be impeached. 6. Because, in so far as the verdict was founded upon the supposition of fraud, it was against evidence; there having been no proof that any fraud was practised by the tenant, to obtain the conveyance. 7. Because, in so far as the verdict was founded upon a supposed legal incapacity of the demandant to convey, it was against law, if founded upon what is stated in the verdict; for the fact so stated does not show that he was non compos mentis, and by law incapable from that cause of conveying his estates; or if such finding is tantamount to finding him non compos, it was against evidence ; there having been no proof that he was non compos, but the contrary; nor would the demandant, nor his counsel, consider that fact as in issue. 8. Because, as the guardian of the demandant, who prosecutes in his behalf, is such, not because he is non compos ■mentis, but a spendthrift; and as he was not proved to be non compos, either now or at the time of making the conveyances; and as he always, before and since the appointment of the present guardian, expressed his satisfaction with the conveyances, and his unwillingness to disturb them, the judge ought not to have permitted the guardian to proceed, but should have directed a nonsuit, or have instructed the jury that the evidence was sufficient to find a verdict for the tenant. 9. Because, with respect to one part of the de manded premises, it appears that the demandant never had but an estate in mortgage, and that the tenant had the equity of redemption ; and therefore the declaration should have been special on the mortgage ; and being general on a seisin by the demandant, and a disseisin by the tenant, it was not supported by the evidence. 10. Because, with respect to another parcel of the land, the same objection was -made; and also that the demandant never had any legal estate whatever therein, but a trust estate only; all his estate in which parcel of land was derived originally * from the tenant, who mortgaged it to a former guar- [ * 353 ] dian of the demandant, his heirs and assigns, to their use forever, for the benefit of the demandant.
    
      W. Sullivan and Gorham, for the tenant.
    The objection to the declaration, as to that parcel.of the demanded premises, which the demandant claims by force of a mortgage, was bottomed on the case of Erskine vs. Townsend 
      
      ; but as the point in that case, which was relied on, seems to be overruled by the decision in the case of Partridge & Ux. vs. Gordon 
      , it will not be urged. But the objection to a recovery of that parcel, of which the demandant was cestui que trust only, is still relied on. There was no evidence that he was ever seised in fact, whether by right or by wrong; which is required even against a stranger. But the present case is stronger. The estate was conveyed in mortgage, and the demandant, not having the legal estate in him, could not release the mortgage; nor had the tenant an opportunity to show the mortgage by plead ng, and so to have the conditional judgment entered.
    For the either parts of the demanded premises, if the title of the tenant under the conveyances from the demandant are to be impeached for fraud, the jury must find the fraud. But they have not so found, nor was the cause put to them on that ground; and if it had been, there was a total want of evidence to support it. There was not one fact affirmed on the part of the demandant, which was denied on the part of the tenant. But all did not prove fraud.
    If the deeds are to be avoided on the general ground of public policy, it is desirable that some limits should be fixed to the operation of this principle in judicial decisions. If the Court are to adopt the principles which govern in chancery, it will lead them great lengths; and it will be found that they want the necessary powers to do justice, which a court of chancery possesses. But [ * 354 ] chancery * sets aside gifts only, not sales, unless for a gross inadequacy of consideration.
    It was wholly improper to permit the demandant to disprove or impeach the consideration of his own deeds. But if otherwise, here was a sufficient consideration shown. The tenant gave his notes for the full amount of the value of the estates conveyed, and they were payable by reasonable installments, considering their amount. The tenant was not in debt, and the estates conveyed would have enabled him to raise the money in season for the maturity of the notes. It mattered not that he was not rich. The inconvenience to him, in having to raise the money, was certainly not less on this account. The direction to the jury respecting the notes, as not a sufficient consideration, was then incorrect; and if the direction was right, the verdict was against the evidence.
    The conduct of the tenant as guardian of the demandant, and the accounts of his guardianship, as settled in the probate office, were foreign to the questions at issue, and ought not to have been g>en in evidence to the jury. Such evidence could only mislead them. It would have been equally proper and pertinent to have exhibited the conduct of the tenant, as fraudulent, in any other transaction of his whole life. The facts which were shown in evidence had, it is true, a tendency to show that the tenant had acquired a great influence over his ward: but it did not prove the influence badly acquired, or badly used in the transactions upon which the jury were to pass  They might well believe those accounts to have been fraudulent; yet such a belief ought not to have any operation upon their verdict. It was, in fact, not legal evidence to prove fraud in the conveyances in question. There was no connection between the transactions. A stranger, having a lawsuit with the tenant, might as well prove his fraud in those accounts, as the demandant in the present action.
    * If the verdict is founded on the fraud of the tenant, [ * 855 ] it is against the evidence. There was nothing in the evidence of a suppression of the truth, or an allegation of a falsehood. Using the influence w'hich one has acquired over another, ia no legal evidence of fraud, and no deed can be avoided at law, for the use of such influence .
    It may admit of a question, whether a guardian appointed over one, who is found to be a spendthrift, can maintain an action of this sort. The office is wholly distinct from that of a guardian of a lunatic, or person non compos mentis. His duty is not retrospective, but merely to prevent waste and dilapidation of the spendthrift’s estate. The statute, which authorizes the appointment of a guardian of this description , supposes the person thus put under the custody of another, to be competent to every transaction in life, until a guardian is appointed. The guardian, who prosecutes this action, was not appointed until four years after the transaction took place, which by this suit he is endeavoring to annul. The demandant himself honorably disclaims all participation in the action, and desires that the conveyances may have their intended operation.
    
