#### *Fitzhugh’s Ex’ors v. Fitzhugh.

April Term, 1854,

Richmond.

1. Deed of Trust upon Slaves—When Equity Will Refuse to Enforce—Case at Bar.—Money lent by a bachelor uncle to his nephew, to secure which a deed of trust upon slaves was executed, was held under the circumstances to have "been forgiven and released by the uncle to the nephew, so that a court of equity would refuse to enforce the trust at the suit of the executors of the uncle.

2. Appellate Practice—Issue Out of Chancery—No Exception to Verdict—Effect.*—Upon an Issue directed out of chancery, the verdict of the jury is conclusive, where there is no exception spreading the facts proved upon the record.

This was a suit in the Circuit court of Fauquier county, instituted in 1844 by the executors of Thomas Fitzhugh against Dudley Fitzhugh, to enforce a deed of trust executed by the latter in September 1823, to secure two debts amounting to eleven hundred and fifty dollars due to Thomas Fitzhugh. The bill sets out the deed and alleges that no part of the debt had been paid. It alleges that one of the executors of Thomas Fitzhugh is the trustee in the deed and interested in his estate, and therefore cannot sell under the deed; and that the plaintiffs do not know what number of slaves embraced in it are still in the possession of the defendant. They therefore ask for a discovery of the slaves in the possession of the defendant; that they may be sold and the proceeds applied to the payment of the debt; that there may be a personal decree against the defendant for any residue of the debt, and for general relief.

Dudley Fitzhugh answered the bill. He admits the execution of the deed of trust, but denies that the whole or any part of the sums of money mentidned therein, .was due to Thomas Fitzhugh at his death. *He states that when the said sums of money were obtained by him, Thomas Fitzhugh had no intention of exacting their payment. That the sum of seven hundred and fifty dollars was obtained on the 10th of March 1819, the sum of four hundred dollars on the 20th of August 1823, and no note or memorandum in writing was executed or required to be executed, as a testimonial of the debts; and it was not until the 22d of September 1823, that the defendant, finding his pecuniary condition embarrassed, volunteered, without the knowledge of Thomas Fitzhugh, to execute and put upon record the said deed. He avers that Thomas Fitzhugh never .in fact accepted the deed, nor regarded the same as a valid security for the repayment of the sums of money aforesaid. That the deed embraced all the slaves owned by the defendant; and some time after its execution, the pressure of the defendant’s pecuniary difficulties compelled him to raise large sums of money, which he effected by sales of certain of these slaves: and he names eight slaves that he had sold, and the prices amounting to three thousand two hundred and ten dollars. All of which sales were made, as he alleges, with the privity and knowledge of Thomas Fitzhugh. That the purchaser required that Thomas Fitzhugh should be applied to and advised of the intended sales; and on every occasion he disclaimed any right orinterest in the deed of trust or the propert3 therein mentioned. That in this way repeated sales of the said property were made, until there only remained an old mar, an old woman and a small girl, whose iggregate value does not exceed four hurdred and fifty dollars. That defendant eerily believes that when the said sums of money were advanced, Thomas Fitzhugt had no intention of exacting their repaynent, but intended the same as gifts. But however this may be, that after the said sums of money were advanced and tie deed of trust executed, *the defendant rendered to said Thomas Fitzhugh, through a series of years, valuable services, which were regarded and accepted by him as full satisfaction for said sums of money, or furnished a motive for tie donation thereof, so that in any view at his death no debt existed against the defendant on account thereof. That Thomas Fitzhugh was possessed of a very large state, was unmarried and without childi'ei, was one of a very numerous family, lhed to an advanced age, and many of his heirs and distributees were scattered in disiant states, and personally unknown to him. That his property consisted chiefly of linds and slaves, divided into four distinct establishments, upon neither of which didhe employ an overseer. The defendant was his nephew, lived within a short distance of his residence; enjoyed his confidence and affection; and for many 3*ears lefore his death, when he had become incapable of active exertion, was in the daily piactice of rendering assistance in the maragement of his affairs. Had an account beer kept of these services, at a moderate vahe, they would have greatly exceeded the demand now sought to he established against the defendant; and if it shall become necessary for his protection, he prays that an account of his said services may be taken, md the *105value thereof set off against the demand of the plaintiffs.

The deed of trust referred to in the bill and answer bears date the 22d day of September 1823, and x'ecites that the grantor, Dudley Fitzhugh, is indebted to Thomas Fitzhugh in the sum of one thousand one hundred dollars, with interest on seven hundred and fifty dollars, a part thereof, from the 10th day of August 1819, and with interest on four hundred dollars, the residue thereof, from the 20th of August 1823. It provided for the execution of the trust at any time after the 1st of January 1824, if the money *was not paid by that time: and it was executed by the grantor, the cestui que trust and the trustee, and was recorded upon their acknowledgment in the clerk’s office o f the County court of Fauquier.

