Few would have had such a mem APRIL, 1810. V. Hines. the feelings of the parties. ber in their family for the whole County of Sussex. The land was not only poor, having been sold for 140% though the quantity Whitehorn was 264 acres, but the negroes were young, and an expense. A contract, too, is never set aside for inadequacy, where, by its terms, the property might be regained by the vendor. Besides, inadequacy of price is only regarded in contracts; and this deed is partly a gift in consideration of affection, and partly a contract. 2 Bl. Com. 297. 6. The decree was erroneous in allowing interest on the hire of slaves.(a) George K. Taylor, for the appellees. Mr. Hay's first point, that the bill charges idiocy only, and that therefore nothing else must be proved, is not correct in point of fact. The bill charges "a weakness of understanding which rendered Howell incompetent to regulate his own affairs, and classed him among those who are called idiots." The latter part of this clause is only the amplification and deduction of counsel. But if this were a direct charge of idiocy, is it not competent for a party to prove his allegation as far as he can? Even in criminal cases, the prisoner may be charged expressly with murder, and, yet, circumstances may be proved which subject him to punishment for manslaughter. In Bennett v. Vade, 2 Atk. 325. it was decided, that a bill may be framed with two different aspects, that, if one fails, the other may as effectually answer the purpose. In that case, indeed, the bill was amended, in order to insert the charge of fraud; but, here, fraud is originally charged, without the necessity of any amend ment. 2. It is said there is no legal evidence of Howell's weakness of understanding. But, surely, opinion is the best evidence of a man's state of mind. No other, indeed, can be given. To state instances in which weakness of intellect was discovered, is often difficult and impossible. Opinion must be formed from general observations on the conduct of the party. To what would the doctrine lead, that instances must be specified? A witness may have seen him engaged in an equivocal act which might have been the effect of weakness, or of levity. Would this evidence be as strong as that of a person who had known him from his infancy, and declares an opinion that he was uncommonly weak, and in ca (a) Ante, p Dilliard 183. v. Tomlinson, &c. APRIL, 1810. v. pable of managing his own affairs? The testimony of Robert Jones, sen. proves clearly that Clanton himself was sensible of Howell's Whitehorn want of capacity. This is a very important fact; and Jones's refuHines. sing to prove the deed, for that reason, together with the Court's refusing to admit it to record, from their own knowledge of the weakness of Howell, are also important facts. It is objected that inadequacy of consideration is not charged in the bill; but if the word "inadequacy" be not used, "incompetency" is; which is the same thing. The case then amounts to this; that Howell was and is proved to be a man of extremely weak understanding; that Clanton took him to his house, affecting to be his protector; acquired considerable influence over him, and became, in equity, a trustee; and, instead of protecting, induced him to sign a deed conveying to himself all his estate for a very inadequate consideration: a combination of (a) 2 P.Wms. circumstances fully sufficient to set aside the deed. (a) In Clarkson v. Hanway, it was considered a badge of fraud that Hanway only took a bond to secure the annuity, and not a mortgage. In our case no security at all was taken; but a tract of land and ten negroes were given for the privilege of breathing in this world. Mr. Hay contends that the land was worth only ten shillings per acre, and the negroes were all young and expensive. But, as to the negroes, this is not probable; and, in fact, the report of the Commissioners proves they were profitable; for it shews they were equal to the support of Howell. 203. Clarkson v. Hanway. But Again, it is said that Howell's competency of understanding is proved by his obtaining the bond from his sister! If that act proceeded from Howell it was wonderful indeed! From a man who never before had been out of the County of Sussex! it was, evidently, a mere artifice of Clanton; and Howell was only his instrument; through abundant caution; for, if he had gone out himself he might have been suspected. This bond is relied on as a bar! But if the transaction was fraudulent, shall the person who was guilty of the fraud shelter himself under it? But there is one damning fact which makes this a stronger case than any in the books. The power of revocation inserted in the deed is relied on shewing that no fraud existed in the (6) 2 Atk. transaction. Yet in Bennett v. Vade,(b) a similar power in the deed from Sir John Lee is relied on as evidence of fraud. But what was the power of revocation in Howell's deed? In 326. case of his marriage! A man who was a mere mass of corruption to marry! But, in fact, in less than two years afterwards, Clanton sells the land, and induces this poor ignorant boy to join in a deed! Where then was the habitation for his wife? APRIL, 1810. Whitehoru V. Hines. (4) Cocking v. (c) Duke of Prutt. Hamilton et In Filmer v. Gott,(u) the deed was set aside on account of im(a) 7 Bro. portunity in obtaining it, inadequacy of price, the vendor living Park. Cas-70. alone and having no friend to consult. But whom did Howell consult? The man interested to deceive him. From the death of his mother to the date of this deed, he continued an inmate of Clanton's house, who abused the confidence reposed in him. All the witnesses prove extreme kindness to Howell before the deed, and, afterwards, extreme brutality. Wherever there was a remarkable intimacy, and undue influence, the Court will look with a jealous eye on the transaction, and set aside the deed if there be not perfect reciprocity; as in 1 Vez. 400.(b) where the case was of a parent and child; 1 P. Wms. 118.(c) of undue influence in prospect of marriage; 3 P. Wms. 129.(d) of an heir entrusted to a servant who imposed upon him; (in which Mohun. (d) Osmond v. case it is said that "a breach of trust is, of itself, evidence of Fitzroy, &c. fraud, nay, of the greatest fraud;") 1 P. Wms. 310.