
    *Smith v. Elliott’s Adm’r.
    January Term, 1855,
    Richmond.
    1. Equity Jurisdiction — Fraudulent Conveyances — Setting Aside — Mental Weakness. — A court of equity, upon the application of the grantor, will not interfere to set aside a conveyance made to hinder, delay and defraud creditors, on the ground of the natural weakness of mind, increased hy habits of intoxication, of the grantor, if he had legal capacity to contract, unless it is shown that some advantage was taken, or undue influence exerted, to procure the conveyance.
    2. Same — Fraudt—In Pari Delicto” — Application of Maxim. — in the application of the maxim, in pari delicto melior est conditio defendentis, a court of equity will not consider and nicely weigh the relative guilt of the parties depending upon the strength of their understandings, hut in order to entitle either party to , relief, it must be shown that there was some undue influence or fraud, so that the party did not exercise a free and intelligent will in assenting to the contract.
    
      ■ In 1836, George Elliott filed his bill in the Circuit Superior Court of the county of York, setting forth, that he was addicted to habits of intoxication, and whilst in that state was often imposed on and made most improvident bargains; that when drunk he had purchased an old vessel, and had agreed to pay a most extravagant price therefor, and to secure the payment of the purchase money had conveyed in trust property of much greater value; that when sober he had related the circumstances to one Henry Smith of that county, who had induced and persuaded him' to convey to him a tract of land and several slaves and other articles of personal' property, promising to “stand his friend,” and assuring him that he, Smith, could and would protect him, by means of the said conveyance, from the imposition which had been practiced upon him in the purchase of the said vessel; that the purchase the vessel was vacated afterwards by the consent of the individual who had sold it to him; that Smith took possession of his property, and : continued to hold it, without having *paid any consideration whatsoever for it; that he lived with Smith for sometime afterwards, and, when he demanded the restoration of his property, Smith turned him out of doors; that Smith had fraudulently obtained his property and continued to- hold it. Smith was required to answer and say what consideration he had paid for the property, and the bill prayed a restoration of the property and an account, of the profits.
    The defendant demurred to the bill, and his demurrer having been over-ruled, he thereupon answered,- denying all fraud, and averring, that he knew nothing of the improvident bargains of the complainant, or of the particulars of the purchase of the old vessel, that he had never imposed on the complainant, who was a man of fair sense, though , an unlearned man; that he had never persuaded the complainant to convey to him the property mentioned in the bill; that he had purchased some slaves, viz: Caleb, Milly and her three children, from the complainant, at the price of three hundred and sixty dollars, for which he exhibited a bill of sale; that he had purchased some oxen and other personal property according to a schedule exhibited; that he had purchased the land of the complainant for ,£100, for which, on the 20th October, 1831, he gave his note at the same time with his note for the price of the slaves; that he was to pay the price of the slaves by taking up debts of the complainant to that amount'; that the whole was settled on the 7th June, 1832, as appeared by the note and bond with the credits endorsed, exhibited; that he had never paid the £100, but by a verbal agreement in consideration of that sum was to support the complainant, as long as lived; that Elliott had become dissatisfied, after living with him two years, and left his residence, when, upon Elliott’s abandoning his claim for a support, he had re-conveyed to him his land;
    that he had never assumed or promised to protect the complainant from the imposition practiced upon him by the person who had sold him the vessel, nor had he ever promised to restore the propert3r, but had paid full consideration for it.
    *Elliott then filed an amended bill, charging that Smith had furnished him with liquor, from his store, by the immoderate use of which he had become incapable of managing his own affairs; and that while he was unable to appreciate the consequences of his acts, Smith had artfully induced and over-persuaded him to convey to him, Smith, the property mentioned in the original bill, and that he had never received any consideration therefor.
    To this amended bill, the defendant, Smith, demurred, on the ground that no one was made a party defendant, and for want of equity, and at the same time answered, denying all the allegations of the amended bill, except the conveyance, which, the answer averred, was for a full and fair consideration, and that, the complainant would never have become dissatisfied with his bargain, but for the interference of his brother, Kemp P. Elliott, who, it was alleged, had instigated the suit for his own benefit.
    Elliott, afterwards, by leave of the court, filed yet another amended bill, in which he set forth, that, for several years previous to the execution of the deed referred to in the original bill, he was rendered totall3r incompetent for the transaction of business of any kind, “by reason of excessive sot-tishness and intemperance, induced by the supplies of ardent spirits furnished him by the said Henry’Smith,” and that while intoxicated, at the solicitation of Smith, he had executed the said fraudulent deed, to Smith, without any consideration whatever; that he had been entirely deprived of his property, and that Smith continued to hold it.
    To this. second amended bill Smith de-1 murred, and also answered, averring the perfect fairness of the whole transaction; that Elliott was sober when he executed the deeds, and had full capacity to contract ; and denied that he had ever furnished him with any ardent spirits; and he further relied, in his answer upon an agreement by which Elliott bound himself, for valuable consideration, to dismiss the suit.
    * A great number of witnesses were examined on both sides, chiefly in ; reference to the mental capacity of the plaintiff, George Elliott. It was proved, that Elliott was a man of a weak mind, rather below the average capacit37 of the small farmers in his neighborhood, illiterate and much addicted to intoxication; that he ■was .frequently so besotted as to be entirely unfit for the transaction of business of any sort. He was not an idiot or a lunatic, and when sober was capable of taking1 care of his property. He had been employed as overseer on the farms of several persons, had been appointed and had acted as overseer of a road, and had served as a grand juror of the county.
    It was further proved, that Elliott had executed a bill of sale to Smith, dated 10th October, 1831, conveying an old negro man and a negro woman and three children, which recited a consideration of three hundred and sixty dollars, and that Elliott had conveyed to Smith his land of about one hundred acres, for the consideration of %100 by deed dated 11th October, 1831, to each of which instruments there were three subscribing witnesses; that, by deed dated 25th November, 1831, Elliott conveyed the same property, land and negroes, to George Chisman in trust, to secure Thomas Clarke a debt of about one hundred dollars, and John Powell, through Clarke, the further sums of four hundred and fifty-six dollars, for the purchase of a vessel from Powell; that Clarke attempted to enforce this deed by a sale of the property, but the trustee not having possession, and Henry Smith forbidding the sale, and claiming by a superior title, he desisted and proceeded at law to obtain a judgment against Elliott for his debt, upon which execution issued and was returned, “no effects;” that being about to institute a suit in equity *against Smith and Elliott, Smith instructed him to levy his execution on Caleb, one of the negroes mentioned in the deeds, which was done; whereupon Smith discharged the execution by giving his obligation for $111 02, dated 24th February, 1834.
    There was no proof of any particular confidence subsisting between Henry Smith and George Elliott, but that in the fall of 1830 they had quarreled, and then continued for some time to be unfriendly. There -was no evidence that Smith had ever solicited Elliott to make the deeds, or had ever furnished him with ardent spirits, or that Elliott was drunk or incapable at the time of the execution of the deeds to Smith. On the contraiw, it was proved, by two of the subscribing witnesses, that Elliott, when perfectly sober and rational, had brought the bill of sale to them, Smith not being present, had it read in his presence, stated that he had sold his negroes to Smith to enable him to pay his debts, and had requested them to witness It. It was proved, that Elliott frequently acknowledged, when sober, that he had sold all his property to Smith, and that Smith had paid him for it. Smith’s bond for the purchase money of the land and negroes was in these words and figures, to wit:
    “Know all men by these presents, That I, Henry Smith, promise and oblige myself, my heirs, executors, &c. to pay or cause to be paid George Elliott or order, in two years from this date, the sum of one hundred pound, current money of Virginia, it being for the sale of Elliott’s land, on which Elliott now lives; also three hundred and sixty dollars, being for the purchase of old Caleb, woman Milly with three children, and all of her increase; the said money to be paid along as said Smith makes it, but is not to be pressed. As witness, mjT hand and seal, this twentieth day of October, eighteen hundred and thirty-one.
    “693 33%. “Henry Smith, [Seal.]”
    *There was no evidence that this bond had ever been delivered to Elliott. But there were endorsed thereon five several credits, of different dates — the last on the 7th June, 1832, for sums in the aggregate equal to the amount of the bond, each signed by George Elliott. There was no other evidence of these payments except of two small sums paid by Smith for Elliott, while they lived together.
    Smith acknowledged that he had never paid the one hundred pounds for the land, and after Elliott had left his house, by deed of May 4th, 1835, he re-conveyed the same to Elliott. The same tract of land was afterwards sold in the year 1842 for the sum of five hundred dollars.
    On the 18th May, 1839, Smith obtained from Elliott a written order, directing the clerk of the Circuit Court to dismiss the suit, reciting that he had received full compensation for his wrongs from Smith, which order was revoked by Elliott before it came to the hands of the clerk. In November, 1842, the cause was heard upon its merits, and the court being of opinion that the contract of Elliott for the sale to Smith of the slaves, mentioned in the bill of sale, ought to be rescinded, directed the following accounts to be taken:
    1. An account of the fee simple value of the slaves named in the bill of sale, at the time of its execution. 2. An account of the increase of the females of the said slaves, if any, and their names and ages, since they came to the possession of the said Smith. 3. An account of the money paid by the said Smith to Elliott on account of the said purchase. 4. An account of the annual profits of the slaves, and of such as are or have been chargeable; and it appearing that in August, 1841, the County Court of York had appointed ffm. B. Gray to take care of the estate of Elliott, it was ordered, that the suit thenceforth be carried on in the name of ¥m. B. Gray, as the committee of Elliott.
