#### Noah R. Reeves, and others, *vs.*John G. Gantt.

Bill by the representatives of R. T. to set aside conveyance of all hisland and negroes by R. T. to J. on the ground of mental incapacity and imposition. R. T. was eighty years old at the time of the conveyance, and the consideration consisted principally of notes given by R. T. to J. 6. from year to year, for store accounts for goods purchased by R. TVs negroes. Bill dismissed, there being no sufficient evidence, under the circumstances, of fraud or mental incapacity.

BEFORE JOHNSTON, CH., AT ANDERSON, JUNE 1855.

The circuit decree states every thing necessary to a full understanding of the case, and is as follows:

JoiiNSTON, Ch. This is a bill by the administrators of one Ilenly Trussell, to set aside conveyances made by him of his land and negroes to the defendant, 'on the ground of mental incapacity and imposition.

Trussell was, at the time, about eighty year’s of age. He had been active in his young days, of business habits, industrious, frugal and somewhat prosperous, and had acquired a 'small tract of land of about one hundred and forty acres, and five slaves. Until ten or fifteen years before his conveyances to Gantt, he had made good crops, had enough about him for his plain habits, and sometimes was able to loan money.

But with advancing years, necessarily attended with abatement of activity, his crops and income became less. Still, having, however, neither wife nor child, living on his plantation with his negroes, he continued, as long as he could get about, or exert a control over them, to keep nearly,even with the world.

But in 1847, he was crippled by a fall from his horse, and from that time was seldom able to leave home, and used a staff or crutch when out of doors, and perhaps within the house.

He was always very indulgent to his slaves. After having become enfeebled by age and infirmity, he allowed them to do *14pretty much as they pleased. He gave them many liberties, allowed them to take up goods, liquor, groceries, &c., both for use and sale; and the consequence was, as uniform experience proves in every like case, they idled away their time, dressed extravagantly, and laid the sure foundation of their master’s ruin, and of their own sale into other hands.

In 1840 he opened an account with the defendant, a small shop-keeper and grog-seller, about a mile from his house. The amount taken up was a mere trifle that year; but, year by year, the annual expenditures increased, little by little, until about the year 1846, from which time it grew rapidly till 1851. lie paid but little on the yearly accounts, but closed them punctually by note. His habit was to include in the accounts what the negroes took up. Indeed, it is in proof that in another neighboring store, he gave orders that they should get whatever they called for, and he would pay for it; and so, we may presume,- he did with Gantt, for though we have no explicit proof of such order in his case, the uniformity with which he settled, by note, the accounts, in which their large dealings were included, is strong evidence that their dealings were made with his permission.

From the year 1847, he avoided the annoyance of giving special orders,.-giving them passports, to trade, and (in the instance of the other store-keeper, Mattison) gave an unlimited written order, pledging his own credit for payment.

Not only did he take up articles in this way from Gantt, but in many instances he sent him persons holding small demands on him, such as due bills, to ask him to take them up.

In this jray he went on from year to year, until on the 14th of March, 1851, he was indebted to him, (including interest on his notes) in the sum of two thousand four hundred and eighty-three dollars and fifteen cents.

Mattison had by this time sued him on a note which he held for upwards of three hundred dollars, and was on the eve of *15obtaining judgment, which he in fact did at the spring court of that year.

So the note to Gantt (of two thousand four hundred and eighty-three dollars and fifteen cents) was taken by way of anticipating Mattison, and on the day it was given, Trussell' signed a confession upon it, with the intention to give Gantt a preference — Trussell being provoked that Mattison had sued him.

But, before Gantt’s judgment was entered up, a different arrangement was made between him and his debtor, by which the land, (one hundred and forty acres) and five slaves of the latter (Charity, an old woman; Sarah, a girl twelve or thirteen years of age; Maria, a wench about thirty-two or thirty-five years; Strother, a deaf and dumb boy, from eight to ten years, and Louisa, about fifteen or sixteen years old) were sold to Gantt for two thousand six hundred dollars. This bargain was perfected the 20th March, 1851. On that day Trussell conveyed the property to Gantt, and Gantt gave him his note for the excess of the price above his demand on Trussell.

Mattison upon obtaining his judgment, contested the conveyances as colorable, and levied on the land. It was sold under his execution, and Gantt forbade the sale. As a consequence it sold for a trifle, and Mattison bought it at fifteen dollars. He then took Trussell with a *ca. sa.*Trussell rendered a schedule, on oath, including some trifles, among which was Gantt’s note (of about one hundred and fourteen dollars) given on the sale made to him; but excluding the land and negroes he had sold to Gantt.

