#### Jinsey Lee *vs.*Charles W. Lee and others.

*Fraud*— Statute *of Frauds.*

B, for the purpose of prosecuting certain trespassers in his own name, received from A an absolute conveyance of a tract of land, under a verbal promise to reconvey the land as soon as the purpose for which the deed was taken should be answered, and afterwards fraudulently refused to execute a reconveyance: *He/d,*that B was not protected by the statute of frauds, and he was ordered to execute a reconveyance, according to the terms of his verbal promise.

BEFORE DUN KIN, CM., AT SUMTER, JUNE, 1858.

This case will be sufficiently understood from the circuit decree, which is as follows:

Dunkin, Ch. The plaintiff is a spinster, about fifty years of age. She is very illiterate, but has about as much sense as other persous in her position. For many years previous to 1849, and for some years subsequently, she and her brother, the defendant, Charles W. Lee, resided in the same house with their father and mother. Her father had, by deed, given to the plaintiff a tract of land containing about two hundred and two acres, and which was alleged to constitute her whole estate. She worked, and cooked, and washed, both in her father’s lifetime, and while she lived with her brother, the defendant, after her father’s death. The land given her by her father was detached, and one John A. Lee, another brother of hers, had trespassed upon it. It became necessary to bring suit against him. On 17th December, 1S49, the plaintiff, for the alleged consideration of $100, executed to her brother, the defendant, a conveyance of the premises in fee. Stephen C. Lee, one of the subscribing witnesses to the deed, and on whose oath it had been originally proved for record, testified, that “prior to the execution of *575the deed, Charles W. Lee, the defendant, told him that he had been up to see Col. Moses, about John A. Lee’s trespassing ttpou Jinsey’s. the plaintiff’s, land; that Col. Moses had told him that he, Charles, could not commence an action without a colorable claim or title to the land; Charles, or his father, asked witness to write a deed from Jinsey to him, which he declined. At this time, or soon after, Charles told him that Jinsey was to make the deed to him, and he was to bring the action.” This witness further said that at the time of the execution of the deed (which was subsequently prepared by another person), “Jinsey (the plaintiff) was in the kitchen, and some one called her into the house, or piazza. She came, and asked what was wanted of her; Charles, or his father, or some one, said they wanted her to sign that deed; she said she could not write her name, but would have to make her mark; Wyatt Nettles wrote her name, she made her mark. She did not say a word, as he recollects, and then went back to the kitchen.” Samuel Tunstall, a deputy surveyor residing in the neighborhood of the parties, testified: “That Charles W. Lee (the defendant) came to him to get him to write a deed for him ; witness asked him if he was buying or selling land ; he said no, he wanted a deed for the purpose of sueing his brother, John, for trespassing on Jiu-sey’s land; witness told him she might have made him a power of attorney, but he said his lawyer told him he must have a deed, and he insisted on witness’s writing one; witness asked him what consideration he must state in it; defendant said he did not know of any; witness told him a deed was not of any account unless there was some amount stated in it; defendant seemed like he was at a loss; witness told him he would put in $100; witness was then writing the deed; defendant said very well. He (defendant) carried the deed off.”

