
    Jehiel Isham, vs. Isaac Higbee and Lewis Higbee, (in Chancery.)
    Chittenden,
    
    July, 1829.
    A Court of Chancery will decree an injunction upon a deed from orator to B, fraudulent as to A, who is co-defendant with B, when all parties are before the Court, all the merits fully discussed, and all other remedies barred by the statute of limitations, though the orator is not so free from blame as to be entitled to a decree, were it not for these considerations.
    The substance of the orator’s bill of compkint, so far as it relates to the points litigated and decided, was, That the orator received from Isaac Higbee, in the year 1819, a warranty deed of about thirty acres of land, in the town of St. George, and gave his notes for the same, amounting to $288 ; that, soon after this conveyance, said Isaac, with the consent of the orator, commenced an action of ejectment, in the name of the orator, against Lewis Higbee for said land, on the trial of which Lewis recovered a judgment, from which judgment Isaac appealed to the Supreme Court, but afterwards suffered a discontinuance in the action ; that afterwards, in August, 1820, whether in pursuance of any previous understanding or not, is unimportant in this action, the orator and said Isaac rescinded their contract, that is, the orator, by a quit-claim deed, conveyed back the land to said Isaac, and Isaac delivered up to him his notes to be cancelled, and gave him also a waggon worth ten or twelve dollars, said to be for the orator’s trouble in the business ; that Isaac, without procuring the last deed to be recorded, immediately commenced an action of ejectment in his own name against Lewis for this land ; that in November, 1820, Lewis applied to the orator for a quit-claim deed of the land, and offered to give him a cow for the same ; that the orator, being advised by one Brown that such a deed could be no injury to the orator, executed one, and received the cow ; that Lewis, being town clerk, forthwith recorded his deed; That Isaac’s deed from the orator was not recorded till the winter following, and a short time before the trial of said action in favor of Isaac against Lewis ; and that, on that trial, Lewis produced in evidence the deed from the orator, and thereby defeated the action; that Isaac, instead of taking any appeal or review in said action, brought an action of covenant against the orator upon the covenant in said deed given him by the orator; that Isaac recovered a judgment against the orator, in this action, and a review being entered, the action was yet pending before the Supreme Court. The bill prayed for a perpetual injuction upon said last action ; and also prayed that Lewis might be compelled to release to Isaac, and thereby save the orator harmless in the premises pursuant to his promise, which the bill alleged he made on receiving said quit-claim deed from the orator.
    To induce this result, the orator .further charged, in his bill, a combination between the two respondents to injure him in the premises ; that Isaac lodged his deed with Lewis for record in the town clerk’s office, and afterwards took it back and let the deed to Lewis be first recorded ; also, that Isaac gave the orator no notice to attend and defeat Lewis’ deed, on the trial of said action of ejectment; that witnesses might have been produced, if suchnotice had been given the orator, to prove that News, when he took his qnit-claim deed, knew that the orator had before given a deed to Isaac of the same land, and that Isaac knew of the same witnesses ; and that Isaac refused, when requested by the orator, to let the orator use the name of Isaac in a petition for a new trial in said action of ejectment, after Isaac had commenced said action of covenant, and within the time allowed by law for presenting such petitions, though the orator offered to present and prosecute such petition at his own expense, and give ample security to Isaac to save him harmless from all costs in the same.
    