The defendant examined two witnesses, both of them nephews of the testator of the plaintiffs. One of them, Thomas H. Fitzhugh, stated, that he had a conversation with the testator some four or five years before his death, in relation to the deed of trust. The witness had gone over to Thomas Filzhugh’s, at the instance of the defendant, to obtain his permission to sell three of these slaves. When he named the object of his visit, Thomas Fitzhugh, contrary to witness’s expectations, readily acquiesced, merely remarking that he was sorry defendant’s necessities were such as to require the course; that in so doing he was depriving himself and wife of all means of support when it was in his power so well to avoid it, and keep his negroes. It was true he said Dudley had executed this deed, but that he (Thomas Fitzhugh) never claimed or expected any benefit therefrom. In fact in all his conversation he throughout clearly expressed himself as having no claim to the property specified in the deed of trust. And he remarked that he had permitted Dudley' to sell all that were worth anything. In answer to a question whether in his conversations with the testator he seemed to regard the defendant as his debtor for the amounts advanced to him, or did he treat the money as a gift: He answered, that he always understood it as a gift. The other witness stated that in a conversation with Thomas Fitzhugh he mentioned that the money' was given to Dudley Fitzhugh, and he never expected anything but his services as compensation. The last conversation passed a short time before his death at his own house.

It was proved that Thomas Fitzhugh died at an advanced age, probably over eighty years. He was an *old bachelor, lived entirely alone, about ihrce miles from the residence of the defendant. That he was very wealthy, having four large estates; and had not kept an overseer for twenty-five years. That the defendant was often called upon by him for his assistance in the adjustment of his accounts, and frequently in regard to other matters concerning his business ; and that he was a favorite nephew.

When the cause came on to be heard the court directed an issue to be made up between the parties, and tried by' a jury to be impaneled before the court, on the law side thereof, to ascertain: 1st. Whether the defendant rendered any services to the testator of the plaintiffs, at any time between the 22d day of September 1823 and his death. 2d. How much the defendant deserved to have for such services, if any were rendered.

Upon the trial of the issues, the jury found that the defendant had rendered services to the testator of the plaintiff within the time specified: And that he deserved to have for such services one hundred and fifty dollars per annum from the 22d of September 1823 until the death of the testator in November 1843, with interest thereon from the end of each year respectively. And the court being satisfied with the verdict, directed it to be certified to the chancery side of the court. The plaintiffs tthed various exceptions to the issue directed, and ihe proceedings under it; but none of them have reference to the correctness of the verdict upon the evidence.

After the verdict was certified to the chancery court, another witness was examined by' the defendant, by whom it was proved that Thomas Fitzhugh recognized his obligations to the defendant for services he had rendered and was rendering to him, equal and more than equal to the money advanced to him.

The cause came on to be finally heard in October *1847, when the court below, being of opinion that if was the understanding of the defendant and the testator of the plaintiffs, that the services rendered by the former to the latter should be a satisfaction of the sums advanced from time to time, and mentioned in the deed of trust; that those services were continued up to the time of the death of the testator; and the jury having found that they' were more than adequate to the satisfaction of the demand set up by plaintiffs, decreed that the bill be dismissed with costs. And the plaintiffs thereupon applied to this court for an appeal, which was allowed.

Patton, for the appellants.

Morson, for the appellee.

*

Appellate Practice—issue Out of Chancery—No Exception to Verdict—Effect.—For the proposition laid down in the second headnote of the principal case, see *foot-note*to Lee v. Boak, 11 Gratt. 182.

See also, Lamberts v. Cooper, 29 Gratt. 65, and *note:*Ayres v. Robins, 30 Gratt. 119, both citing the principal case. Upon the subject of Issue Out of Chancery, see monographic *note*on "Issue Out of Chancery” appended to Lavell v. Gold, 25 Gratt. 473; Barton's Chancery Practice, vol. 2 (2d Ed.), p. 887 et seq.; Enc. of Pleading and Practice, vol. 11, p. 599.

ALLEN, P.

This case is one of the first impression in this court, and I have had some difficulty in arriving at any conclusion satisfactory to my own mind. „ The difficulty has been somewhat increased) by the conflicting pretensions relied on by the appellee to defeat the claim. The allegations of the answer that the testator had no intention of exacting payment when the money was advanced, and that the appellee without his knowledge executed the deed of trust and spread it upon record, are refuted by an exhibition of the deed itself. From that, as it appears in the record, it seems that the deed was actually execxxted by all the parties, inclxiding the testator, and recorded upon their acknowledgment. The *106debt must therefore have been considered as an actual debt at that time, and the deed accepted as a security for it. And as to the claim that the debt was actually paid by the services rendered to his uncle by the nephew: No account for them seems ever to have been kept or charge made for them; and although they may with other considerations have operated on the creditor in *inducing him to forgive the debt, I do not think the evidence shows that either party treated those services in the light of business transactions entering into the accounts of the parties.

