#### Joseph Gregg, et. ux. et. al. v. Robert Harllee, et. al.

In n bequest of personal property to a daughter, limited over on the event of her dying “leaving no issue alive,” — the words “leaving no issue alive,” relate to issue living at the time of her death, and. the limitation over is good.

Very great inadequacy of price would vitiate a contraet to purchase property from one, to whom the purchaser stood in the relation of a tenant for life, to the remainder man; more particularly where the purchaser availed himself of his situation, to make a more advantageous bargain than he otherwise would have obtained.

An act of a party relied upon as a confirmation of a previous contract, must be shewn to have been done, when he was no longer under the circumstauces which led to and vitiated the original agreement; that he was aware he was not bound by it, but chose deliberately, and without imposition, to confirm what he had first done. ,

*Tried before his Honor Chancellor HARPER, at Marion, January ■*1837.

The facts of the case are stated in the following decree:

Joseph Gourley, by his will, bearing date the 11th March 1820, after providing for the payment of debts, devised as follows: “It is my will and desire, that all the remainder of my estate, of whatever kind it may be, nine months after my decease, shall be equally divided, according to valuation, by lot, between my beloved wife Mary and daughter Ann Jane Gourley, and in case my wife should be delivered of another child or children, in that case such child or children shall be entitled to an equal share with my wife and daughter aforesaid. Item. — In reference to the last clause, it is my will that my wife Mary shall take and hold the part of my estate, which may fall to her share, during her natural life — after her death, to belong to my daughter Ann Jane, or if any other child or children should be born within the the nine months after my decease aforesaid, shall belong equally to that child or children, and my said daughter, or their issue; and in case my said daughter as aforesaid, and child or children as aforesaid, (if any should be,) should die, leaving no issue alive, then and in that case, all the interest in my estate I have heretofore bequeathed to them, it is my will shall belong to the children of Jane James, wife of George James, share and share alike. It is my will and desire that my executors shall hire out the negroes which may belong to my daughter or children as may be, that of the proceeds of the same, or any *43other property she or they shall have, she or they shall be properly maintained and educated until she or they, if any, marry or arrive at the age of twenty-one.” The testator died, leaving the wife and daughter Ann Jane surviving him, no other child being born of his wife within the time specified irf the will. The complainants are the children of Jane James. Mary Gourley, the testator’s widow, died in 1827, leaving her daughter surviving her, who afterwards married the defendant, Robert Harllee. During the marriage he obtained possession of a number of slaves, derived from the estate of Joseph Gourley, which are the subject of this suit. Ann Jane, the wife of the defendant died in September 1835, leaving no issue. In the latter part of December of the same year, the defendant, Robert Harllee, together with several other persons, among whom were the other defendants, William W. Harllee and Thomas Harllee, took the slaves and carried them into the State of North Carolina. They were overtaken by the complainant, Joseph Gregg, who had married one of the daughters of Jane James, and the complainant, John J. James, claiming the slaves in behalf of themselves and the other children of Jane James. After various negotiations, which will be more particularly referred to hereafter, a compromise was concluded between the complainant, Gregg, (assuming to act as the agent of the other children of Jane James, who were not present,) the complainant John J. James and the defendant Robert Harllee; in consequence of which, the complainants, Gregg and James released their right to the slaves to Robert Harllee, and executed a bond in the penalty of $20,000, conditioned that they should procure the release of the other parties, or indemnify Harllee against their claims. The said defendant, on his part, was to give his notes of hand for the sum of $2000, payable in three years, by annual instalments, without interest. On the 23d of December 1835, in pursuance of an arrangement to that effect, the negroes being still in North Carolina, William Harllee, on behalf of Robert Harllee, attended at the house of Gregg, where all the parties joined in executing a deed of release to Robert Harllee, of their claims on the negroes, and William Harllee delivered to them Robert Harllee’s notes for $2000, and also his own note for $300, as an inducement to some of the par*44ties who were reluctant to sign the release, and also made an alteration as to the time of payment to one of the parties. The complainants claim that they are entitled to the slaves, after the death of Mrs. Ann Jane Harllee, by the limitation of the will of Joseph Gourley, and that the release of their interest to the defendant Robert Harllee, was obtained by fraud, or under such circumstances of advantage on one side and hardship on the other, as will vitiate it, according to the principles of equity.

