*Laurens, Washington District.*

Heard before Chancellor James.

CASE III.,

#### Wm. Rutherford, *vs.*John Henry Ruff.

A deed executed on the day of his marriage, by a man of e®» tremely weak intellects, and habitual drunkenness, conveying his real estate to his brother, who is a man of good understanding, for love and affection, without any reservation for himself and family, must have been founded on a secret confidence and trust between the brothers ; and the court will raise a trust; and will not permit the deed -to take effect as an absolute conveyance. So too a bill of sale of the personal property of the said grantor, after marriage, to his brother, •for a large nominal sum, which was never paid, nor intended to be paid, but had other considerations stated in another paper, of far less value than the property, must be considered as confidential,: and the court will raise a trust for the benefit of the wife and other representatives of the deceased weak brother. Though there was no positive proof of fraud, and though the weak man said sometimes he was satisfied with the deed, his extreme imbecility, increased by intoxication, to which his brother in some measure contributed, and the want eí rea! and proper considerations, must defeat the deeds.

*351Tub bill states that in the year 1811, George Ruff died intestate and without issue, leaving a widow Nelly Ruff, a mother, sisters and brother.

JUNE, 1812.

That George Ruff during his marriage with the said Nelly, was seized of a valuable tract of land and ten negroes.

That the said G. Ruff, in his life time, from nanatural infirmities, to wit, fits encreased by almost continual intoxication, was «deemed incapable of managing his estate.-

That the said George Ruff inherited the whole or the greatest part of his estate from his deceased father.

That ihe father of the said George Ruff knowing the incapacity of the said George, while on his death bed requested the complainant William Rutherford ami the defendant to guard and protect the interest’of the said George.

That the defendant John H. Ruff, obtained from the intestate George Ruff, on the morning óf his marriage-with the said Nelly, a deed of gift for his real estate.

The said George being at the time of executing the said deed under a belief that the same was only a deed of trust, and understanding in a bhort time afterwards that it was an absolute conveyance, interrogated the defendant' concerning the fraud practised on him; and the defendant in order to satisfy the said George, promised to execute an instrument of writing, which should be declaratory of the intention for which said deed was *obtained;*and which should have the effect of a reconveyance of the said real estate to the said George.

That the defendant also on the first day of October 1808, obtained from the said George a bill of sale of all his personal property, purporting it to be for a valuable consideration, and by virtue of the said bill of . sale and deed of gift, the defendant took into his -possession his whole real and personal estate, and continued to keep the same in his possession, and has enjoyed all the profits and advantages arising therefrom. That the defendant after the death of the said George, obtained from his said widow a receipt of full satisfaction, of the said real and personal property, for the sum of Si00.

*352The bill prays that the defendant may be decreed to-come to a fair and just account of the said estate, both real and personal, and account for the hire, rents and profits of the same, both before and since the death of the said George.

The defendant in his answer admits that the said George died intestate and without issue, as stated, and that the persons named in the bill are the relations of said George as stated.

He further admits that the said George in his life time, did own the property as stated, but not at the time of his death.

He further admits that the said George did on the morning of his marriage with the said Nelly, make a deed of gift of his real estate to the defendant as stated: But denies that the said George understood it as a deed of trust; but insists that he knew it to be a full and absolute deed.

He further admits that the said George, about the time stated in the bill, did give to the defendant a bill of sale of the negroes and other property, as mentioned in the bill.

The defendant states that at the time the bill of sale was executed, the said George was indebted to him' between six and eight hundred dollars, and on the same day this defendant gave to the said George his bond ip the penal sum of two thousand dollars, to pay to him the said George the sum of one hundred- and fifty dollars annually, during life, and to build for the said George a good dwelling house and out houses, and to let him have-two of the said negroes, Stephen and Molly, during life, all of which the defendant faithfully performed to the satisfaction of the said George.

He further admits that the said George was subject to intoxication, and when so was imprudent in his contracts, but when sober was capable of managing his own business.

The defendant denies that his father ever called upon him or the complainant, William Rutherford, in his *353Rearing, to take cave of the said George and prevent Mm from spending his estate.

