
    Hamilton vs. Beall, et al.
    
    - > \ ; A II, being, entitled io a litt of ground, butigno rant of hi* right, vas induced by the fraud amt imposition of the sgenl of B B, in to” execute a conveyance to, ft ii, for the lot for a small consideraturn Ho filed his hill in chancerj in to have the e-onvoYUnee vacated, tee. The anMvers of B B’s representatives, and the agent, denied ad ftv.ud, tee. Dei'ivwl, that as it does uot appear that a fraud was perpetrated* or if >f was, that B B was a contriver or piivyto, or par* rtakev Of* it — as the . complainant suffered many years to elapse before he ¡ filed his ’bill — as the property hath , since been greatly improved and ¡ changed, and hath devolved on several represen'aÜYes —as the argument j from convenience ought always to . have influence, the 'Comp'ainant is not' entitled to recovo»', BiU dis* i KlUsal* 1
    Appeal from the Court of Chancery. The complainant, (now appellant,) by his hill filed on the 20,th of April 1798, stated that George Gordon, being seized of certain lots ip fee in Gcovge-Town, by his will dated 1766, dey (vised the house and lot No. 48, and the acre of land where-the old warehouses are erected, in fee, to his grandson George F. Hamilton, and lot No. 52, with the warehouses thereon, in fee, to his grandson Charles E. Hamilton. That after the death of the testator, George and Charles respectively entered, &c. Th$t they both afterwards went to sea, and died intestate, leaving Thomas Hamilton their, heir at law. That Thomas Hamilton, being seized of the lots devised to George F. Hamilton, died in 178.3, without having made any valid testamentary disposition of the. lots, his will not having been executed in the manner prescribed by law to pass real estate; and having died intestate as to the lots, the same descended to William, Hamilton, vaho was his eldest son and heir at law. That; William Hamilton afterwards died, having made his will June 1786, by which the lots are not particularly devised, but if they passed by the expression, in the will, ifc was to the complainant, and who \yas his eldest son and heir at law. Thai after the death of his., father, the compkinant resided in Monongalia county, in the commonweal tli of Virginia, and that in the year 1791, Brooke Beall, since deceased, (whose father had intermarried with lh\th, one of the daughters of Thomas Hamilton,) Well knowing the premises, and that for want of a legal execution of the will of Thomas Hamilton, the lots were the property of the complainant, and intending to defraud the complainant thereof by untrue and deceitful pretences, fraudulently procured Andrew Hamilton, who was named executor in the will of Thomas Hamilton, to repair to the complainant in Virginia, where he resided, and by deceit and fraud to obtain a legal conveyance from him to Beall for the lots; and that' Andrew Hamilton, acting by the procurement, and by the directions and with the consent and knowledge of Beall, falsely and deceitfully alleged and pretended to the complainant, (who was then little more than 21 years of age, and was ignorant and unlettered,) that the will of the complainant’s grandfather, Thomas Hamilton, was good and valid in law, only that he had not thereby authorised or empowered him, Andrew, although appointed his executor, to sell the lots; and Andrew further informed the complainant., that he must give him a power of attorney for the purpose of acknowledging a conveyance from the complainant to Beall of the lots, which Andrew said he had consented to sell to Beall, under themii of Thomas Hamilton, or that the complainant must go to Maryland to execute and acknowledge the same, or that he (Andmo.) must apply to the governor and council of Maryland for an order to sell the lots, under a late act of assembly of that state, which ^Zneire«) falsely alleged to iiave passed, and that the complainant therefore would be obliged to attend at Annapolis to make valid the sale. That the complainant, being young and unlettered, and placing (confidence and belief in what Andrew, in behalf and by the procurement of Beall, falsely told him, and fearing that he must either execute a conveyance for the lots, or be subjected to the expense and inconvenience of attending at Annapolis, as Andrew had falsely and deceitfully told him he must do, and being likewise without money, and his mother then ill in bed, and depending on him for assistance and support, he was induced to execute, and did, on the7th of February 179i,execute a conveyance to limit £w the lots before mentioned, for the trifling consideration of three pounds ten shillings current money, wliiclx is all that he received, and which he would by no means' have accepted as a consideration for the lots, but for the imposition practised on him as before mentioned. That after the execution of the deed, to wit, in 1798, Ileall died seized of the lots, and intestate, leaving a widow and seven children, to whom, by law, his real estate equally descended, to wit, &c. the defendants. Prayer, that the conveyance may be set aside and rendered null and void* &c. and for further and other relief.
