1810. Harvey V. Pecks. deed drawn, and requested two Justices to attend, because he had OCTOBER, every reason to expect that the bargain would be concluded, from what had already passed; that he offered, at first, 200% which he conceived was a liberal offer, considering that the land had been fairly purchased of the complainants in the year 1745; that he believes that Jacob and Lydia Peck were both sober at the time of executing the last deed, and thinks he may well make this conclusion from the caution used in obtaining the writing, which he the said defendant signed, containing the reservation aforesaid: that another fact would shew a perfect knowledge in the complainants of what they were doing, and had done; viz. that after the last deed was executed, they came to the town of Fincastle, and in the presence of their son John Peck, gave up to the defendant Robert the bonds taken at the time of the purchase, and took fresh bonds with other security; and that neither they nor their son then uttered any complaint about the said purchase; nor did the latter pretend any claim to the land. The answer concluded with an averment that, if the decree of the Court should be adverse to the defendants, they had not land enough, belonging to the reservation made by Benjamin Borden, the elder, out of which to make the allotment required by the complainants. The testimony taken in the cause was very voluminous. The depositions of Peter Holm, and Hannah, his wife, (who was a daughter of the plaintiffs,) were positive in proving the fraud charged in the bill to have been committed by Harvey, and the intoxication of the plaintiffs by his procurement. The magistrates, Walker and Anderson, did not think the plaintiffs were intoxicated at the time of the contract, but mentioned that liquor had been procured. Walker swore that, before the business was closed, Mrs. Holm was told to make some toddy; and the cup was passed twice, as well as he remembered. Anderson recollected seeing Peck and his wife drink some liquor at the time the deed was executed; but did not remember whether it was or was not, mixed with water; (though he thought it was;) nor whether Mrs. Peck drank or not before the bargain was concluded: during his stay there, he thought she drank lightly. They both conceived her to have been in her senses when they took her relinquishment. The characters of these two gentlemen were proved to be highly respectable. Sundry depositions were also taken with the view of discrediting Peter Holm and wife; 1810. Harvey V. Pecks. OCTOBER, from which (as well as from her own deposition) it appeared that she was induced by a promise of reward from Harvey to assist him in making the old people drunk, and persuading them to make the bargain; but nothing was proved against Peter Holm's credibility, except that he was occasionally subject to habits of intoxication. The value of the land was proved to be 2,500% or 3,000%. in the year 1797; the age of Jacob Peck was about one hundred years, and that of Lydia upwards of eighty; and both were very illiterate as well as poor. The witnesses differed, in opinion concerning their capacity to make contracts; but the evidence was strong as to the mental imbecility and dotage of Jacob Peck. No evidence appeared to impugn the deed, dated in 1745, except the circumstances herein before expressed. The allegation in the answer, relative to the subsequent exchange of other bonds for those at first given by Harvey, was in substance pro ved. The suit, having abated by the deaths of the plaintiffs, was revived on behalf of their children; and, on the 26th of November, 1804, came on to be heard by the Judge of the Superior Court of Chancery for the Staunton District, who decreed "that the plaintiffs repay to the defendant, Robert Harvey, the sum of 18. with legal interest thereon from the 27th of May, 1797, and restore to him the bonds given for the balance of the purchasemoney; that the said defendant deliver up both the deeds in question to be cancelled, and moreover reconvey to the plaintiffs any title which he and the other defendant had acquired, by either of the said deeds, to the lands in the bill mentioned, and pay the plaintiffs the costs of this suit; that certain Commissioners, appointed for that purpose, do ascertain and report to the Court the situation of such lands of Benjamin Borden, the elder, as will best answer the description of those devised by him to his five daughters, and whether sufficient of such remain undisposed of to satisfy the claim of the plaintiffs, as representatives of Lydia Peck, if not, who are in possession of said lands, and by what title they hold them. From this decree the defendants appealed. Peyton Randolph and Call, for the appellants. Wickham and Wirt, for the appellees. So much of the argument in this cause as related to the evidence need not be inserted. The points in law made on either side were the following: 1. With respect to the deed in 1745, it was contended on the part of the appellants, that no objection on the ground of fraud being established; and the price given by Benjamin Borden, the younger, not being inadequate, if estimated at that time when the land was in possession of the Indians; the attempt of the appellees to set aside the last deed was not founded in morality and justice. The Court of Equity, therefore, having a discretionary power to give or withhold its aid in such cases, ought not to interfere in their favour; especially considering the acquiescence of the plaintiffs during the great length of time which had elapsed since the date of the first deed. In answer to this, the circumstances, under which that deed was given, the authority and command which Benjamin Borden derived from his seniority, executorial office and resources, over the ignorance, confidence, poverty, and dependence of the original plaintiffs, the great advantage which his superior knowledge of the language, the country, its manners and laws, gave him in a bargain with