      Prescott and Webster, for the demandant.
    
      
       2 Mass. Rep. 496.
    
    
      
       15 Mass. Rep. 486
    
    
      
      
        Evans's Pothier, 20
    
    
      
      
        Fonbl. 58, note
      
    
    
      
      
        Stat. 1783, 38, § 8,
    
   Memorandum. After the argument, the counsel for the demand-ant moved to discontinue, or enter a nolle prosequi, as to the parcel of the demanded premises, of which the demandant was only cestui que trust. And in support of the motion they cited 2 Crompton’s Practice, 337. —1 Tidd’s Practice, 632. —1 Saund. 207, note 2.

Jackson, J.,

delivered the opinion of the Court. The objection that the evidence did not comport with the declaration, because the demandant counted on his own seisin in common form, and proved only a title as mortgagee, is settled by the case of Partridge Ux. vs. Gordon.

The next objection which was argued, relates to one of the pieces of land demanded in the writ, as to which it appears that [ * 356 ] the demandant was only cestui que trust. * If this action had been brought against a stranger, it might have presented a different question. But the tenant is not a stranger as to this piece of land. He mortgaged it to one Nehemiah Somes, and his right of redemption under that mortgage has never been foreclosed. He has then a good title to the land, as against all persons but N. Somes and his lawful assigns, and the demandant is not such an assignee. It is true, that the mortgage was taken by N. Somes as guardian of the demandant, and for his benefit; but the legal estate in the mortgage was never in the demandant, and he could not maintain a suit to foreclose the mortgage. Of course, the tenant could not, by plea, or otherwise, set forth the condition in the deed of mortgage, so as to have the conditional judgment entered, in the manner prescribed in the case of Partridge & Ux. vs Gordon.

As to the supposed estopel to the tenant to deny the seisin of the demandant, by accepting from him a deed of conveyance of the piece of land in question, it may be answered, that exception was taken to the insufficiency of the demandant’s evidence, before the tenant produced this deed to the jury. But there are other objections to this estopel. The deed from the demandant to the tenant does not purport to convey the land in the common form in fee simple. It is written on the back of the mortgage deed before mentioned, and purports to assign to the tenant the debt therein mentioned, as well as the land. This being made to the mortgagor himself, would, if operative at all, have amounted only to a release of the debt, and of the land mortgaged as security for it.

Now, if a mortgagor accepts such a release from a person not authorized to make it, it cannot be supposed that he thereby acknowledges that the relessor is seised of an absolute estate in fee -, and that, but for the release, he, the relessor, would be entitled to hold the land forever against the relessee. The relessor does not, by the act of making the release, claim to have such a [ * 357 ] title; and of * course the relessée cannot be presumed to assent to the validity of such a claim.