      Lewis Higbee demurred to that part of the bill which charged a promise to indemnify the orator ; as he had his remedy at law. The respondents severally answered to the bill: their answers were traversed, and several witnesses were examined, and their testimony read by each party. Lewis, in his answer, acknowledged he knew of the deed to Isaac when he received his from the orator, but positively denied his having ever seen the deed, or its ever having been lodged with him for record. Both answers admitted that the several suits were brought and carried" or? and ended as charged. Isaac answered that the deed to him' was not left for record till the time when it was in fact recorded.a^so denied any knowledge, at the time of the trial of his said action against Lewis, of witnesses to prove Lewis’ knowledge of ilie deed to Isaac. He also denied his having then known that Lewis possessed such knowledge. Headmitted thatthe oratordid give the deed to Lewis, but said if was done fraudulently to defeat the orator’s deed to him, and that it was the sole means of defeat* ing his action of ejectment brought against Lewis. He also admitted his refusal to let the orator use his name in a petition for a new trial, and assigned, as a reason, the fraud of the orator in giving said deed to Lewis, and Isaac’s choice to collect the money of the orator rather than have the land. Several witnesses testified to the declarations of Lewis, tending to show that the deed to Isaac was in his office for record, and unrecorded, when he procured the deed from the orator ; but there was no other kind of testimony to that fact. Testimony upon other points is sufficiently noticed in arguments of counsel and opinion of the Court,
    
      C. Adams and Griswold, for the orator. — From the facts in the case, it appears the orator is an illiterate, ignorant man, unable to read or write, and wholly incompetent to transact business of the kind mentioned in the bill. It may fairly be inferred from the facts proved, that these two brothers have been in a controversy about the piece of land mentioned in the bill, and that they have combined to secure theland to one ofthem,whiletheotheris to draw the value of the land from the orator. The orator may have been very short-sighted in giving the second quit-claim to Lewis Hig-bee; but it was done through ignorance, and not with any design to injure said Isaac. It is very evident he has been the dupe of both the Iligbees, and that they have attempted to practice upon his ignorance and credulity. From an examination of the whole evidence the following propositions can be maintained :
    The original sale by Isaac to the orator was to subserve some purpose of the said Isaac, and not intended for the benefit of the orator.
    The quit-claim back again to Isaac was without any consideration, the orator having received nothing therefor, except the old waggon.
    The judgment subsequently rendered in favor of Lewis against Isaac, must have been by the consent of Isaac. It is impossible to examine the evidence on this point without coming to the conciusion that Isaac, and probably Lewis too, was guilty of the most barefaced and shameful fraud. Isaac takes his quit claim on the 28th August, and on the 30th commences his ejectment against Lewis. It is hardly possible to suppose that this deed was not left for record : but still it is not recorded until February 1st, 1821, just before the judgment. On the 6th of November, 1820, Lewis persuades the orator to give him a quit-claim, with full knowledge that one had before been given to Isaac. This deed to Lewis was instantly recorded, and was a matter of public notoriety in that place ; and still it does not appear that Isaac ever exchanged a word with the orator relative to the subject, never gave him any notice of the suit, nor cited him to prosecute ; and when on the trial, the deed to Leivis was produced, and when it could have been shown in a moment that Lewis knew of the deed to Isaac, yet Isaac permits the judgment to remain without review or appeal, gives no notice of the fact to the orator, makes no inquiry of him as to the circumstances of the deed to Lewis, and afterwards refuses to permit his name to be-used in a petition for a new trial. His conduct is wholly inconsistent with fair dealing, and cannot be explained on any other ground than that of the grossest fraud.
    We contend, therefore, that the claim of Isaac against the orator, for any supposed covenants in the quit-claim deed, is unconscionable ; and that he ought to be perpetually enjoined with all cost. It is very doubtful whether there is any covenant arising from this deed which can legally charge the orator. It is contended there is an implied covenant : but whether there is or not, is not material; for it is evident that this deed is wholly without consideration.
    
