
    *Mason v. Williams, and Peyton v. Carr’s Administrators.
    Argued, Saturday, Nov. 30th, 1811.
    i. Equitable Relief — How Lost by Compromise. — Under what circumstances a right to relief in equity may Re lost by acts of confirmation and compromise.
    2. Confession of Judgment — By Man of Weak Understanding — When Supported. — A confession of judgment and release of equity, will Re suriported, though made Ry a man of weak understanding, in the haRit of making improvident bargains, addicted to intoxication, and embarrassed in his circumstances; and though such confession was induced Ry the plaintiff’s giving him time to pay the money; if no other influence was exerted, and no fraud was committed, in obtaining such confession; the same being deliberately and voluntarily made by the defendant, or by virtue of a power of attorney deliberately and voluntarily executed by him. See Wigglesworth v. Steers. 1 H. & M. 70; worsham v. M'Kenzie, id. 342, and whitehorn and Wife v. Hines and others, 1 Munford, 557.
    Upon appeals from decrees of the Superior Court of Chancery, for the Richmond District, pronounced the ISth day of June, 1808.
    These cases (depending1 on the same principles) were heard together. The material circumstances, presented by the bills, answers, depositions, and exhibits, (so far as the same are not sufficiently set forth in the opinions of the judges,) were the following:
    Some time in the spring of the year 1797, William Carr, of Stafford, contracted with Enoch Mason, of the same county, to sell him two hundred trees, of his, the said Mason’s choice, to be cut by him from the land of the said Carr, for which he agreed to pay one dollar each, or two hundred dollars. No time was fixed when the trees were to be cut. He paid, in consequence of the contract, about SOI. 4s. 4d. in different payments. Either before, or a short time after, the said contract was made, Mason agreed with Valentine Peyton, that he should be a partner in the purchase. In the winter of 1798, Peyton went to the city of Washington, and made a bargain with Gustavus Scott, one of the Commissioners for that City, to whom was committed the purchase of timber, that he would receive of him one hundred of the said trees, at nine pence, Maryland currency, per cubic foot; the stocks to be not less than twenty feet long, and to square at least twelve inches; but, if to be had longer and larger, not to be rejected on that account; the timber to be delivered at the store houses at Aquia, and there to be measured by some persons to be appointed by the Commissioners; but Peyton did not bind himself to deliver it. When this bargain was made, Mason and Peyton *had not cut any of the trees. After the contract between himself and Mason, Carr agreed to let a certain George Brent have twenty trees from the same land, at the price of one dollar each ; which treés the said Brent caused to be cut in the spring of 1798, and to be sawed up the September following. In consequence of this circumstance, Mason and Peyton accused Carr of a breach of contract, and alleged, that they were prevented from getting a sufficient number of trees, of such dimensions as they wanted, and equally convenient to the landing place on Aquia Creek, with those which Brent had taken. The testimony on this subject was in some degree conflicting; but much the greater number of witnesses declared, that fully two hundred trees could have been got, as near to the said landing, and as large as any which Brent had caused to be cut. They renounced the contract, however, on the ground of its having been violated by Carr, and threatened to sue him. Carr (being a young man addicted to extravagance and intoxication, as well as naturally weak, timorous, and unguarded, being also constantly needy, though in possession of a considerable estate, and in the habit of making disadvantageous and imprudent contracts, as was proved by many witnesses) was induced to compromise the dispute, by giving two bonds for three hundred dollars each, payable, severally, to the said Mason and Peyton. He made payments to the amount of 43). 6s. in part of the bond, to Mason and, (suit being afterward brought upon it,) confessed judgment, on the return of the writ, which was executed without requiring bail. Suit was also brought on the bond to Peyton; whereupon Carr, (on Peyton’s agreeing to give him three years to pay the money,) executed a power of attorney to Benjamin Botts, the plaintiff’s attorney, to confess judgment for him, with a release of equity; which was accordingly done. A writ of fieri' facias was issued on Mason’s judgment, and a forthcoming bond taken, with John Williams security. In November, 1801, Carr departed this life; '"and, soon after, administration of his estate was granted to the said John Williams, and to Margaret Carr,- who afterwards married William Smith. At Stafford February Court, 1802, a judgment was obtained by Mason against Williams, the surviving obligor in the forthcoming bond; and execution being issued, the sum of 271. 6s. 734<3. was made in part. Peyton also revived his judgment, by scire facias, against the administrators, and sued out execution, which being returned nulla bona, he brought suit against them in the District Court, held at Haymarket, for a devastavit. The said John Williams, in his own right, and as one of the administrators, filed his bill in Chancery against Mason ; and the said administrators, their bill against Peyton.
    Injunctions were granted by Chancellor Wythe to stay proceedings on Mason’s judgment, and in Peyton’s suit for a devas-tavit, until the matters in controversy should be determined in equity.
    The grounds on which the complainants prayed relief, were, that the defendants had taken a fraudulent and unfair advantage of the weakness of William Carr’s mind; having obtained the bonds in question by importunities and threats; and by indulging him with time to pay the money; that the spirit of the original contract, on his part, had not been violated, as trees enough were standing to answer the purpose for which they were wanted by Mason ; that, at any rate, the damages for the breach, if suit had been instituted, would have been small; since no more than twenty trees were sold to Brent, as to which only, the advantage of making the first choice was lost by Mason; that, therefore, the bonds for 600 dollars, if not altogether without consideration, were, at least, exorbitant and oppressive. The defendants insisted that they could have made a greater profit, by the contract, than the sum of six hundred dollars; that Carr had sold so many trees to Mason, and other persons, (but this allegation was not proved,) that they could not have procured a sufficient number of such as, *by the contract, they were entitled to; that no unfair means were used to induce Carr to sign the bonds; that he freely acknowledged his violation of the contract; and that his confessions of judgment were voluntary, and without compulsion.
    Sundry depositions were taken on the subject of the emolument they might have made by taking the timber according to contract; from which it appeared, that in consequence of the great difficulty of wagon-ing such heavy logs to the landing at Aquia. and conveying them in rafts to the City of Washington, the profit would, probably, have been small; or, perhaps, a loss might have been sustained.
    The Chancellor decreed, that both the injunctions be perpetual: whereupon the defendants appealed to this Court.
    After argument by Botts, for the appellants, and Hay, for the appellees, the judges, on Monday the 20th of January, 1812, pronounced their opinions seriatim.
    
