#### Hamilton Fripp & Wife *v.*Edgar Fripp, Adm'r. of William P. Fripp.

Although a court of equity may, it seems, refuse to enforce an agreement, on the ground of the inadequacy of the price, or consideration, yet the inadequacy must be so great as to be evidence of fraud, or that some un-conscientious advantage was taken; in the absence of such circumstances, the court will not refuse its aid in enforcing an agreement, on the mere ground of inadequacy.

A party in possession of an estate, which owes no debts, and to which he is solely entitled as distributee, has not such a title to it, it seems, as would be recognized by a court of law — such was not meant to be the decision of the court in the case of Spann v. Jennings, 1 Hill. C. 324. On the contrary, it was intended to be decided in that case, and the true principle is, that the court will give it the effect of a legal title, and will restrain all others from taking advantage of the want of a legal title.

Though property once legally vested, cannot be re-transferred without a conveyance, yet an agreement may be rescinded by *parol,*or by an act significant of the intention, as by cancelling a bond, or giving it up to be cancelled.

*85But an offer to rescind an agreement, to have the effect of rescinding, or cancelling the agreement, must be accepted by the party within a reasonable time ; and in the case of mutual agreements, executed at one time, and forming one *entire contract*between two parties, if one party offers to rescind the agreement, by which an interest is conveyed to him, the other party cannot accept the offer, without cancelling the agreement in his favor, so as to restore both parties to the position which they occupied previous to the arrangement.

*Before DTJNKIN, Chancellor, at Beaufort, March Term,*1838.

The bill states, that Harriet Fripp was the widow of William P. Fripp, and that some time in the year 1828, Isabel Fripp, the sister of the said William P. Fripp, being seized and possessed of a considerable estate, as well real as personal, departed this life unmarried and intestate: leaving her two brothers, William P. Fripp, the former husband of complainant, Harriet and Edgar Fripp, the defendant in this suit, her only surviving relations entitled to a distributive portion of her estate, and that by virtue of the act of assembly, “ for the giving an equitable distribution of the estates of intestates,” commonly called the *“*intestates act,” the aforesaid William P. Fripp and Edgar Fripp, were entitled to one moiety each, of the estate of their sister, the aforesaid Isabel Fripp.

The bill further states, that subsequent to and shortly after the decease of the aforesaid Isabel Fripp, to wit, sometime in the month of October, 1828, and prior to any partition made of the estate of Isabel Fripp, William P. Fripp also departed this life, without children and intestate, leaving his relict and widow, complainant Harriet, and Edgar Fripp, the defendant, the only persons entitled to distributive portions of his estate; and that by the provisions of the act of assembly above mentioned, complainant Harriet, and defendant Edgar Fripp, were each entitled to one moiety of the estate,, as well real as personal, of the said Wm. P. Fripp.

The bill further states, that complainant Harriet, and defendant Edgar Fripp, being then the only parties entitled to distributive portions of two undivided estates, at the suggestion of mutual friends and relations, for the avoiding family dissension and the pro-*86fixity and expense of legal proceedings, agreed to and with each other, that certain appraisers, approved of by both parties, should affix a valuation upon the estates of the intestates, Isabel Fripp and William P. Fripp, to enable the distributees to make such partition between themselves, as they might deem suitable and equitable : that appraisers, acting under the agreement, and with the approbation of both parties, made a statement in writing, setting down distinctly and particularly, the value of all the parcels and portions of the estates of the aforesaid intestates, Isabel Fripp and William P. Fripp, as well real as personal: and submitted the appraisement thus made to the scrutiny and examination of the parties in interest, viz. complainant Harriet, and defendant Edgar Fripp: and, that upon a full consideration and well understood conception of their respective rights, and the just value of the estates of the aforesaid Isabel and William P. Fripp, the parties in interest, complainant Harriet, and defendant Edgar Fripp, expressly and intentionally, and waiving their legal rights for the adjustment of all dissension and discord, agreed that the estate of Isabel Fripp, should be assigned to the defendant Edgar Fripp, and the estate of William P. Fripp, to complainant Harriet Fripp: and, by their hands and seals, interchangeably set and affixed to the appraised valuation of their respective estates, the parties aforesaid did assign to complainant Harriet, the estate, as well real as personal, of her late husband William P. Fripp, and to the defendant Edgar Fripp, the estate real and personal of his sister Isabel Fripp. Complainants crave leave to refer to the said schedule of appraisement and deed of assignment, in the hands of their counsel, ready to be produced for the inspection of the court: a copy of which is filed, marked A.

The bill further states, that under this agreement and assignment, from the date thereof, being the 10th day of January, 1829, the parties aforesaid entered upon the possession of the shares respectively assigned to them, and remained, until recently, in the unmolested and unquestioned enjoyment of the rents and profits of the several estates above mentioned. And complainants charge, and will prove to the satisfaction of the court, that all the debts due by the said intestate, William P. Fripp, at the time of his death, are *87fully paid and provided for; of which payments, the defendant, Edgar Fripp, had full cognizance and gave his approval thereto.