      Lewis cannot, in good conscience, retain any title which he may have received by the quit-claim deed from the orator ; but equity will compel him to release it, if there is any one entitled to receive it. It appears by the testimony of two witnesses that the deed to Isaac was in Lewis’ house at the time he took his quitclaim from the orator. An attempt is made to destroy this testimony ; but it is corrobrated by all the attending circumstances. If this fact is made out, Lewis was guilty of the highest fraud in suppressing the deed to Isaac, as well as in taking the quit-claim from the orator. There is enough without this to show that Lewis ought not to retain this title. It is admitted by his answer, that at the time he took the deed from the orator, he knew that a previous deed had been given to Isaac. This alone is sufficient to vitiate that title, and if the Court are satisfied that Isaac acted in good faith when he permitted the judgment to pass against him, or that he rested in the opinion that Lewis had obtained his deed without any knowledge of the previous deed,they will compel Lewis to release to Isaac all title acquired by said deed. But if the Court think with us, that Isaac and Lewis were both fraudulent, they may say potior est cnoditio defendentis : but in either case, the orator must be absolved from the claim of Isaac. It is stated in the bill that Lewis agreed with the orator to indemnify him against any claim of Isaac. This is denied by the answer, and the fact is not otherwise material than as it shows the means practised bj Lewis to obtain the deed. Two of his own witnesses, however, state the fact directly, and not only so, but state other circumstances which corroborate the opinion that he must have seen the deed.
    From all which, we Gome to the conclusion, that though the orator may have acted unadvisedly, he has conducted in good faith towards Isaac ; that Isaac has no equitable claim upon the orator for any supposed covenants in the deed; that Lewis has no right to retain the title against an honest claimant, and if Isaac had been guilty of no fraud, this title may be decreed to him ; and in either case, that Isaac ought to be perpetually enjoined from prosecuting his claim on the covenants ; and that the orator recover his cost and charges.
    
      Mr. Thompson, for the respondents. — It is contended, in behalf of Isaac Higbee, that there is not a material averment contained in the bill against him, unless it be the alleged combination and fraud between Isaac & Lewis. Whether this be material or not, it is wholly unsupported by proof. There is not a fact or circumstance proved which warrants the inference of a combination for any purpose ; much less to defraud the orator. It is obvious that Lewis was endeavouring to gain a legal advantage over Isaac, and that the orator joined him to accomplish the object, and benefit himself. But there is not a particle of proof to convict Isaac, even if the declarations of Lewis were to be taken against him. But if the two defendants have combined, which of the present parties was first in fault ? With what grace can the orator complain that Isaac has not used the means in his power to save him from an injury which he has voluntarily and fraudulently brought upon himself. There are other allegations which the court may think require comment.
    1. It is alleged that Isaac had nothing but a pretended title to the land at the time of his conveyance to the orator. — The proof is, taking all the testimony together, that the land was in dispute between Issac and Lewis, and that both claimed, and no third person claimed title. The orator is.the last man that ought question Isaac's title. Having taken a deed with covenants of warranty from him, and redeeded to him without covenants, and the deed to Lewis having, as appears, alone prevented a recovery "of the land by Isaac, the title of Isaac is of no consequence. Had the orator seen fit to retain the land, and the title had failed, he could have resorted to his covenants; but having chosen to re-deed, no defect in the title can excuse him from the violation of his covenants to Isaac.
    
    2. It is alleged that the orator, being a weak man, was induced by the advice of a magistrate and the importunities of Leivis to do an act which has resulted in an injury to Isaac; and Isaac is called upon to take upon himself the misfortunes of the orator, because he through weakness has listened to unwholesome advice. This will become an equitable claim when the doctrine shall have been established that a foolish man may shift his misfortunes on to his more discreet neighbor. But the evidence is that although the orator, who alleges his folly as the foundation of an equitable claim, has acted unwisely, he has nevertheless acted understandingly, and has been careful to secure the rewards of his folly as he proceeded. When he released to Isaac, he knew enough to receive back the consideration, and to demand, in addition, property to the amount of fifteen dollars. When he deeded to Lewis he was shrewd enough to secure, for ought that appears, the alleged consideration in the deed, a cow, a promise of part of the land, and an indemnity — as he claims against any injury that might result to him — not to Isaac; and he was fool enough to decline deeding until these requisites were complied with. It ought moreover to be remembered that the orator’s claim is professedly an equitable claim. Now, he could not be so ignorant of moral principles as not to be aware, that to deed the land to Lewis, when he had previously deeded to Isaac, was, at least, inequitable.
    