    In November, 1847, the death of the plaintiff Elliott having been suggested, the suit was revived in the name *of Win. B. Gray, as the administrator of Elliott. After the interlocutory order in 1842, a very considerable body of testimony was collected in reference to the value of the slaves conveyed by the bill of sale, the result of which is contained in the report of the commissioner.
    Further evidence was taken in reference to the capacity of Elliott, and it was shown by the defendant, that in the fall of 1842 Elliott was offered as a witness on the trial of an important suit, and an objection made to his competency, on the ground that the county court had appointed a committee for him, was overruled by the court; that in that cause he had given very Lucid and satisfactory testimony in reference to events, which occurred as far back as 1815. I . . : ; . i
    In March, 1848, Commissioner Garrett returned his report. He reported, that the slaves named in the bill of sale were worth, at that date, viz: 10th October, 1831, the sum of $725. : s s
    2. The increase of the female slaves since they came to the possession of the defendant, Smith. i !
    3. That the net amount of hires, or annual profits, was $717.
    4. That Smith had paid on account of the said purchase, the sum of $126 02.
    To this report both parties excepted, and the defendant Smith petitioned for a rehearing of the cause, setting forth several objections to the interlocutory order, under which the account was taken, which petition was refused. . 1
    In November, 1848, there was a further decree, that the deed or bill of sale from Elliott to the defendant, of the 10th October, 1848, be annulled and delivered up to be cancelled, and that the defendant should deliver up to the plaintiff the slaves reported by the commissioner to be in the possession of the said defendant by virtue of the said bill of sale; that the defendant should render an account of any further increase of the female slaves since the report of the commissioner, and *also of the expenses and profits of the said slaves since the said report; that a commissioner should take an account of all payments made by the defendant on account of any debts due from the said George Elliott in his life-time, and also of all payments made by the defendant on account of the alleged purchase money for the said slaves; and it was ordered, that the opinion of the court, upon which this decree was based, be made a part of the record.
    The opinion of the Judge of the Circuit Court, (Judge Scarburg,) made part of the record,was as follows:
    “There is certainly no proof in this record that the liquor, with which the plaintiff was at any time intoxicated, was furnished by the defendant. Independent of this circumstance, the case made by the plaintiff’s bill, as I understand it, is substantially this: That he was an entirely illiterate man, and easily imposed on; that he was addicted to habits of intoxication, which incapacitated him for business; that the defendant was a merchant, and that the defendant, taking advantage of the plaintiff’s weakness of mind, immediately after the purchase of the vessel mentioned in the bill, induced the plaintiff to make to him the conveyances sought to be set aside, under the pretext of‘standing his friend,’ and protecting him against that imposi-
    tion, and that the plaintiff made the conveyances under the belief that such would be their effect, and upon no other consideration.
    “If this case is sustained by the evidence, there can be no doubt, I think, that the plaintiff is entitled to relief. If it were a. fraud to guard against the enforcement of the contract of the vessel, it was certainly not a fraud as to which the parties could be said to be in pari delicto. But, as this matter is stated in the bill, it is' no fraud, The plaintiff, trusting to the superior powers of the defendant to protect him against that fraud (the fraud in reference to the vessel), made the conveyances to him, to enable him the more successfully to accomplish that object.
    *“Now, was-the plaintiff an illiterate man, and easily imposed upon? And was he addicted to habits of intemperance, and thereby incapacitated for business? That he was illiterate and addicted to drunkenness, there is no room for the least doubt. As to his weakness of mind and capacity for business, there may be room for some difference of opinion, as upon this point there is much conflict in the testimony. Upon a view of the whole record, I am entirely satisfied that the plaintiff was a man of such weakness of mind as to be easily imposed upon and defrauded by the artful and designing, and that his natural imbecility had been so much increased by his habits of intemperance, that no contract which he might have made ought to be held binding upon him, unless it could be affirmatively shewn that it was entirely fair and bona fide, and for a full and adequate consideration. And I am also of the opinion, that the defendant took advantage of his weakness, and fraudulently using the influence which he had acquired over the plaintiff, induced him to make the conveyance in question, under the pretext mentioned in the bill. The circumstances in this case, I think, very clearly warrant this conclusion. I do not propose to examine the testimony in detail, but will briefly consider the more prominent facts, as they are presented by the record.
    ‘1 We are carried by the testimony back to a period antecedent to that at which the conveyance for the slaves was made, but how long prior to that conveyance is not entirely certain from the evidence. The witness thinks it was during the same fall —that of eighteen hundred and thirty-one. I refer now to the time when K. P. Elliott called upon the defendant for a settlement of the plaintiff’s account against him, and particularly to the conduct of the defendant on that occasion." Now, although this was a transaction entirely independent of the conveyance of the slaves, yet it is entitled to consideration upon the question of fraud; and this in entire accordance with the doctrines held by *all the authorities, to some of which I will refer. : : In Bottomly v. United States, 1 Story’s R., 143, Justice Story' says: ‘In most cases of conspiracy and fraud, the question of intent, or purpose, or design, in the act done, whether innocent or illegal, whether honest or fraudulent, rarely admits of direct and positive proof; but it is to be deduced from various circumstances of more or less stringency, and often occurring not merely between the same parties, but between the party charged with the conspiracy or fraud and third persons. And in all cases, where the guilt of the party depends upon the intent, purpose or design, with which the act is done, or upon his guilty knowledge thereof, I understand it to be a general rule, that collateral facts may be examined into, in which he bore a part, for the purpose of establishing such guilty intent, design, purpose or knowledge.’ And again, ‘In short, whatever the intent or guilty knowledge of a party is a material ingredient in the issue of a case, those collateral facts tending to establish such intent or knowledge, are proper evidence. In many cases of fraud it would be otherwise impossible satisfactorily to establish the true nature and character of the act. Thus, for example, in cases of asserted fraudulent conveyances, produced by imposition and undue influence, or otherwise, it may often be necessary to give evidence of collateral transaction of a similar nature between the parties, or between the criminated party and third persons, to establish the point, although general imputations of an intended or attempted fraud upon third persons in other transactions of a totally different nature might not be admissible.’ Ibid. 144. In Somes v. Skinner, 16 Mass. R. 348, a case somewhat like the present, it was held, that to prove undue influence, transactions before and after, as well as at the time of the conveyance, may be property admitted in evidence. We find the same doctrine in Wood v. United States, 16 Peters, 342. Justice Story, in delivering the opinion of the court in that case, said: ‘ Cases of fraud present a still *more stringent necessity for the application of the same principle; for fraud, being essentially a matter of motive and intention, is often deducible only from a great variety of circumstances, no one of which is absolutely decisive, but all combined together may become almost irresistible as to the true nature and character of the transaction in controversy. The case of Irving v. Motley, 7 Bing. Rep. 543, turned upon this very point. There the action was trover to recover back goods which had been purchased by an agent for his principal by means of a fraud. In order to establish the plaintiff’s case, it became necessary to shew that other purchases had been made by the same agent for the same principal, under circumstances strongly presumptive of a like fraud. No doubt was entertained by the court of the admissibility of the evidence. ’ ’ — Ibid. 360. See also Buckly v. United States, 4 How. U. S. Reports, 251; Taylor v. United States, 3 ibid. 197. This circumstance standing alone, would certainly be entitled to but little weight.
    That the defendant, after being called upon by the witness K. P. Elliott to settle up an account set up against him by the plaintiff, for between three hundred and four hundred dollars, after examining the account and making some objections to some of the items and then saying that it was settled, for he held the plaintiff’s note for seventy or eighty dollars, and that if the plaintiff were present he would make it plain to him, and after, upon the witness’ offering to do so, desiring him to go for the plaintiff, who then lived but a short distance from the defendant’s say half a mile; that the defendant, after all this,, should, upon the return of the witness, in a very short time, with the plaintiff, not have been found on the premises, might, were this all, only excite astonishment, that he should have suffered himself to fall into such conduct, and so justly have exposed himself to suspicion. But we find this witness and the defendant out together again, the first day of January, A. D. 1832, after the conveyances ^mentioned in the bill had been made nearly three months. On that occasion the defendant inquired of the witness whether he had heard how Clarke and John Powell had treated the plaintiff; and upon being answered in the negative, he stated that they went to the plaintiff’s some short time previously, carried with them a jug of spirit and a fiddle, made him drunk, and procured from him a deed of trust for his land and negroes, to secure a debt to Clarke, which he did not justty owe, and also to secure a debt to John Powell for an old boat, which they had cheated him in. Upon the hypothesis that the conveyance in question was fair and bona fide, it is exceedingly difficult to account for the fact, that it was not mentioned in this conversation. The land and negroes, according to the present pretensions of the defendant, had already become his. His deeds bear date nearly three months prior to that time. And yet he speaks to this witness of the fraud which Clarke and Powell had practiced upon the plaintiff by procuring from him a deed of trust for his land and negroes I Here we have two difficulties to encounter: 1, that the defendant should not have mentioned the conveyances which had been made to himself ; and 2, that he seems purposely to have kept them out of view — actually to have suppressed them — by speaking of the land and negroes as still the land and negroes of the plaintiff: and both, it seems to me, are equally inconsistent with the hypothesis of fairness on his part. The defendant and this witness are found together again, whilst the plaintiff lived with the defendant. I refer now to the occasion on which the witness arrested the plaintiff upon civil process, and the defendant became his bail. At first he hesitated about becoming the plaintiff’s bail, stating that the plaintiff had no property. Very soon afterwards, however, whilst the witness was preparing the recognizance, he, the witness, said to the defendant, that the plaintiff owed him a small sum of money, and as he had given away his property, he thought he ought to be paid; and then the *defendant remarked, (alluding to the conveyances from the plaintiff to him,) that what had been done was not to defraud just creditors, but unjust ones, such as Powell and Clarke, and referred to the process just executed, as another unjust claim.