The defendant admits that in a short time after the .said George had executed the deed of gift for his real estate to the defendant, the said George called on him and told him the complainant William Rutherford, had told him, that he, the defendant, could at any time dispossess him of the land, and appeared dissatisfied, upon which the defendant assured the said George, that he should continue to live and enjoy the said land during his life — that lie the defendant did give the said George a deed conveying the said land to the said George during life.

He denies that he ever did give or promise to give any instrument of writing declaring the deed of gift to he a deed of trust.

He further admits that he did take into possession the property as stated, except two negroes, which remained in the possession of the said George during his life, .and after his death, he also took them into possession.

He denies that he ever obtained any relinquishment ■from the said Nelly after the death of the said George, ■or any other time, or ever applied to her for any.

The cause, came to a hearing before Chancellor James,

Christian Ruff, a witness produced on the part of the complainants, proved, that he was acquainted with George Ruff, being raised by the defendant: hewaspresent when George executed the deed of gift for the land to the defendant, and witnessed the deed ; heard the deed read to George; — that George knew what he was doing and intended to give the land to defendant absolutely; he signed it freely and voluntarily, and at the time wished Ms brother to have it; — that the deed was executed early in the morning, and George sober, as he had drank nothing that morning. That George drank hard; sometimes had a quart a day ; and was at times intoxicated •at the defendant’s house: That George came to the house of the defendant and executed the deed. That George, about a year before he executed the deed to defendant, *354wished to convey his property to the witness to take care ^ ^01’ defendant told witness not to take it.

On being cross examined, he proved, that George ]lacn n0 other brother living at the time he executed the deed ; — that the deed was read correctly to *George;*and had heard George say often he had given the land to the defendant, and wished him to have it, and no other person,* and ever afterwards said the land was the defendant’s, and when sober, always expressed himself satisfied.

J. Clary was next sworn on the part of the complainants, who proved that he signed the deed as a. witness, and saw George sign it; — That he was generally intoxicated ; saw him drink that morning ; — that the defendant read the deed to George — that he had not seen George sober for several months — that the defendant stated to the witness that George was about to marry into a family that might take the advantage of him — the deed was drawn and signed on the morning of George’s marriage. That defendant had great influence over George. Had seen George get a quart a day or more— he was frequently intoxicated at the defendant’s house, and always carried liquor with him. That George was a weak man at best. That in a few days after George came and requested the defendant *to give him back*the deed, which the defendant refused to do. That defendant said his father had requested him to take care of George,as he was unable to take care of himself, and understood by the defendant that he had taken the deed to secure the land for George.

John Huff, was next examined, and proved, that after the deed w?as executed he was at the defendant’s bouse, when the defendant shewed him the deed; — defendant said he would secure George : George told defendant he could not too soon, as life was uncertain.— That old Mr. Huff before his death sent for the witness, and requested him to take cari of George.

John Hopkins was next sworn, and proved, that the defendant said if George should have any children, he would convey the land to the children.

*355On being cross examined said, George was sometimes drunk and sometimes cold sober, and when sober could manage bis business well enough.

Mr. Swaggart was next sworn, and proved that he knew George, but not until sometime after his marriage^ did not think him capable of managing his business; knew him to get as much as a quart a day, and if ever he saw him sober he did not know it. That defendant said, if ever George had any children they should be no losers by the deed: Defendant said George was incapable of managing his business j and any person could see it, who Would converse with him.

On being cross examined, said, he had heard the defendant refuse George liquor, and endeavor to prevent his drinking, but that George couid not be kept from it, if he could possibly get it.

Mrs. Carr was next sworn, and said, she knew George a year before he was married, he was very subject to intoxication, frequently saw him drunk at defendant’s bouse — was weak and easily imposed on — subject to fits, saw him have several in anight.

On being cross examined, said, he was not so subject to intoxication before as after his marriage,

H. Shepherd was next sworn, and proved he was present when Mrs. Ruff the wife of the deceased George Ruff, signed a receipt to the defendant, and witnessed the receipt. The defendant told her he would make her a compliment of one hundred dollars, and if she would not, settle that day, he would not settle with her. Defendant gave her a horse, saddle and bridle, a suit of clothes, a note for $100, anda note for *$4.7,*and she signed the receipt.

