
    Brogden vs. Walker’s Ex’r. Legatees and Devisees.
    The act ef 17MV. ch, 314, a. 4, direct»' mg, ‘‘that if a cau&e in the courtoí chancery is sen down regularly for hearing, oA subrmtn d to the chancellor, amt one of the psivties dies thereafter, and before a dr~ cree passed, th*> cause shall not abate, and the than» cellor may decree as if .such party were aim»,*’ can», not take effect m h cause where there might be a deci ee for a mumvoyance of lain! to the party dead, on pacing or bringing* money u.to com t,
    A "will contain» mg* the following devise xiz. **I giv© and bequeath to my sister ft \V, ail my real estate during her natii-* tal life, and after her rlecea e to mv nephew T W,and his heiis, lawfully begotten; but in ca->e my said nee phew should die j»«jc w uunnu uie before to the age 21. or leavmg issue begotten, thin, &c. T W auived tn theoge of 21 toais.nnd died without x^uc — JIrUL that the estate tail vas doeke d by the <l«d froniT W to ■\y if, altluf VP B was declared to hold the latid conveyed, in trust for T W ,,and tito e claiming* tmehr
    A bi’l in the court <*f chancery, (which was afterwards, on the «hath of W, the complainant reviv» id in the name of his executor, legatees and devisees,) charged that B, (the dcfirdantaml miele*«C W%) committed a fraud in ptoeunng VV5s t xt cution and ackrowledgnimt of deeds .eonvevmg* ]m whole estate, real and personal, variant fiom those he had agreed to execute; that the deeds were intended onlv ns a security for a debt due from W to B, «ml not as absolute convey anees in fee simp Its* —Grayer for a discovery^and permission to rederm the pioprvty intended to be meugageti, on nay-*in«* the d bt, and for i\ leconveyanre and t ther relief. JJeW, without d( ruling v> nether or not theta was fraud in obtaining* the deeds, that the deeds «re to be viewed ¡>s tx< cuted I13 a weak voung man. «conscious of his inability to protect his. property,or to man? ye Jus own f oncorris and tm-MmeresoUVng to place Vmns* If under the gtndar.ee and protection ot *<n» afu tmu ateieUin/n *Jh#t it con’d not be imagin' d he meant to < onvey every part of his amp e property for Urn la "efit of his kin,man or iv, aid to be aleo uteh dependant on hm. for subsistence, '! he best and kn*est construction is, that th«* drub wore intruded to ««cure 'o B a debt, which was Gdlu-,;, *>. comparison of Hie vauie of ’he property convtyul. Hire then was a resulting tiust, or hac theie wksan eqwt> of redt motion, f-i hi re was a sihy intemperate soung man, v.ho veullv did not Kuw what b< was about, ai vi v. ho therefore ought io hive the piot“ctionot a tubumd, whose pecuir-v duty it is to watcb over Sdeots, lunatics, madmen and fbo's If W was actual > oppm.eu of the purpoit, of the deids.yet it inay be said that it was Miilteient for B to have an ample security mr l*is debt, and to screen In's nephew from aU imposition which might be attempted by others. .{)< creeds thatov. payment to I» on or in f/ive, &c of the sú mol money expressed as the consideration m uie mil of sale, with interest, Sift B should convey, fee to the executor compdainaur, all the personal pi open 5% &c and on pajmeiittoB oti or before, &e of the «-uni of'money expressed as the eunsi deration 111 the deed of convevar.ee, wnb. intere-.t, fee B -lu>u!<‘ convey, &c unto the devisees complainants, and *j cir hen\>, according to the wi! of W, the land which was convened by W to B on, kc. But if the eommamants shotud faij to make payments, ktc there should be sold, io< the ptnmeiu to B of the said two sums of money, with, ijiteií st, Src so iniuli of the. ptiSonal property and laud, as should be in cts-an. Jkc
    pj and is not to be considered as a snig'e fact, but a coucJ Jsjoii to ho druw;. from all the circumstances of the ease w
    , . , , , , The iciitf which may have been obtained by a complainant who lias died, may be granted to his re* UyVf-entatives reviving the «-uit.
