
    *Chapman v. Chapman.
    [April, 1799.]
    Equity Practice — Setting Up Deed Suppressed — Case at Bar. — 1The heir promised his mother, that, if she would give him, the heir, half of her estate, he would give part of his lands to his younger "brother, which she orally agreed to: And, in consequence thereof, the heir executed three deeds to his brother for several parcels of land. Two of the deeds were recorded; but the third, having been attested by two witnesses only, the mother trusted it with the heir, who promised to acknowledge it before a third witness; upon discovering, however, that the mother had conveyed part of her property to his brother, he destroyed it. Fquity will not set up the deed against the heir.
    Same — Same—Same.—For the suppression of the deed by the heir, was not for a fraudulent purpose, but as a iustiiiable guard against fraud and injustice meditated against him.
    Same — Credit of Witnesses Assailed — Issue Out of Chancery.
      
       - As the credit of the witnesses was assailed, the issue was properly directed to ascertain, whether the mother’s promise was made; and whether it was the consideration for the d eed'(
    
    New Trial — Deposition Not Called for. — If a deposition be taken and filed, but not called for during the trial, a new trial will not be granted on the ground that the deposition contained material matter, and had been lost.
    Same — Same-Analogous Case. — For it is like a witness summoned and attending, but not called for.
    In 1760, Nathaniel Chapman died intestate in the state of Maryland. He left a widow (who besides her legal interest in his estate, possessed, in her own right, lands and slaves of considerable value), three sons, Nathaniel, Pearson and George; and several daughters. Nathaniel the eldest of the sons succeeded, as heir, to all the intestate’s lands, which were very considerable, in Maryland and Virginia: and he dying soon after, also intestate and without issue, the inheritance, in all the lands, devolved upon Pearson his eldest brother; who frequently declared his intention of letting his brother George have part of his father’s lands, but never ascertained any specific tract, or quantity. In 1766, the mother pressed Pearson to make a specific donation to George; and he promised to do so upon terms which she orally agreed to. In consequence of this, he executed three deeds in Alexandria, one for a tract of.land in Fairfax; another for two lots in Aíexandria; and the third for the Pignut tract of land in Fauquier; to which county, the last deed .was sent to be recorded; but, there' being only two ^witnesses to it, it was afterwards returned to the mother, that she might get it acknowledged before a third witness. She trusted it with Pearson; who declined to make the acknowledgment, as she had not fulfilled her promise, but constantly declared that he was willing to do so, on her performance of the agreement. He however probably destroyed it after-wards, upon discovering that she had conveyed part of her property' to the plaintiff. In 1771, Pearson devised the Fauquier tract of land to his son George; and the mother conveyed all her lands to the plaintiff, declaring that she did so, in order to make him amends for his loss of the Fauquier land. She also devised all her estate to him, except fifteen guineas to a grand daughter, and a guinea, for a ring, to Miss Harrison. The plaintiff, George Chapman, exhibited his bill for a conveyance of the Fauquier land; and the high court of chancery, after directing an issue to ascertain the promise, which was found for the defendant, dismissed the bill with costs. From which decree the plaintiff appealed to the court of appeals.
    Botts for the appellants.
    It is sufficient that a deed conveying the legal title was once in existence; and Pearson Chapman’s obtaining it afterwards by means of promises which he never performed, and then suppressing it, was a fraud from which neither he, nor his representatives, can derive any benefit. For a man shall not take advantage of his own wrong even to gain an actual right, supposing him to have had one, which is not admitted. .On the contrary, the constant course of proceeding is, to .consider the other party as precisely in the same situation that he would have been in, if the fraud had never been committed. Now, if no fraud had been committed, here, the legal right would have been in the representatives of George Chapman, notwithstanding the deed was not attested by'three witnesses; and therefore a court of equity will consider it in the same manner, as if the deed Were still in existence. Hunt v. Mathews, 1 Vern. 408; Nelson v. Nelson, 1 Wash. 136.
    *But then it will be said, that there was another consideration (besides that expressed in the conveyance) the nonperformance of which was the reason, why the deed was destroyed by Pearson Chapman. This pretended consideration though was not reduced into writing, and there is nothing but oral testimony with regard to it; which cannot be received to explain a deed. Besides every thing will be presumed against fraud; and, of course the alleged consideration will be rejected. But, taking it under the most favourable point of view for the appellee, it does not appear what particular portion of the mother’s estate was to be given; and therefore that circumstance is too slight to be set off against a clear legal right.