H. Winnkhouse was next sworn, and proved that he was also present when Mrs. Ruff signed the receipt to the. defendant. Defendant said he would make a present if she would take it, but perhaps he might change his mind. At first she appeared unwilling to take it and sign the receipt, but afterwards appeared willing and did sign the receipt.'

*356Major Nance was nest sworn, and proved that tEV defendant and George came to the court house together*the defendant stated to the witness that he wished to take a ¿¡ee[j ol. |j¿p 0f aa]e 0f Jug property to secure it, and requested him to draw it* — The witness referred them to Mr. M‘Kibbon.

Young J. Harrington being sworn, proved that the defendant said, George was subject to intoxication, and was easily imposed on; told the witness he wished to take a deed, bill of sale or conveyance to secure his-property.

James M‘Kibbon being sworn, proved, that the defendant applied to him to draw a bill of sale — Thinks that he did draw one.

On his cross examination a bond was produced to him from defendant to George, he proved that he filled •up the bond in part.

Mrs. Ruff was then produced on the part of defendant, and provod she was the mother of defendant and George; that Geo. when sober was capable of conducting his own business; but not when drunk. That George lived a miserable life with his wife until his death; they parted twice; she left him each time. — George always said he would fix her. Always said he wished the defendant to have the whole of his property. That George was sober ■She morning ho was married. After the conveyances were made, George always said both the land and personal estate belonged to the defendant — said so on his death bed. That she advised the defendant to take a conveyance of the property ; that George lived with her until his marriage, and after his separation from his wife, he lived with the witness and died at her house.

Mrs. Rane was next produced, and prove.d, that she saw George the morning of his marriage. Thought he •was sober. George often told her he lived a miserable life with his wife. That she saw him after his return from the defendant’s house, when he executed the deed of gift for the land, and believed him to be sober.

Libi Agner was next produced, and proved, that she saw George on the morning of his marriage, and after *357Bis return from the defendant’s house $ that she thought he was sober. That George told her he lived a misera-hie life with Ms wife ; — that he had given his property to the defendant who was to take care of him. Often re*. peated, when sober, and said he wns well satisfied.

Mrs. Solster was next produced, and proved, she «aw George at his mother’s after his return from the defendant’s house on the morning of his marriage. That George was sober. Heard George say frequently, he wanted his brother, the defendant, to have his property, and no other person. That she knew he lived unhapr. pily with his wife. ^

On being cross examined, sh-e -said, the said land was conveyed on the morning of his marriage. That she went to school with George, and he learned tolerably well.

Mr. Bolster was next sworn and proved, that he heard George often say, he wished the defendant to have his prope, ty and no other person — a few days before he was taken sick, told the witness, he lived miserably with his wife.

John Riley was next sworn, and proved, that he was in company with defendant in 180f. That George told the defendant he was persuaded by William Rutherford to sue him. That George was duly sober, and told defendant he wished him to enjoy his property, and no other person.

Major Cannon was next sworn, and proved, that he was present when George executed the bill of sale to the defendant, and witnessed it; — .that George was sober at the time. That the defendant signed a bond to George at the same time: it was delivered to Mrs. Ruff. That it appeared to him to he a fair and honest contract, entered into by them. That he saw George the same day deliver the property to the defendant, pursuant to the bill of sale. That the defendant continued in the possessiort of the property ever after the delivery. That the defendant built the house and out-houses, agreeably to contract, on his own land, and removed George from the land he had conveyed to the defendant, to the house built *358for him, where George lived until he was taken sick; hgt then went to his mother’s, where he died. That he wrote a letter for George at his request, which he delivered to Mr. Farrow, directing Mr. Farrow to drop the action against defendant.

Mr. Coon was next sworn, and proved; he was pre-. sent and saw George sign the bill of sale to defendant of the personal property, and subscribed as a witness. — . That George was sober at the time — that defendant would not let him have any thing to drink, lest people should say he was drunk.

Theconaplainaijtthencalled Mr. Farrow in reply, who stated, that George, in company with 'William Rutherford, called on him, and employed him to bring an action against the defendant, in the court of equity, to set aside the deed for the *land;*that afterwards he received a letter from George by Major Cannon, informing him that he had settled with defendant, and requested him to proceed no further in the action. That after-wards tíie defendant paid him his fee for his trouble.

