
    Morris vs. Nixon.
    A deed freely and voluntarily made by a person when intoxicated, though not so mhch so as to be incapable of understanding the transaction, and without the fraudulent procurement of the grantee, will notbe set aside by .a court of Chancei’y at the instance of the grantee.
    Bill filed in the Chancery Court at Bolivar, by Robert Morris against E. H. Nixon, to set aside a deed of conveyance for certain slaves and for’ an account. The Chancellor,. (Andrew McCampbell,) dismissed complainants bill so far as it prayed a cancellation of the deed, but' ordered the account asked for. Complainant appealed.
    
      D. Fentress, for complainant.
    
      J. Humphreys, for defendant.
    To set aside any act or contract on account of drunkenness, it is not sufficient that the party is under undue excitement from liquor. It must arise to that degree which may be called excessive drunkenness, Where the party is utterly deprived of the use of his reason and understanding, for in such case, there can in no just sense, be said to be a serious and deliberate consent on his part and without this, no contract or other act, can or ought to be binding by the law of nature.
    If the're be not that degree of excessive drunkenness then, courts of equity will not interfere at all, unless there has been some contrivance or management to draw the party in to drink, or some unfair advantage taken of his intoxication to obtain an unreasonable bargain or benefit from him. 1 Story Eq., sec. 231, and see 2 Kent’s Com., 451-2.
    If a person is of feeble understanding, and the bargain is unconsionable, what better proof can one wish of its being obtained by fraud or imposition, or undue influence, or by the power of the strong over the weak. 1 Story Eq., sec. 236.
    The acts and contracts of persons who are of weak understandings, and who are thereby liable to imposition will be held void in courts of equity, if the nature of the act or contract justify the conclusion, that the party has not exercised a deliberate judgment, but that he has been imposed upon, circumvented or overcome by cunning, or artifice, or undue influence; sec. 238.
    In the case of King vs. Cohorn, 5 Xer., 76, the court mention as evidence of fraud, that the contract was made in secret, the defendant did not cause the terms of the contract to be stated by the complainant to any person. He did not even himself state the terms in her presence to any one. She had then no other means of knowing what was in the writings, but as she might gather that information from hearing the papers read. An intention to act fairly would have prompted the defendant to have had respectable persons present, in whose hearing the contract would have been plainly and minutely stated, so that it might be apparent, complainant understood what she was doing.
    Immaterial from what cause such weakness arises, whether from temporary illness, general mental imbecility, the natural incapacity of early infancy and the infirmaty of extreme old age, or those accidental depressions, which result from sudden fear or constitutional despondency, or overwhelming calamities. * * Although there is no direct proof that a man is non-combos or delirious, yet if he is a man of weak understanding, and is harassed and uneasy at the time; or * * * it cannot be supposed that he had a mind adequate to the business which he was about; and he might be very early imposed upon. 1 Story Eq., sec. 234.
    The evidence must apply to the facts put in issue, and if the depositions are as to facts not in issue they will not be permitted to be read. On the same ground no notice will be taken of evidence by which it is attempted to introduce a defence totally different from that made by the answer, 2 Maddock’s Chancery, 438, refers to Smith vs. Clarke, 12 ves., 480.
    
      Where a transaction between a debtor and his creditor is intended by them both to defraud the other creditors of the debt- or, but the latter under all the circumstances of the case is not so culpable as the former, it would seem that a court of equity ought not altogether to refuse relief to the debtor, but to apportion the relief granted to the degree of criminality in both parties, so as on the one hand to avoid the encouragement of fraud and on the other to prevent extortion and oppression. 1 Bar. & Har., Eq. Digest, 568, sec. 5, title fraud; refers to Austin vs. Winston, 1 Hen. & Munf., 32.
    The Chancellor will not relieve against, or enforce a contract made to defraud creditors or others. In such case the maxim is in pari delicto potior est conditio defendentis., But where the party against whom relief is sought, has fraudulently induced the party claiming relief to attempt a fraud, by exercising vast ascendancy and influence arising from confidence and dependence, making use of dangers that did not exist &c., the court will relieve. 3 Marshall, 475, Deatling's heirs vs. Murphy. as where the party has been cheated into fraud by some .undue influence. 4 Lit.' Rep., 298, referred to 1 Pirtle’s Digest, 310, sec. 110.
    Intoxication does not excuse crime, but where the crime alleged involves, premeditation, deliberation or design, it is material in reference to the determination whether such crime has in fact been committed. Swan vs. State, 4 Hump. 140-1-2, 1 Russell 8.
    If a man is fully informed and acts with his eyes open, he may by a new agreement bar himself from relief, but if he is still acting under the pressure of the original transaction, or the original necessity, or if under the influence of the original transaction, and of the delusive opinion that it is binding upon him, then courts of equity will not hold him bound by such confirmation. 1 Story Eq., sec. 345.
    To make a confirmation, it must be after the party comes to a knowledge of all the circumstances which attended the original transaction, and does it with a view to confirm it; knows that his act will have that effect; knows that he is'entitled to disaffirm it, and knows the law as well-as the fact. And these facts must appear affirmatively. Bar. & Har. Eq. Dig, title Confirmation, 305.
    In the case of ■Cherry vs. Newsom, 3 Yerg. 369; Cherry gave a promissory note, which it was insisted was a confirmation of the agreement impeachable for fraud, but the court held otherwise.
    Opinion delivered by Judge Whyte, states: “The party whose voidable contract is charged to be confirmed by this act, or acts subsequent, must not only be shown to have a knowledge of the facts constituting the impeachable transaction, but he must be shown to have also a knowledge and be aware that the act he is doing is to have the effect of confirming the transaction.” And again: — “The record in this case, not showing that the plaintiff, Cherry, knew that he could exonerate himself in law,” &c.
    The following, extracted from the opinion in CocJcerell vs. Chilmely, 1 Russel & Mylne, 418; Con. English Ch. Rep. 498.
    “In equity it is considered, as good sense requires it should be, that no man can be held by any act of his to confirm a title, unless he was fully aware at the time, not only of the fact Upon which the defect of the title depends, but of the consequence in point of law; and here there is no proof that the defendant, at the time of the acts agreed to, was aware of the law on the-subject, nor was it even’alleged in argument.”
    