    3. The orator complains that he was not called upon to prosecute the suit of Isaac against Leiuis to recover the land. Upon this point Isaac contends that the evidence warrants the inference, that the orator knew as much about that suit as he did, and much more of the evidence which would have enabled him to recover. A recovery was prevented by a foolish or fraudulent act of the orator; and it is quite immaterial whether he might, or might not, have prevented the consequences of that act upon Isaac. It is but a poor excuse for one who has wantonly done his neighbor an injury, that he could, upon request, have repaired it. The orator having through the hope of gain violated his covenants, Isaac had a right re!J uPon and was not bound to seek relief for the orator against the consequences of his own misdeeds. It is alleged also that Isaac had evidence in his power at the trial to defeat the operation of the deed to Lewis. But if the fact be so, it amounts to nothing, for he was under no legal or moral obligation whatever to defeat the deed. There is no proof that the deed to Isaac was left for record, and if there were, it may be repeated that Isaac was not bound to help the orator out of a difficulty in which he had voluntary involved himself.
    4. It is alleged that the orator has made sundry very reasonable propositions for settlement, which Isaac has refused to accept. The defendant, Isaac, is not bound to accept such propositions, however reasonable they may appear to others. He conceives he is not bound to accede to offers of compromise until they shall have become a legal tender; and when this new era in chancery proceedings shall have arrived, he will rely upon the proposal, which he himself has made, in offset.
    Thus far the argument has proceeded with more particular reference to Isaac Higlee. How does the case stand with Lewis ? So far as regards their liabilities, and the application of the evidence, they are as distinct as if there was a separate bill against each. The answer of the one cannot effect the other; neither can the evidence taken for or against one be used for or against the other. The claim against Lewis is founded upon the alleged incompetency of the orator, and the advantage taken of his weakness.
    1. The evidence shows him to be an illiterate, but not a weak or incompetent man. His want of capacity is not to be inferred from his acts or proceedings, either with Lewis or Isaac. He has been cautious to guard against injuries to himself, but altogether careless of the rights and interests of Isaac Higlee. If under a mistake as to the legal operation of the deed upon himself, those about him were as much so. He could not be deceived as to the operation of the deed upon Isaac; for it was obviously the object of all to defeat his claim.
    2. But weakness of intellect alone, unconnected with fraud, is no cause of relief (1 Mad. Chan. 223) — Newland on contracts, 362 : and there is no proof of fraud. The declarations of Lewis were founded upon the misrepresentations of the orator: and they were the same as those of Mr. Brown, who did not intend to deceive. There was no important fact concealed. ' All must have been aware that the deed to Isaac was not recorded. But if the orator were ignorant of that fact, a disclosure would not have prevented the execution of the deed to Lexvis, because the whole object was bo defeat Isaac’s claim. If any fraud was practised, it was upon Isaac, and both Lewis and the orator were engaged in it; and Neither can call 'upon the other to protect him against the consequences of it. There is not proof that Lewis had neglected to record the deed to Isaac, or that it had ever been left for re-cord. A voluntary conveyance will not be set aside Unless obtained by fraud or imposition. 1 Atk. 401-2. — 2 Swift. 45-60.
    3. If any valid agreement Was made, there is an adequate remedy at law. The complaint is, that by reason of the deed to Leibis, Isaac has prosecuted the orator, and the amount of his recovery, and the expenses of defending his suit, would be the rule of damages. If it be said, the remedy Would be doubtful, because the contract ofindemnity was not in Writing, the answer is, that the same contract would be inoperative in equity,
   HutchInsON, 'Chancellor,

after stating the case, delivered the opinion of the Court. — The demurrer of Lewis Higbee to that part of this bill which charges a promise to indemnify the orator, is overruled. There might be a remedy at law, as urged by his counsel, but not a complete remedy. A complete remedy would include an injunction upon the title. Further, this is not charged as a substantive ground of relief, but only as a part of the inducement held out to the orator to give the deed, or convince him there was no danger to him in doing so-.