Afj;er argument, chancellor James pronounced the following decree:

Nelly Ruff, the widow of Geoi’ge Ruff, deceased, who died intestate, and the other legal representatives of George Ruff, have brought this action against John II. Ruff, to set aside a deed of gift of his real, and a bill of sale of his personal estate, on the ground that the first was a secret trust, and that both instruments were obtained by fraud.

The defendant, John H. Ruff, denies by his answer both the trust and the fraud : and states that the first deed was made by his brother Geoi’ge to him, upon condition of love and affection ; and the second upon consideration of his being indebted to him, and for value otherwise received of him.

A great number of witnesses have been examined on both sides, the whole of whose testimony it would be Viee.diess to repeat; but the. leading circumstances of the case appear to be as follows :

*359George Ruff the elder, father of George Ruff, the intestate, being sensible of the weakness of his son’s mind, upon his death bed recommended him to the care of his brother, the defendant, and left to him the property in question, amounting to a valuable tract of land, and about eight slaves. John H. Ruff, as appears, assumed the charge recommended by his father. From his childhood, the intestate Geoi’ge, seems to have been given to intoxication, and was weak in his intellects. But about a year before his marriage with Nelly the complainant, he had given himself up so much to this vice, that he kept spirits hy his bed at night, and was seldom sober: Ho drank chiefly at his brother’s house, who was under agreement to give him a pint a day, but often gave him a quart: The excuse-for this, was, he could not keep him from strong drink, and if he did not give him strong liquor, that George would go elsewhere for it, when hs might be imposed on. All the witnesses seem to admit, the defendant had .great influence over George, and two of them believed he could induce him to do any thing for-whiskey.

That George being about to marry the complainant Nelly, his own family, and especially his mother, were much against the match ; and the defendant was heard to say, that he was about to marry into a family who would take advantage of his weakness, and therefore his property must be secured. On the morning of his in-, tended marriage, the deed of gift of the lands was prepared by defendant, and executed by George. There was a diversity of opinion, whether he was drunk or sober, at the time the deed was made. Several witnesses thought him sober; but one swore positively, he had not been right sober for several months before, and that he had been drinking that morning. This man, James Clary, lived in the house, and witnessed the deed : but the other witness to it, thought George sober. One other witness J. Swaggart, also lived at the house of the defendant, said he could not say he ever saw George sober; Mrs. Carr said he was seldom sober. George afterwards, at times, ex - pressed his disapprobation of the deed of gift; but this *360was chiefly when drunk : and when sober he wished hi|b brother to have the land. That John Buff, an executoE* 0£ Q-eorge Buff the elder, called at the defendant’s house two or three weeks after the marriage of George, read part of the deed *;*and he told defendant lie liad done wrong, that he ought to commit something to writing to secure George and his children, and defendant said he would fix *it;*and that defendant afterwards told two of the witnesses, if George had children, he would give them the land. So far as to the deed of gift, which is arjt-absolute conveyance. That the bill of sale of his negroes- and other personal property, was obtained from him after marriage, and the consideration expressed is two thousand four hundred dollars. But the defendant made it out, that* the real consideration is expressed in -the condition of the-bond made to accoinpany it, and delivered tooneofthesub-scribing witnesses (Mr. Cannon) for George. The penalty* of the bond is two thousand *dollars, the condition is to pay*one hundred and fifty dollars annually during the life off George, to build him a house and out houses, and to give him during life two of the negroes named in the hill of sale, and land to plant. It was also said that George was indebted to defendant by book account. But' the books were not proven* All the witnesses agreed, that after marriage George became more beastly drunken than before, and his brother principally supplied whiskey for his debauches. It was proved that he and his wifw lived miserably together, and that he said she should not have any of his property at his death, but that his brother' should have it all. By the evidence of two witness-' es, it appeared that the first intention of the bill of sale was to secure George from imposition, but by some-means not accounted for, that intention was changed.' The bill of sale was drawn by Mr. Cannon for the whole* of George’s personal property, except household furniture and other small matters, and the bond was executed by defendant, and delivered to Mr. Cannon tor George,- and was intended as a kind of counterpart to the- bill of ' sale..