      
      See monographic note on ‘'Judgments by Confession” appended to Richardson v. Jones, 12 Gtratt. 53. The principal case is cited in McFarland v. Fish, 34 W. Va. 560, 12 S. E. Rep. 552. I
    
   JUDGE COALTER.

There is considerable hardship in these cases; and had Carr, in his life time, and at an early day after the transactions complained of, resorted to a Court of equity for relief, I am not prepared to say that his case would not have come within the third species of fraud enumerated by Lord Hardwicke, in 2 Vezey, 155, which is recognised by the Lord Chancellor in Heathcote v. Paignon, 2 Bro. Ch. Cases, 175. But contracts, which might, at first, be declared invalid by a Court of Chancery, may afterwards receive strength by acts of confirmation, In this case there have been various apts of this kind.

1st. An unconditional confession of judgment to Mason,

2d. The execution of a delivery bond, which does not appear to have been done in order to gain time to resort "to a Court of Chancery, but with intention to pay the debt.

3d. He gave a sum of money to obtain a delay of execution on this bond.

4th. Independent of this, he paid a horse and saddle, in part discharge of the delivery bond. And,

5th. He confessed judgment in favour of Peyton, for his half of the debt, with a release of all equity against him.

These various acts of confirmation, in a case in which, originally, I should have entertained considerable doubts, are too numerous and strong to be surmounted.

The decrees must be reversed.

JUDGE BROOKE. I am not satisfied that there is any proof in these cases that William Carr laboured under a general incapacity to make a contract. That he was Improvident, extravagant, and of very feeble understanding seems not to be denied. Nor am I ot opinion that, at the time he executed the bond in question, he was incapable of contracting. I will not now, however, decide that he had no equity, under all the circumstances attending that transaction. I shall only observe that, if he had, he released it, in one of the cases before the Court, with his eyes open, and upon full deliberation. But what I rely on, as affecting both cases, is, that he, long after the bonds to the appellants, deliberately, and of his own accord, confessed judgments, and made several payments. However improvidently all this might have been done, he does not appear to have been under any pressure, or delusion, proceeding from the other party: and the rule is “cujus est dare ejus est disponere.” The contract sought to be set aside was not a contract against law ; it was not usurious : and confirmations, in which no fraud has been practised, (except of contracts of the last description,) are never relieved against in a Court of equity. The case of Coles v. Gibbons, 3 P. Wms. 290, decided by Lord Talbott, is supposed to havé settled this rule. *That case is relied on by Lord Hardwicke, in the case of Chesterfield v. Janson, 2 Vezey, sen. 125, in which the doctrine is very ably illustrated by him. I am therefore of opinion, that both the decrees must be reversed, the injunctions perperuated as to the sums paid, and dissolved as to the balances due.

