#### NANCY BROWN AND OTHERS *against*WILLIAM CARSON’S EXECUTORS, AND DEVISEE.

In order to correct a deed which is absolute on its face, and to convert it into a security for a debt, it must be alleged and proved that the clause of redemption was omitted by reason of ignorance, mistake, fraud or undue *advantage;*and the intention must be established, by proof not merely of declarations, but of facts, *dehors the deed,*inconsistent with the idea of an absolute purchase.

( The cases *oí Sowell*v. Barrett> *ante,*p, 50, and *Kelly*v *Bryan*6 Ire. Eq. 283, cited and approved.)

James BrowN died intestate, and seised of a tract of land, leaving the plaintiff Nancy bis widow and the other plaintiffs his heirs at law. The personal estate of the said James being insufficient to pay bis debts, his real estate, descended to the plaintiffs, was, in 1833, after regular proceedings had, sold to satisfy executions in the hands of the sheriff; and the land in controversy was, at the sheriff’s sale, bid off by the defendant’s testator, William Carson, who took a deed therefor.

The plaintiffs allege, that before the sale of said land, they had made an arrangement with one Berryhill to raise the necessary funds for the purchase of the same, and that the said Berryhill and James, one of the heirs of said intestate, attended the said sale— Berryhill canying with him some $250 in cash, wherewith to purchase the said land for and on behalf of the widow and children, -the plaintiffs. But the plaintiffs allege, that before the’ sale of the land was made, Carson, the defendant’s testator, (at whose instance the judgment was obtained under which the land was sold,) after understanding from them, the said Berryhill and James Brown, their intention to purchase, and the fact of Berryhill’s having the sum of $250 for that purpose, proposed to them that he, Berryhill, should not bid for the land, and that he, Carson, would buy the same, and would give the widow and children, the plaintiffs, the right to redeem the same when it suited their convenience : and this proposition having been assented to, Carson bid off the land at the price of fifty dollars — the same being worth, as the plaintiffs allege, some six hundred or a thousand dollars. And the plaintiffs expressly charge that the said Carson, under said agreement and understanding bid off said land, and *273that they were to redeem the same, and have a conveyance of the title purchased by him, on their payment of the said sum of fifty dollars and interest. And they further state, that at the time of said sale and ever since, they have lived on the said tract of land and have cultivated the larger portion of *\h&*cleared fields thereof; but that said Carson, shortly after his said purchase, took possession of a part of the same, to wit, some thirty-five or forty acres ; and they allege that out of the profits thereof he has been fully reimbursed and paid the amount of his said bid and ipterest thereon, and, indeed, that on a fair account in this behalf, he is indebted to the plaintiffs.

The plaintiffs further allege, that the said Carson, during his life, always recognized their right to a re-conveyance of the said land, and that on several occasion when they proposed a settlement of the matter, and to lake a deed, he postponed them, but still admitting their right and his said agreement — -saying that they would not suffer any injury, as they were living on the land, and cultivating such parts as they needed ; and they allege that he recognized and admitted their equity in this behalf even to the hour of his death. The prayer is to have defendants, the executors and devisee of said Carson, declared trustees for the plaintiffs — for a conveyance — and an account.

The defendants answer, and admit the purchase by their testator, but being ignorant of the material facts alleged in the bill, hold the plaintiffs to proof thereof. And they rely on the length of time which has elapsed since the alleged agreement was made, upon the statute of frauds, and statute presumption of the abandonment of the right to redeem.

The plaintiffs replied to the answer, -and the parties proceeded to take testimony ; after which, the cause was set for hearing, and by consent, transmitted to the Supreme Court for hearing.

*Boyden,*for the plaintiffs.

*Hutchinson*and Avery, for the defendants.

Battle, J.

The allegations of the plaintiffs, that after their agent, Berryhill, had gone to the sale of th e land in question, having the sum of two hundred and fifty dollars with which to purchase *274the land for them, the defendants’ testator William Carson proposed that Berryhill should not bid off the land, but permit him to bid it off, is not exactly supported by the testimony. Berryhill, in his deposition, states that a short lime before the sale he requested Carson to bid off the land for the benefit of the plaintiffs, and he promised to do so ; that he, witness, afterwards attended the sale, carrying with him the sum of two hundred and fifty dollars for the purpose of buying the land for the plaintiffs, should Carson not comply with his promise ; but upon getting there and seeing Carson bidding, he remained silent. Another statement of the bill is not proved precisely as alleged, the plaintiffs aver that Carson in his lifetime always recognized their right to redeem the land, while thé testimony of the same witness, Berryhill, is that soon after the sale, the plaintiff Nancy asked him if he could let her have the money to redeem the land, and he promised todo so ; that in a short time thereafter she came to him again and told him that Carson had refused to let her redeem it, saying to her that she might perhaps get through it, and it would be safer in his hands than hers, but at the same time assuring her that her daughters should never want a home.

We do not decide the case upon these discrepancies between the allegations and the proofs, though we cannot give the plaintiffs the relief which they ask. The bill, in effect, seeks to correct a deed absolute on its face and to hold it as a.security for a debt. To do this it must be alleged, and of course proved, that the clause of redemption was omitted by reason of ignorance, mistake, fraud or undue advantage ; and the intention must be established, not merely-by proof of declarations, but by proof of facts and circumstances *dehors the deed,*inconsistent with the idea of an absolute purchase. *Sowell*v. *Barrett, ante*50. Now, what facts or circumstances, independent of Carson’s declarations, are proved in this case to show that he purchased the land in question for the plaintiffs, instead of absolutely and unconditionally for himself? None are relied on except the inadequacy of the price paid, which of itself, is insufficient, and the continued and uninterrupted possession by the plaintiff of the dwelling house and such parts of the land as they wished to cultivate, from the time of the sale until the death of Carson. The latter, indeed, would be a circum*275stance of the greatest weight, were it not balanced by the fact that the plaintiff Nancy was entitled to one third part of said land for life as her dower, and that had Carson attempted to remove her and her children from it, she could have prevented it by filing her petition, and having her dower laid off to her. The circumstance of the plaintiffs’, possession is also opposed by the admitted fact, that soon after his purchase Carson took possession of a part of the land and commenced clearing and cultivating it, and so continued to do, up to the time of his death. The possession of the plaintiffs, was not then inconsistent with that of Carson, and the possession of both parties was entirely consistent with the idea of an absolute purchase by Carson for himself.

Under these circumstances we feel constrained to deny to the plaintiffs the relief which they seek, lest by granting it, we should expose titles evidenced by solemn deeds to the *“*slippery memory of witnesses ”. *Kelly*v. *Bryan,*6 Ire. Eq. Rep. 283. Thebill must be dismissed with costs.

Per Cuiixam. Bill dismissed accordingly.