    Randolph, on the same side. We do not come to carry an equitable title only into execution; but we come clothed with a legal title; for, although the deed was destroyed, we have a right to say it was good at law, Read v. Brookman, 3 Term Rep. 151; The King v. Scammonden, ibid. 474; and, as we only ask to be restored to our first situation, we are consequently less liable to be repelled by the pretended circumstances alleged against us. The verdict only proves that part of the estate was promised; but it does not decide what part; and therefore the issue either should have been broader at first, or a new one directed, in order to ascertain the proportion. Perhaps it will be said that the court may look into the evidence themselves, and supply this defect. But the testimony does not enable the court to do so; for it is too general and indefinite. The appellees ought to have filed a cross bill, in order that we might have had an opportunity of being heard upon these points in the character of defendants. At any rate, the appellants should have had an opportunity of electing either to give up the estate said to be promised and take the land; or to keep the estate, and relinquish the land: And to have enabled them to do so, an account ought to .have been directed. The verdict ought to have been set aside, and a new trial awarded, upon the affidavit of the loss of an important deposition.
    *Warden, contra.
    The answer admits that there was once a deed, but it alleges that there was a further consideration than that expressed in the deed; which was to move from a person no party to the deed, and therefore properlj' omitted. The testimony is, that the mother contracted with the son, and desired him to convey the land to his brother, and that she, in consideration thereof, would give him the half of her own estate, which was very considerable. So that, in fact, there were three considerations for the deed: 1. The ordinary one of brotherly love stated in the deed. 2. The nominal o.ne of 10s. likesvise stated in the deed; and 3. The promise of half the mother’s estate, which was not expressed in the deed, but which she was nevertheless bound in conscience, to bestow upon him, according to the terms of her contract. All this is completely proved by the testimonj’ in the cause: which states her repeated acknowledgments of it, before ■ the witnesses. When, therefore, instead of complying with her contract, she took advantage of the omission in the deed, and disposed of the whole to the brother in deceit of her agreement, she was guilty of fraud herself; and, having' been the chief actor in the business, it will not lie in her mouth, or in the mouths of those claiming under the contract, to object any misconduct in the other party, which arose from her own deception.
    That she was conscious of a meditated fraud, appears from the secrecy which she enjoined at the time of making her will, until she was satisfied that the deed had been secured. This circumstance strongly marks anterior intent to deceive. If, therefore, the deed were here, having been obtained by fraud, it would not be effectual: and consequently there is no force in the argument relative to the destruction of it.
    But it is said, there was a suppression of the deed; which P. Chapman had possessed himself of by promises never fulfilled; and, therefore, in odium spoliatoris, every thing shall be presumed against him. But there is no evidence of the fact; nor any thing like it, except the declaration of *'Mrs. Chapman herself, unaided by any other testimony. The truth is, that when he discovered that he was imposed upon, and that a fraud was meditated against him, he threw the deed into the fire, as soon as he could lay his hands upon it.
    It was argued that the issue is not definite, and therefore has not decided the proportion of the mother’s estate which was to be given in consideration of the deed. But this is not correct. Por the issue applies to the pleadings; which expressly affirm on one side, and deny on the other, that it was a moiety; and, consequently, the finding is, that it was a moiety, which was promised. Besides, there was no necessity for the issue, as several of the witnesses expressly prove, that half of her estate was to be given.
    There was no occasion for a cross bill, as the appellant’s counsel alleges. Because it was competent to the defendant to insist upon the fraud in his answer; and he wanted no discovery, as he could prove the fraud without.
    As to the point of election, there need be no difSculty about it, as George Chapman has not asked it; but, if he desires it, he may have it now. The truth is, that he knows he would be a greater loser by it, and therefore does not require it.
    Wickham, for the appellees.
    That the deed once existed has always been admitted, but the enquiry is, as to the consideration. We allege that the true consideration was a proportion of the mother’s estate; and that her conduct, in obtaining it by delusive promises, which she never meant to perform, was fraudulent: and therefore that a court of equity will not grant relief. Por that court never relieves unless the plaintiff will do what is right. 1 Ponbl. 219. Thus, if one asks to be relieved against an usurious contract, equity will not lend its aid upon any other terms than payment of principal and interest. So, if a conveyance be obtained by fraud, and the grantor comes to set it aside, it will only be done upon his refunding the consideration which he has received. *Upon the same principle, the plaintiff, in the present case, had no pre-tence for relief, without performing his mother’s promise.
    That the promise was made is clearly established. Three witnesses prove it positively ; and their testimony is corroborated by circumstances from others, whilst the opposing testimony is very weak.