JUDGE ROANE. Not being able to discern, with the appellee’s counsel, that William Carr, the intestate of the appellee, was incapable, through the weakness of his understanding, to bind himself by the original agreement in the proceedings mentioned, or to sanction and confirm the same, if originally objectionable; and not deeming it necessary to decide whether the original contract was in fact violated, or not, at the time the compromise was entered into between the appellant and the appellee’s intestate; it being entirely competent for parties to compromise controversies, which appear to them to have a bona fide existence, and thus avoid the trouble and expense of a law-suit; I am of opinion that the various acts of confirmation, and acknowledgment, of the original contract, on the part of the said intestate, amount, in equity, to a waiver of the objections aforesaid, if otherwise existing; and, on this ground, that the decree in the case of Mason should be reversed with costs, and the injunction made perpetual as to the payments made on account of the debt in question, and the bill dismissed as to the residue; and that the bill be wholly dismissed in the case of Payton.

JUDGE FLEMING. I have, on this occasion, the mortification of differing from a majority of the Court; for whose opinion, as well individual as collectively, I have the highest respect; but having also an opinion of my own, formed according to the best of my judgment, upon mature deliberation, I feel it a duty I owe, as well to myself, as to the community at large, openly to declare it: and, in my conception, there never came before me *a case more proper for the ' interference of a Court of equity, than the one now under consideration.

There appears, however, nothing amiss in the original contract for the purchase of the timber, in the proceedings mentioned ; but all seems perfectly upright and fair; but the subsequent conduct of the appellants has a contrary character, and presents, to my view, a very different aspect. When I speak of the appellants, I mention them jointly, not well knowing how to separate or distinguish between them ; for, although Mason appears to have been the principal agent in the business, Peyton seems to have shared and equally divided the spoil. And here it seems proper to advert to, and consider, the character and disposition of the person with whom they were dealing, and who had contracted with Mason for the above-mentioned timber. Although he was not a perfect idiot, no less than seven witnesses, to wit, I,uke Cannon, (who was his guardian when he came of age) Asa Blanchard, Fielding Tolson, John Overall, Samuel Davis, James Hayes, and John Hayes, all, as well from their own personal knowledge of him, as from the current report of the neigh-bourhood, prove him to have been much addicted to intoxication, timorous, extravagant, and often in want of money, unguarded, in the general habit of making improvident bargains, and easily imposed upon by any person who would take the advantage of him.

John Hayes deposeth that he was a tenant of Mr. Carr, who made him great offers of discount in his rent; and when the deponent made him payments in money, which he thought due, Carr told him to charge what he thought proper, which he always positively refused, as he would not take the advantage of him; which he might have done had he thought proper. And, in answer to an interrogatory put to him by Mason’s counsel, he said, he always thought him easily imposed upon in his bargains; and hg.d frequently felt for him in stores, when he saw him giving extravagant prices for goods.

With these unhappy traits in his character, the appellants, *living in the same neighbourhood, must have been well acquainted, and were resolved to make their advantage of them. It seems admitted on all sides, that appears from the evidence in the cause (not necessary to be here recapitulated) that Carr had not committed a breach of his contract; it may then be asked what injury he had done the appellants, either in their persons or property or what cause of action or complaint they haa against him? The answer is plain and obvious, “none at all.” But he was wealthy, or in possession of, or rather entitled to, a large estate, and they must have a part of it: and how was it to be effected? Why, well knowing his temper and disposition, they were resolved to charge him with a brbach of contract, which he never committed, work upon his timidity, threaten him with a suit, and heavy damages, and their object was completed; which I cannot but consider as a shameful departure from justice and moral rectitude, and as a very proper subject for the animadversion and correction of a Court of equity; especially, as there is no legal consideration for executing the bonds in controversy, which were exacted, or rather extorted, from the intestate of the appellee, by working upon the imbecility and timorous state of his mind who had done them no injury.