*361Mr. Cannon and Mr. Coon, the subscribing witnesses, think that George was sober when he executed the hill of sale. The bill of sale was read to him, and he was satisfied with it then, and always afterwards, except when drunk. But it appeared from other testimony, that through the influence of the complainant, Rutherford, George once intended a suit to recover back the property, but through the superior influence of defendant, was induced again to drop it. It was also proved that the defendant was put in possession of all the property, lands and negroes, by George, and that the defendant supplied him annually with one hundred and fifty dollars, not in cash, but the value thereof, which is not mentioned. It further appears from the evidence, that the defendant, after the death of George, obtained from his widow, Nelly, a receipt purporting to be her renunciation of all rights to the estate of George; the witnesses to which, one of whom is a Clergyman, both seem to think and express an opinion that the transaction was very fair. The true statement of the ease is this, the defendant thinking him-' self secure against her by the former instrument of writing, told her he would, if she would sign the receipt, make a compliment, or present of one hundred dollars, which she might either take or not, and if she would not, the property was his, and she should have nothing. The complainant, Nelly, supposing herself in the power of the defendant, was induced to sign this receipt. There were two witnesses to it, neither saw any money paid, but defendant gave her a suit of clothes, a horse, saddle and bridle, and a note for about forty-seven dollars. This receipt, as well as all the other papers, was executed before two witnesses, and every matter respecting them appeared quite complete. The defendant’s counsel from some cause mentioned to the court, disclaimed all right under the receipt, and appeared to treat it very slightly.

Having now stated the principal facts, the court will consider only, whether the instruments of writing are fraudulent 5 because if they are so, the trust will he pije*, gamed.

*362Defendant’s character is said to stand high, and his” witnesses are said to be respectable, but there are certain circumstances attending this case, which I cannot get over, and which this court will never encourage. George was a very weak man, intrusted by his father to the care of defendant, who is a shrewd man in business. Under these circumstances he has obtained possession of all tiie property of George. He has thus obtained it at an inadequate price; and having the care of George, he has furnished him abundantly with the means of intoxication in his own house. I will endeavour to state what is the law arising under these circumstances, when either of them is made to appear to the court. I have said this is the case of a weak man under the care of a knowing one. The authorities on this head are numerous and muck against the defendant. I will refer at present to the case of Osmond *vs.*Fitzroy, et al. (3 P. Wm. 129,) in commenting upon which, Powell in his Contracts, has laid down the following general rule : “ If there be any fraud in obtaining a bond from a weak man, or the transaction be attended with circumstances, that warrant suspicion, that the party binding himself has been practised upon by imposition, then a Court of Equity will furnish relief.”

Two of the witnesses said George would do any thing for liquor, and all of them admit, he was much under the influence of the defendant. These are the circumstances which warrant the suspicion of *imposition;*and while these stand in the way, I do not regard the opinion of witnesses, when expressed to me as such. It is for facts alone which I wish for from them,* nor have the sayings of George any more weight, for he was naturally a weak man, and that weakness was rendered more so by intoxication. But further, the consideration for these instruments of writing was inadequate. That of the deed of gift for the lands was love and affection, which might have done very well, if George had not intended that morning to place himself under new relations and •new obligations by contracting a marriage.

*363In passing, I will just observe this circumstance shews a deplorable weakness. The condition expressed in the bill of sale, is two thousand four hundred dollars, which would be sufficient, if such a sum had actually been paid 5 but a bond is produced, which is said to contain the real consideration, and that is conditioned for only one hundred and fifty dollars, to be paid annually to George during life, and to build him a good house and out bouses also; also to give him one negro boy Stephen, and negro woman Molly, which were his own, and land to plant during life. Every one must see that the sum of one hundred and fifty dollars during such a life as that of George, was grossly inadequate to the value,, of eight slaves and three horses, contained in the bill of sale; yet this was all proved to have been paid, and that not in cash, but in supplies, the nature of whic% was not stated. There is indeed no evidence of the value of the houses built. But defendant, whatever they were, erected them on his own land, and George had only the use of them during life.

In the answer, George was said to be largely indebted to the defendant, which was a further consideration for the bill of sale;. but on the hearing, this was said to be on .book account, and the books were not proved. Complainant’s counsel said, the debt was chiefly for whiskey j and still .no offer was.made to produce .the books.