The bill further states, that complainant Harriet Fripp, being at and before that time, in the undisputed enjoyment and ownership of the property assigned to her by the defendant, a marriage was had and solemnized between complainants, Hamilton Fripp and Harriet Fripp; and that the complainant, Hamilton Fripp, by virtue of his marital rights, has possessed himself of the property above mentioned, and reduced the same to possession, and has continued to exercise all acts, and to do all things which, as owner, he is entitled to do in relation to them: and complainants had well hoped, that the said Edgar Fripp, his own deed and solemn agreement, confirmed and established by long acquiescence, and frequent verbal promises and approvals, regarding and respecting, would have suffered complainants peaceably to remain in the possession of their estate.

But now, so it is, the said Edgar Fripp, combining how to defraud and dispossess complainants of their estate, to the entire surprise and manifest injury of complainants, clandestinely, and not with the *Iona fide*intention of paying the debts of the estate, of *the discharge of which he was folly*cognizant, *but*with *the intent of*oppressing complainants, by availing himself of technical defects, if any there be, in the appraisement and division had as aforesaid, obtained from the ordinary of Beaufort district, letters of administration upon the estate of William P. Fripp; and having sued out his writ of trover in the court of common pleas, on the 3d day of February, 1833, had the same served on complainant Hamilton Fripp, and had him arrested, and compelled to give bail for the production of the goods and chattels which were of William P. Fripp, to answer his demand as administrator of the said estate. And the said Edgar Fripp has since that time filed his declaration, and seeks the process of the court of common pleas to dispossess the complainant Hamilton Fripp, of the personal estate of the said William P. Fripp, heretofore assigned to complainant Harriet Fripp, by said Edgar Fripp, in manner and form as above set forth.

And sometimes the said .Edgar pretends that he did not execute *88any assignment of such effects, as herein before described by complainants : whereas, complainants charge, that the proper hand and seal of the said Edgar, are affixed to the instrument above described ; and they are ready to verify the same to the satisfaction of this court. At other times, the said Edgar pretends that his said signature and assent, were obtained by surprise, and whilst he was ignorant of his legal rights, having been induced to believe that complainant Harriet, was entitled to one moiety of the estate of his sister Isabel Fripp, and by her assignment set over to him this moiety: and that upon this belief and consideration, he executed the assignment of the moiety of her husband William P. Fripp’s estate to her : but complainants expressly charge, that in addition to his qualifications rendering him a more competent judge of his legal rights than complainant Harriet, a widow, the said Edgar was in fact well acquainted with his legal rights, having, as they are informed, and hope to prove, taken legal counsel with respect to them, and having clearly and unequivocally signified his knowledge of them, did expressly agree to waive them, saying that he did not think that he ought to deprive the widow of any portion of her husband’s estate. And again, the said Edgar sometimes pretends that he was ignorant of the value of the estates assigned : whereas, complainants charge, that the valuation of the estates was submitted in a precise statement, by items, to his inspection; and that he ought to be bound by his own deliberate and voluntary act. At other times, the said Edgar pretends, that he only desires that partition should be made by legal authority, and that the portion of the property now in his possession, should be made secure to him ; and that, therefore, he has taken out letters of administration upon the effects which were of William P. Fripp: whereas, the complainants affirm, that they have been at all times, and now are, ready to take all legal and proper steps, to afford the said Edgar the most ample security for the enjoyment of his portion. But they charge that the said Edgar, having been disappointed in the productiveness of his portion, and having sustained diminution of its value, by the death of many slaves, or their issue, whilst the portion of complainant Harriet, by judicious management, and some purchases of lands adjoining, has been enhanced *89in value, is, in fact, against justice and right, seeking to avoid his own solemn act, and hath covertly possessed himself of the administration, and brought his suit at law, to evade the legal and equitable obligations of his own deed, by the assumption of a fiduciary character; hoping, thereby, to deprive complainants of their just defence, by pleading the statutory limitation of his right of action, and his own individual formal relinquishment of his right of property, as an estoppel.

All which actings and doings are contrary to equity and good conscience, and tend to the wrong and injury of complainants.— In tender consideration whereof, and for as much as complainants are remediless by the direct rules of the common law, inasmuch as by assuming a new legal character as trustee, the defendant has deprived complainants of their just defence; and forasmuch as complainants cannot enforce the *specific execution of the agreement*made between the aforesaid defendant, and complainant, Harriet Fripp, but in a court of chancery, where matters of this kind are peculiarly and properly cognizable. To the end, therefore, that the said settlement may be perfected, and the said Edgar compelled to execute such deeds of release, or others, as this *court may deem necessary to confirm and assure complainants*in the possession of the estate of the said William Fripp; and, that the said Edgar, as administrator of the rights and credits of the said William, do file a schedule of the debts, if any remain unpaid, that provision may be made for their payment by this court, in its decree, on proof of their validity, and that he be restrained by the injunction of this court, from any further proceedings in his suit at law. And, that complainants may be further and otherwise relieved, according to equity and good conscience, and as the nature and circumstances of their case may require. The bill prays the writ of subpoena, &c.

The defendant, as to so much of the bill as seeks to impeach the letters of administration granted to him, and his title under them, on the ground that they were obtained clandestinely, and fraudulently, pleaded the said letters of administration, and denied that they were obtained clandestinely, or fraudulently.