      A. Miller and Polk, for defendant,
   Green, J.

delivered the opinion of the court,

This bill is brought to set aside a bill of sale for negroes.

The complainant charges that having become addicted to drunkenness, and considerably indebted, the defendant, who is his father-in-law, persuaded him that he was his best friend, and could manage his property for him better than he could, and taking advantage of his intoxicated situation, procured him to make a bill of sale for twenty-three negroes, dated the first of March, 1842, for the consideration expressed, of six thousand dollars, no part of which was-paid. The bill prays that said bill of sale be set aside, and that the complainant be restored to the possession of his negroes.

The answer admits the execution of the bill of sale, and admits the complainant was an habitual drunkard, but denies that bill of sale was made merely to enable defendant to manage the property for the complainant. The defendant insists that he fairly purchased the said slaves without fraud and without condition, that the complainant was not drunk when the bill of sale was made; no money paid at the time of the execution of the bill of sale, as it was agreed that the defendant was to pay the defendant’s debts, which he had done to the amount of four thousand five hundred dollars, and the balance of the purchase money he is ready to pay at any time.

It does not appear from the proof that bill of sale was made to defraud the creditors of Morris, nor does it appear that Nixon employed any artificial or fraudulent contrivance to induce Morris to make the bill of sale. At the time it was executed Morris was intoxicated, but not so drunk as to be incapable of understanding the transaction. The proof shows that Morris had married the daughter of Nixon a year or two before the bill of sale was made; that he owned the twenty-three negroes conveyed in the bill of sale and ten others that were not conveyed; that he was an habitual drunkard, so that many witnesses say he was not able to manage his affairs, which had become greatly deranged, and he was very much in debt; that after the bill of sale was made, Nixon took possession of the negroes, and when the ten that were not included in the bill of sale were levied on for the satisfaction of Morris’s debts, Nixon, Morris, and the Sheriff substituted several of those conveyed for some of those that were levied on, and had the former sold and the latter were conveyed by Morris to Nixon; that Nixon has sold several other negroes at private sale, and Morris, when sober, had approved these sales by Nixon, and certified that Nixon’s title was good; that Nixon has paid considerable sums in discharge of Monis’ debts, to enable him to do which,.he has collected monies due to Morris, and has received money from Morris, and that Nixon has repeatedly declared that he took the said bill of sale solely on account of Morris’ intemperate habits to pay his debts and save something for his wife, who is the daughter of Nixon.

The defendant stated to G. T. Fox that his object in taking the bill of sale was for the benefit of his daughter and Morris, because Morris was incapable of attending to the business. He told C. B. Polk that Coleman had cheated Morris, and that he did not intend to pay Coleman’s debt, and that he intended to save as much of Morris’ property as he could for the benefit of his daughter, Mrs. Morris. He told Sam Smith he would show Morris’ friends and his own friends that he did not get Morris’ property for his own benefit, but for Morris’ benefit after his debts were paid; that the reason was because he did not think Morris capable of attending to his business; that after the debts were paid he intended the balance of the property for Morris and his wife and children. He told A. H. Rose that he intended Morris should have all that was left after the debts of Morris were paid. He told P. H. Pruet that'the bill of sale was not taken to defraud any of Morris’ just creditors; that he intended to see that all just debts were paid, and that his wish was to save something for the benefit of Morris’ wife and.Morris. He told B. Williams that he thought he could pay off Morris’ debts and leave something for his (Nixon’s) daughter, that if he did not take care of her who would?

From this proof we think it clear that the deed was freely and voluntarily made by Morris when he was sufficiently sober to know what he was doing, and without thp fraudulent procurement of Nixon. The complainant is not, therefore, entitled to the relief he prays. But we think it equally clear from the proof that Nixon took the conveyance upon a trust to manage the property for Morris to pay his debts, and to save w'hat he could of the property for Morris’ wife and family.

Upon this ground we should have no hesitation in decreeing an account, and a settlement of the remainder on Mrs. Morris and children if they were before the court. But they are not parties, and the bill so far as it seeks to set aside the deed, must be dismissed. In other respects, the decree will be affirmed.  