    The answers of the defendants, (one of them- being an infant answered by his guardian for that purpose appointed,) admitting certain facts set forth in the bill, and their ignorance of others, stated, that Thomas Hamilton, claiming to be heir at law of Charles E. Hamilton, conveyed that part of lot No. 5% which was devised to Charles by Gordon, to John Orr, who afterwards.conveyed the same to Brooke. Beall, the ancestor of the defendants. That after the death of Thomas Hamilton, his executor Andrew Hamilton, offered to sell to Brooke Beall the lots which is the object of the bill of complaint, but on examination it was found that there was a deféct in the title, and.it was agreed between Andiew Hamilton and Beall, that if a good and complete title could be procured for the lots, he* Beall, would become the purchaser; whereupon Hamilton. agreed to procure a title, and obtained the deed mentioned in the bill from the complainant to Beall, and Beall paid to Hamilton lor the lots £700 or *800. The defendants, deny that Beall ever did in any manner advise, or through: false pretences persuade the complainant to convey the lots* nor do they believe that Andrew Hamilton took any undue means to effect that end. They refer to' the conveyance, and pray that it may be taken as part of their an-, swer; and Beall being, a purchaser for a valuable consideration, without fraud, they contend, that neither him, nor Ids heirs* ought to be disturbed in their rights. That the complainant never did, as they are informed and believe, make any claim to the lots either of Beall, in his life-time* or of his heirs since his death, until the present application; and they are ignorant of any fraud ever having been practised on him. That since the purchase, on the faith, thereof, Beall made valuable improvements, &c. The answer of Apdreiv Hamilton, also one of the defendants* siatéd, among other things material to be noticed, that á¿ executor of Thonias Hamilton, not knowing of ány defect in the title, he advertised the lot or acre of ground, whereon the old warehouse formerly stood,' for sale, and on the Sd of January 1791, exposed the lot at public sale; where there were several bidders, and among others Brooíé Beall, and it was fairly struck oif to him, as the highest bidder, for £225. That after the sale, the title papers were by the defendant put-into the hands of Beall, to prepare the conveyance. That it was discovered by Beall that the will of 'Thomas Hamilton was defective, there not being three witnesses to it, and on that account the legal estate had descended to the complainant, who was the heir at law of William. Hamilton. That Beall refused to pay the purchase money until the title of ilie complainant cbüld bé obtained, either to himself directly, or to some person who would convey to him; that Mr. Gantt was consulted ag counsel, and he advised the making of a deed to Beall directly from the complainant, as the most proper mode of securing the title, and á deed was prepared by Mr. Gantt} for whicli the defeudánt paid him. The defendant afterwards, in February 1791, went to Virginia, Where the complainant then resided, and carried with him tlié deed so prepared, and a copy of the will of Thomas Hamilton. That ike defendant showed to the complainant the copy of the will, explained to him the defect, and informed him, that it having only two witnesses would Uot authorise the defendant to make a title to the purchaser, that the wilt was inoperative as to the latid; that Beall had become the purchaser, but refused to Complete the cOtitraet unless the Iomplaihant would couvey the land. The defendant then showed the deed, so prepared, to the complainant, and asked him if he would execute it. That the cotnplainant, being fully acquainted with the nature of the will, voluntarily, and without any hesitation, agreed to convey his title to the property, and to execute the deed to Beall. That the defendant had also á power' of attorney prepared to have the deed properly acknowledged by sortie person in this state; but the complainant informed the defendant,, that he wished to make a visit to his únele John, who resided- near Shepherd's town, and Allegany county being oa the road, he would, on bis way through that county, excmte and acknowledge the deed; which was accordingly done on the fth of February 1791. That the complainant and defendant were in company together for Several days after tlié execution of the deed, arid conversed respecting’ it, ártd tlié complainant expressed himself Satisfied with its execution. When thé deféndarit saw tire compiainaiit several years after} he Aid not express any dissatisfaction at having conveyed the land to Beall. The defendant denies that he ever told the co'iripfuitiant that the will of Thomas Hamilton was good and valid in law} but on the contrary informed him that it was defective arid inoperative to pass land, or give- any power or authority to affect the same. He also denies that he ever informed the complainant that he ■would apply to the governor and council, &fc. arid dririies thci other allegations stated in the bill, of fraud, deception, &c->
    