    “Can anything be more remarkable than this conversation, if the defendant’s present pretensions be well founded? It seems to me, that if he had actually purchased the property, as he pretends to have done, he would have been indignant at the bare suggestion that it had been given to him. Why say that the conveyances which had been made to him we're not made to defraud just creditors? The natural reply, if the pretended sale had been actual and bona fide, would have been, if the purchase money had actually been paid, ‘I have bought your brother’s property, at a fair price, and have paid him every dollar of the purchase monejq as I can shew you by his receipts, which he will here acknowledge in your presence. ’ Or, if the money had not been paid, T have bought your brother’s property at a fair price, and he holds my. bonds for the purchase money — • these are his means for paying his debts, it is no business of mine.’ But, upon the hypothesis that what the plaintiff insists upon is true, we can perfectly comprehend this language of the defendant, and are not at all surprised that the witness was induced, from all that passed, to believe that it was a ‘sham business altogether,’ or to hear him say that nothing passed, during that conversation, that would lead to the belief that the defendant had paid or would pay one cent to the plaintiff. The defendant’s answer in reference to the old vessel, is evasive and unsatisfactory. We have already seen what he said upon that subject to K. P. Elliott. Clarke proves that the price of the old vessel formed a part of John Powell’s account against the plaintiff, so that the defendant was not mistaken as to the consideration of that debt. And we learn from Butts Roberts, one of the defendant’s own witnesses, that during a conversation between him and the defendant, *at the defendant’s house, whilst the latter was speaking of some debts he was to have paid for the plaintiff, or to his order, the plaintiff came in and remarked, that he had altered the arrangement in regard to the defendant’s being pay-master for his debts, that the defendant and he had settled, and that he was prepared to settle his own debts. The conversation between the witness and the defendant was in relation to a debt, says the witness, due to Powell from the plaintiff, as to which the defendant said that it was then too late for Powell to get it out of the defendant, he having paid all out of his hands; and this was substantiated by the plaintiff.
    “I refer to the testimony of these witnesses in this connection, to shew that the defendant is without excuse for not having answered more fully in relation to the matter of the plaintiff’s bill touching the vessel — a circumstance which, by no means decisive of itself, is yet worthy of consideration in connection with the other facts and circumstances of this case.
    “Upon looking further into this record, we find that there is not a single witness, who was present at any bargain between the plaintiff and the defendant, or at the execution of any of the papers, or at any payment of money by the defendant to the plaintiff. The deed for the slaves was already executed when it was carried to the witnesses, and so was the deed for the land, when it was carried to the clerk’s office. The same persons who attested the former, also attested the latter, but when or under what circumstances, does not appear from the evidence. The defendant himself was not even present when the deed for the slaves was attested. We find the witness pursuing on that occasion, the very unusual course of reading over this deed aloud twice in the presence of the plaintiff, and one of them interrogating him as to its fairness, and insisting upon being assured of that,' before he would attest it; and all this, before they had subscribed their names as witnesses.
    “To the bond given by the defendant for the purchase money of the land and slaves, there is no witness, *nor is there any witness to any payment endorsed upon it, except the last; and the witness to this payment is Augustine Moore King, who unfortunately died without his deposition having been taken. Did he see any payment made, or did he simply hear the plaintiff acknowledge the receipt to be his? This witness, too, it may be worthy of remark, was one of the boon companions of the plaintiff in his cups; the very man who had been employed by him to sell a slave, and after paying some of the plaintiff’s debts with a portion of the purchase money, kept the balance hid out of doors in two oyster shells; the same who dissuaded the defendant from breaking up house-keeping, at a time when no prudent man would have given the same advice, and who is characterized by K. P. Elliott as a notorious drunkard, and unfit for business of any kind.
    The deed for the slaves bears date on the tenth day of October, A. D. 1831; that for the land on the next day; and yet the bond for the purchase money of both is dated on the twentieth day of October, A. D. 1831. Why was this? The price, even were it fully paid, was certainly inadequate. It is unnecessary for me to decide whether its inadequacy was so gross, as taken in connection with the plaintiff’s imbecility of mind, would authorize the court to set the conveyance aside. But whatever may be said upon this point, the inadequacy, very clearly, was such as to be entitled to very grave consideration. And when we are told that this price, inadequate as it was, was not to be paid till after the expiration of two years, and that the avowed object of the sale was the payment of the plaintiff’s debts, the transaction strikes its as one, to say the least of it, of a very peculiar character. But notwithstanding' a credit of two years was allowed, and a provision inserted in the bond, that the money was to be paid along as the defendant made it, but was not to be pressed, the whole purchase money of both land and slaves, according to the pretensions of the defendant, in less than eight months, was fully satisfied and discharged.
    *“We come now to a period, when, according to the defendant’s answer, a new arrangement was made between him and the plaintiff. This was the seventh day of June, A. D. 1832. If what he says be true, this was a most remarkable arrangement, and would go far to shew that no contract which the plaintiff might make, ought to be held binding upon him. The effect of it necessarily was, to make him a bond servant to the defendant, and to strip him of a large portion of his property. It was made without writing, and in the presence of no witness whatever, so that he was entirely dependent upon the defendant for the proof of it. It was vague, general, and indefinite in its terms; and whilst he had nothing to shew that the one hundred pounds had been left with the defendant, the defendant w'as in possession of full proof that the entire purchase money of both the land and slaves had been paid and satisfied. An instance more clearly to demonstrate the absolute folly and blind fatuity of the plaintiff, could scarcely be adduced.
    “Two years after this, when the witness Clarke was about to institute a suit in equity against the present plaintiff and the defendant, for his claim against the plaintiff, the defendant informed him that the negro Caleb was hired out in Norfolk, and if he would have his execution levied on him, he could make his money, and that by so doing, he would not interfere with his, the defendant’s rights to the property now in question.
    “The transaction of the eighteenth day of May, Anno Domini 1839, remains to be considered. Notwithstanding the plaintiff, according to the testimony, had for some time previously, as far back as the fall of 1838, manifested a strong desire amicably to settle this business, and to dismiss this suit, and the defendant had hitherto resisted all his entreaties, yet on this day, when he consented to that with him, instead of going with him to his lawyer, or to some intelligent friend of his, that the matter might be settled advisedly, and in a manner that would relieve the settlement from all suspicion *of unfairness, the plaintiff is taken down to Mr. Nelson’s stables, where the terms are arraigned between the parties, and after-wards the agreement is consummated; and the signatures of the plaintiff and of the witness, are affixed to it in the Hampton road, below Nottingham’s. The latter part of this transaction occurred between three and four o’clock in the afternoon, and the public road was preferred to the counter of the witness, (Nottingham’s store,) for execution of the paper in question. The defendant called upon Nottingham for a pen with ink in it, which was furnished, but he was invited, if he wished to write, to use the witness’ counter. And all this occurred on a county court day in the town of York 1 No man, it seems to me, can look into this record, and entertain the least doubt, that at that very time, the plaintiff’s gross intemperance had reduced him to a condition but little above that of the brute. And 3'et the witness tells us that he was perfectly sober; a witness, too, who is entirely unimpeached. This may account for the great contrariety of opinion expressed by the witnesses, both as to the plaintiff’s habits and his capacity for business. The witness Nottingham tells us, that if the plaintiff was then sober, it was the first time he had been so for the previous three or four months; for during that time he had been in the habit of getting from his store from one and a half to three gallons of whiskey every week. Did we need a witness to tell us what must necessarily have been the effect of such a supply of spirit upon the plaintiff’s mind, we have but to refer to the testimony of K. P. Elliott, from whom we learn that it would have completely unnerved him, and disqualified him for any sort of business. And here, instead of submitting any comments of my own, I will quote the language of Jackson, J., in Somes v. Skinner:
    “ ‘So the acts of the tenant, or the transactions between the parties, posterior to the conveyance, so far as they tended to prove the imbécil! ty of mind in the one, and the influence acquired and exercised by the other, *had a direct tendency to maintain the issue for the demandant. Of this description was the release given in March, 1817, by the demand-ant to the tenant, after he had commenced a suit on the notes. Even the conduct of the demandant on the trial of this cause, as seen by the jury, might be justly taken into consideration, as tending to prove the same point, if they thought it exhibited an extreme weakness of intellect in the demand-ant, or an extraordinary influence exercised over him, to sit by the man who had obtained from him these valuable estates ; and evidently desire that he should hold them, against the exertions of his legal guardian to reclaim them: and this, as the jury might believe, without any pajrment received by the demandant, and without the prospect of receiving any. If the jury formed this opinion from what they saw, it must and ought to have influenced their verdict on the main question which was submitted to them.’ — 16 Mass. Rep. 360.
    “I will only add, that I entirely concur with my predecessor in the opinion, that ‘this last portion of the transaction only reflects additional light upon the preceding. ’
    