an illiterate foreigner, were relied upon as powerful objections. The price too was prima facie inadequate; being only thirty pounds for one thousand acres of good land! for it does not appear in evidence, that the country was in the hands of the Indians. The defendant himself does not affirm it positively, but only (by recitation) speaks of his impressions and convictions. Another suspicious circumstance is, that the names of Jacob and Lydia Peck are signed to the first deed; but their marks to the last. If the deed to Borden, therefore, had any effect at all; it comes in such a shape, as not to be permitted to stand before a Court of Equity and good conscience. But, in fact, it is a mere nullity as to Lydia Peck; she being a married woman; and her privy examination and relinquishment not having been taken. There is not a circumstance to shew any equitable or moral obligation upon her to execute that deed; and *Note. It was proved that Jacob Peck could write; but not that Lydia could. OCTOBER, 1810. Harvey Pecks. 1810. Harvey V. Peeks. OCTOBER, it must be presumed to have been under the coercion of her husband, without direct evidence to the contrary. Indeed, it may be denied that she ever signed it at all; for the probate of a deed said to have been executed by a married woman, without privy examination, is entirely extrajudicial, and proves nothing against her; since, at common law, (independent of our act of Assembly directing the mode of taking her relinquishment,) every deed from a married woman is void. From fucob Peck himself, the deed passed nothing, because he was then an alien, as is proved by his subsequent bond to make a farther conveyance. An alien can purchase land, but cannot hold; and can acquire nothing by act of law. The length of time is no objection to the claim of the appellees; being repelled by the coverture of Lydia Peck, under whom the present plaintiffs claim ab initio. Besides, the limitation is not pleaded; nor is staleness of the demand insisted on either by plea, or answer; which is indispensable, that the other party may have an opportunity of accounting for it by a replication: for this (a) Aggas v. reason, it will not do to make the objection by demurrer;(a) much Pickerell, less by argument. Atk. 226. 3 In reply, it was contended that, as to Jacob Peck, (though an alien,) the deed was not void, (even if the land did not pass by it,) but was binding, on his heirs, by his covenant to warrant the (b) 2 Bl. 302. title; and this whether they received real assets, or not.(b) The (c) 1 Rev. act of 1785, c. 67.(c) does not affect this case; being altogether Code, c. 13. prospective in its operatión. (d) Edit of But the act of 1766, c, 20.(d) confirmed the deed, and gave 1769, p. 479. it full effect as a conveyance. The charge of fraud is repelled by Peck's deliberately, on the 19th of May, 1747, confirming the contract made in 1745, by giving a title-bond; and the penalty of that bond, being only seventy pounds, evinces that the price of the land, at thirty pounds, was not considered inadequate by either party. 2. As to the last deed, the evidence was contradictory with respect to the imbecility of the plaintiffs, and other circumstances. The Chancellor should therefore have directed an issue to ascertain the disputed facts. The Counsel for the appellees observed, contra, that this was 1810. Harvey Pecks not necessary, where the weight of evidence clearly prepondera- OCTOBER, ted on one side, as it did here. The deed to Harvey was plainly obtained by fraud; 1st. From the gross inadequacy of price; the right of Jacob Peck to the land being at that time no more than equal to one year's purchase, in consequence of his extreme old age; and Mrs. Peck's title being almost a fee-simple in possession of a tract of land worth 2,500% or 3,000%; which Harvey well knew; for the Court of Appeals in the case of Harvey and Wife v, Borden, 2 Wash. 156. had, in the fall term of the year 1795, decided the great question; and he was apprized that, when facob Peck died, he must give up the land. To this circumstance must be ascribed his sudden transition to pretended affection and kindness, after neglecting the old people, in the depth and bitterness of poverty, for so many years, his great anxiety, and urgent persuasions, and contrivances to induce them to conclude the bargain. In support of this point, as to the effect of gross inadequacy of price, they cited Grotius, b. 2. c. 12. Puffendorf, b. 5. c. 3. s. 9. Codex Juris Civilis, lib. 4. tit. 1. Pothier on Obl. p. 34. s. 25. 2 Bro. Ch. Cases, 177. note, Horne v. Meers. 7 Bro. Parl. Cases, 70. Filmer v. Gott. 2 Vesey, 549. Chesterfield v. Janssen. 1 Bro. Ch. Cases, 6-9. Gwynne v. Heaton. 2 Bro. Ch. Cases, 167. Heathcote v. Paignon. 10 Vesey, jun. 209. Underhill v. Horwood. 3 P. Wmns. 315. Pusey v. Desbouvrie. 2dly. The weakness of intellect of Peck and wife, if not in itself, yet coupled with the inadequacy of consideration, was clearly sufficient to vitiate the deed. (a) (a) 2 Ch. Cae, 103. White ma v. Small. 2 P. 203 Hanway. 2 nett v. Vade. 1 3dly. The previous preparation of the deed and commission to take Mrs. Peck's relinquishment was another badge of fraud.(b) It is not the usual course, where people deal upon equal terms, Clarkson V. to prepare the deed before the contract. This is therefore a strong Atk. 324. Bencircumstance shewing Harvey's settled determination to get it Bro. Ch. Cas. signed at all events; and a pregnant proof of his own impressions as to the condition of the persons with whom he had to deal. 4thly. Scrupulous concealment of the negotiation from the only habitual counsellors of the old people, their sons; and, 5thly. The false recital in the preamble of the deed that Jacob and Lydia Peck had conveyed the land by the deed of 1745, and that the new contract proceeded from their discontent, (occasioned by the rise in the value of the land,) and from Harvey's gene 560 Gartside v. Isherwood. (b) 2 Ch. Ca8e8,103. White V. Small. |