It is not proposed to recapitulate the evidence, nearly all which is in writing, and very carefully reported by the commissioner. The agreement and understanding of the parties, *576proved, as the Court thinks, most abundantly, by the testimony, was that the deed concocted for the purpose of maintaining the action against John A. Lee, was ta be so used by the defendant in her behalf, and that at the termination of the suit, he would, at her request, reconvey the premises. The suit was accordingly instituted by the defendant, in his own name, against John A. Lee, for trespass, &c. How long the suit continued, or at what time it was ended, does not appear from the evidence, but it was finally compromised between the parties. So far as the Court can gather from the evidence, twenty acres of the land was given up to John A. Lee, and each party was to pay his own costs. But in 1854, the plaintiff agreed to sell the land, or a part of it, to Simon Lee, who had married her sister Ann, and he took possession of the premises, under his bargain with the plaintiff. In the latter part of that year (as proved by the witness, David Lee,) the plaintiff “applied to the defendant for a reconveyance of her laud, as he was to do. He told her he would do it — that Tunstall had written the other deed, and he would go and get him to write another deed back to her — that a few evenings after this, Charles came over to witness’s house, and proposed to witness that they should buy the land from plaintiff Next morning they went to her, and Charles asked her if she would sell the land. He said, if she would, he (Charles) would buy one half, and witness would buy the other. She (plaintiff) said she would not sell it to turn off her sister Ann, who lived on the place. Charles replied, that Connell Lee stated that Simon Lee, Ann’s husband, had said that after he had cut off the tun timber, he was going to leave. Plaintiff said then, that if Simon was going to leave the place, that if Charles and witness would give her note and security for the price of the land, she would sell it to us. Simon, not being entirely willing to leave, Charles made another proposition to her, to wit: that he would give her a deed back for one-half of the land, and he would give her his note and security for the half adjoining him at $2 per acre. She agreed; *577and by mutual agreement, Tunstall came and ran out the land into two halves, and made a plat (plat exhibited of the half that was to be conveyed back to the plaintiff.) This (he afterwards said) was the half on which Simon Lee was then living, and that the plaintiff had put him upon it. Tunstall wrote the deed. Charles kept promising to sign the deed, but never did so, nor did he give the note and security.” In June following, 1855, witness, at the request of his sister, went to the defendant to get him to make the deed back to her. He said he would do it. This was before Charles’ marriage. (Defendant, Charles W. Lee, in July, 1855, married the daughter of his co-defendant, Wyatt J. Nettles.) In August, the defendant upbraided him (witness) for telling a pack of news about the transaction, between him and the plaintiff, and said, since I had told about it, he did not intend to make a deed back to her, &c.,” whereupon a quarrel and fight took place. Simon Lee fully confirmed this witness. He said; that Charles Lee was aware that he (witness) had bargained with the plaintiff for the land ; that in November, 1854, the survey was made, and the line run by Tunstall. After the line was run, he and Charles went to the plaintiff. Charles said he was to make title for half, and that he would pay the plaintiff for his half. The terms were agreed upon, but still witness got no deed. About twelve months afterwards, witness “went to Charles, and told him he wanted a deed, who replied, that he was to have no more to do with it; for he had not paid for it, and she (plaintiff) could keep the land and sell it, and go through with it.” Samuel Tunstall corroborates this, when he says that, in 1S54, he ran a dividing line on this land. There were present with him on that evening, Charles W. Lee (defendant), David Lee and Simon Lee; Charles and Simon took part in the survey. Witness’s object in that survey, by the direction of Charles and Simon Lee, was to divide the land in half; Charles told him one of the pieces was to be for Simon Lee, and that Simon was to pay for the survey. Witness made a plat of half for Simon Lee. *578When he wrote the deed, he thought the land worth $300. Within the last two or three years, thinks it worth $2 50 or $3 per acre.