But further, the deed is declared by the demandant to be void, as obtained from him by fraud and imposition, and the jury have so found it. Both parties are then left upon their respective titles, as they stood when the deed was made.

It is true that if the' deed had purported to convey land in fee. in the common form, with the usual covenants of seisin, &c. on the part of the demandant, the acceptance of it by the tenant would be evidence that the demandant was at that time seised, at least as between those two parties ; and that the tenant was not seised. This would be prima facie, sufficient to maintain the demandant’s action; that is, if the deed was avoided as against him. But it would not preclude the tenant from showing another better title in himself; and as to the piece now in question, he has shown a better title. We are therefore of opinion that, as to this part of the demanded premises, the demandant was not entitled to recover.

The demandant has moved to discontinue, or enter a nolle pro sequi as to this part; and we see no objection to his doing so. This seems to be one of the cases, in which, by the ancient law, a man was not allowed to abridge his demand; because in this the thing demanded is particularly mentioned and described in the writ; although it may be doubted whether the reason of the rule applies in our practice. Com. Dig. Tit. Abridgment, A. 2. —3 Lev. 68. But however this may be, the cases cited for the demandant, particularly that of Wigglesworth vs. Dallison, mentioned in Williams’s note 2, 1 Saund. 207, seem clearly to show that he may enter a nolle prosequi, as to a distinct part of his demand, in a case like the present.

This is liable to less objection here, than in the English practice, because it has no effect on the costs. If this verdict should be set aside, the demandant might, before a new trial, amend his declaration, by striking out the * description of the [ * 358 ] piece of land in question; and this would probably be allowed without costs, because it is in ease of the tenant, and cannot in any way prejudice him. So, without any amendment, the demandant might suffer a verdict against himself for that piece; and if he recovered any other part of the demanded premises, he would, by our statute, be entitled to full costs. It is like the case, which not unfrequently occurs in personal actions, where the jury have given too much in damages; if the plaintiff will remit the excess, the Court never set aside the verdict, on account of a mistake, which is thus rectified.

The only remaining questions relate to the competency and sufficiency of the evidence, and the directions of the judge respecting it. We are all satisfied that the evidence, offered on the part of the demandant, was proper to be submitted to the jury; and as far as we have a right to judge of it, was sufficient to warrant the inference, which the jury appear to have drawn from it.

The point to be established was, that the demandant was seised of the land; and that the conveyance, which he had made of it to the tenant, was obtained from him by fraud and imposition. It was competent evidence for this purpose to show that the demandant was a person of feeble understanding, so that he might be defrauded by artifices, which would not have prevailed against common men and that the tenant had acquired an extraordinary influence over him. To prove this fact, of the influence that the tenant had acquired, the transactions between them, both before and after the conveyance, were properly admitted in evidence.

The account settled by the tenant in the probate office, with the conduct of the demandant on that occasion, in urging the allowance of the account, had a strong tendency to prove this point. The very extraordinary sums which were charged in that account, as expended by the ward while under age, were proper to be considered by the jury, as proving that the tenant had indulged { * 359 ] him in a most * pernicious course of extravagance and dissipation; which, whilst it tended to impair his intellect, would also increase the influence of his guardian over him. Or, if the jury doubted whether all this money was so expended, the allowance of the account, with' the approbation of the demand-ant, would have a tendency, not less material, to maintain this part of the demandant’s case. The relation of guardian and ward, and the manner in which the parties had lived together for some years, before the demandant arrived at full age, with the execution of the deeds in a few days after that event, were all facts of the like tendency, and proper for the consideration of the jury.

The transactions at the time of the conveyance were peculiarly proper evidence, on the question of fraud in obtaining the conveyance. Not only the manner, in which the deeds were prepared and executed, but the consideration given for them, and all the particulars of the bargain, were properly admitted in evidence. It was not an attempt to disprove the consideration alleged to have been paid for the land, but to show the nature and value of that consideration ; leaving it to the jury to decide from that, together with the other circumstances, whether the demandant was deceived and imposed upon in the negotiation.

