#### James R. Brock *vs.*William Lewis.

W. Lad been the agent for several years of his mother, and continued so until her death. Some two years before his death she gave Mm a mortgage to secure two thousand two hundred dollars, recited to be due him for supplies, advances, &e. This bill, by her administrator, was to set aside the mortgage for fraud, and consequently to exact an account of W.’s transactions as agent. The Circuit Court dismissed the bill, and plaintiff appealed on the grounds: 1. That the mortgage was void for fraud, and 2. That an account should have been ordered. The Court of Appeals ordered an issue upon the first ground; and after the issue was decided in conformity with the Circuit decree, which held that there was no fraud, took up, at another Term, the second ground, and *held,*that plaintiff was entitled to an account from the date of the mortgage until the death of *W.*

BEFORE DUNKIN', OH.,’ AlT SUMTER, JUNE, 1854.

The plaintiff was the administrator of the goods and credits of Mary Wells, who died intestate in the Fall of 1851, and the defendant is Ordinary of Sumter district and administrator of the derelict estate of Charles W. Wells, (a son of Mary,) who died intestate in the Spring of 1851. This bill was filed April 9, 1852, and its principal object was to set aside, for fraud, a mortgage of slaves, executed by Mary Wells to O. W» Wells, and consequently to exact an account of the transactions of C. W. Wells, as agent and manager for his mother.

The mortgage in question, bearing 'date Eeb. 5,1849, reciting by way of consideration the indebtedness of the mother to her son in the sum of twenty-two hundred dollars, for advances made by him in supplying provisions for her family, such as sugar, coffee and salt, and his liability for such advances, pledged the slaves January, Amelia, Kelsey, Julia, Molly, Louisa, and their increase, for the paymént of said sum of money with interest from the date of the mortgage, whenever required by the said 0. W. Wells.

*78Upon the mortgage was endorsed an acknowledgement under seal, by the mortgagor, attested by her son Bobert E. Wells, dated July 16,1850, that C. W. Wells had that day demanded payment of the money mentioned as secured by the mortgage, and that she had refused to pay the same. At the same time she gave her note, attested by the same witness, her son, Bobert E., promising to pay to C. W. Wells or bearer twenty-two hundred dollars, with interest from the date of the mortgage, Eebruary 5, 1849, six months after the date of the note.

The defendant in his answer denied the fraud alleged, admitted that C. W. Wells acted as agent and manager of his mother, and submitted that complainant could claim for no account prior to the date of the note, and he denied that since the date of the note C. W. Wells became indebted to his mother.

The case was heard at June sittings, 1852, by Chancellor Wardlaw, who dismissed the bill.

An appeal .was taken on the following grounds:

1. Because all the facts and circumstances proved at the trial show that the mortgage, though purporting to secure a debt, was without consideration,

*2.*Because the paper was without consideration and executed by an infirm old .lady, who could neither read or write, at the suggestion of a son who had great ^influence and control over her.

8. Because the character and circumstances of the whole transaction prove that it was a fraud and deceit practised on the mother by the son. '

4. Because, connecting the act with the business relation in Which the parties stood, it exhibited an abuse of confidence by the agent for his own advantage, which is against equity and good conscience.

*795. Because in any event tbe Chancellor should have directed an account between the parties.

6. Because the decree is in other regards against the evidence and the principles administered by this Court.

At May sittings, 1853, of the Equity Court of Appeals, the following order was made:

“ It is ordered that an issue be made up between the parties, in which the present plaintiff shall be actor, for trial in the Court of Common Pleas for Sumter district, to determine the question whether the mortgage of February 5,1849, is a fraud upon Mary Wells. Upon the trial of this issue, any of the testimony taken in the Circuit Court of Equity may be read at the instance of either party. The Judge who may preside on the trial is respectfully requested to certify the verdict to the Circuit Court of Equity, with his opinion of its propriety.

“ It is further ordered that this cause be remanded to the Circuit Court of Equity.”

At Fall Term of the Common Pleas for Sumter the issue was tried and a verdict rendered sustaining the validity of the mortgage.

Upon which complainant served defendant with the following notice: *,*

The defendant and his solicitors are notified that complainant will ask of the Circuit Court of Equity a trial of the case, it having been remanded to the Circuit Court, and failing in that, he will move for a new trial of the issue on the following grounds:

1. Because the testimony proved that the mortgage was signed by the said Mary Wells who was not able to read, without having been read to her — without any knowledge on her part of its contents, and without ability by her to understand the nature of the instrument she executed.

*802. Because the proof was clear that it was procured of her by her son, who was her agent, and who had unlimited control over her; and that it was without consideration and fraudulent.

3. That the testimony proved that the only claim towards the payment of which she expressed her willingness to aid her son, the said Charles W. Wells, was the demand which was due to Mr. W. C. Dukes : whereas the amount for which the mortgage was taken was one far exceeding it, and the whole transaction was a fraud upon her.

4. That the circumstances proved in the transaction in which the parties bore the relation of principal and agent, disclosed an abuse of confidence amounting to fraud.