    The agreement was a reasonable one, and such as the mother was conscientiously bound to perform.
    The issue too, was proper, and according to constant practice. Instead therefore, of. its being any ground of objection, I should contend, if it had not been directed before, that it ought now to be done. Por the credibility of the witnesses was a point in question ; and that was properly determinable by a jury. But all objection vanishes, when it is recollected that the issue appears, by the record, to have been ordered by consent.
    As to the objection, that the verdict ought to have been set aside and a new trial awarded, because there was an affidavit of the absence of an important deposition, it will not be regarded by the court. 1. Because it is only the affidavit of the party himself, and its materiality is not otherwise shewn. 2. Because it does not appear that there was any mention of the deposition during the trial, or that any complaint of the want of it was made; which affords a strong presumption that it was not considered as important by the plaintiff; or perhaps he found it would operate against him.
    It is said that Pearson Chapman, committed a fraud in destroying the deed; and therefore, that a court of equity will set its face against him. But this cannot be correct. On the contrary, parties are frequently relieved in equity, notwithstanding thej" have done wrong; and rightly, for a man should have justice, whatever may have been his conduct. But if the principle be correct, observe the consequences. We complain of a fraud too, and therefore, both parties have done wrong.
    Of course, according to that argument *the court will assist neither; and therefore, the plaintiff, who claims the benefit of a fraud, can have no relief.
    It was said, that equity will put the plaintiff in the same situation that he would have been in, if no fraud had been committed by destroying the deed. But this is not a just position; for the court will, at most, only put him where he ought to have been.
    It was also said, that equity will presume every thing against a perpetrator of fraud. But neither is this correct; for the court will make no presumption, but what the circumstances justify.
    It was further urged, that the plaintiff came clothed with a legal, and not a merely equitable, title. If that argument proves anything, it is against the appellant; because, he might have gone into a court of law. But be that as it may, if he comes into a court of equity to ask equity, he must do justice himself.
    It is objected, that an election was not reserved to the appellant; but it does not appear that he ever asked it, before he came into this court. Besides, that can be no solid objection; because he may file a new bill for that purpose notwithstanding the present one is dismissed.
    Marshall, in reply.
    The causes for a new trial are the same in a court of equity as in a court of law ;• and a court of law would clearly have directed one under the circumstances of this case. For here was an accident, by which material testimony was lost to the plaintiff upon the trial of the cause. In principle, it is like the case of Foushee v. Lea, in this court, (ante, 279;) where the accidental absence of Banks, the witness, was made the ground of a new trial: and a different verdict was the consequence. The complexion of the testimony shews that the lost deposition was material; for Alexander’s testimony was very important for the defendant; and, therefore, a deposition *which went to the impeachment of it, must have been important to the plaintiff: who had filed the deposition among the papers; and the subsequent loss of it was without any fault on his part. ■
    It is no objection that this is stated 'by the plaintiff’s own affidavit. Because-that is the usual course in applications of this nature. The materiality of an absent witness, the loss of a paper, or any thing of that nature, is always proved by the affidavit of the party applying.
    As to its not being called for, or spoken of upon the trial, that may have proceeded from hurry and inattention.
    Upon all these grounds then, considering the importance and doubtfulness of the case, there ought to be a new trial.
    2. But if the verdict be allowed to stand, still the decree is wrong. For we do not ask restitution of an equitable title only; but we request to be restored to a legal right, and put into our former situation, under the deed. To this we had a fair claim; and therefore the decree, which refused it, was certainly erroneous. The consequences of such a refusal will be very dangerous; for it will establish the doctrine, that a man, by doing a wrong, may put himself in a better situation than he would have been in, if he had not committed the wrong. In any event the court should leave the parties where they were, before the suit was brought, without stripping the plaintiff of any of the advantages which he had obtained, as no cross bill has been filed to impeach and take them away.
    3. The plaintiff should have been left to his election either to have retained a child’s part of the mother’s estate, and given up the land; or to have taken the land, and given up a child’s part. For it is not true that he may bring a new bill for his election ; because the decree in this suit would be a bar. But if not, still there is no reason why the court should turn him round to assert it, when complete justice may be done at once in the present suit.
    Cur. adv. vult.
    