Upon the whole, I am quite dissatisfied with patch work. The doctrine laid down in Powell, relative to inadequacy of price, will certainly apply to it. That the inadequacy of price .considered abstractly as. such, is not a ground for setting aside a contract. I mean the light furnishing self-evident demonstration from the intrinsic nature and subject of the bargain itself of fraud. Lord Thurlow observes upon- the case of Ilcathcota and Paignon, that where there is such inadequacy as to evince that the person did not understand the bargain he made, that will amount to fraud. This contract was quite of a complicated nature, contained in two instruments of writing, and embracing within its scope, tlid *364doctrine of an annuity. Now I appeal to the sampled which we have already had of the understanding of George, whether it can possibly be believed that he understood this bargain when made.

But we come now to the third circumstance in this case, with which I am more, dissatisfied than with any other. This is, that the defendant having the care of George, furnished him in his own house abundantly with the means of intoxication. To avoid repetition, I have not applied this fact to the grounds of weakness of mind and inadequacy of price * but it is now evidently a suspicious circumstance. It will have application to both. The law in such cases is well settled. That if drunkenness be of a man’s own procuring, it is not, in law, of itself a ground to rescind a contract or agreement; but if the party from whom suc^i contract or agreement has been gained, were drawn into such a debauch by the management or contrivance of him who gained the contract or agreement, andiwas in such a state as to be utterly deprived of ■his reason and understanding, then equity will relieve. The authority cited, appears to allude to a particular case of *drunkenness;*but the case in question instead of being weakened, will be strengthned when it is proved that the means furnished for intoxication and debauch, were not for one sitting only, but were continually repeated. I refer back to the evidence for this fact. The single instance of his being enabled to keep whiskey by him all night is conclusive. Now his brother furnished the means of his intemperance, and that in his own house. It is no excuse that he could have procured it elsewhere, where he might be imposed on. The defendant at least ought to have washed his hands clean of it. The facts speak for themselves.

I shall add no comments concerning the receipt ór release of all rights from the widow Nelly. Little need to be said, except that it casts a suspicion on the other transaction connected with it. It is the case of a man who thought he had a weak *woman in his*power, and who for want of knowing better, believed he had so. And under these circumstances} it comes fully up, nay *365indeed it is stronger than Heathcote and Paignon, decid-cd by the Master of the Rolls, and sustained by lord Thurlow as Chancellor^ and yet the witnesses thought this a fair transaction.

Upon the whole, therefore, relying upon the circumstances of the weakness of the intestate, while under the care of the defendant, the inadequacy of the consideration, the continual drunkenness of the intestate, induced by the defendant, and also upon the release last mentioned under its circumstances, I am of opinion that the deed of gift, the bill of sale, and the release, ought to be set aside as fraudulent.

Wherefore it is decreed, that the defendant he con», gidered as holding the property of George Ruff, the intestate, in trust, for the complainants, as his legal representatives, for distribution. That the defendant do account to the commissioner for the rents and profits of the *esp*tate, real and personal. That he be allowed his proportion of the estate, and that he do pay the costs of the suit.

(Signed) W. D. James.

The defendant gave notice, that he would move the Court of Appeals to reverse the decree, upon the fellow* ing ground:

First, — That the decree was contrary to law and evidence.

And should he not succeed in reversing the decree, he will move for a re-hearing upon the following ground i

That on the trial, the defendant had his books of account in court, ready to prove the amount which was due him by the intestate, George Ruff, at the time of executing the bill of sale for the personal property, and was prevented from doing so, by the judge stating it to be unnecessary.

S. Farrow, defendant’s solicitor.

The appeal was argued, and a majority of the judges, Gaillard, Desaussure and Janies, delivered the following judgment, in affirmance of the decree of the Circuit Court:

*366There can be no doubt, as to the first deed, it is void. George Ruff intending to marry in the evening’, conveyed in the morning of the same day, for love and affection, his real estate to' his brother. I do not believe he was drunk when he executed this deed, but from many parts of the evidence it is clear there was an understanding between him and his brother, and that the deed was accompanied with a secret trust. A like trust appeal's also to have attended the bill of sale of the negroes.— George had married in a family disagreeable to his friends — was a very weak man — in the habit of intoxication — and easily imposed upon. The deeds were made with a view to his benefit, to secure the property to him. If he had had children, the defendant would probably have given up the property to them: he said that he’ would. George Puff at different times, and on his death bed, said, that he intended his brother should have his property, if he had made a will, it is probable he would have given it to him *;*but he died intestate. His declarations on many occasions, and on his death beef, that he intended his brother should have his property, have been much relied on. This shews his affection for his brother, and it docs not appear that he was not deserving of it 5 but they cannot alter the nature of the original transaction respecting his property. If it were parted with, subject to a trust for George, his legal representatives are entitled to the benefit of it. I am therefore, for affirming the decree of the Circuit Court.