    A representative, instituting an original suitj may have the ¿ame reuei which Ins
    ^tator^ See might have bajl*
    Appeal from a decree of the Court of Chancery. The bill in this case was oviginally filed on (lie 6th of August 1801, by the testator of the appellees, In his life-time, and it stated that Brogden, having a claim against him for £450 0 11, applied to. him by IcUer dated the 27ih of August 1800, to secure the payment of the debt by a mortgage, and again-, by letters dated the 30th of March and 26th of May 1801; that the complainant, being willing to secure the payment of the debt, consented to give a deed of trust, or mortgage of bis property, to Brogden, for that purpose, $nd by appointment met him at the city of Annapolis on the 17th. of June 1801, to make the requisite conveyance, and on that day executed to Brogden a deed for two tracts of ¡and, the one. called Bow Bourne, and the other Boto Bourne Security, containing together 325 acres, and also a bill of sale of ait his slaves and personal estate; but he expressly charged that the same, were only intended as a security for the debt, and not as an absolute conveyance, in fee jdmple to Brogden» That the I t [ •» f 1 . L 1 ' ‘ i T • t j !* - s " ( i * b complainant, being the nephew of Brogden, had, at thq time of executing the deeds, the most unlimited confidence in his honour and integrity, and not in the least suspecting the purity of his intentions, but on the contrary taking it for granted that the conveyances were deeds of mortgage, or of trust, to secure the payment of the debt, pursuant; to the propositions of Brogden in that respect, he executed the same withoat, ever seeing them until the moment they were produced by Brogden for execution' That he never read the deeds, nor were they read to him, nor had he any knowledge of their contents, except as befpre stated, and that he executed them under the fullest conviction they were only deeds of mortgage, or of trust, to secure the payment of the deijt, as Brogden never required mpys, and had no title or demand whatsoever, for a conveyance in fee simple. That the complainant,' in January 1801, attained the age of twenty-one" year?, and for two years previous had been in the possession of his fortune, which ’was an ample one, consisting of land, negroes, and stock of all kind, worth at a moderate estimate 6 or 7wOP. That coming to his estate at an early period of life, without the ordinary inducements to economy, or with resolution to withstand, the temptations of dissipation and extravagance, he had indulged but too freely in the follies of youth, and had been too much addicted to drink, whick destructive vice had often incapacitated him for business, and not unfrequentlj rendered him-a dupe to the unprincipled artifices of designing men. That to his utter astonishment, he had lately discovered the deeds to Brogden yvere absolute conveyance^, in fee simple, to him, of tbo property therein mentioned; and that, impressed with the flagrant injustice of the transaction, he immediately apr plied to him on the subject, and requested him to have the ¡mistake rectified, which he well hoped he would have done without the least hesitation; but Brogden, in violation of honour and justice, refused to do it, and to the complainant’s surprise, offered to reconvey the personal property, and also to convey to him an estate for life in the land, but positively refused to relinquish his claim or title to the latter in fee simple, alleging that if he did, the complainant would soon dissipate or spend it. That he was prepared, and offered to pay the debt due to Brogden, to secura the payment of which the deeds were execáted, bul he wholly refused to taltc the money, or to re-convey the properly, saying he had a conveyance for it, •and affected to think lie was entitled to it, contrary to the avowed object of the complainant in making the convey ance, the. obvious* dictates of justice and the established laws of the land. That previous to the conveyances, the complainant had incurred debts to about £1000. vthich were fairly and honestly due, but which he was incapable to pay, as the whole of his properly had been conveyed to Brogden, That the complainant’s other creditors were pressing hint for payment; that they suspected the conveyances were made with the fraudulent intention of cheating them of their honest claims, and have not scrupled to represent the transaction as such, which, to those unacquainted with the real motives of the complainant in making the conveyances^ the circumstances