The defendant also filed an answer, in which he averred that *90the letters of administration were granted to him after the usual citations, and without opposition from the complainants, although they had sufficient means of knowing, and must have known of his application for them. The defendant’s answer then admits the death and intestacy of his sister, Isabel Fripp, and the subsequent death and intestacy of his brother, William P. Fripp; and that Harriet Fripp, the complainant, is the widow of the said Win, P. Fripp. The defendant also admits, that on or about the 16th January, 1829, he did consent that the said Harriet Fripp should take all the estate, real and personal, of her late husband, the said "William P. Fripp, as her distributive share of the two estates of Isabel and William P. Fripp; and that the defendant should take the estate, real and personal, of his sister, Isabel Fripp, as his distributive share of the said two estates, the one being regarded as only equal to the other. He admits, that to give effect to that contract and agreement, he did sign and seal with the said Mrs. Harriet Fripp, two instruments of writing, one of which was precisely, in all respects, like exhibit A., and the other resembled exhibit A. in form, and differed only in the property described, and the name of the person entitled. The former was delivered to the said Mrs. Harriet Fripp, and the latter was given to the defendant. *But the defendant denies that he ever put the said Mrs. Harriet Fripp into possession of the estate of her said husband, otherwise than as above stated,*or that he ever exercised, until after his appointment as administrator, *any act of ownership ivhatever over said property, or any part of it.*On the contrary, the said estates, *real*and *personal,*of the said William P. Fripp, were in the actual possession of the said Mrs. Harriet Fripp, not only at the time of the death of her said husband, but also at the time of the aforesaid arrangement, and the execution of the aforesaid papers, and never have been in the actual possession of the defendant at any time.

The defendant further saith, that some time *after the execution*ofthe said papers, and *long before the intermarriage of complainants,*the said Mrs. Harriett Fripp, of her own accord and free will, rescinded, annulled, and cancelled the aforesaid partition, and restored the defendant to his rights under the statute of distribu*91tions, by returning and delivering to him the said instrument of writing, to be cancelled and destroyed: and that it was, with her consent, and pursuant to her intention, cancelled by cutting off the seal of the defendant, as he is ready to prove by clear and undoubted evidence.

The defendant further saith, that he has been informed that the original, of which exhibit A. is a copy, was found among the papers of Isaac P. Fripp, the father of Mrs. Harriet Fripp, after his death, and after the intermarriage of complainants; and as the defendant has no recollection of having signed and sealed more than two papers, he supposes the one under whi ch complainants claim, was a mere memorandum, made by the said Isaac P. Fripp, for his own use: at all events, the defendant hopes that complainants will be required strictly to prove his seal and signature.

The defendant further saith, that the whole design and scope of complainants bill, as far as the defendant can comprehend it, is to establish the existence and validity of the aforesaid instrument of writing, and thereby compel the specific execution of so much thereof, as relates exclusively to the negroes therein named, and to enjoin the defendant from proceeding to recover the said negroes in his action at law. But the defendant humbly insists, that complainants have a plain and adequate remedy at law, by their action for a breach of the aforesaid contract or covenant, if they can show that it is a valid and binding contract; and, that this honorable court will not entertain a suit to compel the specific execution of a contract relating entirely to chattels personal: besides which, the defendant humbly contends, that if under other circumstances, the court would exercise jurisdiction over the subject of a contract relating to personal property, the complainants have shown no sufficient claim to the interference of equity, inasmuch as the contract, if it can be so called, which they have set forth, is without consideration moving from complainants to the defendant.

The defendant denies all combination and confederacy to oppress and injure the complainants, and prays to be dismissed with his costs.

*Evidence taken before the*Commissioner.

Capt. Perry Fripp, sworn tor complainants:

His name and the *92whole instrument, marked A., is in *his handwriting.*He saw John Law and William Barns, jr., subscribe their names as appraisers, which he also did. He saw Edgar Fripp and Harriet Fripp, sign and seal the same instrument. The instrument now exhibited is in the same condition as it then was, except the words in pencil, “Heir of William P. and Isabel Fripp,” of which, witness has no recollection. These words look like witness’ father’s, Isaac P. Fripp’s handwriting. The endorsement on the back of the instrument, witness thinks, is in the handwriting either of Isaac P. Fripp or Edgar Fripp, but he is not certain which: he is certain it was' done at the time when the appraisement and division were made. After the instrument was regularly executed, it was delivered to witness, as the agent of his sister, Mrs. Hamilton Fripp. He had it when his sister married Hamilton Fripp, and then gave it to his brother Edgar Fripp, to give it to Hamilton Fripp. Knows nothing of the instrument ever having been cancelled.

It is admitted that Edgar Fripp took counsel upon his rights before the property was divided.

Witness states, that Edgar Fripp was aware at the time of the division, that he was entitled to one-half of his sister Isabel Fripp’s property, and to one-half of his brother William P. Fripp’s property. Edgar Fripp said to witness, that he did not think he was entitled to any part of his brother’s property, or ought not to take any part of it, or words similar; but that he thought he was entitled to the whole of his sister’s property.