There is great difficulty in doing perfect equity in this case. Consistent with ’any rules of chancery proceedings. «That the deed from the orator to Lewis Higbee was obtained in fraud of Isaac Higbee, and that with the full knowledge of said Lewis, we entertain no doubt, He confesses, in his answer, his knowledge of the deed from the orator to Isaac, which was defeated in its operation by his deed thus obtained. Lewis ought to derivó ho benefit whatever from this deed; yet Isaac is the person most directly injured by it, and he does not complain-, but choo* ses to take his remedy upon the orator, in his suit at law. While we hear the complaint of the orator Upon this subject, We, in the outset, are saluted with the rehearsal of his having given 'this deed Which is the source of all his difficulty, and that when he must have known that Lewis wanted it to use against Isaac. Moreover, the bill, as against Lewis, is not very highly embellished with descriptions of the artifices of Lewis to deceive the orator, and make him believe that to be right,which was fraudulent and wrong. Had Lewis, under a pretence of purchasing a different piece of land, imposed upon the orator a description in the deed, which would cover the land in question, there would be no difficulty, The orator would appear the subject of delusion, and not be suspected of intentional fraud.

Again, were Isaac'Higbee the complainant, and all the facts as ^eyIlow aPPearJ we should have no difficulty ; for the deed from the orator was ipso facto a fraud upon Isaac. Again, if there were clear, legal proof, as against Isaac, that his deed was lodged with Lewis, the town clerk, for record, and taken back, or laid aside, with the knowledge of Isaac, to give place fo,r Lewis’ deed upon the record, that would establish the whole claim of the orator. It would so establish the fraud of Isaac in perfecting the deed to Lewis, we might well enough presume him concerting with Lewis in its conception. But there is no testimony against Isaac upon this subject. The sayings of Lewis are good evidence against him, but are no more evidence against Isaac than if Isaac were not joined with Lewis in the bill. As to him it is mere hearsay testimony, and wholly inadmissible. There is no other testimony of a concert between them, which would render this admissible testimony. Indeed, it is resorted to as evidence of the connivance of the two, and, without it, the testimony upon that point does not appear very strong. It would seem difficult to infer a fraudulent connivance from that which a man had a right to do, though it may have weight with other circumstances. When the orator requested to use the name of Isaac in a petition for a new trial, his refusal might be evidence of such connivance, if no reasonable motive were assigned for such refusal. But Isaac, wheg he refused, assigned as a reason, that .the orator had joined with Lewis in a successful fraud to deprive him of his land, and chooses to rely upon a supposed covenant in his quit-claim deed, rather than recover the land itself. He not only had a right to say this, and say it with some plausibility, but if he was sure of his remedy upon the orator on his covenants, and thought his land poorer property than the money, it would be natural for him to take that course. So when he found the deed from the orator to Lewis brought in to defeat his title, if he. really believed that the orator had designedly given that deed to his injury, he might deem it useless to apply to the orator for a remedy to defeat said Lewis’ deed. And surely the orator had no légal right to be vouched in by Isaac to defend against a deed of which the orator had better knowledge than Isaac could be supposed to have. Yet Isaac ought not to be too uncharitable. He ought, as a neighbor, to have been willing to hope, at least, there was some mistake in the business, and made that inquiry of the orator which might probably have ended the difficulty before the action of Isaac against Lewis was abandoned. It would, also, have been more congenial to moral feeling for Isaac to have permitted the orator to use his name in a petition for a new trial. For, if he had his remedy against the orator, it was hardly correct to punish him wholly, and let Lewis go off with the land, if the remedy against him was plain, or could be rendered so by the petition for anew trial, as the orator contends. Moreover, while the orator prays that Lewis may be decreed to quit his title to Isaac, the latter resists the bill, in toto. This he probably does to prevent its intended effect to enjoin his action of covenant broken. But, if Lewis should quit his title to Isaac, and he should receive the acquittance, it would not necessarily operate further than to mitigate the damages. This assurance of Isaac, that hiá remedy is good against the orator in that action, furnishes the only reason why he did not resort to the most effective course, whether by petition foranew trial, or by a bill in chancery,to getridofthe deed to Lewis.