      
      Issue Out of Chancery-Conflict of Evidence. — See principal case cited in foot-note to Magill v. Manson, 20 Gratt. 527.
      See generally, monographic note on “Issue Out of Chancery” appended to Lavell v. Gold, 25 Gratt. 473.
    
    
      
      New Trial. — See monographic note on*’New Trials.”
    
   ' ^PENDLETON, President,

delivered the resolution of the court as follows :

In 1760, Nathaniel Chapman, a wealthy man, died in-Maryland, intestate, whether from accident or design, does not appear, nor is it material, since it does not appear, that he was prevented from making a will by fraud or accident. It is fortunate for his younger children, that on a general view of his slaves and personal estate, none of them were left without a comfortable provision.

He left a widow, who, besides her legal, interest in his estate, possessed, in her own right, lands and slaves of considerable value.

He had three sons, Nathaniel, Pearson and George, and several daughters, of whom we have no account; nor do they appear concerned.

Nathaniel the heir succeeded to all the lands of the father in Maryland and Virginia, which were very valuable; and he dying soon after, intestate and without issue, the inheritance devolved upon Pearson, the next brother; who frequently declared his intention to let his brother George have part of his father’s lands; but the quantitjr, or specific land, was never ascertained, -in those conversations.

In 1766, the mother having the same inclination that her favourite younger son should enjoy part of his father’s lands, presses Pearson to a specific donation: when he may be supposed to have reasoned thus, I am willing to let my brother into a share of my father’s lands, but, having done so, and put it out of my power to recall it, you, madam, who are wealthy, may give all your estate to him, and place me in the same state of inequality, in which he now is, with respect to my father’s lands: but, if you will promise to give me half your estate at your death, .or an equal part with George, which meant the same thing (the daughters don’t appear to have been in the contemplation of either), I will convey him certain estates. Was there any thing so unreasonable in this proposition, as to vitiate the mutual contract, which followed upon it? She accepted of the proposal, *and promised to do what he required; which must be considered as the consideration for what he was to do, on his part. Relying on a mother’s promises, (what son would not), he proceeds to execute three deeds in Alexandria, one for a tract of land in Fairfax; a second for two lots in Alexandria, which were acknowledged in that court immediately, and recorded, bjr which the plaintiff derived from his brother’s bounty, as the cause turned out, property estimated at ^3300. The third deed for the Pignut land, which lay in Fauquier, was to be recorded there, and was sent thither for the purpose: but no proof was in fact made; for, on the discovery that only two witnesses had subscribed, it was returned to the mother to be perfected. She trusted it with Pearson, who refused to perfect it; keeping it in suspense; and continually declaring he was willing to make the deed upon being secured of the performance of his mother’s promise; until, by conveying her lands to the plaintiff, she put it out of her power to perform it, and then probably he destroyed it.

The parties, that is, the mother and Pearson both seem to have considered the claim of George, to the Pignut land, as then at an end; for Pearson, in his will in 1771, devises this land to his son George as his only land provision, except a lot in Fredericksburg; and the mother conveyed all her lands to the plaintiff, declaring she did so, to make him amends for the loss of the Pignut land: thus making herself the chancellor on the occasion. If that compensation was inadequate, she supplied the deficiéncy in her will, by devising him all her estate, except fifteen guineas to a grand son Weams, and a guinea, for a ring, to a Miss Harrison.

And, now, it is asked, in a court of equity, to take from the defendant this land, his only provision in land, and give it to the plaintiff; who, claiming under his mother’s contract, is bound by her breach of it; and who has received, from her, compensation for this land, besides what he got from his brother, before the breach was discovered.

*In this view, the plaintiff’s scale of equity certainly kicks the beam; nor w'ill it be brought to repoise by the maxim, “He that has committed iniquity shall not have equity,” his suppression of the deed not proceeding from, a fraudulent purpose, but as a justifiable guard against fraud and injustice meditated against him.

The proof of the contract was so full and strong, that the only doubt the chancellor could have, must have arisen from the credit of the witnesses having been assailed, and the contradictory deposition of the mother: He therefore properly directs an issue to be tried by a jury, the proper judges of their credibility. The verdict puts an end to all objection on that head, and to the question of fact, “Whether the mother’s promise was made, and was the consideration for Pearson’s intended donations?” And this court, as well as the chancellor, are satisfied with the verdict.

They are also satisfied with his having overruled the motion for a new trial. If the plaintiff, discovering the deposition to be lost, had moved for a continuance; or if supposing it there, he had gone to trial, called for it, and discovered it was lost, there would have been some reason for a new trial; but it never having been called for during the trial, they must have judged it at least immaterial, and the same, as if not taken: like a witness summoned and attending, but not called on; which would not be a reason for a new trial. The court therefore unanimously affirm the judgment.  