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    Benjamin T. Mulford, appellant, and Jonathan Bowen and others, respondents.
    On a sale of land by A. and B., administrators, under an order of the Orphan’s Court, the property was struck off to C., who, on the same day on which the property was conveyed to him, conveyed it to A. The heirs brought ejectment against A.; and, on a bill exhibited by him, an injunction restraining the ejectment was allowed. On answer and testimony, the injunction was dissolved by the Chancellor. On appeal, the order dissolving the injunction was reversed.
    On the 4th February, 1848, Benjamin T. Mulford exhibited his hill in the Court of Chancery, stating, that Mason Mulford, late of Cumberland County, died, intestate, on the 1st of September, 1836, seized, among other lands, of a certain farm in the township of Hop*well, in said County, which, with his said other lands, descended, equally, to his five children then living and the only child of a deceased daughter, (naming the heirs.)
    That, on the 11th September, 1836, administration of the personal estate of the intestate was granted to John T. Mulford and the complainant, the only sons of the intestate; and that, on the 19th September, 1836, the said Administrators filad in the Surrogate’s office an inventory of said personal estate, appraised at $1,472.65.
    That the said Administrators, discovering that the personal estate of the intestate was insufficient to pay his debts, applied to the Orphan’s Court (&c.); and that the said Court, in November, 1836, made an order that the said Administrators should sell the said farm, called the a Homestead farm,” and containing about 69 acres of arable land, to satisfy the residue of the debts.
    That, having duly advertised the said farm, the said Administrators, on the 20th February, 1837, at a publie sale, *nd in a fair and open manner, sold the said farm to one Isaac Mulford, for $1,800, clear of the right of dower thereon of the widow of said intestate, with the understanding and agreement, that one-'third of the said purchase money should be put out at interest for the said widow during her life ; and that the said Administrators, by deed dated March 21, 1837, conveyed the said farm 'to the said Isaac Mulford; and, on the same day, he, the said ■Isaac, with his wife, by their deed of that date, conveyed the !said farm to the complainant, in consideration of the sum of $1,800.
    That the said sale by the Administrators was bona fide, and for the best consideration that the said farm could be made to produce; and that the subsequent sale by the said Isaac and his wife to the complainant was also bona fide, and was brought about, immediately after the said sale to the said Isaac, in this wise, and not by or through any fraudulent or corrupt agreements previously entered into between the complainant and the said Isaac ; that, on the same day on which the said farm was exposed to sale by the said Administrators, and just before the sale commenced, the complainant told the said Isaac, if he would buy said farm, that he, the complainant, would give him $1,800 for it; that the said farm was cried off to the said Isaac, as the highest bidder, for the said sum of $1,800 ; and the said Isaac, afterwards and before the day appointed by the conditions of sale for the delivery of the deed to him, consulted and agreed to-let the complainant have the said farm ; (it being the homestead farm of the complainant’s said father, ,and for that reason desirable to the complainant,) at the same time at which it had been struck off; and afterwards, on the same day on which the said deed to the said Isaac was executed, he and his wife executed their deed to the complainant as aforesaid.
    That, at the time of said sale, the said farm was greatly out of order, poor, and in a low state of cultivation; the fences were generally decayed and out of repair, and the dwelling house and other buildings thereon were very poor and dilapidated; and $1,800 was the full price or value of the said farm, and as much as the said Administrators, after fully and fairly advertising the same, could obtain for it.
    That, between the day on which the said farm was struck off to the said Isaac and the day on which the said deeds were exeCuted, the said heirs of Mason Mulford, deceased, (all of whom were of full age except the said Sarah Veal,) were made fully acquainted with, and had information and knowledge that the said Isaac had agreed to sell or let the complainant have said farm as aforesaid; and, so far as the complainant knows and believes, no dissent or disapprobation was either felt or expressed by any of said heirs at the complainant’s taking said farm as aforesaid; and the said conveyance thereof was made to the complainant with their full knowledge and consent.
    That, after filing said inventory of the personal estate of the intestate, the said Administrators, by sale and otherwise, converted the same into cash.
    That the whole personal estate amounted to $2,046.06 ; while the debts, with the expenses of administration, amounted to $3,692.67, as by the final account of the Administrators, confirmed by the Orphan’s Court, in June, 1838, will appear.