      Testimony was taken under commissions, and the cause having been argued and submitted,
    Hanson,- Chancellor, (24th September 1805,) stated} ■that whether he shall decide in favour of the complainant} or in favotir of the defendants, the' Case must, to every candid person, appear hard for the loser, and most probably litigation will be continued as far as possible to the great expense, trouble, and anxiety of both parties.-
    In various cases of doubt of difficulty, 6r hardship, the chancellor has thought proper to recommend a compromise and decree by consent, and experience has Convinced him 'that he is right» He considers this- case peculiarly proper for a settlemen t in that Way. He has never had before him is case concerning the merits of which he more doubted, áná of the event of which, after his decision, doubts mightf more reasonably be entertained.
    Acting on principle's whieb have, always governed him, and led by those principles to consult the Welfare, as far as his power extends, of every suitori in this court, whose conduct has not, in his opinion, deserved punishment or reprobation, he proposes an adjustment, such as he believes an intelligent, careful, impartial arbitrator would award. Such as cannot be greatly detrimental to the party, who shall be finally victorious, in ease this proposal shall be rejected, but which, iu such case, will have been beneficial to the other party.
    Let the parties, by writing here filed, consent ta ft de-. Cree to the following purport, viz,
    
      1st. The defendants, heirs of Brooke Beall, shall on or before the 25th day of Match next, pay or bring into this court, to be paid to the complainant, the sum of 800 dollars; and in case that sum shall not be so paid, or brought in, the payment thereof, with interest, may be pnforced by execution cm tlie persons, or property of the defendants.
    2d. The complainant shail execute and acknowledge, according to law, a release to the defendants of all his right, legal or equitable, to the property in question.
    3d. pacli party shall bear the proper costs,
    This recommendation of the chancellor was not acceded to, and he then passed the following decree;
    The defendants having rejected the chancellor’s recommendation, it becomes incumbent on him to determine as a judge, wholly in favour of them, or of the complainant, according to the best of his judgment, and knowledge of the principles of this court, and not, as he wishes he were authorised to. do, in the spirit of a fair, impartial, intelligent arbitrator.
    Under the special circumstances of the case he may not speak so largely as it is customary fop him to speak in decrees of importance, But he will say thus far — As, he is not satisfied that a fraud was perpetrated, or even if it was, that Bball% the purchaser, was a contriver, or privy to, or partaker of it; as t he complainant suffered many years to elapse before he filed his bill; as the property hath sin.c© been greatly improved and changed, and hath devolved, or several representatives; as the argument from convenience ought always to have influence, he cannot think the coin • claimant entitled to relief.
    It is true that some of those reasons would, if standing alone, be entitled to little or no weight, but when united they appear to. form a sufficient and fu'm prop or support for the defendants.
    Were indeed the chancellor fully convinced from the evidence, that, before the complainant executed the deed, there were, between him and Jlndre-w Hamilton, transactions which this court must consider as constituting a fraud on the part of Andrew, the circumstances herein stated as Reasons would not induce the chancellor to. refu.se relief. Consider too, the rule respecting the refutation of an answer — examine the answer and evidence in this cause together-compare the testimony on,. each side — consider, as we must do, when witnesses differ, whose testimony is most probable» — consider even if the complainant’s witnesses are correct, and their testimony is to prevail against the .answer and opposing testimony, how far ignorance should protect a man in this court. If one party shall tell the other a most improbable, story to intimidate^ — For instance, if A tells B, a plain common fanner or planter in Virginia, “if you, will not execute this deed, the governor of Maryland, in virtue of a law of his, state, witll send for and compel you.” If the farmer-be not half ai) ideot or a. lunatic, qr iri a state of mental imbecility', if must be difficult for even three witnesses against a. defend ant’s answer, to satisfy the mind that A’s declaration has induced the, farmer to make the conveyance. The testimony of those, who swear to Andrew Hamilton’s declarations must be unsatisfactory'; their memories must be defective; if not, it may be demanded, wherefore did they stand by and permit the falsehood to have its effect?
    If ignorance were by this court protected to. that extent, how many fair contracts might be set aside! Ignorance indeed, real or pretended, might in many instances have the. advantage of knowledge and wisdom. In the chancellor’s, opinion, on a view and comparison of all the proofs, there has not in this case been that suggesiio falsi, ant suppressio veri, which can authorise him to grant the relief prayed by the grantor in the deed against fair purchasers, wlio have long been in possession, of, and improved the property, before a demand of any kind made of or against them. Decreed, that the bill be dismissed, but as the complainant had probable grounds for instituting the suit, it is dismissed without costs. From this decree the complainant appealed to this court.
    The cause was argued before Ghase, Ch. J. Pork, Buchanan, Niorolson, and Earle, J. '
    
      Johnson, (Attorney General,) and Magnifier, for the Appellant,
    cited 1 Fonbl, 189. 1 Pow. on Cant. 140, 144. Broderick vs. Broderick, 1 P. Wms. 239. 2 Pow. on Cont, 156. Evans vs. Llewellin, 3 Pro. Chan. Ca. 150. Brogden vs. Walker’s. Ex’r. & c. (ante 285.) 2 Fonbl. 158. Jennings vs. Moore, 2 Vern. 609. Blenkarne vs. Jennings 1 Pro. Parl. Ca. 244; and Doe vs. Martin, 4 T. R. 66.
    
      
      Marlin and Shaaff, for jhe Appellees,
    cited 1 Fonbl. £15,189, (note,) 384; and Pasley vs. Freeman, 3 T. R. 51,
   DECREE Aii'iimEp.  