I think, however, in view of all the circumstances of this case, and the relation in which the parties stood towards each other, enough appears to show that if the debt has not been actually released, yet that the creditor in favor of his debtor, has himself treated it as released, or in the language of the books, dead in point of effect. That whether the uncle contemplated a gift or not when the deed was executed, or united in the transaction not with the intention of exacting payment of the money really advanced, but to protect the property of the nephew from other claims, it is, I think, manifest that long before his death he treated this debt as released and forgiven. In the case of Wekett & ux. v. Raby, 2 Bro. Par. Ca. 386, the circumstances were not as strong. There the deceased on his death bed desired his executrix and residuary legatee not to trouble his debtor for a bond debt, saying that he did not deliver up the bond, for he might want it more than the debtor, but when he died the debtor should have it; he should not be asked or troubled for it. The debtor had been counsel for the creditor, but a dispute had occurred between them when the bond was executed, and they had not been friendly thereafter. Bord Macclesfield decreed that the bond should be surrendered to be canceled and satisfaction acknowledged; and his decree, upon appeal to the house of lords, was affirmed.

In the recent case of Flower v. Martin, 2 Milne & Craig 459, 14 Cond. Eng. Ch. R. 459, the case of Wekett & ux. v. Raby was approved and followed. In the last case a father had taken a bond from the son for advances under circumstances which induced the court to believe he did not intend to exact payment, *or to hold it as a security to be put in force against his son for the benefit of his estate, but rather as a check upon his future conduct. In these and other cases referred to in 2 Story’s Fq. Jur. § 705 a, 706, 706 a, the debt was secured by bond or note, and its existence as a valid claim was undisputed. In the leading case of Wekett v. Raby it was regarded and treated by the creditor as a subsisting debt, which he, at the time of making the declarations on his death bed, had still a right to enforce; but not intending that it should be regarded as a debt due from his debtor to his estate, and to be put in force accordingly, the court gave relief. In the case before us, the uncle was a bachelor of advanced age, and owning a large estate, the nephew resided near him, was a favorite nephew, and apparently poor and embarrassed with debt. When the money was advanced, no note or bond seems to have been required or given, and the deed of trust contains no covenant to pay the debt. More than twenty years elapsed between the execution of the trust deed and the uncle’s death. During all this time no demand was made for payment. The only evidence we have that the deed was, regarded as a subsisting security b3^ anybody, arises out of the fact, that the debtor being desirous of selling some of the slaves for his own benefit, applied to the uncle for his permission to do so. It was readily given until the security was nearly exhausted, it being shown by the proof that sales were made from time to time, and the answer averring that nearly all the slaves were so disposed of, and but three, not exceeding four hundred and fifty dollars in value, remained unsold. When applied to for his permission, the uncle declared that he never claimed or expected any benefit from the deed, and that he had permitted his nephew to sell all the slaves of any value. The fact that he did assent to such sales until the security was nearly exhausted, *proves the truth of his declaration that he did not claim any benefit from the deed, the only security or evidence of debt he held. In addition to this the uncle, on another occasion, is proved to have observed to another nephew, who was desirous of borrowing money from him, that the services of the appellee were equal and more than equal in value to him, to the money advanced.

The fact, that services through a long course of years were rendered, is placed beyond doubt by the verdict of the jury upon the issues directed in the cause. There being no exception spreading the facts upon the record, we must take it that they justified the finding of the jury. They find that the appellee rendered such services from the date of the deed in September 1823 to the death of the uncle in November 1843; and estimate their value at one hundred and fifty dollars per annum through the whole period. Without regarding these services in the light of payments or legal offsets, the fact that they were rendered, that they were regarded by the creditor as valuable, equal according to .his declarations to the money advanced, is a circumstance tending strongly to confirm the conviction produced by all the other circumstances, that the uncle regarded the debt released and forgiven to his debtor. Such services furnished an additional inducement for the uncle so to regard the debt. It is a circumstance not appearing in the cases referred to, and makes this a much stronger case for relief than any of them. Taking into consideration the relationship between the parties; the fact that the appellee was a favorite nephew; the omission of the creditor to assert any claim under the deed during his life time, though he lived twenty *107years after it execution ; the sales from time to time, with his knowledge and consent, for the debtor’s benefit, of nearly all the slaves conveyed; his declaration that he *claimed no benefit from the deed; his admissions that the services of his nephew to him were equal in value to the money advanced; the fact established by the verdict of the jury, that valuable services were rendered, extending over the whole period intervening between the deed and the death of the creditor; I feel satisfied. that looking at this transaction as one exclusively between a creditor and his debtor, it was the intention of the former to treat the debt as forgiven and released to the debtor. I think, therefore, it is a case in which a court of equity might properly stay its hand, and refuse its assistance to the executors of the creditor seeking its aid to enforce this deed for the benefit of their testator’s estate.

I am for affirming the decree.

The other judges concurred in the opinion of Allen, J.

Decree affirmed.