Cross-examined: There was one other deed besides the one exhibited, executed on that day: each party had one. He does not now remember any other. The deed, in evidence, at the time of the death of his father, was in witness’ possession. Does not recollect that any other deed was executed and delivered to his father to be kept. Does not recollect that he kept one deed and delivered another to his sister. — He is positive that he did not.— His sister delivered the deed to him to be kept. Witness had possession of all Wm. P. Fripp’s papers.

Edward Fripp, sworn for defendants.

Examined the deed A.; has seen it before ; he thinks in his father’s desk or drawer, among his papers, within a year before his death. He died 5th or 6th of *93January, 1832. Believes he was present at the appraisement and division ; cant say how many deeds were executed on that occasion : he was not a witness to any, as he recollects.

Perry Fripp gave witness the deed, and he either sent it to Hamilton Fripp, or gave it to him himself. H. Fripp got it through witness. Is certain that the deed was in the possession of Isaac P. Fripp, at the time of his death. Does not think the deed ever was in the possession of Perry Fripp, until the death of Isaac P. Fripp. Cannot say to whom the deeds, on the day of division, were delivered. Cannot swear that he saw them delivered at all. The endorsement on the deed A., and the words in pencil in the deed are in the handwriting of Isaac P. Fripp.

Proves the signatures to deed B. Knows the paper C. which is now mutilated. After the division of the estate of William P. Fripp, Perry Fripp received the papers to attend to his sister’s business. Does not know exactly at what time Perry Fripp gave up his sister’s business; but when he did, he sent the desk with all the papers to her and she gave them to witness to attend to her business: the paper C. was among these papers. He marked them all; and the endorsement thereon is in his handwriting. At the time witness received the paper C., it was in all respects like paper A.; same writing, same signatures.

Hamilton and Harriet Fripp were married about 4th July, 1832. Witness had paper C. in his possession at least two years. Sometime about a year before the marriage of Hamilton and Harriet Fripp, she asked witness for the paper C.; he gave it to her. She then carried it and gave it to Edgar Fripp, and told him, as near as witness can recollect, to take it, or something to that purpose. The paper was perfect, not cut, when witness gave it to Harriet Fripp, and when she gave it to Edgar Fripp. Edgar Fripp took the paper. Mrs. Fripp several times before that, said to witness she intended to give up the property, and that she did not wish to have any thing to do with it; and witness thinks that was her intention when she gave up the paper. She did not, at the time when she took the deed, say what she intended to do: she did not say any thing. Does not recollect that Edgar Fripp cancelled the deed, or cut off the seals, when it was delivered to him; but he *94put it into his pocket. She was not engaged to be married to Hamilton at that time. *This was a full year before she was married.*After giving up the deed, she frequently, (say more than twice during the year,) hinted, more than said, that she did not consider the property in paper C. hers. Before she gave up the paper C., she more than half a dozen times said she intended to do so.— Witness endeavored to dissuade her and she persisted, and said she had property enough without that. From all the conversation witness has had with her, he understood that the paper was to be given to Edgar Fripp, for the purpose of giving up all the property.

Cross-examined: When the paper was given up to Edgar Fripp, he, Edgar, and Mrs. Fripp, were on speaking terms; cannot say the best of terms: they were never very friendly. She was at witness’ house when he gave her the paper, either on a visit or living with him; which, he cannot say certainly ; thinks it was about a year before her marriage with Hamilton. It was between March and July, 1831. She never told witness her reasons for giving up the property, other than she did not think she was entitled to it, and she had enough without it. When the paper C. was delivered to Edgar, witness does not recollect that he said any thing. Witness continued to manage his sister’s business up to her marriage; during which time, the property remained as it was before the delivery of the paper to Edgar; it never was, during that time, delivered to Edgar Fripp; and he, Edgar, asserted no claim over the property. Mrs. Fripp had no other property than that contained in paper C., except a tract of land which she bought, worth #2000.

She said, she thought she had a right to the negroes she got from her father and the tract of land she had bought. The paper C. includes all the negroes she got from her father; but witness cannot say which they are. *Saw paper A. in his father’s possession about a year before his death,*and frequently after that time. His father died in January, 1832. Witness was in the habit of examining his father’s papers for two .or three years before his death.

It seems to witness, that he saw Perry Fripp take the paper A. after his father’s death; but will -not say so certainly: but he car*95ried away the desk with that paper in it; of this he is certain.— Cannot say certainly how his father-came by the paper, or who gave it to him.

In reply: Perry Fripp is the executor of Isaac P. Fripp’s will; he took the papers away immediately, two or three days after his death. Never saw paper A. among Mrs. Harriet Fripp’s papers, when they were handed to him as her agent. Hamilton Fripp was not addressing her when the paper was delivered to Edgar Fripp.

Perry Fripp recalled by defendant: Witness’ memory is bad(i and has been so for one or two years past. With regard to his statement of the delivery of the deeds to him, as his sister’s agent, since hearing the testimony of Edward Fripp, his brother, he recollects, distinctly, sending to his sister her desk, with the paper C. in it, among her other papers, when he gave up the management of her property. This was shortly after May, 1830. He thinks he never had paper A. in his possession, until after the death of his father. He thinks that his father took possession of the paper A. at the time of the division; which circumstance he had forgotten upon his examination. There are eleven negroes in paper A., which Mrs. Harriet Fripp got from her father at the time of her marriage with William P. Fripp.

