*Columbia*

Heard by Chancellor James.

#### Laurence Rambo, vs. Daniel Rambo.

c,iss xr.ff.

Where a bill charges fraud, and advantage taken of the complainant, the defendant shall not protect himself by a general demurrer, but shall be obliged to answer ; though the acts of the complainant may not lie altogether clear of suspicion and doubt. The justice of the case cannot be got at on a demurrer, and the demurrer admitting the facts charged, admits the allegations against the defendant, and must be overruled.

The bill was. died in this case to set aside certain deeds executed by the complainant,, and conveying certain property, without any valuable consideration, imd for a special purpose, and to be valid only in the event of the complainant’s death.

FEB'Y. 1812

The defendant put in a general demurrer. On argument, Chancellor James sustained the demurrer by the following decree:

In this case it lias been frequently said that the-Coart of Equity will not favor demurrers.. But this isa not always true. "Whore demurrers arc put in for the-purposes of delay, this court; views them with an unfa - vor&blc eye : but in many cases, such for instance where there is no equity stated, in the bill, or there is no equi - table jurisdiction, demurrers will always, shorten cases, and they are received here with considerable favor, in the present instance that mode of proceeding appears to *252be proper, for I am of opinion that there is no equity iu this bill. We will first consider the absolute hill of sale which has been made by the complainant of his negpoes, and next the award that lias been returned respecting his real estate. Complainant states that his inducement to snake such a bill of sale, was to protect his property from the claims which any iniquitous persons might sot up against him in case of his death, of the existence of which unjust claims he had become apprised.

This is a flimsy reason indeed. Can it be supposed for an instant that if the laws of the country could not protect his property, that it was to be done by the potency of a bill of sale ? In case of his death, the same son to whom the property was made over by the bill of sale, would have become one of his heirs, and would have been just as able to defend himself as heir, as grantee of the negroes. This cannot he the real inducement for making such a deed. In looking a little further into the bill, the true reason may be discovered. We find “ that lie was indebted to James Turnbull, in the sum of g 3,300 for five negroes, of which he states he had paid g 1000, and that be liad given his bond and mortgage of the said negroes for the payment of this money previous to the making of the bill of sale. That the said James Turnbull iiflorwards as he states, pretended that he was still indebted to him on the said bond, and that he clandestinely took possession of the five negroes which had been purchased of, and mortgaged to him.

This statement is absurd upon the very face of it. When the complainant acknowledges that g 2,300 of the money with interest was still due, where was the necessity of Turnbull’s setting up any pretences for the recovery of his just debt? Or how could he act clandestinely in seizing the property which had been mortgaged to him ? This c'.-urt is not to be deceived by such flimsy allegations. From the above and subsequent parts of the bill, it appears that the complainant was indebted move than lie could pay, and a strong suspicion arises that this bill of sale was a fraudulent one. Such suspicion too, is further confirmed by the circumstance which complain*253-ant relies upon for relief, namely, that he kept possession of the negroes, ami hired them out after the bill of sale was made, which is a strong badge of fraud. Therefore upon the whole of this case, it appears that the complainant has come into court with unclean hands, and that he is not entitled to the relief prayed for.

Were it necessary to trace this business any further, it is evident from complainant’s own statement, that he received from his son Daniel, a note of hand for g 5,000, as he says, a nominal consideration for the ten negroes mentioned in the bill of sale, which note he afterwards indorsed to his son Samuel.

Whatever might have been the object of the complainant in taking the note, as it was given for a valuable consideration, it might have been i’ecovered. And if he indorsed it away afterwards to Samuel, without value received, it was his own folly, and his son Daniel is not responsible for it. He that trusts most must lose most.

Next as to the award complained of. It appears that besides the debt due to ,James Turnbull, the complainant was so far further indebted that his lands were sold by the sheriff, and purchased in by H. D. Ward, who as an act of friendship, suffered complainant and his s ons to redeem the debt which he paid for the lands, by working upon them with the negroes. That after the debt was worked out, and H. D. Ward was about to make titles, he found there were accounts between the father and his sons, and he determined to make titles to whomsoever of the parties was not indebted to the other. For this purpose he recommended an arbitration which was agreed to by them. A majority of the arbitrators returned their award in favor of the sons, and Mr. Yfard made titles to them.

Now there is nothing unfair or fraudulent in this. All appears to be the act of honest men, wishing to do justice between the parties, and to settle a family quarrel. Where then is there room for the interference of this court ? I can see none. Wherefore upon the whole of the reasons above stated, I am of opinion that the de-*254murrcr must be sustained, and complainant’s bill be dismissed with costs.

W. D. James.

From this decree an appeal was made on the following grounds :

First,' — Because, the bill, contains on express charge that the bill of sale spoken of was executed upon the condition, that it was tobe void incase the complainant returned from South-Carolina to Georgia.

Second, — Because it was without consideration. Third,' — Because the defendant never claimed any right under it, until several years after it was executed.

Fourth,. — Because there was fraud in]} keeping, the note concealed, and eventually pretending’it was lost.

Fifth, — Because even if the bill of sale should he decreed to be void, notwithstanding the above reasons: yet the complainant, had a right to receive the consideration money for the negroes, the note having been endorsed in trust for himself only conditionally.

Sixth, — Because the award was not accoi’ding to the submission.

Seventh, — Because there was fraud in procuring the award.

Eighth, — Because the complainant had a right to, an award in his favor.

Ninth, — Because the bill contained equity which defendant ought to have been compelled to answer.

The appeal ivas heard by the Chancellors Desaussurc, Gaillard and Yv aties.

The court after argument delivered ,'tho following decree:

The court have considered this case, and arc of opinion, that tjie complainant stated such a case in his bill, as entitled him to a full and distinct answer. The bill charges fraud, and undue advantage taken of (ho complainant. These charges are grave and ought to be answered. The demurrer is an admission of the facts charged ; and the court is not prepared to say that in *255Such a case it cannot give relief. It is obvious that an examination into the justice of the case could not be obtained on the demurrer.

It is tliefore ordered and adjudged,, that the decree in the circuit court be reversed* and that the demurroi* be over-ruled.