      ‘ ‘It will be observed, that I have done but little more than merely mention some of the more important facts in this record, without stopping to go through the necessary process of reasoning, to shew to what results they legitimatelj' lead. This it were easy to do, but it surely cannot be necessary; they, together with the other portions of this record, have led my mind to the conclusion which has already been announced.
    “It may be well to remark, that there is not a single fact to which the witnesses for the defence, or any other witnesses have testified, if what they say as to the plaintiff’s capacity, be excepted, at all inconsistent with the view which I have taken of this case. The circumstances attending the attestation of the deed for the slaves, rather excite suspicion, than produce an impression favorable to the defendant. Why was the deed *read over aloud twice in the presence of the plaintiff? Did the witnesses themselves suspect a fraudulent design? or was it a contrivance to make evidence for the defendant? Why was not the defendant present on that occasion? And how did it happen that the plaintiff could be trusted to go to the defendant’s brother with this deed, and yet should be accompanied to the clerk’s office with the deed for the land, by the defendant himself? As to what the plaintiff then said to the witnesses to the deed, it is precisely what he might have been expected to have said, if the árrangement between him and the defendant was, as he charges it to have been. The witnesses, I dare say, would have been very much astonished, and probably have felt themselves called upon to make further enquiries, if after the plaintiff had avowed his object in making the sale, he could have produced to them the bond of the defendant, subsequently executed, and presented it to their inspection.
    “As to the frequent acknowledgments made by the plaintiff, that he had settled with the defendant, and that he had no property, they strengthen and confirm me in the view which I have taken of this case.
    “The bond and the receipts upon it, are, too, of a like character. Careful as the defendant was to procure witnesses to the deeds to him, we find none to the bond from him; and there is no direct proof in this record, that the plaintiff ever had the latter in his possession.
    “The plaintiff’s acknowledgments just referred to. the defendant’s bond, the receipts upon it, were a part of the machinery which the plaintiff supposed the defendant’s superior skill had provided, to defeat, and to protect him from the claim of John Powell. The testimony of Butts Roberts, one of the defendant’s witnesses, that part of it which has been quoted in this opinion, taken in connection with the other evidence in this cause, shews, I think, this to have been the true state of the case.
    “And here it may be proper to notice the argument of *the defendant’s counsel, founded upon the principle in pari delicto potior est conditio defend-entis. This is one of those cases, in which one of the parties may be particeps crimi-nis, but not in pari delicto. The cases of Austin v. Winston, 1 H. & M. 33, and Wise v. Craig, Ibid. 578, are cases of this kind. In the former, the transaction was a contrivance to defraud just creditors, and yet, one .of the parties, deemed by the court not so culpable as the other, was held entitled to relief in a court of equity. Judge Story lays down the doctrine thus:
    “ ‘And indeed, in cases where both parties are in delicto, concurring in an alleged act, it does not always follow, that they stand in pari delicto, for there may be, and often are, very different degrees in their guilt. One party may act under circumstances of oppression, imposition, hardship, undue influence, or great inequality of condition or age, so that his guilt may be far less in degree than that of his associate in the offence.’ 1 Story’s Equi. Jur. 300.”
    From this decree the defendant Smith, appealed to this court.
    The arguments of counsel were very full, but chiefly upon the result of the testimony, in the cause.
    Conway Robinson, for the appellant:
    The evidence sufficiently establishes, that Elliott had legal capacity to contract. Mere weakness of understanding, is not sufficient ground to set aside a conveyance. Greer v. Greers, 9 Gratt. 330. There is no evidence that Elliott was drunk or incapable, when he executed the bill of sale of the slaves, nor is it shown, that any undue influence was exerted or advantage taken by Smith. The price paid for the negroes was low, but not so inadequate as to make it an unconscionable bargain. Samuel v. Marshall et ux., 3 Beigh, 467; Whitehorn et ais. v. Hines et ais., 1 Munf. 557.
    It is proved that the consideration agreed to be paid, was in fact paid, and the plaintiff was therefore without ^equity. But even if the money was not in fact paid, the frequent acknowledgments of payment, by the plaintiff Elliott, show his guilty participation in the purpose to defraud his creditors, and on that ground he is not entitled to relief in equity. Clay v. Williams, 2 Munf. 117; Starke’s ex’r v. Bittlepage, 4 Rand. 368; Roane v..Wedall, 4 Munf. 187; James v. Byrd’s adm’r, 8 Leigh, 510; Owen v. Sharpe et ux., 12 Leigh, 427; Nellis v. Clarke, 20 Wend. 24; 4 Hill, 424.
    It will be contended, that the imbecility of the grantor in this case, takes it out of the rule of those cases. But that there was no such imbecility on the part of Elliott, as to bring this case within the rule of Greer v. Greers, 9 Grattan, is shown by his -intelligent efforts, in connection with Smith, to defraud his creditors, indicating a degree of intelligence irreconcilable with the theory of that case. The transaction was, subsequently to the execution of the deed, and at times when there could be no doubt of his capacity, repeatedly confirmed by Elliott. Peyton v. Carr’s adm’r, 3 Munf. 130.
    The plaintiff 'Elliott acknowledged that he had been induced by others to bring the suit, and agreed with the defendant, in consideration of fifty dollars, to dismiss the suit.
    While the suit was progressing in the name of Gray, as the committee of Elliot, Grey acknowledged his competency by taking a conveyance from him.
    The court below erred in directing the property to be delivered up, before an account of the payments on account of the purchase money was taken. It should have directed the property to be held, as a security for the advancements. Harding v. Wheaton, 2 Mason, 391; Harding v. Handy, 11 Wheaton, 126.
    Patton, for the appellee :
    It is admitted, that a man of great weakness and imbecility of mind, may make a will or deed of- gift, or bargain and sale. Greer v. Greer’s, 9 Gratt. 330; Stone v. Damon, 12 Mass. 488; Stuart v. Eispenard, 26 Wend. 2SS.
    *But it is insisted, that a person of feeble intellect, from natural or other cause, is under the protection of the courts of chancery, and those courts watch over dispositions of his estate with great jealousy, especially when it appears that the party disposes of his whole estate, to a mere stranger, that the act is done in secret, and great pains are taken to conceal his acts from his nearest relations. Where a party of great mental weakness is drawn into a combination, to defraud creditors, he may appeal to a court of equity, to relieve him from the consequences of his acts, and to restore his property. The doctrine of Owen v. Sharpe et ux., 12 Eeigh, will not protect a party claiming under a conveyance from an imbecile sot, for it cannot be said, in such a case, that the parties are in pari delicto. 1 Story Eq., "Í 234, 244. The evidence in this cause clearly established, that Smith took advantage of the imbecility of Elliott, and grossly defrauded him.
    The consideration was so grossly inadequate, and the bargain so unconscionable, that the deed should be set aside on these grounds; a fortiori, should it be set aside when the imbecility of the grantor is considered. Actual fraud on the part of Smith, is clearly proved. His answer and the credits on the bond for the purchase money, are in direct conflict.
    There is no satisfactory evidence of the confirmation of the bargain by Elliott.
    The order to dismiss the suit was obtained from Elliott under circumstances which aggravate the fraud.
    It is said, that he who asks equity must do equity, and this maxim must exclude Gray from any relief in a court of equity, because he took a conveyance from Elliott. But there is no evidence that Gray claims under the conveyance. He is prosecuting the suit in a fiduciary character, and if he recovers, must account to Elliott’s distribu-tees for the amount of the recovery, of whom he is himself one, being a nephew. It is objected to the decree, that the court should have directed an account of advancements before decreeing, that the ^slaves should be delivered up. But the plaintiff claims on the ground, that the defendant had obtained possession of the property by fraud. Shall a spoliator be permitted to retain property as a security? But supposing that he was entitled to retain possession, it appears from the record, that the commissioner had already reported an account of advancements, most favorable to Smith.
    The court below erred in failing to decree to the plaintiff, interest on the estimated hires of the slaves. Subsequent to the case of Baird v. Bland et ais., S Munf. 492, it had been supposed that interest on estimated hires, should be refused in all cases. But the doctrine is now perfectly well settled, that fiduciaries are bound to pay interest on estimated hires. Garrett v. Carr, 1 Rob. 196; Cross’ curatrix v. Cross’ legatees, 4 Grat. 257.
    Those are cases of fiduciaries, but the principle applies to all cases, in which it is against conscience, that the property should be held. Smith is not a fiduciary, but he is a spoliator, against whom the most stringent rules should be applied.
    R. T. Daniel, in reply:
    Either this was a bona fide transaction between parties, capable of contracting, fair in all its parts, between Elliott and Smith, or it was a fraudulent combination, to defeat the creditors of Elliott, in which Elliott was a participator; in either of which views, the bill should have been dismissed. Eraud is criminal, and is not to be presumed, but must be proved ; that is, actual fraud as distinguished from presumptive fraud, if alleged, must be proved. 10 Coke’s Rep. ; Townsend v. Lowfield, 3 Atkins, 536; Clarkson v. Hanway et al., 2 P. Wms. 203.
    It was long held, that parol evidence was not admissible to impeach a written instrument, and although the contrarjr doctrine is now welt settled, yet the courts require the strictest proof for such a purpose. Hill on Trustees, p. 236, et seq. ; Taylor v. Moore,' 2 Rand. 591.
    *The bill in this cause does not set forth the fraud complained of, with sufficient certainty. Although the certainty of pleadings at law is not required, yet a bill charging fraud must be certain to a common intent, in order that there may be certaint3r of response. Every principle of that sort has been disregarded in this cause. Story’s Eq. Pleading, $ 241, et seq. ; Mitford’s Pleading, 71, 72; 2 Robinson’s Practice, 287; Parker v. Carter et als., 4 Munf. 273, 288. This objection need not be taken by demurrer. Harding v. Handy, 11 Wheat. 103, (6 Cond. Rep. 236.) The statements of the bill are altogether insufficient to enable the respondent to answer. There is no allegation of time, place and circumstances, in regard to the two deeds, nor are they exhibited with the bill.
    No inadequacy of consideration is charged in the original bill. Yet it is upon that ground, that the aid of equity is invoked in the further progress of the cause, and upon that ground the court relied in its decree. Undue influence is not alleged, and is yet a fact relied upon by the court below.
    The two amended bills are efforts to assist, and supply the defects of the original bill; but they are themselves defective, and they make a case entirely different from, and in conflict with that máde by the original bill. The pleadings are fatally defective.
    Now, upon the merits of this case, if Elliott was an idiot, or non compos, then his equity is clear. But the evidence in the cause, establishes his legal capacity, and the authorities referred to by the counsel for the appellee (Story’s Eq., § 234, et seq.) merely establish, that mental weakness is a circumstance to be considered, and may or may not, along with other circumstances, be sufficient to establish fraud. Story Eq., § 233, et seq. The judge below treated the case, as if Elliott were an idiot, and the onus were on those claiming under the conveyances, to show affirmatively that the transaction was fair. Not so, however; it is for those seeking to impeach the transaction, to show its fraudulent character. *There is a strong and conclusive array of facts in the testimony, to show the capacity of Elliott. He was a drunkard, but not incapable of contracting.
    Connected with this charge of incapacity, is that of undue influence, which, by the way, is nowhere charged in the bills, nor anywhere proved. There is evidence of fighting and quarrelling between the parties, which are rather inconsistent with the existence of any undue influence on the part of Smith.
    The evidence is conflicting as to the value of the slaves,'but the result of the testimony establishes that there was no inadequacy of price.
    It is mereljr conjectured, that the price was not paid. There is no evidence in the cause to rebut the credits on the bond, signed by Elliott himself, and his repeated admissions, that the money had been paid.
    The circumstances in the conduct of Smith, relied on as proving actual fraud, are wholly inconclusive, if true, and they depend upon the testimony' of witnesses unworthy of credit.
    If there was fraud, Elliott was not guiltless, but was in pari delicto, and should not be relieved on that ground.
    