Mattison contested the schedule. But while the litigation in relation to it was going on, an arrangement was made between himself and Gantt, by which Trussell was released. By this arrangement, Gantt bought up and took an assignment of Mattison’s judgment, and Mattison conveyed to him (by quit claim) the land he had bought. The Sheriff’s deed to Mattison bears date the 2nd of June, 1851, and Mattison’s deed to *16Gantt, (as also the assignment of bis judgment) is dated tbe 5th January, 1852.

Trussell went back to bis old place, where be remained until bis death, which occurred the 29th March, 1854.

The plaintiffs administered on his estate, and Gantt fearing their interference with the slaves, removed them to his own house.

The bill was thereupon filed the 8th May, 1854. •

Having given a rapid sketch of the circumstances of the case, I shall leave most of the particulars to be gathered from the pleadings and the proofs offered at the hearing.

In this case it is hardly necessary to say, tire land is out of the question. The conveyance of Mattison forms a good title to it, whether the arrangement between Gantt and Trussell was intended to defraud that creditor or not.

If such fraud was intended, the parties to it were equally guilty, and the settled practice is that neither of them (nor, of course, their privies) is entitled to relief as against his confederate.

If there was no such fraud, but it is insisted that Gantt defrauded Trussell, (irrespective of Mattison) then as to this real estate, relief is due, not to the administrators, but to the dis-tributees of Trussell, who are not parties.

The only real points of the case, relate to the slaves.

The allegation is, that Trussell was by mental imbecility, incapacitated to make the conveyances, and that imposition and undue influence was practised upon him by Gantt, either directly or through the negroes.

If there was fraud and imposition in the accounts, or undue influence, there is no trace of it in the evidence. There is no proof of a single act which Gantt,-directly or indirectly induced him to do, or prevented him from doing. And this observation may be applied to the conveyances, as well as the dealings which preceded them.

If there was fraud in the accounts, these were confirmed, *17and tbe fraud was waived again and again, and year by year, by Trussell in giving bis notes. Then the consolidated note of March 14,1851, was another waiver, the confession was another, and lastly, the conveyance was. a final and conclusive waiver* Then again, the conveyance itself was affirmed, on oath, by Trussell’s schedule. He never complained till the day of his death, but acquiesced for three years in perfect silence. Are not his personal representatives equally concluded with himself?

My observations are only applicable if he had capacity. Put there is almost an uninterrupted current of witnesses to establish his capacity. There is a difference among the witnesses as to the adequacy of the price paid by Gantt, but the inadequacy is not such'(taking the highest estimates) as to infer fraud. And taking all the testimony together, especially considering the great preponderance of proof as to capacity, there is nothing to justify the invasion by this court of the contract of the parties.

There was, indeed, one view taken by counsel, behind all their dealings: — which, if it can be sustained, must overthrow every act done by Trussell. Not only his conveyance and its after confirmation by him, but every act by which he affirmed the accounts of Gantt, all must fall to the ground, if this view be correct, because it exhibits Trussell in the light of a perfect idiot, from first to last.

It was argued for example, that the man who would give an unlimited order, to let his negroes have whatever they wanted, thus making himself responsible for whatever their undisciplined tastes and habits might covet, cannot possibly have been any thing else than a downright fool, and utterly incapable of business. Of course, if this is so, then all the confirmations in the world, must be unavailing, because the confirmations themselves, are but the acts of the same incapable person, and no more binding than the original contracts.

A close examination of the accounts would tend much, if *18this were a common case, to sustain the view so energetically urged by Mr. Peed, one of the plaintiffs’ solicitors.

There is no doubt that no ordinary man, not precisely in Trussell’s situation, would have allowed such dealings, inevitably leading to his impoverishment. An ordinary man would have relieved himself, as early as 1840, from the expense and annoyance of these negroes, by selling them outright.

But Trussell’s case was peculiar : he never had any family, or domestic companions, but these slaves. His increasing age served but to render them more necessary to his happiness. He was indulgent. He loved them ; and the only aim of his remaining years was to make them happy, and to place them in the hands of some one likely to prove a kind master to them after he was gone. He declared that he did not value his property, that he did not wish his kindred the “ Kays,” to have it; that Gantt had been kind to him, and he owed him a good deal, and not wishing to separate his negroes, he intended to let him have them. Gantt was represented to be very indulgent to slaves. Here are exhibited at once all the grounds on which Trussell, as a reasonable man, may have proceeded. The unlimited discretion allowed to his negroes in taking up articles, was only to make them happy. Trussell had but a small remnant of his life before him, and if his property should expire with his life, what then ? It could only go to Gantt, his kind friend, who would thus become the kind master of his slaves. All this is supported by evidence, and though it proves Trussell an over fond master, perhaps an imprudent man, it does not, (nor can it, unless imprudence and incapacity are the same thing, whereas they are quite distinct) prove him incapable.