afford but too much reason to believe; but he stated that the conveyances were made without any collusion with Brogden, or the most distant vier/ of de» priving or defrauding any of his creditors of their just demands, which he was willing and desirous to pay, but ivhich he never could accomplish; unless hio property was restored to him. That Isis reputation had sustained a considerable shock, that he was reduced to indigence, anti could not obtain credit in thd country for a birthing. In fine, that he was a ruined mdn, unless he could procure i elief in this court. Prayer for a discovery, arid permission to redeem the property intended to be mortgaged, on paying the debt, and for a reconveyance, and other relief, Seo. The answer stated, that William Brogden, the father of the defendant, died intestate on the 1st of November 3770, leaving the defendant his heir at law, by which means all the real estate of Ins father descended to the defendant according to the then existing laws of this state; but that the defendant voluntarily, on the ISfh of Slay 1775, executed a deed for the lands called Bow Bowne, and Bow Bourne Security, to John Brogden, the brother of the defendant, who by hits last will, dated the Oth of April 1782, devised the same to his sister Elizabeth Walker, the mouther of the complainant, during her natural life, and after her decease, to Ins nephew Thomas William, Walker y the complainant, and. to his heirs lawfully begotten; but in casé fits said nephew should die before he arrived to the age of twenty-one, or leaving issue lawfully begotten, then the real estate should gó tó his heir at law William Brogdm■, the defendant. That the defendant liad a considerable claim against the complainant, who was the sole representative of his mother, amounting to £450, to be paid which 'said demand, or to securé which, the defendant was anxious, and he admitted, that for that purpose he wrote tb the complainant the several letters' referred to. That the complainant never did consent to secure the claim by way of mortgage^ but after the letters were written and received, he came to the defendant, and voluntarily, and unsold cited by the defendant; proposed to him to give him an absolute conveyance for all his lands and negroes, the names of which he funiished the defendant with, stating it as his desire to convey all his estate; legal and equitable, to the defendant, and assigning it as a reason, that the estate had been originally conveyed by the defendant to his uncle voluntarily) and it was proper that it should go back to the same person; and also that he, the complainant, was surrounded with designing people, whose object was to cheat him out of his property; and that a Sir. Clagett, who held adjoining land, had said that he expected to get the land; and intended to live on it. The defendant thereupon ap* pointed the complainant to meet him at Annapolis, on the 17th of June 1801, to execute the conveyances; The defendant employed Bichard Bidgely, esquire, to prepare the conveyances, according to the agreement and proposition of the complainant) and he did accordingly prepare the two deeds referred to, That the complainant, agreeably to his appointment, met at Annapolis on the day appointed, quite sober, and called on Bidgely for the deeds, and they were delivered to him. That the complainant carried the deeds to the house of James Mackubiri^ esquire, a justice of the peace, and the complainant did there sign, seal and acknowledge, and delivered them to the defendant. That the complainant knew the object of the deeds, and they were designed by him’to convey an absolute estate to the defendant. That the deeds were not intended or designed by the complainant or defendant as a security for the payment of any sum of money, or to be in any manner conditional, but were intended and designed, by both the complainant and defendant, tobe absolute and unqualified conveyances to1 the defendant, of all the estate both legal and equitable, of the complainant, ijn fe property mentioned therein. The defendant denied ail fraud, iLe.
    
      Testimony was taken under commissions, which it is not necessary to state.
    IIaxsok, Chancellor, (32d December 1803J In this cause the complainant ápplied by his bill for a reconveyance. Tlie cause being set down for hearing, the death of the complainant is suggested, and admitted. The chancellor is now moved to proceed to a hearing and decree under the act of lf97, eh. 114. And the question is, whether there can be a decree without further proceedings.