Documents referred to in the evidence taken before the Commissioner:

Document A.

(Indorsed,) *“Appraisement and Settlement of the Estate of William P. Fripp. By consent of the heirs, Edgar Fripp und Mrs. Harriet Fripp. January mh,*1829.”



*96

*97

*98

The cause came on for hearing at Coosawhatchie, in March, 1838, before Chancellor Dunkin, who made the following decree:

“ Isabel Fripp died in May, 1828, unmarried and intestate. Her next of kin, were her brothers, William P. Fripp, and Edgar Fripp, the defendant in this suit. William P. Fripp departed this life in October of the same year, intestate, leaving a widow, Harriet Fripp,(who has since intermarried with the complainant, Hamilton Fripp,) and his brother, Edgar Fripp, who were entitled to his estate, under the statute of distributions. No administration was taken out of the estate, either of Isabel Fripp, or of William P. Fripp: but, on the 16th January, 1829, the parties interested in *99the two estates, having had a formal appraisment and valuation made of the same, by mutual friends appointed for that purpose, entered into a stipulation, under their hands and seals, by which it was agreed that the estate, both real and personal, of Isabel Fripp, deceased, should be held by the defendant, Edgar Fripp, as his proportion of the two estates of Isabel Fripp and William P. Fripp, and that the estate of William P. Fripp, deceased, should be held by the complainant, Harriet Fripp, as her proportion of the two estates of Isabel Fripp and William P. Fripp.

These mutual stipulations, or declarations, were appended to the respective appraisements of the said estates: one was delivered in the presence of witnesses, on the same day to the defendant; one to the complainant, Harriet Fripp, and one being a duplicate of that last named, to Isaac P. Fripp, the father of the complainant, Harriet Fripp.

It is alleged in the bill, that from the date of the said instruments, the parties took possession of the estates, real and personal, to which they were thereby entitled, and have held and enjoyed the same, as their own property, without interruption: that Harriet Fripp being the ostensible owner of the estate allotted to her, afterwards intermarried with Hamilton Fripp, who entered into possession of, and has since held possession of the same : thatoñ the 3d February, 1833, the defendant, having in the previous month, without the knowledge of the complainants, obtained letters of administration of the estate of William P. Fripp, caused the complainant, Hamilton Fripp, to be held to bail in an action of trover for the personal estate of William P. Fripp, and is now pursuing his action in the Court of Common Pleas for Beaufort district. The prayer of the bill is, among other things, for a perpetual injunction against the proceedings at law.

The defendant pleaded in bar his letters of administration of the estate of William P. Fripp, which he alleges were obtained after the usual notice, and not clandestinely.

In his answer, the defendant admits that on the 16th of January, 1829, he consented that the complainant, Harriet Fripp, should take all the estate, real and personal, of her late husband, William P. Fripp, as her distributive share of the estates of Isabel and *100Wm. P. Fripp; and that the defendant should take the estate of his sister, as his distributive share of the two estates; the one being regarded as only equal to the other: and that to give effect to this consent, the instruments in writing set forth in the bill were executed and delivered. That Mrs. Fripp was then in possession of her deceased husband’s estate, and that she so continued ; but that the defendant had never been, himself, in possession of any part of that estate, nor had he put her in possession, other than as above stated: and he alleges that afterwards and before the marriage of the complainant, Harriet- Fripp, she, of her own accord, rescinded the partition, “ by re-delivering to the defendant the instrument in writing to be cancelled; and that it was, with her consent, and pursuant to her intention, cancelled by cutting off the seal of the defendant.”

The defendant’s letters of administration of the estate of William P. Fripp, dated 17th January, 1833, were given in evidence. It also appeared that he, on the same day, took out letters of administration of the estate of Isabel Fripp. It was admitted that there were at that time no debts of either estate.

The testimony of Perry Fripp, examined for the complainants, and of Edward Fripp, examined for the defendant, appear in the notes taken by the-commissioner. (See ante.)

The paper marked A. being the instrument left with Isaac Perry Fripp, the father of the complainant, was admitted in evidence, and proved by the witness, Perry Fripp, to have been regularly executed, and delivered in his presence. It was conceded by the defendant, in his answer, that this transaction of 16th January, 1829, was intended as a partition, or distribution, of the estates of Isabel Fripp and William P. Fripp, between those legally entitled. It may rather be regarded as a mutual assignment and release by which all the interest of Harriet Fripp, in the estate of Isabel Fripp, was vested in the defendant; and all the defendant’s interest in the estate of William P. Fripp became vested in Harriet Fripp. If there were nothing else in the case, I should think, on the authority of Spann v. Jennings, 1 Hill, Ch. 324, that the administrator of William P. Fripp should be perpetually enjoined from prosecuting his action at law, although no partition had been made.