So the acts of the tenant, or the transactions between the parties, posterior to the conveyance, so far as they tended to prove the imbecility of mind in the one, and the influence acquired and exercised by the other, had a direct tendency to maintain the issue for the demandant. Of this description was the release, given in March, 1817, by the demandant to the tenant, after he had commenced a suit on the notes. Even the conduct of the demandant on the trial of this cause, as seen by the jury, might be justly taken into consideration, as tending to prove the same point. If they thought it exhibited an extreme weakness of intellect in the demandant, rr an extraordinary influence exercised over him, to sit by the [ * 360 ] man who * had obtained from him these valuable estates. and evidently desire that he should hold them, against the exertions of his legal guardian to reclaim them ; and this, as the jury might believe, without any payment received by the demand ant, and without the prospect of receiving any ; if the jury formed this opinion from what they saw, it must and ought to have influenced their verdict on the main question, which was submitted to them.

It is not :ompetent to a party, imputing fraud to another, to offer evidence tc prove that the other has dealt fraudulently at other times, and in transactions wholly disconnected with that which is on trial. This would tend to prejudice the minds of the jury, by impeaching the general character of the party charged with baud, when he had no right to expect such an attack, and could not be prepared to defend himself, however unimpeachable his conduct might have been. But a party can never object, that he is surprised by evidence of any facts connected with, or relating immediately to the transaction which gave rise to the suit.

All the evidence objected to in this case, that does not come within this description, is of another kind not less justifiable or proper; that is, it tended to prove that the demandant was a man of weak mind, and easily imposed upon; and that the tenant availed himself of that circumstance, and abused the influence that he had acquired over him. It was not alleged that the demandant suffered an occasional and temporary insanity, but that his mind was uniformly weak. The evidence would therefore necessarily apply to times before and after the particular transaction in question ; leaving it to the jury to decide, whether he was thus weak and liable to imposition at the time of that transaction. So as to the influence exercised by the tenant, it was necessary to prove that he had acquired, and that he possessed such influence and control over the mind of the demandant, before it could be * proved that he exercised it, on the particular occasion [ *361 ] referred to.

This evidence was left to the jury, with proper directions from the judge before whom the cause was tried; and we can see no ground on which we should be justified in setting aside the verdict .

Judgment on the verdict. 
      
       [There is perhaps not much reason to doubt that the deeds from Somes to Skin nor might, in equity, upon terms, under the circumstances of the case, have been se aside. But it seems to be quite as clear, that at law they were unimpeachable. Somes was not non compos mentis, nor legally incapable of making a valid deed and no such fraudulent practices were shown, as at law could invalidate the deeds. Here was, at most, but constructive fraud. Indeed, in the case of simple actual fraud where there is not what in law is termed covin, unless the fraud he practised in relation to the execution of the deed, as, for instance, by fraudulently misreading or otherwise fraudulently obtaining such an instrument as was not intended to be given, the better opinion seems to be that the instrument cannot, for this reason be impeached at law. —Rowntree vs. Jacob, 2 Taunt. 141. —Belden vs. Davis, 2 Hall, 433. —Dorr vs. Munsell, 13 Johns. 430. —Vrooman vs. Phelps, 2 Johns. 177. —Jackson vs. Hills, 8 Cowen, 290. —Franchot vs. Leach, 5 Cowen, 506. —Even in equity a title passes to the grantee, and the instrument at most is held to be voidable, and not absolutely void, or the grantee is held to be a trustee for the grantor. The case of Somes vs. Brewer (2 Pick. 184) can stand only on this ground. The Court indeed say, that the deed might be treated as a nullity, as between the grantor and grantee, at the election of the former, and at the same time be unimpeachable as between the grantor and a bona fide purchaser without notice, who might insist on its validity. This doctrine is quite novel and untenable in a1 court of law. But what seems more remarkable is, tka’. our courts have in many cases refused to take jurisdiction or grant relief in equity, when it would seem, by a liberal construction of the acts conferring such jurisdiction and authority, they might have done so ; and yet, in the above case, they extended the common law jurisdiction to the utmost verge of the jurisdiction of a court of chancery.—Ed.]
     