The defendant contends that he acquired the absolute property of the slaves by his marriage, not subject to be divested, and insists on the compromise and release of the complainants. With respect to the first question, I perceive but little room to doubt. It is hardly necessary to refer to the cases which establish, that if personal property be given to one and limited over on the event of his dying, *leaving no issue,*the words leaving no issue, relate to issue living at the time of the death, and the limitation over is good. Such has been the established rule, never departed from or questioned in any single case since the decision in Frost v. Chapman, (1 Pr. Wins. 663,) and I cannot perceive any thing in this case to distinguish it from that which I have supposed. The testator gives in the event that has happened, one moiety of his estate directly to his daughter. He gives the other moiety to his wife for life with remainder to his daughter. He then limits over *all the interest in his estate he had hithertofore bequeathed to her,*to the complainant. The words are too plain to admit of any doubt as to then’ construction. What was the interest in his estate which he had heretofore bequeathed to herí Plainly, one moiety in possession, and the other moiety in remainder, expectant on the death of her mother. The remainder was vested in the daughter upon the death of the testator. If, as suggested in argument, she had died in the lifetime of her mother, what under the limitation of the will must have vested in the complainantsl Certainly one moiety of the estate in possession, and the remainder in the other moiety, expectant on the widow’s death. The question with respect to the validity of the release depends in a good degree upon the evidence. There was considerable discrepancy between the testimony on the part of the complainants.and that on the part of *45the defendant. In deciding the case, however, I shall consider it as made out by the testimony on the part of the defendant; and pérhaps it is but justice to the defendant to add, that if 1 were under the necessity of deciding between conflicting testimony, I should place more confidence in the witnesses examined on his part, as well from the substance and manner of their evidence, as their apparently greater intelligence; thus considered, the following case was made out. The defendant, Robert Harllee,'after the death of his wife, consulted eminent counsel, who advised him that his title to the slaves was absolute. While attending in Columbia, as a member of the Legislature, he was informed by a letter from his brother, Wm. W. Harllee, that the complainant, Gregg,-was tampering with the slaves, with a view to induce them to leave his service, and *he*recommended his return. This information, to a certain degree, was well founded. It appears that this complainant was seen conversing with some of the slaves. The overseer of the defendant testified that the behaviour of the negroes was changed for the worse; and that he once heard some of them talking of leaving the defendant and going to Gregg during the Christmas holydays. One of thorn did subsequently run away and go to Gregg. Defendant had been previously advised by several respectable gentlemen to remove, the negroes out of the State, but had refused, and professed his willingness to abide the decision of the law; but he expressed his fears that he should be deprived of the possession of the slaves by the intrigues of Gregg. Defendant offered in evidence the admissions of Gregg, that he had tampered with the slaves; but these were always accompanied with the qualification that he had only instructed the slaves to leave the defendant in the event of his attempting to take them out of the State. In consequence of the information received from his brother, defendant returned to Marion, collected the slaves, (except one who had escaped to Gregg,) chained the males, and removed them into North Carolina. It appears that on the night of Friday, the 18th of December, he stayed with the negroes, at one James