And here let me notice some of the leading principles laid down in the books of equity. “An unconscionable bargain, (as a purchase or security got from an heir in his father’s life time) is now (says Fon-blanque) usually avoided in equity; for he would justly forfeit the character of an honest man, who should endeavour to make an advantage of this easy age, and enrich himself at the cost of those who either could not foresee, or do not rightly apprehend' the loss. The rule (says he) upon which Courts of equity in these cases proceed is not merely in respect of the age of the heir contracting. Osmond v. Fitzroy, 3 Pr. Williams, 131. In Wiseman v. Beake, Wiseman was near forty years of age, and a proctor of the commons; in the case of Curwin v. Milner, *the heir was about twenty-seven years of age; but the real object which the rule proposes is to restrain the anticipation of expectancies, which must, from its very nature, furnish to designing men an opportunity to practise upon the inexperience, or passions, of a dissipated man. A.nd this being the object of the rule, its operation is not confined to heirs, but extends to all persons, the pressure of whose wants may be considered as obstructing the exercise of that judgment, which might otherwise regulate their dealings. See Smith v. Burrows, 2 Vernon, 346; Proof v. Hines, Forrester, 111; Freeman v. Bishop, 2 Atk. 39, and Brookes v. Gally, 2 Atk. 34.” If, then, heirs, though in advanced age, and other persons, the pressure of whose wants is considered as obstructing their judgment in their dealings with artful and designing men are to obtain relief in equity, where they all receive something valuable in lieu of what they contract to pay to such artful and avaricious men; how much more forcibly does the rule apply in the case before us, where the unfortunate Carr received about SOI. advanced by Mason, at different times, for his 600 dollars? 431. 6s. of which 501. 4s. 4d. he repaid in his lifetime; and by an account, settled between the parties by Benjamin Parke, a commissioner, under an order of Court, in May, 1802, Mason appears indebted to the estate of Carr 31. 10s. l/ád., after allowing him interest on his advances to that time.

But, supposing, for a moment, that Carr had actually committed a breach of his contract, and that Mason was justly entitled to recompense therefor, his taking the 'bonds, now the subject of controversy, was clearly usury within the statute; for he confesses and states, in one of his answers, as a meritorious fact, that, when a compromise was entered into, he offered to take 400 dolls, if well secured at a short •date, but Carr (who, as already proved, was always in want of money) preferred a 'long credit, which (sajTs Mason) he named himself; and for fourteen or fifteen months forbearance, he took ’''his 5 bonds for 600, instead of 400 dolls. : three hundred payable to himself and Peyton each: which alone (had all the other transactions been upright and fair) would have completely annulled and made void the whole. But it has been observed, that Carr voluntarily confessed judgments on both the bonds: and therefore they were binding on his administrators. To which I answer, that that circumstance strongly corroborates the testimony of the seven witnesses who had already given evidence respecting his general character.

And, with respect to the case of Peyton, that confession of judgment was by a special power of attorney made to the lawyer who prosecuted the suit against him, whom he styles his friend, and who drew it with great professional art and skill, but seems to have overshot the mark, and proves, to my mind, a consciousness that something was rotten at bottom. The power concludes with these remarkable words, to wit “And it is understood, that I have instructed, and do hereby instruct, my said attorney, to release all errors and equity, in, by, of, to, and concerning the said judgment, Witness my hand and seal, Ac.”

If the bond, on which the suit was instituted, had been given on a good and bona fide consideration, why all that abundant caution in wording the power of attorney ? To me it is additional evidence, that all was not right and fair. I am truly sorry at being compelled, by the circumstances of this case, to make use of any harsh language towards the appellants; but, it does appear to me, that the scheme to inveigle and fleece the timid, unwary, and unhappy intestate of the appellee, was conceived in avarice, nurtured by fraud, and consummated in glaring iniquity: and am therefore of opinion, that the decrees are just, and ought to be affirmed: *but, a majority of the Court being of a different opinion, both decrees are to be reversed, the injunctions, as to the payments actually made perpetual, and dismissed as to the remainder; which is to be certified, &c.

In the case of Mason v. Williams, the decree was reversed, with costs; the injunction made perpetual as to 701. 12s. 7%á., and dissolved as to the residue of the judgment; the bill, so far as it sought further relief, was dismissed, and it was ordered that the appellant pay to the appellee his costs by him expended in prosecuting his suit in the said Court of Chancery.

In that of Peyton v. Carr’s administrators, the decree was also reversed; the injunction totally dissolved, and the bill of the appellees dismissed with costs. 
      
       See also, 1 Atk. 352.
     
      
       3 P. Wins. 290.
     
      
       See 2 H. & M. 575.
     
      
       I Atk. s. c. very fully reported.
     
      
       Fonbl. 133,134.
     
      
      Note by the reporter. Peyton, in his answer alleges that a hill oí inj unction, on behalf of Carr, had been prepared, before the power of attorney was executed: which circumstance perhaps, induced the insertion therein of the words releasing ■equity; though no proof of this allegation appears in the record.
     