      
      See monographic note on “Jurisdiction” appended to Phippen v. Durham, 8 Gratt. 457; and monographic note on “Fraudulent and Voluntary Conveyances” appended to Cochran v. Paris, 11 Gratt. 348.
    
    
      
      See foot-note to Harris v. Harris, 23 Gratt. 737 ; Greer v. Greers, 9 Gratt. 330: and monographic note on “Fraud” appended to Montgomery v. Rose, 1 Pat. & H. 5.
    
    
      
      Note. — The testimony was very voluminous, and ; , ; ; the reporters Rave deemed it unnecessary to attempt to present a full account of it, as the judge of the Circuit Court and each of the judges here have stated the case, which they considered proved, and upon which their opinions are based.
    
   Per THOMPSON, J.

Can a defendant be protected by the principle of par delic-tum, when he does not allege it, and claim the benefit of it in his answer, but denies all fraud, and alleges the perfect fairness of the whole transaction as in this case? |

Daniel. The court will certainly apply this rule as a principle, governing and controlling the active interference of courts of equity. The cases cited show this.

CEOPTON, J.

The plaintiff Elliott, in his original bill, alleges, that he was theretofore much addicted to habits of intoxication ; that whilst in that state he often made improvident bargains, and was frequently imposed upon by the cunning and designing, and induced to *pur-chase property much beyond its intrinsic value, and particularly refers to the purchase of an old vessel, for which, whilst drunk, he gave a most extravagant price; and, by wajT of security, was induced, whilst under the intoxicating influence of ardent spirits, to give a deed of trust upon property of much greater value; that when he became sober he mentioned the circumstances touching the purchase of the vessel to the defendant Smith, who, imposing upon him, persuaded him to convey to said Smith a tract of land, several sláves, and sundry articles of personal property; that Smith took possession of the said property, and took the plaintiff to live with him; that the deed was without consideration, and he was persuaded to make it by Smith, who promised to stand his friend, and to protect him from the imposition in the purchase of the vessel ; that he lived with Smith and labored for him without wages; that the individual from whom he bought the vessel had agreed to take her back and vacate the purchase; that when he requested Smith to restore to him his property, he was dismissed by Smith from his house, and that Smith still withholds the property from him; and he prays to be relieved from the contract.

The defendant, Smith, demurred to the bill, and also filed his answer, in which he says that he remembers to have heard that a vessel was bought by the complainant or some other person, but is ignorant of the price or other terms. He denies that he ever persuaded the complainant to make a deed, or that the complainant did at any time execute a deed under any suggestion from him. He avers that he purchased from the complainant five slaves, at the price of $360, and exhibits the bill of sale for them, with his answer, bearing date on the 10th day of October, 1831; that at the same time he purchased the land of the complainant at the price of ^100, and gave his note to the complainant, with his note for the purchase money of the slaves; that the price of the slaves was to be paid in such debts of the complainant as he should take up; that he paid *a number of debts of the complainant, and the whole was settled according to the note and the credits endorsed (and he files the note with the credits endorsed with his answer) ; that on the 7th of June, 1832, the whole was fully settled, at which he made a verbal agreement with Elliott that he should retain the sum of ^100 in his hands, and support Elliott as long as he lived; that Elliott lived with him about two years; that he then left, and he re-conveyed the land to Elliott at the same price, having the ;£100 already in his hands; that all the conveyances were for full consideration, and that he had never promised Elliott to stand his friend in anjr particular manner, or to protect him from the imposition about the vessel, or to restore him the property.

The plaintiff filed an amended bill, in which he charges, that for some time before the execution of the deed to Smith, from excessive intemperance from the immoderate use of ardent spirits, furnished to him by Smith, from his store, he was rendered wholly incapable of managing his own concerns, and unable to appreciate the consequences of acceding to the iniquitous suggestions of Smith, and was induced by his artful persuasions to execute the deed, without consideration. To this amended bill Smith demurred, and filed his answer, in which he denies all the allegations and avers the perfect fairness of the deed. The plaintiff filed a second- amended bill, in which he repeats rather more fully the charges of the first. Smith again demurred, and answered, denying all the allegations.

Upon this state of the pleadings, the transaction between the parties was either, in the version given of it by the defendant, a fair and honest transaction, or, according to the allegations of the original bill, as I understand them, a fraudulent device to hinder, delay and defraud the creditors of the plaintiff.

Upon the fairness of the transaction much doubt is thrown, by the receipts endorsed on the note filed with the answer to the original bill, and the account given in *the answer of the manner of the final adjustment of the debt. The note is for two distinct sums, to wit: £100, the price of the land, and $360 the price of the slaves. The answer alleges, that on the 7th of June, 1832, it was verbally agreed, between the parties, that £100, the price of the land, should remain in Smith’s hands, in consideration of which he was to support Elliott as long as he lived. It appears by the endorsement of credits on the note, that on that day the sum of $119 83 only was endorsed as paid, so that the precise sum of £100 was not then in the hands of Smith; and as there are four other credits of preceding date endorsed, the largest of which, for $423 25, is dated on the 20th of May preceding, Elliott must have returned some of the money he had already received, to make up, with the sum for which a receipt was then given, though not paid, the sum of .£100, which, by the agreement, was to be left in Smith’s hands for the support of Elliott during life. Of this discrepancy no satisfactory explanation is furnished. In addition to this, there are other circumstances of suspicion in the record. The conversation between the defendant and Kemp Elliott, (the witness,) on the 1st of January, 1832, about the treatment of the plaintiff by others in relation to his property, in which no allusion was made to the deed for the land and bill of sale for the slaves of the plaintiff to the defendant, executed early in the preceding November, according to the exhibits filed, and the remark of the defendant to the same witness on another occasion, that what had been done (alluding to said conveyances) was not to defraud just creditors, but unjust ones — such as Powell and Clarke, and another.