*101But it is said that the entire effect of this release was annulled by the subsequent act of Harriet Fripp. The circumstances under which this inference is drawn are developed in the testimony of Edward Fripp. He testified that he was in possession of paper C., of which paper A. is counterpart, as the agent of his sister, Harriet Fripp; that about a year before her marriage with Hamilton Fripp, she asked him for the paper; that he gave it to her; that she carried it and gave it to Edgar Fripp, telling him to take it, or something to that purpose: that paper was perfect, not cut, when witness gave it to Mrs. Fripp, and she gave it to Edgar Fripp. Mrs. Fripp, several time before that, said to witness, she intended to give up the property ; she did not wish to have any thing to do with it. He does not recollect that Edgar Fripp can-celled the deed, or cut off the seals, when it was delivered to him, but put it into his pocket. After she gave up the deed she frequently hinted that she did not consider the property her’s. This took place between March and July, 183^"sÉ5SrmEñel!-Nqontinued to manage the affairs of his sister, untjM^Jwfcrage'wjjMKamil-ton Fripp, in July, 1832 ; during whicmtime the property Remained as it was before the delivery of the ílÉgiüvTOiVp, and he, the defendant, asserted no claim //over the property. I Mrs. Fripp had no other property, except a\U’aLtF5lSi^roi*vriftbh she had given two thousand dollars.

The testimony of this witness is fully developed in the notes which accompany this decree. There was no other evidence on the point.

The effect of this testimony, has not been to satisfy my mind that the complainants have lost a right to which they would otherwise be clearly entitled, to claim the interference of this court. The proceedings of 16th January, 1829, were deliberately, and to a certain extent, formally executed, after much consideration, and even professional advice taken as to the mutual rights of the parties. Their respective interests were thereby fixed and defined ; and nothing more was necessary to be done in order to establish the exclusive right -of Harriet to the personal estate included in the paper A. The testimony should be clear and conclusive in *102order to divest these rights, or disturb this arrangement. I doubt if, under any circumstances, the subsequent surrender of the deed could of itself divest the complainant of the estate which she held. Nicholson v. Halsey, 1 Johns. Ch. R. 422.

Edward Fripp states, with confidence, what he believes to have been the intention of Mrs. Fripp, when some two years afterwards, she delivered the paper to the defendant. In the language of the Chancellor, in King v. Baldwin, 2 Johns. Ch. R., 557. “ There is nothing more dangerous than to impair the force and effect of solemn contracts in writing, by careless, idle and perhaps unmeaning conversations.” But there were mutual releases, and Edgar Fripp did not give up that which he held for the estate of Isabel Fripp, nor was there any evidence that it had been cancelled, with the knowledge of the parties; nor that it had been agreed or intended to be cancelled. Nothing was done in consequence of this transaction. Mrs. Fripp remained in exclusive possession of the estate assigned to her, and the defendant in the exclusive possession of that which had belonged to Isabel Fripp. Twelve months after-wards, Mrs. Fripp, having been in exclusive possession of the estate,, as her own property, for nearly four years, intermarried with Hamilton Fripp. No notice was given of any claim on the part of the defendant, nor was any attempt made to alter the situation of the property until the application for administration on the 17th January, 1833, and the institution of the suit at law a short time afterwards. The defendant and Mrs. Fripp were never on good terms.

If it was understood by the parties that the re-delivery of the deed had placed them in their original condition, why were not the estates then divided *1*It may have been the intention of the parties to have had a new settlement and division of both estates. In any other point of view, the act of Mrs. Fripp was without consideration. But this does not seem to have been the intention, as inferred by the witness of the defendant. If this were an application of Mrs. Fripp, prior to her marriage with Hamilton Fripp, I think, on the evidence, she would be entitled to a perpetual injunction.

*103But it has been stated that in July, 1832, Mrs. Fripp being in possession of this estate as ostensible owner, intermarried with the complainant, Hamilton Fripp.

It is testified by Perry Fripp that he had possession of the paper A., which had been given to Mrs. Fripp’s father on the day of the arrangement, and that “ when his sister married Hamilton Fripp, he gave it to his brother, Edward Fripp, to give it to Hamilton Fripp.” Edward Fripp corroborates this statement, and says, that “ he either sent the deed to Hamilton Fripp, or gave it to him himself.” It seems to me, that the complainant is entitled to the protection of a purchaser for a valuable consideration. If Mrs. Fripp had sold one of the negroes in July, 1832, and her vendee held possession until January, 1833, it would be little less than to sanction a fraud on the community to allow the defendant then to assume a representative character, and disturb a title, which his silence, no less than his acts, had contributed to recommend.

In the answer, it was insisted that the complainants had adequate remedy at law; that if, as was suggested, partition had been made of William P. Fripp’s estate, this would be a good legal de-fence, as the letters of administration had relation to the death of the intestate.

In May v. Walker, 2 Hill, Ch. 22, the principle is recognized, that the grant of administration has relation back to the death of the intestate, so as to legalize the intermediate acts of the administrator. But it is equally well settled, that the statute of limitations will not commence to run against an estate until administration has been actually granted. I am disposed, however, to place the complainants’ ground for relief, not so much on the allegation that a partition had been made of the estate of William P. Fripp, as on the acknowledged fact, that there were no debts of that estate, and that the defendant, by the deed of 16th January, 1829, had released to the complainant, Harriet Fripp, all his interest in the personal estate, which is the subject matter of the suit at law. The forms in the court of law would not permit the complainant in that tribunal to have the full advantage of this defence. In the language of the court, in Spann v. Jennings, the “ complainant was entitled to the administration. But to what purpose should *104she have administered ? There were no debts to pay, and no distribution to be made. Was it simply that she might take possession in he'r own right? That would have been merely going through a nugatory ceremony: or if any other person had administered, could the property have been recovered ? No. *By going into equity, and showing that there were no debts, and that she was exclusively entitled, a recovery at law would have been restrained.”*

I am of opinion that the complainants have made a proper case for the interposition of this court, and are entitled to relief. It is ordered and decreed that the defendant, Edgar Fripp, be perpetually enjoined from prosecuting the suit at law, instituted by him, as administrator of William P. Fripp, against the complainant, Harriet Fripp, and that he pay the costs of these proceedings.”