    On considering the act of assembly, it appears to tlie 'chancellor, that whenever he decrees in a case where one of the parties is dead, it must appear to him that the decree may be effectual. In other words, that he cannot decree with propriety where one of the parties is dead, unless his decree is to have substantial opei-ation. In shorty it appears to him that the act is confined merely to cases where money is, by the decree, to be paid or brought in, or the bill to be dismissed iusfead of money directed to be paid or brought in. Now, supposing the chancellor, iri this case, of opinion, that there ought to be a reconveyance on paying or bringing in money — is it possible to conceive that the decree is to order money to be brought in or paid by a person who is not á parly to tlie suit, and the conveyance to be made to the same, or another person, who is not a party to the suit. Now, it is clear to the chancellor, from a view of the act, if á decree takes place under it, that the decree must be between the parlies to ■the suit. For instance, á decree for relief iri this case would direct the deeedsed to bring ib oí- pay money, and tlie defendant to convey to the deceased. The chancellor would suggest, for the consideration of the bar, the ques^ lion, whether such a decree would not be a mere nullity, except that it would show his‘opinion,, anil laya foundation for another suit, in which the representative of the deceased Would be a party? But a bill of revivor would certainly be preferable to a new suit.
    The act says, that tlie decree shall be as effectual as If the deceased were alive, except, &c. There is not a 1it-> ile in the act directing that the decree shall be for or against a representative to the deceased, who was not an. Original party) but suppose it did so direct) how is the chancellor to know the representative without further proceedings in the cause? Is he to act upon the bare allegation, or on exparte testimony? And if there are to be further proceedings, whát can there be better thaii a bill of revivor? The meaning bf the act appears to be merely confined to this — when one of the parties to a suit dieá after a submission, or setting dowii fop beating, the chancellor may decree the payment of rtio'riey to, or by, the deceased) audit shall give such a claim) as is founded oil Other decrees for or against the estate of the deceased; but the claim shall not be entitled to a preference; There probably may be some other cases; for ihstance á decree for recording a deed, where nothing is to tíe doné by the • deceased party. The moré the chancellor' reflects; the more he is confirmed in the opinion hé has expressed, and the more he is convinced of the impropriety, and indeed impracticability, of the act having an operation inote extensive than he has mentioned;
    It does not appear to the" Chancellor proper to examine a Cause merely to sbe whether he would dismiss the bill; unless thecatisbbeof such a nature that a decree for relief might be ¡effectual; The death of the complainant being suggested) a bill of revivor Was filed by his executor and residuary legatees arid devisees; stating the former proceedings, and the last •will of Walker; &c; to which the defendant answered; in which, among other thirigs; hé stated that Walker, the testator, was never married; and died without issue; that the land and premises in question were devised and limited over by the will of John Brogden to the defendant, in case Walker should die before he arrived to the age 6Í twenty-one, or leaving issue lawfully begotten; That he hath been informed; and believe's; that Walker bath made a last will and testament in the manner stated, but believes the same was obtained from him through artifice and by imposition, and that the same Was Hot executed by hint at a time when he was of sound and disposing mind.- That he should be able to prove, by several respectable witnesses, that Walker, shortly before his death, expressed himself perfectly satisfied with the disposition he had made bf his real and personal property to the defendant* fee same being made in conformity to his intentions*
    
      The commission.} by agreement, was opened for taking further testimony; further testimony was accordingly taken, and returned, which it is.also unnecessary to state.
    It was admitted that the defendant is the heir at law of John Brogden, and that Rebecca Pinkney, one of the complainants, was the half and only sister of Walker, and, that he, had no brothers or children.
    Hanson, Chancellor, (February Term, 1.805.), This is a case of a most delicate nature, in which the chancellor earnestly wished a compromise to take place. On this account it is that he has delayed his decision. He must now' proceed to the performance of his duty, in giving such a decree as he deems consistent with, and required by, the, established principles of equity.
    The, complainants, pray relief on several different grounds—
    1. They say the defendant committed a fraud in pro* curing Walker’s execution and acknowledgment pf deeds •variant from those he had agreed to execute,
    S. They say that if even Walker was apprised of the contents of the deeds, they ought to be either vacated or controled, on account of the defendant’s having practised, on an ignorant, imbecile, intemperate young man.
    5. They contend, that, if both these grounds should fail, and supposing the deeds to be, as they purport to be, deeds of real bargain and gale, the vast inadequacy of price, (£350 current money, the consideration mentioned in each, of the deeds,) coupled with the suspicious circumstances disclosed by the evidence, ought to be considered as a, foundation for setting them aside, or granting the complainants some, other substantial relief.