But if these circumstances amounted to more than suspicion, and produced certainty in the conclusion to be deduced from them as to the character of the transaction, then we are thrown upon the other branch of the alternative, that it was a fraudulent contrivance resorted to by Elliott to defraud his creditors, in which he was aided by Smith. And is he entitled to be relieved from *its consequences? A large mass of testimony is on the record; and so far as it consists of the opinions of the witnesses of Elliott’s capacity, the conclusion is unavoidable, that he possessed sufficient legal capacity. In addition to this, he was appointed by the County Court surveyor of a road, and commissioner, with others, to settle accounts, and was sworn on grand juries — and since the institution of this suit he gave testimony as a witness before the Circuit Court of his county in an important cause; and several of the jurors who have been examined in this case, depose, that upon his testimony, from the clear, consistent and satisfactory manner in which he detailed transactions of long anterior date, their verdict was in a great degree founded. I am satisfied, from the evidence, that Elliott, although possessed of sufficient legal capacity, was an illiterate man, and while under the influence of intoxication was occasionally (like other men in the same situation) incapable of attending to business properly. The plaintiff, in his original bill, inconsistently with the allegations of the amended bills, says that he was sober when he mentioned to Smith the purchase of the old vessel, and was persuaded by him to make the conveyance of his property. Two of the subscribing witnesses to the deed and bill of sale (the third having died) depose, that when he executed them he was sober, that he brought the papers to them himself, and requested them to witness them, that the papers were read over to him, that he executed them freely, and that Smith was not present. There is no proof whatever in support of the allegations of the two amended bilis, that Elliott was, at the time of the execution of the papers, under the influence of ardent spirits supplied to him by Smith, or that Smith had at any time furnished him with liquor. On the contrary, in opposition to the allegation of the first amended bill, that it was supplied from Smith’s store, it is proved that Smith had not kept a store for eight or ten years; and although Smith was greatly superior to Elliott in intellect, and of more prudent *habits, as there is no scale by which we can measure the grades of intellect of different men possessed of legal capacity, they must be held to be of equal capacity unless it be held that every debtor, who attempts to defraud his creditors by the aid of a man of superior intellect, shall be protected against the perfidy of his instrument, and thus abrogate the maxim, “in pari delicto potior est conditio defend-entis.” But men of equal capacity must act freely to be the subjects of this maxim; and if there is any such undue influence or coercion, as deprives the mind of its freedom, and thus induces the debtor to concur in a fraudulent scheme, which, though presenting other inducements to a mind so disposed, he would not have adopted, he is entitled to relief. In this case there is no testimony tending to prove that Smith' exerted any arts, or used any undue influence over Elliott, or that he possessed any such influence, or held any relation towards him which might enable him to possess or use any such influence. On the contrary, it is in proof,_ that shortly before these transactions Elliott and Smith were hostile towards each other. Indeed, there is no proof that E'liott had been fraudulently imposed upon by any one, nor is there any proof, even of the alleged imposition in the purchase of .the old vessel, against which he sought to protect himself by defeating the deed in trust given to secure the purchase money, which also included another debt admitted to be just.

Being of opinion that Elliott possessed full legal capacity; that he acted, when sober, freely and without any undue influence or concern; and considering the transaction in the view presented by the original bill, it is a case of par delictum, in which he is not entitled to relief, but must be left where he has placed himself, in conformity with the provision of the law, which enacts, that fraudulent deeds shall be void as to third persons, leaving them to operate between the immediate parties. I therefore concur with a majority of the court, that the decree be reversed, with costs, and the bills be dismissed without costs.

*GIEMER, J.

This was a suit in chancery, brought by George Elliott against Henry Smith, to recover certain lands and slaves conveyed by Elliott to Smith. The original bill (as I understand it) set forth a case of fraudulent combination between the plaintiff and defendant, to cover up the plaintiff’s property for the purpose of defeating certain creditors of his —whose claims the plaintiff alleged were fraudulent and unjust. Two amended bills were filed, praying for relief, on the ground of incapacity, produced by excessive use of ardent spirits furnished by Smith to the plaintiff. There was a demurrer to the first amended bill, on the ground, that no one was made a party defendant, and the demurrer was well pleaded. The defendant answered, denying all the allegations of the amended bill; and there being no proof to sustain them, it is unnecessary to notice them further; and the only question is, whether plaintiff is entitled to relief on his original bill.

I have no doubt that the plaintiff intended, when he conveyed his property to Smith, to defraud some of his creditors,’who, as he alleged, had defrauded him; but whether this is true or not, does not appear in the record. I have as little doubt that Smith intended to over-reach and defraud the plaintiff, and that he has to some extent carried out his purpose.

I am satisfied, from the evidence, that the plaintiff had sufficient capacity to make a valid contract when sober, and that he was sober when the contract in question was made.

It is needless to cite authorities to prove, that a fraudulent contract, made between two parties, competent to contract, both participating in the fraud, though it may not be binding on third persons, is binding on them and those claiming under them. This is the general rule, to which, however, there are many exceptions, and the judge who decided this case in the Circuit Court, was of opinion, that this came within one of those exceptions, and that the plaintiff and defendant, *though both “in delicto,” were not in pari delicto. Being satisfied, as already stated, that Smith intended to defraud Elliott, and had succeeded in doing so, and feeling a strong inclination to make him disgorge, I was at first strongly inclined to concur in that opinion; but subsequent reflection, and a closer examination of the authorities, have satisfied me that the opinion is not well founded.

As has been already stated, the plaintiff, when he sold his land and negroes to Smith, had sufficient capacity to make a valid contract; and although the defendant was a man of superior information and intelligence to him, I have not been able to find any case in which this circumstance alone has been held sufficient to take a case out of the influence of the rule above stated. On the contrary, in all that I have seen (and they are numerous), the party against whom relief has been granted, in such a case, stood upon some vantage ground, or bore some such relation to the other as to preclude the idea of their dealing upon equal terms — such as creditor and debtor, parent and child, guardian and ward, &c. We find it laid down in the books of the highest authority, both ancient and modern, that “courts will not undertake to measure the size of men’s understanding.” It would be an infringement of this wise and well settled rule, to set aside a contract on this ground alone — -to say nothing of the difficulty of ascertaining, with any precision, what difference there is (legally) in the guilt of two men participating in an illegal act, one of whom happens to be more intelligent than the other, or better informed on general subjects, however easy the solution might sometimes be in a moral point of view. No such distinction is made in testamentary or criminal cases, and I think no analogy can be found for it in our laws. In cases of the first kind referred to, the question is, Was the supposed testator corn-petent at the time to do the act in question; had he capacity sufficient to understand it? And if that be the only ground of objection, there the enquiry stops, *and the testamentary act of the weakest and most ignorant man (if competent) not less valid and binding than that of the wisest and most intelligent: and so in a criminal case, if several participate in the act as principals, the law makes no distinction in the punishment of one who might have the learning and ability to plead his own cause and of one who merely knows right from wrong.

I have thus far considered mere weakness of intellect alone as a ground for sustaining the decree of the Circuit Court, not as a link in a chain of testimony to establish fraud or undue influence. How does the case stand on that ground? It is alleged in the original bill, that the plaintiff was persuaded by the defendant to make the contract, and if this had been proved, the case might have been a very different one; but this allegation is denied in the answer, and there is no proof of the fact. So the case must stand on the naked ground of difference in the intelligence of the two contracting parties — for there is no pre-tence that any relationship existed between them, or that they were so situated as to give the defendant Smith any undue advantage over the plaintiff in any other respect. I have seen no case as much like this as the case of Austin v. Winston, 1 Hen. & Munf., and the distinction between that case and this is broad and plain. Austin was the creditor of Winston, and it was proved that he persuaded him to sell his slaves, and alarmed him by telling him, if he did not, he would be ruined. The four judges, who decided the case, were equally divided in opinion, and the decree entered was a compromise, and their opinions were based on the grounds above stated. The subsequent cases of Starke v. Littlepage, 4 Rand. 368; James v. Byrd, 8 Leigh, 510, shew, that the Court of Appeals does not think the principle ought to be carried any farther, if so far even, as it was carried in that case, and in that opinion I fully concur.

Relief is denied to either party in a fraudulent contract seeking to recover his property disposed of under *it, not because of any desire on the part of the court to aid the party in possession, but from principles of public policy to keep the fountains of justice pure.

The true test for determining whether or not the objection, that the plaintiff and defendant were in pari delicto can be sustained, is by considering whether or not the plaintiff can make out his case, otherwise than through the medium and by the aid of the illegal transaction to which he was himself a party. Simpson v. Bloss, 7 Taunt. 246; and here the plaintiff comes into court alleging his own fraud.

For the reasons above stated, I think this case comes clearly within the principle of par delictum, and that the decree of the Circuit Court must be reversed.

THOMPSON, J.

It seems to me very clear, upon the pleadings and proofs in this cause, that one or the other of two conclusions is inevitable; either that it was a fair and bona fide absolute sale for an adequate consideration paid by Smith, as alleged in his answer; or that it was a pretended, simulated, or fictitious transaction, as alleged in the original bill, or a sham sale, as characterized by Kemp P. Elliott in his deposition ; both of which are equally fatal to the plaintiff’s pretensions, and decisive against the relief sought by his bills, original and amended. The pleadings and the proofs will justify no other hypothesis, and leave us no other alternative. According to my reading and construction of the original bill, it alleges substantially, if not in totidem verbis, a sale and conveyance made to defraud, hinder and delay creditors of the grantor, and the object and purpose of both of the amended bills, seem to have been either to retract the admissions contained in these allegations, or to qualify them in order to evade or avert the legal consequences attached to them, by super-adding allegations of imbecility, natural or superinduced by habitual intoxication, to exempt the plaintiff from responsibility for his contracts, or from the legal imputation of being a particeps fraudis.