Gaddy’s just beyond the North Carolina line. Defendant hearing that Gregg was at the house of one William Gaddy, a few miles on this side of James Gaddy’s with *46the complainant, John J. James, and two other men armed, in pursuit of him, sent him word to come alone and unarmed, and he would talk with him. Defendant had with him eight men besides his two brothers, who were made defendants, all, or mostly all, armed. Gregg, accompanied by Gaddy, overtook defendant and his party six or seven miles within the North Carolina line, a little beyond one Floyd’s. They had left the main, northern road, and taken one in the direction of the sea coast. Gregg’s first proposal was, that the negroes should be brought back into the State of South Carolina, to abide the event of a law suit. To this, defendant replied, that he would have accepted that proposition if it had been made before; but he declined it now, as he had taken the trouble to come so far, and had no security that Gregg- would not again attempt to get the negroes clandestinely out of his possession. Gregg, at first, proposed to take one half of the value of the slaves; this was refused, and after some chaffering the amount to be paid by defendant, was fixed at three thousand dollars. They returned to Floyd’s house for the purpose of making a memorandum of the agreement, where the defendant with his *party*and negroes remained that night. Gregg returned to W. Gaddy’s, where he was overtaken next "morning by W. W. Harllee, to whom he expressed his dissatisfaction with the compromise, and his intention not to abide by it. *W. W.*Harllee immediately returned to his brother, who thereupon proceeded with the party and negroes in the direction he had before been pursuing. He was again overtaken by Gregg, a little beyond a place called Hog Swamp. Here the witnesses agree, and the defendant admits that he used much violent and abusive language to the complainant Gregg, on account of his alledged bad faith in not adhering to the compromise of the preceding day. Besides cursing and abuse, defendant also made many and violent threats against Gregg. He threatened to lynch or flog him; to shoot him or to chain him to a tree and to employ some one to feed him ’till he should get out of his reach; but all the witnesses on defendant’s part, whom I follow, agree that these threats were made in case Gregg should dog him further without legal authority. All the witnesses of the party, say that there was no intention to resist legal authority. It ap*47pears that defendant did say to Gregg, that if he had a mind to resist, with the party of men he had with him, the sheriff of Robeson county (the county of North Carolina in which they were,) could not take him. After this abuse and violence, Gregg proposed to accept the compromise of the previous day. The defendant refused and swore that he should have nothing. At length, however, he made him an offer of $2000; this not being accepted, defendant directed the negroes to be moved onwards, and they accordingly proceeded in charge of some of the party. Defendant told Gregg that if he concluded to accept his offer he might follow them to one Grimsley’s, where he proposed to stop. The ne-groes went on a mile or two further, to one Conner’s. Gregg did proceed with defendant, after the rest of the party towards Grims-ley’s, and on the way concluded to accept the last offer at Grims-ley’s. He and James gave the release and executed the bond first above mentioned. The witnesses who were of the party state that they knew nothing of defendant’s ultimate destination, and that, if asked, he gave no information. It appears, however, that at some event, he had it in view to leave the State of North Carolina, and •spoke of taking shipping at Smithfield or Wilmington. On the 23d of December, as before mentioned, Wm. W. Harllee, on behalf of defendant, and Greggand James, who had returned, from North Carolina, together with the other complainant, attended at Gregg’s house, for the purpose of carrying into effect the agree- ' ment made on their behalf.