In April, 1856, one Jesse M. Hill obtained a judgment against the defendant, Charles W. Lee, for $85 and costs. The land adjoined that of the defendant Wyatt J. Nettles. In July, 1856, the execution of Hill was levied on the land as the property of the defendant, Charles W. Lee. At the 'sale in October, 1856, full notice was given of plaintiff’s title. It was bid off by defendant, Wyatt Nettles, as Sheriff Frier-son testifies. But Wyatt J. Nettles, in his 'answer, says that it was not bid off by him, but by his son and co-defendant, S. J. Nettles, who is a minor, but who acted by his advice— that the land was bid off for $15, and that he furnished his son with the mo'ney to comply with the terms of the sale; that notice was given of plaintiff’s claim, and he has -no doubt that this was the cause of the price at which it was bid off. On 25th March, 1857, this bill was filed. The answer -of defendant, Charles W. Lee, Insists 'that the transaction was an absolute sale, and that he paid to the plaintiff the consideration money of $100. The answer is directly disproved, not only by the witnesses, Stephen C. Lee and Samuel Tunstall, testifying as to the circumstances of the preparation and execution of the deed, but by the uniform declarations of the defendant, from the time of receiving the deed until August, 1855. It is contradicted by the situation of the parties. He never was able to pay $100, and the plaintiff was never known to have $5 in her life. The whole 'current of the testimony satisfies the Court-that the answer of the defendant is a bold attempt to sustain a palpable fraud by corrupt perjury. It is painful to arrive a't this conclusion, particularly, where the perpetrator and the victim are brother and sister. It would be great injustice to the defendant, to suppose that he originally intended any fraud. He honestly -undertook to protect the rights of his illiterate, poor and d'e-.fefieeless sister, against the aggressions of a trespasser. He *579was in no condition to traffic with her for the property which he had engaged to defend. Nor did he attempt any such malpractice. When he went to take advice of counsel as to the mode of vindicating his sister’s rights against the annoyances of John A. Lee, he probably misapprehended his legal adviser. A power of attorney (as Tunstall told him) would have answered the purpose quite as well as a “face claim ” (as he called it to one witness) or a “.colorable claim” or “color of a claim ’’ (as he said to the other witness). But still he acted in good faith. He always professed his readiness to reconvey to his principal. As late as November, 1854, he not only bargained with her for one-half the premises, but was actively engaged in assisting the surveyor to run the dividing line between the moiety, which he had agreed to purchase, and the moiety bargained by the plaintiff -to Simon Lee, and who was then in possession, having been placed there by her several months previously. Down to June, 1855, he was always ready to reconvey. It was not until after his marriage with the daughter of his co-defendant in July, 1855, that he intimated any intention to claim the land. In September, 1855, he raised a conversation about the land with the witness, Alexander Kerby; told him how he came to get the deed from the plaintiff, and that he was to make her a deed back for the land, but said that “ since she had done him as she had, that he would not make the deed back to her; he should not do it, for she had no note against him.” And to David Lee he said in August, 1855, that “ he knew that he had not paid a dollar for the land, but that he had a deed, and could hold it, and intended to do it.” And soon afterwards, to the witness, Joseph Pate, he said that “ he had never paid the plaintiff anything for the land, and he would be damned if he ever would, as she had done as she had done? and he could hold the land independent of her.” In July afterwards, the land was levied on as the only visible property of defendant, under Hill’s *fi. fa.*— sold as before stated, for *580$15, and *nulla- bona*returned for the balance of the execution.

At the close of the defendant’s answer, he desires that “if necessary to his defence, he may have the benefit of the statute of limitations.” If there had been any truth in his answer, this hypothetical plea would have been wholly unnecessary. His answer covers the entire matter in .controversy. Mr. Justice Story, as well as other writers on pleadings, states, that pleas of this character are pleas only why the defendant should not answer; and therefore, if he does answer to anything, to which he may plead, he overrules his plea, for the plea is only why he should not answer; and if he answers he waves the objection, and of course his plea; Story PL, § 688 and note. But this is not a case for the statute of limitations. The defendant, as the agent of the plaintiff, had obtained the deed for the purpose of enabling him to conduct his agency, and prosecute her rights. The Court is not informed at what time the possession of the deed ceased to be necessary for that purpose. But the defendant constantly and uniformly admitted the subsistence of the fiduciary relation until the summer or fall of 1855, some eighteen mouths before the institution of these proceedings. After the sale by the sheriff in October, 1856, the balance due on the execution against Charles W. Lee was paid to the sheriff by the defendant Wyatt J. Nettles, and the execution for that amount was left open against Lee for the benefit of W. J. Nettles. The character of the answer of the defendant Wyatt J. Nettles; the circumstances attending the sale, when, after the notice of the plaintiff’s title, Charles W. Lee declared that he had a good deed for the land, which was then knocked off to defendant’s son, a minor, and incompetent to contract, but who acted under his father’s advice; and land worth from four to five hundred dollars bid on for fifteen dollars; all these satisfy the Court that the defendant Wyatt J. Nettles co-operated with his son-in-law and co-defendant Charles W. Lee, to deprive the plaintiff wrongfully of her property, and *581that if objection had been made, he ought not to have been examined as a witness in the case.

It is ordered and decreed, that the defendant, Charles W. Lee, execute to the plaintiff, by a deed prepared under the direction of the commissioner, a reconveyance of the premises described in the deed of 17th December, 1849, with the exception of the twenty acres heretofore conveyed by the said Charles W. Lee to John A. Lee. It is further ordered and decreed, that the defendant S. J. Nettles, and all claiming under him, be perpetually enjoined from in anywise using or setting up any title to the premises against the plaintiff, under the purchase at sheriff’s sale in October, 1856.