*1 think there is an overwhelming preponderance of testimony in favor of the capacity of Elliott, both legal and equitable, to contract; that he made the contract or conveyance in a state of sobriety, freely, voluntarily, and of his own accord, without any undue influence possessed, or persuasion employed, on the part of Smith to induce him to do so; and, if I considered only the contract itself, the testimony in favor of capacity and free will or voluntariness given by the subscribing witnesses, the adequacy of the consideration stated, together with the previous declarations of intention on the part of Elliott to sell to Smith, and subsequent admissions, that he had sold and received the purchase money in full, I should, without hesitation, hold it was a fair and bona fide absolute sale, as alleged in Smith’s answers. But it must be confessed, that the receipts or ac-quittances endorsed on Smith’s bond, taken in connection with the version given of the transaction in his answer, coupled with the declaration of both Smith and Elliott, as to the nature of the arrangement, cast a dark shade of suspicion upon it, and tend strongly, if not conclusively, to establish the truth of the version given of it in the original bill, to wit: that it was a conveyance made without consideration, to defraud creditors; and if so, the only question is, whether George Elliott was capax doli or rather capax fraudis, so as to render him a proper subject for the application of the rule founded upon the par delictum of the parties, a wise and salutary rule or maxim of the common law, applied by courts to the perpetrators of fraud and iniquity, before it constituted a part and parcel of the written law, as it now does in that provision of the statute against fraudulent conveyances, which declares that such conveyances, though null and void as to creditors of the grantor, shall nevertheless be deemed, held and taken as valid and obligatory between the parties to such fraudulent conveyance, and those claiming under them.

I am unable in this cause to perceive any sufficient ground for exempting Elliott from the application of *the rule; and upon the ground so well stated in the opinions of Judges Gilmer and Field, and so strongly fortified by both reason and authority, I am clearly of opinion, if this transaction was in fact a fraudulent one on the part of Smith, as these judges hold it was, and as I cannot but suspect it was, it was a fraud meditated upon the creditors of Elliott, in which he concurred and participated, and against which he cannot be relieved. It is a characteristic of fraud, resulting from its verj- nature and essence, that confederates in fraud directed against others, will prove faithless to each other, and it is fortunate for the safety and welfare of society that it is so; hence the wisdom and sound policy of the maxim, that “in equal guilt better is the condition -of the defendant,” which forbids the tribunals of justice from lending their aid to either party against the other, whereby fraud is made to recoil and re-act upon the guilty perpetrator, and by withholding from the guilty party the fruits of his iniquity, men are deterred from the commission of fraud. If before we apply the rule, we must first gauge and measure the intelligence and moral senses of the parties in every case being competes mentis, in order to ascertain their equality or inequality as moral and intelligent agents, and then hold that the maxim is only applicable where the parties are exactly equal in .their mental and moral attributes, it would amount to a total abrogation of the maxim ; for in that sense there would never be a case of par delictum. I am satisfied, if this be a fraudulent transaction, it is a case of par de-lictum in the legal proper sense of the maxim, and am therefore for reversing the decree of the Circuit Court with costs of appeal, and for dismission of the bill, but without costs to either party: i. e. each party paying his own costs.

FIELD, P.

From the pleadings and evidence in the cause, it is clearly shewn, that the sale of the property by Elliott to Smith, and the giving of the bond by Smith to Elliott for the payment of the purchase money, taken ^'altogether, was a mere contrivance between Elliott and Smith (both of whom were in a competent state of mind, at the time, to make a valid contract), to place the property of Elliott beyond the reach of his creditors; that it was not considered as between them, or intended to be, a real transaction, but a mere sham, unless, as I believe was the fact, it was the intention of Smith, from the beginning, to prove false to Elliott, and hold on to the property without paying anj^thing for it. Taking for the present this to be the whole case, had Elliott any right to claim of a court of equity a decree to rescind the contract and to have the property restored to him? Where parties are concerned in illegal or fraudulent arrangements like this, they are not entitled to relief in equity. In such cases the court, applying the maxim in pari delicto potior est conditio defendentis aut possidentis, will dismiss the bill, and leave 'the parties in the situation in which they have placed themselves, by their contract. The possession of the property under the contract, or the presence of the legal title to it, gives the right. There are cases in which a particeps criminis may go into a court of equity and obtain relief, by having the contract set aside and his property restored to him, but they are cases in which, although the parties are in delicto, the application of the maxim would not effect its purpose.

The maxim does not apply to cases of contracts, or arrangements made in violation of the policy of the common law or a public statute, such as marriage, brokage bonds, or bonds or conveyances made upon usurious or gambling considerations. In such cases relief is given in aid of public policy, by depriving the defendant of the enjoyment of his unlawful contract, and all its advantages. The interference is not for the sake of the party plaintiff, but for the public, and therefore it is not material to enquire into the degrees of the guilt of the parties. Whether the plaintiff’s guilt be less than the guilt of the defendant, or whether it be equal or more, the relief asked for is granted in order *to deprive the defendant of the fruits of his contract, and thereby lessen the temptation to enter into such contracts. These are cases in which the public at large is concerned, and are to be condemned on considerations of public good.

There are other contracts, concerning the property of individuals only, in which the parties are in delicto, to which the maxim will, not be applied. But they are cases, such as Austin v. Winston, 1 Munf. 33, in which, from the peculiar condition of the plaintiff and the attendant circumstances, the court can, with propriety, and for the furtherance of justice, so far excuse the delinquency or guilt of the plaintiff, as to exempt him from the application of the maxim, “in pari delicto,” &c. In these cases, the plaintiff is not to be regarded as having given his free, unbiased consent to the contract. He is relieved upon the ground that the contract is not strictly a valid contract, because the mind and will of the plaintiff have not sanctioned it. And in contracts of this sort, it is likewise not material to inquire into the degrees of guilt of either party; for whether he be more or less guilty than the defendant, the contract is alike defective for the want of free mental sanction. The case of Austin v. Winston, was considered by the court as a case of this sort. It will appear from the able and lucid opinion of Judge Roane, in that case, that he placed the plaintiff’s right to recover upon the ground that Winston, from his embarrassed condition and dread of Austin, his creditor, had been induced, through the influence and representations of Austin, to give his consent to Austin’s proposition, by which Winston’s creditors were to be defrauded, hindered and delayed in the recovery of their debts. Judge Roane said: “For a contract to be binding, the parties must be free; and that no man can be considered particeps criminis in a transaction, unless he entered into it freely; and it is a general principle, that the doctrine of young heirs is extended to all persons, the pressure of whose wants may be considered as obstructing *the exercise of their judgment. ” He further said: “There can be no fraud which merits nhe reprobation of a court of equity, unless it be entered into freely and mala fide.” Judge Green, in Starke’s ex’rs v. Littlepage, 4 Rand. 371, remarked, that Judge Roane, in Austin v. Winston, thought that relief should be given to Winston, upon the ground that Austin, the creditor, his debtor, Winston, being in distressed circumstances, had used his power over him to induce Winston to unite in the fraud. Whether the facts of Austin v. Winston justified the application of Judge Roane’s opinion to that case or not, we need not inquire into. The principles of his opinion are unquestionably sound, and should be the rule of decision in all cases where, from undue influence, or otherwise, the contract in question is to be regarded as deficient in that essential ingredient— the consent of both parties. If Elliott is entitled to be relieved in this case, it is on this principle only, to wit: the want of consent to the contract with Smith.

Ret us next enquire whether he has freely contracted with Smith or not, or rather whether he did freely, and without improper influence, enter into the arrangement for the sale of his property to Smith. It is alleged that he was a man of weak mind, subject to intoxication, and that Smith supplied him with intoxicating liquors and made him drunk, and in that condition prevailed on him to enter into the arrangement. It is proved that Elliott was an illiterate man, much addicted to habits of intoxication, but, when sober, competent to make a valid contract. He was a man of weak mind, below mediocrity ; yet he was by many of his acquaintances regarded as a man possessing an ordinary share of understanding, and capable of making contracts and attending to his own business. He had been called upon to perform the duty of dividing estates; had been appointed surveyor of the road; and had been called on, and had given, evidence as a witness in a very important case, in which he had given testimony relative to occurrences of many ^years’ standing; and the testimony he gave on the occasion was clear and distinct, and so much confided in by the jury, that it became, to a considerable extent, the basis of their verdict. There was no connection, no relation of confidence existing between him and Smith. They were strangers in blood, and their relations had not been altogether kind and friendly, but rather the reverse at one time. It does not appear that Smith had ever supplied Elliott with intoxicating drink, or that he was drunk when he executed the deed. On the contrary, it is proved that he was sober when he acknowledged the deed, and was not then stupid from the effects of previous intoxication. He was in his right mind at that time. Smith was not present when the deed was acknowledged and attested. Elliott carried the deed to the witnesses, acknowledged it before them, and they attested it, after first reading it over in his presence and hearing. After this was done, Elliott often spoke of the transaction in terms of approval, and acknowledged that Smith had paid up all the motley. This acknowledgment was not true. It was made with the same fraudulent purpose which had, in the first instance, induced him to enter into the arrangement of conveying the property to Smith to defeat the claims of creditors. There is no proof in the cause to show that Smith, at any time, proposed the arrangement, or persuaded Elliott to enter into it. Nor is there a single fact proved in the cause to warrant an inference that Smith, at any time, or in any way, exercised over the mind of Elliott any undue influence, except such as may be supposed to arise from the fact of Elliott’s having conveyed his whole estate to a stranger, without consideration. Eor I do regard the bond as a blank paper, having become so (if it ever had been delivered as a deed) by Elliott’s acknowledgments of having received payment in full.