The witness, Livingston, examined on defendant’s behalf, stated that he was present; that some of the parties expressed a reluctance to sign the release, thinking there was not enough allowed them; that Wm. W. Harllee allowed three of them $100 more,, and made an alteration in the time of payment of one; and that after this they expressed no further dissatisfaction. He states that Gregg was very anxious that they should execute, on account of his liability on his bond; and said to the witness that he should be ruined if his bond were enforced against him. He states that Wm. W. Harllee pressed the complainant to come to a conclusion, as he wished to return to Marion court-house that night, in. order to write to his brother, and that he did not think his brother *48would return with the negroes, unless they executed. The defendant, Robert Harllee, in the mean time had remained at Floyd’s, in North Carolina; but upon being apprized by W. W. Harllee that the complainant had executed the release, returned with the negroes. The testimony was very minute and voluminous; but I have detailed such a portion of it as seemed to me material. The question is, whether the agreement made in North Carolina can be supported, and whether the release executed in pursuance of it in South Carolina, can operate as a confirmation. This is not a question of legal duress, as it seems to be regarded in argument. I take it for granted that there was no duress which would vitiate the agreement at law. It may be that there was no fraud which would vitiate it at law; yet the complainants may entitle themselves to relief, upon principles peculiar to this jurisdiction; the well known distinction is laid down by Lord Hard-wick, in Chesterfield v. Johnson, (Vesey, vol. ii. 154,) — this Court has an undoubted jurisdiction to relieve against every species of fiaud: 1st. That fraud which is *dolus malus,*may be actual, arising from facts and circumstances of imposition, which is the plainest case. 2nd. It may be apparent from the intrinsic subject and nature of the bargain itself, such as no man in his senses and not under delusion, would make on the one hand, and such as no honest and fair man would accept on the other, which are inequitable and unconscientious bargains, and of which, even the common law has taken notice, for which, if it would not look a little ludicrous might be cited, 1 Lev. Ill, James v. Morgan. 3d. A third kind of fraud, is that which may be presumed from the circumstances and condition of the parties contracting; and this goes further than the rule of law, which is, that it must be proved, not presumed. But it is easily established in this Court, to prevent taking surreptitious advantage of the weakness or necessity of another, which knowingly to do, is equally against conscience, as to take advantage of his ignorance. A person is equally unable to judge for himself in one as the other. It is under this last head that I suppose relief to be sought. Lord Eldon, also, in Butler v. Butler, (1 Yesey and Beames, 98,) says with approbation “the clear doctrine of Lord Hardwick and all his predecessors, was that *49there are many instances of fraud tliat would affect instruments in equity, of which the law could not take notice,” of which the case before him was one. "What is it in the condition and circumstances of the parties which will vitiate an agreement? One of the circumstances on which much stress is commonly laid, is the existence of a relation of confidence between the parties, giving one advantage over the other with respect to the subject of their dealings, such as that of trustee and *cestui que trust.*As I have said in the case of Reynolds v. Scarborough, (Car. Law Jour. 109,) “a trustee is not absolutely incapacitated to purchase of his *cestui que trust,*provided, there is a distinct and clear contract, ascertained to be such after a jealous and scrupulous examination of all the circumstances, that the *cestui que trust*intended that the trustee should buy, and there is no fraud, no concealment, no advantage taken by the trustee, of information acquired by him in the character of trustee.” Coles v. Trecothick, (9 Yesey, 246,) the Chancellor adds, “I admit it it is a difficult case to make out, wherever it is contended the exception prevails.” The same rule is applied to other persons. *Quasi*trustees standing in such a relation of confidence as gives one party an advantage over the other, with respect to the subject of their dealing; to an attorney dealing with his client, Gibson v. Jeys, (6 Y. 276;) a steward taking a lease from his employer, Harris v. Tummhure, (15 Y. 40;) to an agent Sourther v. Sourther, (13 Y. 95.) He who bargains in matter of advantage, with a person placing confidence in him, is bound to shew that a reasonable use has been made of that confidence; a rule applying to trustees, attorneys, and every one else, (pr. Lord Eldon in Gibson v. Jujer, 6 V. 278,) where such a relation subsists, and the purchaser gets the property at a greatly inadequate price, obtaining an unreasonable advantage. The Court infers that he did so by availing himself of his confidential character; the defendant was not strictly a tenant for life, but he sustained an analogous character, to which all the reasons are applicable. If Mrs. Harllee had survived, I suppose the property would have been absolute in him; but the event of her death determined it to have been no more than a life estate, and he was bound to deliver the property at the end of the year.