It is finally ordered and decreed, that the defendants Charles W. Lee and Wyatt J. Nettles, pay the costs of these proceedings.

The defendants appealed, and moved this Court to reverse the decree on the ground:

Because his Honor, having decided that there was no fraud on the part of Charles W. Lee in procuring the deed from the plaintiffs, should have dismissed the bill — the parol trust which the bill enforces being void under the statute of frauds.

And failing the above motion, then the defendant Wyatt J. Nettles moved that the decree be modified and the bill dismissed as to him, on the ground:

That the evidence upon which his Honor held that he had co-operated with Charles W. Lee wrongfully to deprive the plaintiff of her land, by refusing to carry out the parol trust, was, it is respectfully submitted, insufficient to sustain his Honor’s conclusion ; and this defendant having fully and fairly answered the bill, as he was called upon by the plaintiff to do, and having-also disclaimed all interest, and no corrupt, illegal or improper conduct being proved against him, the bill as to him should have been dismissed with costs.

*Spain, Richardson,*for appellants.

*Moses,*contra.

*582The opinion of the Court was delivered by

Dunkin, Ch.

If the oral testimony was at all admissible, the Court is satisfied with the decree. The only plausible objection would be that, as the conveyance was absolute in terms, parol evidence was inadmissible to contradict, vary, or add to its contents. But it appears well settled, on authority, that when a foundation is laid by an allegation of fraud, such evidence may be received. In *Russell vs. Southard,*12 How., 139, the precise question was presented. “We have no doubt (say the Court) that extraneous evidence is admissible to inform the Court of every material fact known to the parties when the deed and memorandum were executed. This is clear both upon principle and authority. To insist on what was really a mortgagees a sale, is in equity, a fraud, which cannot be successfully practised, under the shelter of any written papers, however precise and complete they may appear to be.” And they cite the language of the same Court in *Morris vs. Nixon,*1 Howard, 126: “The charge against Nixon is substantially a fraudulent attempt to convert that into an absolute sale, which was originally meant to be a security for a loan. It is in this view of the case that the evidence is admitted to ascertain the truth of the transaction, though the deed be absolute on its face.” Many other authorities are cited ; and the Court conclude by saying that “ the oral evidence is admissible upon the principles of general equity jurisprudence.” In our own Courts the same question was presented in *Arnold vs. Mattison,*3 Rich. Eq., 153. The presiding Chancellor received the evidence, but declined to grant relief. If an instrument, (says he,) absolute on its face, can be converted by parol, into a defeasible instrument, except where the omission to reduce the defeasance to writing was occasioned by fraud or mistake, the evidence must be very clear and convincing. In that case the Chancellor held, upon the evidence, that the deed was intended by the parties to be absolute as its terms purported, and that if any fraud existed, it was in reference to third *583persons. But if there be fraud, whether it consist in not executing a defeasance, or in misrepresenting the character of the instrument, or in any other way, it would be a reproach to the administration of justice if the perpetrator of the fraud could shield himself from detection and exposure by the abuse of rules instituted to prevent fraud. A bond, deposited as an indemnity, might be enforced as an absolute debt; or, as in this case, a deed taken from an indigent, helpless and ignorant woman, for the avowed purpose of vindicating her rights to her freehold, might be perverted into an instrument of despoiling her of those rights. In the language of the Supreme Court, “the oral evidence is admissible in such cases upon the principles of general equity jurisprudence,” and to prevent the successful practice of such frauds under the shelter of any written papers, however precise and formal.

The defendant’s principal ground of appeal is because his agreement to reconvey the lands was a parol trust, and void under the statute of frauds. But *McIlvaine vs.*Massey, 2 Hill Ch., 421, (and *Kinard vs. Heirs, 3*Rich. Eq., 423,) establish that the statute cannot be used as an instrument of fraud.

It is ordered and decreed, that the appeal be dismissed.

Wardlaw, Ch., concurred.

*Appeal dismissed.*