From this decree the defendant appealed, and moved that the same be reversed, and the bill dismissed with costs, on the following grounds:

1. That the defendant was entitled to one half of the real and personal estate of William P. Fripp, and two-thirds of that of Isabel Fripp, which, according to the appraised valuation of both estates, were together equal to $26,241 75; and the valuation of the property assigned to him, which, it is admitted, has since even depreciated, was only $17,386; whilst the share of the complainant, in the same estates, was, by the same estimate, only $17,548 75; and she had property assigned to her of the value of $26,404 50. And the defendant submits that a contract, *so grossly unequal,*will, at least, *not be enforced*by a Court of Equity.

2. That it is clear, from the evidence, that at the time of the contract, the defendant *was mistaken as to the legal extent*of his interest in the two estates ; and he submits, that such a *mistake of law*is a ground *even for rescinding*a contract solemnly executed, and more especially one so grossly unequal as the contract in question in this case.

3. That the re-delivery of the written evidence of the contract by the complainant, for the express purpose of annulling the agreement, and the acceptance of the paper and its cancellation by the defendant, both of which were done after full consideration, and repeatedly recognized afterwards, by both parties, *did,*in *effect,*
      *105both in law and in equity, put an end to the obligations of the parties under it; nor was any conveyance, or other more solemn act, necessary to give full effect to such rescission of the contract.. And the defendant submits, that even if a court of equity would enforce such an agreement, yet, when it has been deliberately rescinded by the party claiming under it, and that obviously from a consciousness of its inequality and injustice, no court will, upon a change of mind of the party, lend its aid to re-establish and enforce it.

4.. That his honor, the Chancellor, is mistaken in supposing that there were more than two copies of the paper A executed. It being clear, from the testimony of the complainant’s witness, Perry Fripp, as corrected by himself on his re-examination, that the unmutilated copy was that which was delivered to the defendant, and taken possession of by Isaac P. Fripp, at the time of the division ; and which was found among the papers of the latter, after his death, by the witness, Perry Fripp, who retained it in his possession until the marriage of the complainants, and then sent it to them: so that, although the paper was the property of the defendant, it was not, in fact,in his possession, so as to be re-delivered, or cancelled by him.

5. That the right to administer on the estate of William P. Fripp, was in the complainant, Harriet Fripp, and not in the defendant : and the defendant’s omission to apply for the administration, after the rescission of the contract, until after her marriage, is no evidence that he did not understand the rescission of the contract to have restored him to his rights under the statute of distributions ; while Mrs. Fripp’s remaining in possession after that time, is no proof that she did not fully understand the effect of her deliberate act, but, when coupled with her frequent declarations, goes in fact to show the contrary.

6. That the object of the bill is to be ascertained by its prayer; and the prayer of the bill in this case is, for the specific execution of the agreement in paper A. The evidence is, that the agreement has been distinctly and fairly waived; and the bill, praying for its execution, admits that it has never been performed. The complainants, have, therefore, been guilty of *laches.*

*106
      *7.*That the complainant, Hamilton Fripp, cannot, upon any principle, be regarded as a purchaser for valuable consideration of William P. Fripp’s estate, inasmuch as it is not in evidence that he ever knew any thing of the agreement of January, 1829. The paper C. was cancelled more than a year before his marriage with the other complainant; and the duplicate A. was never in his possession, or in the possession of his wife, or known by either of them to exist, until after their marriage. And the defendant submits, that the possession by the widow, of her intestate husband’s property, is not sufficient to entitle a subsequent husband to claim *the whole estate*against a co-distributee, as a purchaser for valuable consideration, by virtue of his marriage ; even if a mere equity could avail *a complainant*against a legal title.

8. That if the contract of January, 1829, has not been rescinded, it is binding equally in law and equity; and if the complainants have any rights, they have plain and adequate remedy at law. Nor can the statute of limitations make any differencefor, if the contract is not binding, the statute of limitations cannot avail the complainants, either in law or in equity; and if available at all, is equally available in either *forum.*

9. That the complainants have not made out by the evidence, the case stated in their bill; nor any such case as entitles them to relief under the general prayer: whilst the evidence fully sustains the answer of the defendant, and the answer is a sufficient defence *to*the suit.

10. That the decree is contrary to the evidence, and against law and equity.

Curia, per Harper, Chancellor.