    It is proper for the chancellor, before he proceeds to. a final decision, to remark on two points made on the part of the defendant.
    It is contended, that Walker was a tenant in tail; that as he died without issue, and as Brogden was the reversioner in fee, the land must belong to Brogden, unless it can be shown that the entail was cut off.- And that .if the deed from Walker to Brogden, for conveying the real estate, be vacated, it cannot possibly be considered as having the operation of converting Walker’s fee tail into a fee simple in Brogden, or that, if it has that operation, the fee must remain in Brogden to his own use.
    
      The defendant’s counsel has also insisted on. that established well known principle in chancery, respecting the weight of an answer, which the defendant has been corn- ' pelled- to make on oath. It is true that the. defendant has in his answer expressly- denied- all fraud, and imposition wherewith he is charged, and that there is not a single -witness to refute his answer-.
    As to the first point, the chancellor has not the least doubt, that if even Walker had only an estate tail, (which, he is satisfied was not the case,) the said estate was completely destroyed by. the deed executed to Brogdcn, ami that Brogden, under the deed, was to hold the land, either to his own sole use,'or in trustor by way of pledge or security.
    A.s. to. the other point, the chancellor conceives, as on other occasions he has declared, that fraud is not to he considered as a single fact, hut a conclusion to he drawn from all the circumstances in the case. It is certain, that although the defendant has generally denied fraud, he has denied but few of the matters charged in thj^bill.
    But the chancellor does pot consider hrjpadr under the disagreeable necessity of deciding, whether or not there was fraud in obtaining the deeds. He views the deeds as executed by a,weak young man, conscious ofhis inability to. protect his property, or to manage his own concerns, . and therefore resolving to place himself under the guidance and protection of an able and affectionate relation. If it could be imagined that he meant to convey every part of his ample property for the benefit of that kinsman only, and to be absolutely dependent on him for subsistence, he. must be deemed very little superior to an ideot. Were he alive, and in the place of the present complainants, who is there that would not declare it the duty of this tribunal to save him from the wretched consequences of an act proceeding from~madness, folly, or habitual c.hriety, &c.
    Supposing the intent of the deeds to have been that Walker should retain his own property during life, and that afterwards his uncle should have an absolute fee, how different would deeds, properly prepared for that purpose, have been from the deeds executed by W'alker. How different too, the. chancellor must sav, would have been the circumstances attending the execution and acknowledgment. The best and fairest construction is, that the deeds were intended to secure to Brogden a debt, which although greater than Walker might have admitted, was trifling in comparison of tiie value of the property conveyed, and to put it out of the power of the. grantor to squander his estate, and become a prey to designing men. Here.then was a resulting trust, or here there was an equity of redemption, or here was a silly, intemperate young man. who really did not know what he was about, and who therefore ought to have tire protection of a tribunal, whose peculiar duty it is to watch over ideóla, lunatics, madmen and fools.
    The defendant having originally conveyed the land to his brother, from whom Walker derived it, most, probably thought it justifiable for him to. secure a return of it as soon as the miserable days of Walker should be ended. Let it be supposed that Walker was actually apprised of the purport of the deeds prepared by Brogden's attorney, as is contended by Brogden — what man of intelligence is-thcre, that will not say that it was sufficient for him to have an ample security for his debt, and to screen his nephew from all imposition which might he attempted by others? Who is there that would say if Walker was of sound disposing mind when he made his will, that his will ought not to prevail? And if he was not of sound disposing mind, why was not his will contested?
    It has been urged, on the part of the, defendant, that the complainants are not creditors; that is to say, it is supposed, that not having paid a valuable consideration for Fl’alker’s property, they have no claim which ought to be regarded by this court against the legal title vested in Brogden bv the deeds. No! if Walker, during his life, was entitled to relief, his representatives, on every sound principle, are also entitled.. Vfhen has it ever been decided, by this or any other tribunal, that relief, which might have been obtained by a complainant who has died, shall not be granted to his representatives, reviving the suit? Or, even that a representative instituting an original suit, shall not have the same relief which would have been granted to Ills ancestor, devisor, testator, &c.