*50In the case of Heyward v. Glover, decided at the last sitting of the Chancery Court of Appeals in Charleston, it is said “that at common law there could he no limitation of personal chattels to one for life, with remainder to another, and that a gift for a day or an hour, vested the whole in the first taker. Executory devises and the limitation of the trust of personalty, by which alone such dispositions can be rendered effectual, are exclusively the creatures of equity. It was by regarding the tenant for life, as a *trustee*that equity took jurisdiction, for the purpose of compelling his personal representative to execute the trust by delivering the property to the person entitled in remainder. Then not only the personal representative of the tenant for life, but every volunteer and every purchaser with notice, on a well known principle must be bound by the trust.” In the case cited from 2 Fearn, 137, 172, the devise was ¿65000, to the testator’s daughter, and if she died under thirty, unmarried, then over. She died before the time, and it was resolved in equity, that her executor was chargeable as possessed *in trust*for the legatees over; (quoting, Butler’s Fearn, 404.) It was formerly held that such limitation over was only good when *the use*merely was given to the first taker, as may appear from the cases cited in Hyde v. Parrat, (1 P. Wins.) In that case however, though the word *use*was not in the devise, the use only was held to pass. As observed by Mr. Fearn, (p. 406,) the distinction between the gift of the use and the thing itself has long been abolished. The case of Catchmay v. Nichols, (1 P. Wms. 6,) is one in which the first taker was regarded as a trustee. But is the tenant for life such a trustee as comes within the reason of the rule, respecting dealings between trustee and *cestui que trustl*Does he stand in such a relation of confidence as gives him power over the *cestui que trust*and an advantage in dealing with him? I know of no relation which gives greater power. The tenant for life has a right to the possession of the property, and may destroy, impair or eloign it, so as to defeat the the rights of the remainder man. The remainder man, in dealing with him must be aware that he is thus in his power. Will it be said, that if he should throw out threats of this sort or take any step towards the destruction or removal of the property, the remainder man may *51come into equity, to compel him to give security for the forthcoming of the property] It is manifest that this is a most imperfect security. He may contrive to alarm him without making any distinct threat. He my permit the property to perish, to be impaired in value, or to be removed in such a manner as to avoid responsibility; or if he should make such threats privately to the remainder man, who should thereupon file his bill, if an unprincipled defendant should think proper to deny the charges, the bill must be dismissed. I do not intimate any such thing with regard to the present defendant; but equity provides for cases in which an undue advantage may be taken without the chance of detection; the mere fact then of the defendant’s standing in this relation, and purchasing the property at a very inadequate price, would seem to be sufficient to vitiate the contract. But it is manifest that he did avail himself of his situation to make a more advantageous bargain than he would otherwise have obtained. It is argued that he took the slaves out of the State, to prevent their being tampered with by the complainant, and to protect his own possession. However unjustifiable we may suppose the conduct of Gregg to have been, and with whatever good faith, and under whatever necessity the defendant may at first have removed the slaves, yet this would not justify him in afterward using his advantage for the purpose of obtaining an unconscionable bargain. But according to the view I have taken, the slaves were the property of the complainant; and though the means used by Gregg w ere such as a different person might have scrupled to use, yet in a *legal*point of view, I am bound to say that he had a right £o obtain the possession of the slaves by any peaceable means in his power. It is said the defendant had a right to the possession until the end of the year; but this is standing on a scruple: the year may be regarded as substantially at an end during the Christmas holydays. It is plain that the defendant did not remove the slaves with a view to protect his possession until the end of the year, but intended to retain a permanent possession. With this view, his act was illegal; and shall he avail himself of his own illegal act to obtain an advantageous bargain] Though be may have been mistakenly advised and fully persuaded of his own right, yet I must say that *52