(e) of a young v. Griffith. (e) Twisleton heir induced to sell an expectancy at an under rate.(f) So, too, f) See also a bond is not obligatory where its effect was not known to the Paignion, 2 obligor.(g) As to Mr. Hay's sixth point that interest ought not to have (g) 2 Pow. on been allowed on the hire of the slaves; I shall not contend, after Bro. Ch Cas. the decision of this Court, that interest on conjectural profits is Llewellyn. allowable. But there are circumstances in this case which take it out of the general rule. Both sides consented to the report as it stands. Indeed, the Commissioners made no report, but only signed what the parties had agreed too. It is stated on the record (in the final decree) that the defendants not only made no objection, but approved of it. Wirt, on the same side. Admit the fact that Howell was not an idiot; yet weakness of understanding, though not amounting to idiocy, is amply sufficient, when connected with any one of the other circumstances of this case, to set aside the contract. Weakness of intellect alone is not sufficient: but coupled with See on this subject a very comprehensive note of the editor. 3 (Coxe's) P. Wms. (5th edit.) p. 131.; in which the authorities generally are collected. Heathcote V. Bro. Ch. Cas. 167-175. Cont. 203. 2 150. Evana v. APRIL, 1810 V. Hines. any thing else, as inadequacy, fraud, &c. it is. (a) So also inadequacy, per se, is not enough, in general. Yet gross inadequacy Whitehorn is considered as evidence that the mind was under undue influence.(b) But it is not necessary, in this case, to rely on the prin ciple that gross inadequacy, of itself, vitiates the contract; for it (a) While v. Small, Ch. certainly is sufficient to have that effect when combined with Clarkson v. Howell's weakness of intellect, and bodily distress; with his be Hanway, 2 P. Wms. 203. ing just of age at the time; or with Clanton's near relationship. (b) Bro. Ch. and great influence over him; all which circumstances are here Gwynne v. united.(c) Actual fraud, or imposition, in such a case, is not Ch. Cas. 167 necessary to be proved, but may be presumed in a Court of Cas. 103. Cas. 6 8. 9. Heaton. 2 Bro. Paignton 10 But it is said there is a farther consideration for this deed be- 161 Young V 257. Chester 4 Cruise's field v Jans Digest, 25. carries it no further than to brothers, or children of sen, 1 Atk. brothers; which does not extend to a first cousin, or father's 301. 2 Vez 155. S. C. Cole brother's child. But the consideration of blood is a mere nonv. Gibson, 1 Vez. 503. Proof entity, where a deed is drawn from a weak man. v. Hines, Cas. temp.Talb.111. 2 1 Fonb 124. note (b). (e) 1 Bro.Ch. Cas. 1. As to the objection that the charges in the bill are not sufficient (d) Ves. 155. to let in our evidence as to weakness of intellect, inadequacy of consideration, undue influence and fraud; the result of the authorities is, that where there is a single insulated charge, the plaintiffs shall not be permitted to surprise the opposite party, by shifting their ground. But a charge of fraud in general terms is (f)Coop. Eq. sufficient. (f) In Jones v. Jones, 3 Atk. 110. forgery was the single charge in the bill. But here the separate badges of fraud are expressly mentioned; and the bill concludes with a prayer that the deed may be set aside for fraud. pl. 7. Again, it is contended that opinions of witnesses are not admissible evidence to prove weakness of understanding. But as to this point, opinions are the best evidence. Mr. Hay admits that opinions may be given by physicians and artists. So also opinions are admissible as to hand-writing; be cause in such case the witness has had opportunities of forming opinions, which the Court and Jury had not, and which are not susceptible of description. If he should attempt to specify, he would have to state the manner in which the writer cut each particular letter. So, in APRIL, 1810. Whitehorn Hines. Periam cases of weakness, opinions are formed from a variety of circumstances; frequently not so much from active, as passive. If insulated facts were taken as evidence, Sir Isaac Newton might have been convicted of lunacy; for he has been seen to go into company with only one stocking on. To oppose this unfavourable circumstance by other facts, a witness must read his principia. In 2 Atk. 337.(a) it is even doubted whether particular facts (a) Clarke v. can be given in evidence at all. But at length it is held that you may give evidence, both as to general opinion and particular facts, in an issue on non compos mentis. So, witnesses to a will are only called upon to speak of the general state of the testator's mind. The circumstance, that Howell told Mrs. Mason the object of the deed, is no proof of his having capacity to make such a contract as ought to bind him; and does not make the case stronger than that of Gartside v. Isherwood, 1 Bro. Ch. Cas. 560. Great reliance is placed upon his trip to North Carolina, and obtaining the bond from Mary Howell; but, taking that fact with all its circumstances, it is rather a proof of additional fraud practised by Clanton, who must have instigated him to such an uncommon exertion. That Howell acted under Clanton's influence, and did not understand the nature of the bond, is evident; for a condition was introduced into it which made him an instrument of fraud upon himself. Hay, in reply. A cousin is unquestionably within the degrees of consanguinity to raise a use on a covenant to stand seised to uses.(b) (b) Saund on Uses, 436. Fraud is never to be presumed. If all the Chancellors from the time of Adam to this day were to say that it may be presumed, my judgment would still rise in rebellion. 1 Vesey, jun. 20.(c) (c) Lewis v. 2 Com. Dig. 314. and 1 Fonb. 399. shew that fraud is never to be presumed; though, I admit, it may be inferred from circumstances calculated to justify such inference. The clause in the bill charging idiocy, is improperly subdivided by Mr. Tar. The first part of that clause ought to be taken in connection with the last. Idiocy is not the consequence of weakness of understanding; but the converse is true: and say. ing that a man is " classed with idiots" is equivalent to saying that he is an idiot. Pead. |