I shall dismiss the bill, but I do not think this a case for costs.

It is ordered that the bill be dismissed. Each party to pay his own costs.

*19The complainants appealed and moved this Court to reverse the decree, on the grounds :

1. Because it is respectfully submitted that his Honor overlooked the fact that the complainants are heirs at law, as well as administrators of Henly Trussell, *deceased;*and that all the heirs at law of the said Trussell, were parties, plaintiffs or defendants.

2. Because, the proof, together with the circumstances of the case, it is repeetfully submitted, show clearly, that Henly Trussell was wholly incompetent to transact his own affairs, and that he was in every respect a fit subject to be over-reached and defrauded, by the artful and designing.

8. Because the proof of age, infirmity and imbecility, on the part of the said Henly Trussell, connected with the undue influence and imposition of the defendant, John G. Gantt, exercised over him through the corrupt and corrupting agency, of his own slaves, made a case utterly abhorrent to the pure morality, and refined justice of this Court, and one that demanded that the several transactions between the parties, from 1847, to the death of Trussell, should have been set aside, as fraudulent and void.

4. Because it is respectfully submitted, that the express proof of the physical infirmity and mental imbecility of Henly Trussell, of itself, showed, that he was peculiarly a fit subject for the corrupt purposes of the fraudulent and designing shopkeeper ; although from his bed-ridden and lonely life for many years, it was impossible to prove directly, to the full extent, what the circumstance placed beyond a *doubt*— his *utter incapacity*to manage his own affairs, or take care of himself from 1847 to his death.

5. Because the exhibits filed with the answers of the defendant, Gantt, designed to show the course of dealing between *20himself and- the said Henly Trussell, and setting out the pretended consideration for which he purchased Trussell’s land and slaves, of themselves, and without any other or sustaining proof, show alike, the total incapacity of -Trussell, and the base and corrupting fraud practised upon him by the defendant Grantt.

6. Because it is respectfully submitted, that either mental incapacity, or fraud and undue influence, may be shown in a Court of Equity, where justice is administered under the dictates of an upright conscience, in conformity to the rules of law, as well by acts and circumstances, as by direct proof, and that this is a case in which both are conclusively made out, without the necessity of direct proof, from the mouths of witnesses.

7. Because the inadequacy of price at which the property .was sold, and the fact that it was permitted to remain in Trussell’s possession until his death, together with the character of the pretended consideration, and the imbecility of Trussell, make this a clear case of imposition and fraud on the part of the defendant Grantt; and complainants, it is respectfully submitted, should have had a decree accordingly.

8. Because the said Trussell was over-reached and defrauded by the defendant Gantt, in the pretended purchase of his property, in this, that he did not in fact pay for the same, by several hundred dollars, the sum which he pretends to have paid, as shown by his own exhibits.

9. Because the accounts of the defendant Gantt, were made alone by the negroes of Trussell,' without his knowledge or consent, so far as appears in the proof, and in closing said accounts, whenever requested, by notes, he showed, it is respectfully submitted, not only a weakness and imbecility suflicient in equity, to avoid all such transactions, but to establish his total alienation of mind.

*2110. Because the items of accounts were purchased, if at all, entirely by the negroes of Trussell, without either the verbal or written permit of the owner, and said purchases were illegal, in direct violation of the criminal laws of the State, against the public policy, corrupting in the highest degree to the slaves of the country, and were severally a fraud upon the owner and the laws of the land, and therefore transactions resting upon such consideration and excuse, cannot be sustained in equity and justice, but demands the reprobation and correction of this Court.

11. Because the note given, and conveyance made by Trus-sell on the 20th day of March, 1851, of his entire property to the defendant Gantt, for so inadequate, illegal and worthless a consideration as the defendant relies on, considering his age, and entirely helpless condition, furnishes, it is respectfully submitted, instead of evidence to sustain the transaction, the most conclusive proof of his utter inability to understand or transact the ordinary affairs of life, and therefore, that he was over-reached and defrauded in the said conveyance.

12. Because even if the land was beyond recovery, — the defendant Gantt having the sheriff’s title, as well as Trussell’s —the negroes at least should have been decreed to the complainants.

18. Because the decree is in other respects, contrary to equity and justice, and should be reversed.

*Heed, McGfowen,*for appellants.

*Orr, Willcs,*contra.

Pee Curiam.

We concur in the decree, and is is ordered that the same be affirmed and the appeal dismissed.

JOHNSTON, DuNKiN and Wardlaw, CO. concurring.

*Appeal dismissed.*