(Signed,)

Theodore Gaixuard, Jun.

I concur in the above opinion.

Henry "SY. Besaussure.

Upon a reconsideration of the above case, I conti-uue of the same opinion which 1 entertained upon the circuit. There are, indeed, several unpleasant facts stated in the decree, but they are neither of my procuring or invention. They were sworn to, positively, by three witnesses, and were denied by none in as positive and unequivocal a manner as they were stated. These facts are as stubborn as they must have been unpleasant *367to the defendant. But I Iiave made no applications of them to bis character ; 1 have only deduced a legal conclusion from them, which I conceived it my duty to do: and in this point of view, I apprehend they ought not to be extenuated. As to the conveyance rtf the lands, aft seem to be agreed that it was obtained under circumstances which operate so strongly against it that it cannot stand. And as to the release, defendant’s counsel early saw that it could not be supported. There are circumstances ofthemselves, unconnected with the inadequacy of price, which cast a suspicion on the bill of sale of the negroes; but when they became connected with it, are in my mind imperious. Little stress was laid upon the testimony of the mother, because I thought it could not alter what was already fundamentally wrong. The case of wills cannot apply, seeing the declarations of George upon his death bed could not amount to a disposition. The evidence of Mr Mantz and Mr. Harrington, shews that a trust was originally intended, and as I have stated in' the decree, it is not satisfactorily accounted for, why the original intention'was changed. I was at first inclined to consider the whole transaction a secret trust, but all the circumstances of the case com, bined, convince me it was a secret trust combined with something more.,* for the moment defendant withheld the property from its true destination as a trust, there he, was guilty of a breach of it, and the-fraud commenced. However, as two of my brethren are inclined to consider the transaction throughout as a secret trust, In order to m»et the justice of the case so far as I am able, at present, I shall agree with them.

(Signed)

W. D. James.

The judges Thompson and "Waties, delivered the following opinion for reversing the decree of the Circuit Court:

In taking this case into consideration, we cannot view it in such high colours of fraud as contemplated in the decree of the Circuit Court. With regard to the <ked of conveyance for the land, we consider it to have *368been predicated on a disposition in John H. Ruff, the dec fendant, to secure it from descending to the wife of; George Ruff, with an intention to reconvey to the issue of the said George, in the event of his having any. We therefore think that the transaction was combined with a secret trust, and the deed should be set aside. As to the bills of sale of the personal property, we view it as a ¿separate and distinct act, entered into with the double object of securing the property to the defendant, who from the uniform conduct, or rather declarations of Geo. Ruff}, was the peculiar object of his bounty, as well as to render a benevolent deed to the unfortunate brother, by securing to him a competency during life.

Creswell, Farrow and W. Crenshaw, for the ap« pellants.

Caldwell, Starke and A, Crenshaw for the re-> s^ondents,

In the whole of this transaction there appears to be nothing unfair. The bill of sale on the face of it, imports no' intrinsic evidence of *fraud;*and there is no ex-, trinsic evidence to justify the court in putting so harsh a construction on it. Indeed the testimony of Maj. Cannon and Mr. Coon, both respectable men, who subscribed ther instrument as witnesses, is conclusive as to its fairness.We also place very great reliance on the evidence of Mrs. Ruff, the mother. We cannot think so unfavorably of human nature, as to suppose that the mother would form a combination with a son possessing a vigorous mind, tó defraud one of weak intellectual faculties, of his whole estate: and it appears to the court that she advised George to enter into this contract. Upon the whole, we see nothing in this case which would justify the court in setting aside this contract: and we are of opinion that the decree should be reversed, so far as it relates to the bill of sale of the negroes.

W. THOMPSON,

Thos. Waxier