
    CONSTITUTIONAL COURT,
    COLUMBIA,
    APRIL, 1804.
    Price v. M’Gee.
    Where the witnesses to a conveyance are beyond the compulsory process of the court, it is not incumbent on the party claiming the benefit of their testimony, to subpoena them, or to examine them by commission ; but proof of their signatures will be sufficient. There is no distinction in this respect between money bonds and other deeds.
    In trespass to try title, the defendant may impeach a conveyance under which the plaintiff claims, by shewing-that it was obtained by duress, or fraud, or that the consideration was the compounding a felony ; and if there be evidence to support either of these objections, and the jury find against the deed, the court will not disturb the verdict. It belongs to the jury to judge of the sufficiency'of the evidence.
    Motion for a new trial. This was an action of trespass, to try-titles to land, and was tried before Brevard, J. in Darlington district. The plaintiff produced a grant from the Stale to Cain ; and a conveyance from Cain to himself, dated 4th November, 1800. The defendant, under the plea of the general issue, gave evidence to shew, 1. That the deed of conveyance from Cain to the plaintiff, was obtained by duress. 2. That the consideration thereof was for compounding a felony. 3. That it was obtained by fraud, by taking an undue advantage of Cain’s situation, and imposing on him. 4. The want of consideration to render the deed valid. The court, however, refused to admit evidence to this last point, and laid it down as law to the jury, that the want of consideration was not a ground upon which the deed could- be impeached ; but allowed such evidence to be given, for the purpose of supporting the other ground, viz. that the deed was obtained fraudulently.
    The defendant also produced in evidence two deeds of conveyance from Cain to one Whidden ; one for one hundred acres, and the other for one hundred and fifty acres, being the whole of the tract of land in dispute, the first dated 6th August, 1799, the other dated 28th November, 1800 : and contended, and gave some evidence to shew, that the plaintiff liad agreed to cancel the conveyance to himself, and that Cam should re-sell the .land.
    
      To rebut the defendant’s first deed, the plaintiff attempted to shew from circumstances, and insisted, that it had been antedated, and that it was not in fact made until some time after the date of Cain’s conveyance to the plaintiff.
    The court, in charging the jury, said, that in this action the plaintiff must recover upon the strength of his own tille, which was clearly made out to at least one hundred and fifty acres of the land claimed : but it would be for them to consider the evidence adduced to invalidate the conveyance, under which the plaintiff claimed. If they should think the deed valid, then it would be proper to consider whether the evidence produced to shew that the first deed to Whidden, was antedated, and decide thereon. That if they should be satisfied, that the plaintiff’s deed was ob. tained by fraud, or by compulsion, from Cain, or by any undue means, as by imposing on him in taking advantage of his ignorance, &c. ; or if the plaintiff colluded with others to take such undue advantage, or connived at their imposition, or assisted therein ; lhen} that they might consider the deed as null and void, and find against it. So also if they should believe that the deed was made in pursuance of an agreement to compound a felony, or to slop a . prosecution for felony; and that the plaintiff was either party or privy thereto, or in any way to be benefited thereby, knowing the circumstances of the case, and the object in .view : or if they should believe that the plaintiff agreed to cancel the deed, in consideration that the cause and occasion of making the deed had also been cancelled, or done away.
    It apptared, that some time after.the deed to the plaintiff was made and executed, it was again re-executed at the request of the plaintiff, by anothe.r delivery, and by acknowledgment. The court charged the jury, that any of the causes which were stated as good causes for avoiding the deed in the first instance, would be sufficient to avoid it, notwithstanding the subsequent acknowledgment and re-delivery, if the party was ignorant of his right, or the advantage he had, or might claim, to avoid the deed, at the time of such re execution.
    The evidence at the trial proved that one -Ford, of Marion district, whose store had been broken open and robbed, suspected this Cain, the plaintiff, and some others, to be the perpetrators of the felony ; and having apprehended^ them, carried them arbitrarily into Marion district, threatening them all, and whipping some of them with rods, in order to obtain a discovery of the goods stolen. That at length it was proposed to compromise the matter, and Cain and some others agreed to pay so much. The plaintiff, however, rofused to pay any part, Bui having a brother in Marion district, a mail of property, he agreed, if his brother would satisfy Ford the sum agreed on, he would become responsible to his brother ; and he was to be counter-secured by Cain, and the rest who agreed to pay the composition to Foid : and accordingly, the writings all round were drawn and executed. The plaintiff’s brother gave his notes to Ford, and took the plaintiff’s notes as security ; and the plaintiff secured himself by taking notes, &c.: and among other securities, took a-title from Cain to the land in question. The plaintiff, it appeared, was active in bringing about the compromise, but pretended thai it was through friendship to Cain, and the others, and not with any view to iris own interest. There was, however, some evidence to induce a suspicion, that he knew Ford could not recover against his brother, on the ground of the consideration of the notes being illegal : and there was also some evidence, from whence the jury might infer, that Ford had given up the notes taken from the plaintiff’s brother, and that the plaintiff had also got back from iiis brother the notes he gave to him ; and that he had signified to Cain that he would cancel the conveyance, as the papers were to be given up all round.
    Upon thisevidence, the jurvfound for the defendant. And now Falconer contended upon this motion furanew trial; first, that upon the trial, the deed of conveyance from Cain to Whidden was suffered to go to the jury improperly, since there vvasno other proofthat the deed was executed, but the proof of the handwriting ofCain, and oftbe subscribing witnesses, who were proved to be absent from this Stale, and residents of Georgia. He insisted, that a distinction should be made between bonds, and conveyances of land. That in regard to bonds, on which the action of debt lies, a copy of the bond is always filed with the declaration, and the defendant may take out a commission to examine the subscribing witnesses thereto, if he thinks proper ; whereas, in this action to try titles, the defendant cannot know, until the trial, what deeds the plaintiff intends to bring forward.
    He also argued upon other grounds, insisting that the verdict was against evidence : that there was no proof of any duress by the plaintiff, for that he was himself in duress at the time. That there was no proof' of fraud practised by the-plaintiff, or collusion with others, to take any undue advantage of Cain. That they were prisoners together : and that he put himself to great inconvenience to oblige Cain. That fraud oug\t always to be proved, arid can never be presumed: and that the proof should bo clear and full, and not merely conjectural, as in this case. That the proof* of an agreement lo cancel the deed, was merely presumptive, and insufficient. Also, that the last execution of the deed substantiated it, and cured whatever might have been objectionable thereto at fh.st.
    Warns, and Branding, contra,
    
    insisted that evidence had been given to the jury, from whence they were authorized to draw the conclusion they did : and’ that there was no good reason for the distinction attempted to be drawn between bonds with condition to pay money, &c. and deeds of conveyance of land.
   The court

refused to grant a new trial. They held, that the proof given of the deed was sufficient, and that where the subscribing witnesses to any instrument of writing are beyond the compulsory process of our courts, it is not incumbent on the party-claiming the benefit of their testimony to subpoena them, or examine them by commission ; but that proof of their signatures would be sufficient.

They were further of opinion, that the evidence given to impeach the conveyance to the plaintiff, on the several grounds contended for, and allowed at the trial, was properly submitted to the jury : and that it was for them to decide upon its sufficiency to disannul the deed: and that as they had thought the evidence sufficient, upon some or all of the grounds insisted on to avoid the deed, the court would not control their verdict.

New trial refused.

Present, Grimke, Waties, Johnson, Tkezevakt, and Brevard, Justices ; Bay, J« absent.

Note. A deed originally void, good by re-delivery. Cowp.’SO 1.  