5. Because the verdict is against the testimony, and also the opinion of the presiding Judge.

The appeal was heard before his Honor, Chancellor Dunkin, at June sittings, 1854, who made the following decree:

DüNKiN, Ch. This cause was heard at June sittings, 1852, by Chancellor Wardlaw, who dismissed the bill. The plaintiff appealed on various grounds, which will appear from the brief.

The third ground of appeal was “ because the character and circumstances of the whole transaction prove that it was a fraud and deceit practised on the mother by the son.” The appeal being heard by the Court of Appeals, May, 1853, the following order was entered, viz: “ Towards the formation of its judgment in this case, this Court desires the verdict of a jury upon the question whether in taking the mortgage of February 5, 1849, Charles W. Wells practised a fraud upon Mary Wells, that is, a fraud in which she did not participate, and for which she herself in her life time might have set aside the deed. To avoid prejudice to either party on the trial of the issue, it is prudent to abstain here from all comment on the case. It is *81ordered that an issue be made up between tbe parties, &c.” It was further ordered “ that the cause be remanded to the Circuit Court of Equity.” ■ ■

The Court of Appeals thus studiously avoided any intimation of opinion upon , the third ground of-appeal, in'reference to which the issue • was ordered, and withheld any judgment upon the fourth, fifth and other'grounds, of appeal, as the determination of the issue might aid in forming a judgment on those points, or might supersede the necessity of considering them.

The cause was remanded to the Circuit Court to enable either party to move for a new trial, which could not properly be made in the Court of Appeals in the first instance.

Upon the motion for a new trial I have only to echo what is said by the Judge who presided at the trial of the issue, that whatever doubts are presented by the evidence are more satisfactorily solved by the response of the jurors of the vicinage than by the opinion of a magistrate with less ample means of estimating the weight of evidence. ’

The motion for a new trial is dismissed.

The complainant appealed on the grounds :

1. Because the terms of the order remanded the cause to the Circuit Court.

2. Because the Court of Appeals, by its order at May term, 1853, passed no judgment on the 5th ground of appeal from the circuit degree of Chancellor Wardlaw, which ground was as follows: “ Because in any event the Chancellor should have directed an account between the parties,” and the complainant has therefore not had the benefit of the judgment of the appellate court on-that ground of appeal.

*Moses,*for appellant.

*Mayrant*and *Richardson,*contra,.

*82The opinion of tbe Court was delivered by

DuNKiN, Ch.

The plaintiff’s fifth ground of appeal was not considered or determined, at the former hearing in this Court. The Chancellor, remarking that “ the principal object of the •bill was to set aside for fraud the mortgage of slaves, and, consequently, to exact an account of the transactions of C. W. Wells, as agent and manager for his mother,” dismissed the bill when he arrived at the conclusion that the transaction was valid, and *bona fide.*It was true that, for several years, 0. W. Wells had been the general agónt of his mother, but, on February 5, 1849, she had executed to him a mortgage of slaves, reciting, by way of consideration, her indebtedness to him in the sum of twenty-two hundred dollars for advances made by him in supplying provisions for her family, such as sugar, .coffee and salt, and his liability for cash advances; and on •July 16, 1850, she gave him a note for that amount bearing interest from the date of the mortgage (February 5, 1849).— Commenting on these transactions, the Chancellor remarks “this is a bill filed on behalf of volunteers claiming under Mary Wells, and not of creditors. If she were competent to cohtract it follows that, as against volunteers, she might account with her son upon any principles of adjustment she pleased.— Nothing hindered her, if it seemed right to her, to remit all charges on her side, and to pay her son twice over for his advances and liabilities on .her account. It is more safe and reasonable to suppose that, by some reckoning with her son, she became satisfied to secure to. him a debt of twenty-two hundred dollars, than to conclude that she was basely betrayed and cheated by her son,” &c. Upon this question of fraud an issue was directed to the jui*y, whose verdict concurs in the judgment of the Chancellor, and it is not sought in this appeal to disturb that verdict. The Chancellor had assumed that, in the transaction of February 5, 1849, “some reckoning” had taken place between the parties upon such principles of accounting as the mother thought proper, *or*that she had remitted all *83charges on her side as she had a right to do and agreed to pay her son twice over for his advances, &c., on her account. All fraud in the transaction being negatived by the concurrent judgment of the Chancellor and the jury, we think the view presented by the Circuit decree of June, 1852, may he well sustained. But the agency of Charles W. Wells continued after these transactions, and until his decease in July, 1851.— From the time of executing the mortgage, February 5, 1849, until the decease of C. W. Wells, the plaintiff is entitled to an account of his transactions as agent of Mary Wells, deceased.

It is ordered and decreed that the Circuit decree of June, 1852, be in this respect reformed, and that it be referred to the Commissioner to take an account as herein before indicated. — • In all other respects the decrees of the Circuit Court are affirmed and the appeal dismissed.

Johnston, Dargan and Wardlaw, CC., concurred.

*Decree reformed.*