      *legally*he was bound to deliver up the slaves at the end of the year. I think, too, this case comes within the principle of those in which relief has been given against unconscionable bargains, obtained by taking advantage of another’s weakness or necessities. A weak man may know what he is doing, but his will is subdued by superior address or strength of character. A man under the pressure of distress, knows that he is making a disadvantageous bargain, he is not deceived in any thing, but acts with bis eyes open; yet he is relieved, because his will is overpowered by the fear of a greater evil. Can there be a doubt but that the complainant was induced to enter into this compromise under the desperate apprehension that the property would otherwise have been lost to him altogether? He first proposes that the property shall be brought back to abide the event of a law suit; he recedes from the first and more advantageous compromise, and it is only when, after a long altercation, the slaves are directed to be moved off and had actually gone, that he reluctantly agrees. It was urged that he might have arrested them by legal authority; but he may have justly apprehended that the defendant would be out of reach before the proper process could be prepared; legal process might have been evaded by going into another county or another State. He might, from the array of force, have apprehended that legal authority might be resisted, even if no distinct threats to that effect were held out; and the threats and violent language used towards himself were calculated to inspire such an apprehension. Besides, as urged in argument, complainants had a right to the law of their own State. If defendant’s intention to remove the slaves had been known, he might have been restrained by the *process*of this Court. It was in violation of law thus that they were removed, and can he retain an advantage gained by the violation of law? It is plain that complainant did not stand on a fair and equal footing in making his bargain. If he had done so the argument would have applied, which was used in relation to the inadequacy of price— that inadequacy of price is not considered when it is a compromise of a doubtful right. If parties freely and fairly enter into a compromise, dealing on an equal footing, this is a good foundation for an agreement, though the party who has the right may have made a *53disadvantageous bargain. But this cannot apply when the compromise is thus extorted. Regarded, however, as the compromise of a doubtful right, I must observe that it is a very unequal one; where both parties were equally satisfied of their right, the amount to be paid by defendant, cannot be more than one-fifth of the value of the slaves; nor can the release, executed by all the complainants in South Carolina, operate as a confirmation. If it were the original contract, the argument I have already used would apply to vitiate it, still more when it is in pursuance of a vicious contract; in the case of Butler v. Haskell, (4 Eq. Rep. 709,) it is said with respect to the confirmation, “to be quite settled, that the party who gives it, must be'shewn to be no longer under those circumstances of necessity, or of over-bearing influence, or blind confidence, which led into the first agreement, and that he is aware that he is not bound by the original contract, but that he may be released from it; but that nevertheless he chooses deliberately and without imposition to confirm what he had first done;” the cases on the subject are there collected and sustain the position. Here the slaves were still with the defendant in North Carolina, and complainants were given to understand they would not return unless the release was executed. Complainant, Gregg, wras alarmed on account of his supposed responsibility on the bond given to defendant; and the other complainants, in executing the release, seemed to have been influenced by their feelings for him; as is said in Butler v. Haskell, “the papers executed were a mere completion of the original agreement by. which they thought themselves bound, and not new and substantive acts of voluntary confirmation.” I do not perceive that any case is made against the defendants, ¥m. W. Harllee and Thomas Harllee. If by their assistance, the negroes had been removed and carried, as suggested, to Louisiana or Texas, out of the complainants reach, they might perhaps have been liable to make good the injury which they had enabled their co-defendant to commit. In point of fact however, the slaves have been brought back to the State, and are subject to the disposition of the Court. No injury has resulted from the act of taking them out of the State. If defendant, Robert Harllee, should now, without their concurrence, remove them, or *54by any new act, should prejudice complainants right, or should prove insolvent, I do not perceive on what principle they could be made responsible.

It is ordered and decreed, that the defendant, Robert Harllee, deliver to the complainants the slaves derived by him in right of his late wife, from the estate of Joseph Gourley; and account for their hire, from the 1st day of January 1836; and that as to the other defendants the bill be dismissed, but without costs.

From this decree the defendant, Robert Harllee, appealed, and gave notice, that he would move the Court of Appeals in Equity, to reverse the same, on the following grounds:

1st. That the right of the said Robert Harllee to the negroes mentioned in the complainants bill, was and is absolute in the said Robert Harllee, under the will of Joseph Gourley.

2nd: That the release of the complainants right in said negroes, executed by the complainant to the said Robert Harllee, was legal, valid and binding upon the said complainants.

*Dargan,*defendants’ solicitor.

*Petigru Sf Lesesne Sf Moses,*for complainants.

Chancellor Johnson

delivered the opinion of the Court.

We concur in the decree of the Circuit Court. It is therefore ordered that it be affirmed, and this appeal be dismissed.