Elliott thought he had been cheated by Powell, of whom he had purchased an old boat; and wishing to defeat Powell’s claim for the x>urchase money, to accomplish that object, entered into the arrangement with *Smith, and conveyed to him, at a price named, his whole estate, real and personal. Eor the payment of the price named he took Smith’s bond, to give to the transaction a fair color; and after-wards, without having received payment of the bond, he verbally, and in the form of credits and a receipt, admitted that the bond had been paid off, when, in truth, it had not been paid, as is made manifest by Smith’s answer and other circumstances in the cause. Although the main object and purpose of the deed was to defeat the debt of Powell, its fraudulent operation, was not limited to that debt. It extended to Clark’s debt, which was a just debt, and was embraced in the same security which provided for the payment of Powell’s debt, and it necessarily extended to all the other debts of Elliott; and its tendency was to hinder and delay all the creditors of Elliott in the recovery of their debts. Elliott did all that he could do, to carry out and accomplish the fraudulent purpose of the arrangement made with Smith. He declared it to be fair; admitted that Smith had paid up all the purchase money, though Smith swears that /'lOO of it had been left in his hands. Elliott takes the oath of insolvency ; surrenders neither the property conveyed to Smith, nor his equity of redemption in it, nor the debt due from Smith upon the purchase, nor does he surrender the money which he pretended he had received of Smith for the property. Under all these circumstances, where is the authority for saying that Elliott has not freely assented to the agreement with Smith, and is therefore entitled to have the contract rescinded, and the property restored to him? There is none, nor should the contract be set aside on grounds of public policy. The statute declares all such contracts to be binding on the parties.

Elliott’s contract with Smith was an imprudent and a ruinous one to him — so much so as to excite a feeling of sympathy for Elliott, and disgust towards Smith; but in the language of Judge Allen (Greer v. Greer, 9 Grat.), “it is not the propriety or impropriety of the *disposition, but the capacity to make it, and the fact that it was made freely, with the full assent of the grantor, tha,t must control the judgment of the court.”

Eor the reasons above assigned, I am of opinion that the decree should be reversed and the bill dismissed.

The decree of the court is, that the decree be reversed with costs, and that the bills be dismissed, but without costs.

TYEER, J.

Erom the view I have taken of the facts and circumstances in this cause, X am constrained to differ from my brothers in the conclusion to which their investigation of this case has conducted them; and agreeing mainly with the Judge of the Court below in the opinion pronounced by him, and which is a part of the record, I shall add but little to what he has said. I am not satisfied, from the evidence in this -case, that the plaintiff in the Court below executed the conveyances to the defendant with the intent to defraud his creditors. He was, in my opinion, manifestly, a very weak-minded man, and rendered still more so by intemperance. About the date of the transactions under consideration, he was a hopeless and abandoned drunkard; ’ unable to write or to read writing; liable to be imposed on and defrauded by those he confided in, and too utterly stupid and illiterate _ to conceive or consummate a plan by which he might protect his property from the arts of others, or cloak it from its liability to his creditors; and if we take the allegations in his original bill as true, (which seems tó be the source from which is inferred a fraudulent intent in executing the conveyances to the defendant), so far, in my opinion, from its shewing a fraudulent intent on his part, it shews his object and aim were to prevent the consummation of a fraud which had been attempted on him; and it proves nothing more than this: that the plaintiff, influenced by these considerations, being utterly ignorant himself as to such matters, applied to the defendant for aid and advice, *relying on his friendship and superior knowledge to shield him from this impending difficulty. And the defendant promising to protect him from imposition, Elliott thenceforth submitted himself to the will of the defendant, and became a blind and passive instrument in the hands of Smith, whereby he was enabled to get possession of every particle of property that Elliott had on earth, and by the same contract converted Elliott into an operative on his farm.

I come to this conclusion from the evidence in the record; and if I understand aright the principles and practice of courts of equity in the investigation of fraudulent transactions, while they will not arbitrarily presume fraud, yet it is equally clear, they will infer judicially a fraudulent purpose from suspicious circumstances, well corroborated and not rebutted, though such circumstances fall far short of legal proof. Chesterfield v. Janssen, 2 Ves. sen. 155. And where fraud is charged, a court of equity will enter into all the circumstances and merits of the case, in order to come at the fraud. Man v. Ward, 2 Atkins, 229. Fraud, too, said Savage, C. J., in the Court of Errors, on an appeal from chancery in 3 Wendell 626, is often the subject of enquiry in courts of law as well as equity; there is, however, this difference, that at law, fraud must be proved — it must be what Eord Hardwicke calls “dolus malus” — actual fraud, arising from facts and circumstances of imposition. At Law, the contract of every man, who is compos mentis, is binding, and cannot be avoided in general without proof of actual fraud in obtaining it. Neither will a court of equity measure the extent of men’s understandings, and say that there is an equitable incapacity, where there is a legal capacity. Yet, if a weak man gives a bond for a pretended consideration, when, in truth, there is none, equity will relieve against it. (3 P. Wms. 130.) Eraud, too, is sometimes apparent from the intrinsic nature of the contract; it may be such as no man in his senses, and not under a delusion, would make, *and such as no man, would accept, which is Eord Hard-wicke’s second class of frauds; and his third is, that which may be presumed from the circumstances and condition of the contracting parties, (Chesterfield v. Janssen, 2 Ves. sen. 155.)

Apply these tests to the defendant’s conduct and acts, and what might not a court .of equity infer, bearing in mind the cir-pumstances and condition of the contracting parties, judicially against him? We have his answer on oath stamped with falsehood on its face, filled with inconsistencies, prevarications and contradictions, accompanied by an exhibition of false receipts, signed no doubt by the plaintiff, but signed, like the conveyances which transferred Elliott’s property to himself, without Elliott’s understanding- the use that was to be made of them, or the consequences, that were to flow from them. A defendant, who stands in a court of equity in a worse condition, than if the plaintiff's bill had been taken pro confesso, who, in attempting to deny the case made b3r the plaintiff’s bill, confounds himself, and renders it highly and morally probable that the truth is with Elliott rather than with him, whose sworn statements, added to the other facts iu this cause, would induce a majority of this Court (I am authorized to say) to annul this contract, and restore this property, if they did not think they were prevented by the imputation of fraudulent intent on the part of Elliott. X go farther, and say, the evidence not only justifies me in pronouncing the conduct of Smith sufficiently fraudulent to vacate this contract, but that it justifies a court of equity in treating Elliott as the dupe of Smith, who signed the conveyances at Smith’s bidding, without the intention to defraud any one of what was justly due him ; and that Smith concocted and consummated the whole scheme; prepared the conveyances, got Elliott to sign them, sent him off to have them witnessed, Elliott being a mere automaton in the hands of Smith to play out this iniquitous game; and that, under such circumstances, the feeble and dubious ^invocation of legal policy, to appljr the maxim, in pari delicto potior est conditio defendentis, is hushed and silenced in the louder and loftier appeal of natural justice against the machinations of fraud and falsehood. I am, therefore, opposed to a reversal of the decree and a dismissal of the bill; but as that is to be the decree to be rendered in this case, I have deemed it unnecessary to consider any matter of detail in the cause.

Note by Repobteks. — In the case of Deatly’s heirs v. Murphy et ais., 3 A.K. Marsh. 472, itwasheld: "A chancellor will not set aside a contract of sale, made to defeat creditors where there is an equality of guilt, between vendor and vendee; hut if the vendee avails himself of his influence over the mind of a weak, confiding man, to induce him to sell with such a view, there is no equality of guilt, and such contract will he vacated.” And in delivering the opinion of the court, Mills, J., said: “Among the numerous registers of guilt, which courts of j ustice are frequently compelled to make, hut few can he found of a color more dark, a conduct more unfeeling and evil, than that which the proof in this cause discloses against the defendant Murphy. In such circumstances we must inquire whether there are any legal bars in the road of recovery, and whether Deatly’s conduct was as equally base as that of Murphy, as to prevent his representatives from recovery in this suit.” The judge then states the circumstances of the particular case at large, and afterwards proceeds thus: “Can any relief be granted against the contract under these circumstances? We recognize the rule recognized by the court below, that equity will not relieve against or enforce a contract made to defraud creditors, or third persons; not because the defendant has merit in his claim, but barely because he has the attitude of a defendant. In such case the maxim is, in pari delicto melior est conditio defendentis. But this is a case where the party against whom relief is sought, has fraudulently induced the party seeking relief, to attempt a fraud by using his influence, exercising his vast ascendancy, arising both from confidence and dependence, making use of dangers not existing, to induce Deatly to dispose of his property, when it was not subject to the execution at all, even if it was not then discharged. In such a case Deatly never could be in pari delicto. Murphy was the origin and instigator o£ the crime. Deatly could not be a free agent in doing such a useless act, and so far as he consented, it was under a belief of a falsehood, invented by Murphy. We are unwilling to extend the rule so far as to cover such a fraud, devised and completed by the defendant. It is enough to afford such defendants the protection of the rule, when they *are not more guilty than the complainant. The Court of Appeals in Virginia, in the case of Winston’s adm'x v. Austin’s ex’x, enforced a con tract made between a debtor and creditor to defraud other creditors, 1 Hen. & Munf. 33. Although we might hesitate to go as far as that case has gone, in decreeing the benefit of a contract, yet we cannot in this case, which is much stronger, refuse to set the contract aside.” And so the court reversed the decree of the court below, by which relief had been reí used.  