    The chancellor repeats, that the decree he is about to. make is not grounded on a conviction that fraud was perpetrated by the defendant. Tie is clearly of opinion, that the complainants are entitled to a decree in their favour on other substantial grounds. Decreed, that if the executor’ complainant, shall bring into court on or before, &c. to be. paid 10 the defendant, the sum of £350, with interest from, the 17th of Jure 180!, the defendant, by a good deed, acknowledged and recorded according to law, shall convey, Sic. to the executor complainant, all the negroes, &c„ And if the devisees complainants, or either of them, shall oil or before, &c. bring into court the like sum of ¿£250, with interest as aforesaid, to be paid as aforesaid, the defendant, by a good, deed, &c. shall, give, grant, &c. unto the devisees complainants, and, their heirs, as tenants in common, to have and to hold to them, and their heirs, to the use or uses mentioned in the last will of the said W. other, the land, on the said 17th of. June 1801 by the said Wdl]ier, conveyed unto the said Brogde.n, being parts of two tracts, &c. But if the said complainants shall fail to bring into this court the money hereby directed, to be brought in on or before, &c. there shall be sold, for the payment to the defendant of the said two sums amounting t.o £500, with interest, &c. so much of the aforesaid personal property and, . land as shall be necessary; the persona! property, being first. And N. B. is hereby appointed trustee for. making fit? said sale; and the course and manner, of 1m ¡ proceedings shall be as follows, &c. The defendant ap • pealed to' this court.
    The cause wa.s argued before Polk, Buchanan, Nicholson and Gantt, J.
    Bidgely, Rey, Shaaff and Taney, for the Appellant,,
    contended — 1. That the bill is no evidence in the case; it is the allegation of the party in the language of counsel, not sworn to.
    
    2. The answer denies expressly all fraud; and there is not such proof against the. denial.of fraud in the answer, as by the law and usage of the court, of chancery entitles the appellees to a decree. Wakelin vs. Walthal, 8 Chan. Ca. 8. Company of Pewterers vs. Governor of Christ’s Hospital, 1 Vern. 131. Walton vs. Hobbs, 2 Atk. 18. Speed vs. Martin, 2 Com. Rep. 588. Robinson vs. Cuming, 1 Atk. 473; and Man vs. Ward, 2 Aik. 228.
    S. No witness is sworn on the part of the appellees who gives any legal, competent testimony; and . neither fraud nor imposition is prove,dby any legal competent testimony— íhe whole being hearsay or declarations of Walker hint" sel F.
    4. The deeds of conveyance transfer not only a legal, but an equitable estate to the appellant, not impeachable in a court of conscience, i?nd were fairly obtained on a proper and good consideration. Villers vs. Beaumont, 1 Vern. 101; and The King vs. The Inhabitants of Scammonden, 3 T. R. 474.
    5. If the deeds are declared null and void, as unduly obtained, yet the appellees should not have a decree for the real estate, as hi such case it is entailed property, not devisable to the appellees by will; and belongs to the ap-> pellant as heir at law and remainder-man.
    
      Martin, Johnson (Attorney-General,) and T. Buchanani, ¿or the Appellees,
    cited Clarkson vs. Hanway, 2 P. Wms. 203. Heathcote vs. Paignon, 2 Bro. Chan. Ca. 167. Ardglass vs. Muschamp, 1 Vern. 237. Bennet vs. Vade, 2 Atk. 327. Chesterfield vs. Janssen, 2 Ves. 125, 155. Exel vs. Wallace, Ibid 324. Bridgman vs. Green, Ibid 687 2 Fow. on Cont. 144, 145, 152 to 160. Osmond, vs. 3 P. Wms. 129. Cole vs. Gibbons, Ibid 196 Chew's Lessee vs. Weems, (ante 173, note;) and Frazier case, cited in Owings vs. Reynolds, et al. at December 1810.
   DECREE ,  