With respect to the first ground of appeal, admitting the correctness of the position taken on behalf of the defendant, that the court will refuse to enforce an agreement on the ground of inadequacy of price alone ; yet, I think, it cannot avail him in the present instance. The expression in some of the cases is, that the inadequacy must be so great as to be evidence of fraud, or that some unconscientious advantage was taken. But, I think, the circumstances rebut any such conclusion in the present case. Here was a man dealing with a woman, *107when it was said by the defendant, “ that he did not think he was entitled to any part of his brother’s property, or ought not to take any part of it,” or words similar ; this does not indicíate any ignorance of his legal lights. The same witness states that he knew he was entitled to one-half of his brother’s property. He meant that he was not morally entitled; that he ought to allow his sister-in-law to retain the property she had been accustomed to enjoy along with her husband. Though his assignment of. his share of his estate, was in a legal sense founded on a valuable consideration, yet he intended a kind and liberal action. But this does not show an unconscientious advantage obtained over him — he is not to be relieved against the effect of his own generous or benevolent impulses ; and this, I believe, comprehends all that is necessary to be said with respect to the second ground of appeal. It is argued that if, as the Chancellor is understood to infer, the legal title was transferred by the mutual assignment, there is no ground of jurisdiction — the complainants might defend themselves at law ; but I certainly do not understand it to be decided by the case of Spann v. Jennings, that the party in possession of an estate which owes no debts, and to which he is solely entitled as distributee, has such a title as would be recognized by a court of law. The contrary is to be inferred from the quotation made by the chancellor. It is meant that the court will give it the effect of a legal title ; it will restrain all others from taking advantage of the want of legal title. Suppose the estate, being unindebted, both parties had joined in conveying it for a valuable consideration to a third person, and the defendant had then administered, and brought suit for the property, the court would have interfered to restrain him upon a double ground: 1st, to prevent circuity of action; to prevent the plaintiff from recovering in one jurisdiction that which the defendant would forthwith be entitled to receive back from him in another; and, next, because the plaintiff’s recovery against his own conveyance and assurance would have all the effect of fraud. The very same reasoning applies to the assignment of the defendant, whether we regard it merely as an agreement or as something to which this court will give all the effect of a legal title.

The ground principally relied upon is, that this was merely an *108agreement, which was rescinded by the instrument’s being given up to be cancelled. Though.property once legally vested cannot be re-transferred without a conveyance, yet an agreement may be rescinded by parol or by an act significant of the intention, as by cancelling a bond or giving it up to be cancelled. I suppose this to be the doctrine of this court, and that a bond or covenant might be so released. The conclusion of the chancellor, that the assignment may have been put into the defendant’s hands for some other purpose than that of being cancelled, evidenced as it is by the circumstance that the defendant acquiesced so long in the possession of his sister-in-law, and never cancelled or gave up the assignment to himself, is one with which this court could hardly interfere. But I have taken a somewhat different view of the transaction, which the .chancellor, who heard the cause, concurs in regarding as a legitimate deduction from the circumstances. I think it was an offer to rescind, which offer does not sufficiently appear to have been accepted. The evidence is, that the complainant, Mrs. Fripp, and the defendant, were not on good terms. He had made a very kind and liberal arrangement with his sister-in-law, and with a very natural human infirmity, became after-wards discontented with his own generosity. He probably expressed this discontent, which gave occasion to pique and irritation on her part. This led her to question the propriety of her retaining the property, and to express her intention of giving it up, when she put the assignment into the hands of the defendant. I understand it to have been by way of saying, “ I put it in your own power to put an end to this arrangement if you think proper,” and this agrees precisely with the testimony that she afterwards “ rather hinted than said ” that the property was not hers ; she was apprehensive that the defendant might accept the offer she had made.

This was an offer to rescind, which I think he was bound to accept within a reasonable time, not only by cancelling the paper, delivered to him, but by cancelling or giving up the assignment to himself. Could it be tolerated in any other instance of an offer to make or to rescind a contract, that the party should wait two years, and then say, “ I accept your offer,” especially when there had occurred so material a change of circumstances as the marriage of the *109complainants in the meantime ? It is said, that when several deeds are executed at the same time, in relation to the same matter, they constitute but one assurance or one agreement — 1 Fonb. B., 1 ch. 6, sec. xiv., Montague v. Tidcombe, 2 Vern., 518. The contract by which the complainant and defendant divided the property was one and entire. It was not contended at the hearing that the defendant was entitled to retain the whole estate of Isabel Fripp, and yet claim his proportion of the estate of William P. Fripp. This would not be like the case of giving up or cancelling a bond or covenant made for the benefit of one party ; it would be the making of a new agreement,' such as I certainly cannot suppose to have been contemplated by either party ; and yet could the complainant have maintained any action for her share of the estate of Isabel Fripp against the effect of her own assignment in the defendants’s hands? An agreement to bind must be mutual — an offer, to bind must be accepted. We have no evidence when the defendant cancelled the instrument in question, and it was for him to show this, he permitted the complainant to remain in possession of tlie property as her own for two years. He certainly did not give up or cancel the assignment to himself, and I cannot gather, even from his own answer, that he does not insist on retaining the advantage which that gave him, and still claiming his proportion of the estate of William P. Fripp.

*De Treville,*Solicitor for defendant.

The decree of the chancellor is affirmed.

Johnson, Johnston and Dünkin, Chancellors, concurred.