But Isaac is not without difficulty in the course he pursues. His deed from the orator is before the Court. It is emphatically a quit-claim deed. To the habendum, to his heirs and assigns, &c. are added these words, “ so that neither I, the said Jehiel Isham, nor any other person or persons in my name or behalf, shall,or will, hereafter claim or demand, any right or title to the premises aforesaid, or any part thereof; but they and every of them, shall, by these presents, be forever barred.” This is what is called a covenant, and that, upon which said action is brought; and the breach assigned, as we understand, is the after-giving of the quitclaim deed to Lewis. This is no covenant at all against future conveyances : it is only a covenant that he has never so- conveyed to any person, as to have that prior title arise, to the prejudice of the title now conveyed. The only remedy of Isaac Hig-Vee would have been an action on the case against the orator, or against him and Lewis, for the fraud in executing the deed to Lewis ; or a bill in chancery to compel a release, <kc. Probably both of these remedies are barred by the statute of limitations during the pendency of these suits ; so that Isaac has now no relief any where, unless we secure it to him in this suit, which he here defends.

Amidst these complicated difficulties, as the parties are all regularly before us, and have presented the merits of their claims in extenso, we are inclined to dispose of things in the way that best comports with those principles by which we must be governed. If we could clearly ascertain the fact, that the orator was the dune of a deception palmed by Lewis, we should have no difficulty. And this does appear in his favour, that the magistrate who took the acknowledgment of the deed, and in whom it is not strange he s^ou^ P^ace some confidence, advised that the giving of the deed to Lewis could not injure the orator. It also appears that the orator was illiterate ; could neither read nor write ; and that he was not mosl: sagacious man for business ; and also, that he was most vehemently pressed by Lewis on the subject.. But it does not appear that he was deceived by any misreading of the deed. He fully understood that he was deeding the same land he had before deeded to Isaac, and must have perceived that Lewis wanted it to strengthen his title against laase. He also was warned by his son not to intermeddle, through fear he would get himself into difficulty. He knew what he was about too well to be protected by this court, and treated as wholly innocent in a matter so necessarily fraudulent as the giving of the second deed of the same land. It was giving Lewis, upon his assurances against injury to the orator, the implements which he afterwards used to the injury of Isaac. ’We consider that Leíais cannot equitably receive any benefit from his deed ; that the orator has conducted, at least, so incautiously, as to induce the difficulties for which a remedy is sought, and is entitled to recover no costs of Isaac Higbee that Isaac cannot be entitled to costs in his groundless action at law, nor any costs in this suit, of which he will receive the principal benefit.

Griswold and Adams, solicitors for orator.

Thompson, solicitor for respondents.

We, therefore, decree that the said Lewis Higbee, his heirs and assigns, be forever enjoined against using said deed from the orator to him, and against using the said judgment he recovered against Isaac Higbee, in said action of ejectment, or the record thereof, as evidence in any court of law or equity, or making any use thereof for his or their benefit in any way whatever; and, that the orator tax, against said Lewis, the appropriate cost of prosecuting this suit against him the said Lewis: That said action of covenant broken, in favor of said Isaac and against the orator, be discontinued without cost to either party, and said Isaac, his heirs and assigns be forever enjoined against any further prosecution of the same ; but that no cost be taxed by the orator against Isaac, or in favor of said Isaac against the orator.  