    That, in consequence of the complainant’s taking a conveyance of the said farm on the same day (&c.), the said Isaac actually paid no part of the said purchase money, but the complainant assumed the payment thereof; $1,200 of which the complainant paid by paying debts, to that amount, of the said intestate, and which, as the complainant is advised and insists, •were, at the time of executing the said conveyances, liens and incumbrances upon the said farm; and the remaining $600 the complainant secured by bond, and paid the interest thereof to the said widow, during her life, in lieu of her right of dower in said farm; and at her decease, on the 24th March, 1842, or shortly after, the complainant paid four fifth parts of said $600 to and for the use of the said heirs, as follows : $120 to Phebe Maul; $120 to John S. Mulford; $120 to Jonathan Bowen, husband of Maria, and $120 to David Minch, surviving husband of Priscilla, and the father and guardian of her children; and the complainant retained the remaining fifth part for his own use, as one of the heirs. That the said principal sum was divided into five parts, instead of six, in consequence of the said Sarah Veal having died, intestate, and without issue, before the death of the said widow.

      That when the complainant paid the said sums of $120 to the said David Minch and Jonathan Brown, respectively, they had full knowledge that the said farm had been conveyed to the complainant as aforesaid; and they, severally, accepted and received the said sum of $120 as part of the said purchase money thereof.
    That, from the time of the said conveyance to the complainant to the time of the commencing of the ejectment hereinafter stated, the complainant, with a full knowledge of all the circum stances as hereinbefore stated on the part of the said David Minch and Jonathan Bowen and his wife, had quiet possession of said farm, without any claim of right or title thereto by the said Minch and Bowen and his wife ; and, with their full knowledge, the complainant expended, in cultivating and manuring said farm, and in building, repairing and enlarging the buildings thereon, and in fencing and other permanent improvements, large sums of money, amounting, in the whole, as nearly as he can state, to about $5,000 ; raising said farm thereby from the poor and dilapidated condition aforesaid to a high state of cultivation, with good and permanent buildings and improvements thereon, and worth nearly four times as much as when he purchased it as aforesaid.
    The bill then states, that the said Minch, claiming one-sixth of the said farm as tenant by the courtésy, and the said Jonathan Bowen and Maria, his wife, claiming one-sixth of said farm, and claiming that the said convéyance to the complainant is void in law, have brought ejectment (&c.), in the Supreme Court, by declaration returnable to July term, 1847, against the complainant ; and that the said suit is noticed for trial at the next Cumberland Circuit.
    That the said Isaac Mulford was the only person by whom the complainant could prove the exact circumstances under which the complainant purchased and had said farm conveyed to him as aforesaid, and that the said Isaac has been dead some 6 or 7 years.
    That the complainant is advised that, although the said sale and conveyance to him is valid in law and equity if the precise circumstances touching the same as aforesaid could be proved in a court of law, yet that, by reason of the death of said Isaac,, and the fact, to be left unexplained thereby, of the said conveyance to the complainant bearing date on the same day with the said conveyance by the said Administrators to the said Isaac,, and under some peculiar decisions of our Supreme Court in allowing mere equitable frauds to be proved to invalidate a deed on a trial at law, he cannot safely, nor without great hazard, defend his title to the said farm in the trial of the said ejectment; and that his proper redress is in this Court.
    The prayer is, that the said ejectment may be restrained by injunction; and that the said Minch and Bowen and wife may be decreed to confirm the title of the complainant to said farm ; or, if the Court shall be of opinion that the title of the complainant is voidable in equity, then that said Minch and Bowen and wife may be decreed to come to a just and equitable account with the complainant in the premises; and that the complainant may be placed in the stead of the several creditors of the said intestate, and have a lien upon the said farm for the amount of the said debt, and interest thereon, and monies paid to said Minch and Bowen and other heirs, and interest thereon, and for the amount of all the permanent repairs and improvements of said farm as aforesaid, over and above the rents, issues and profits thereof, according to its condition at the time of the said conveyance to the complainant; and for such other and further relief, &c.
    An injunction pursuant to the prayer of the bill was allowed..
    Bowen and Minch put in separate answers.
    Bowen, in his answer, says, that at the time of the said sale,, and for some years before, he resided in Louisiana, and that he did not return to this State until some time after the sale.
    That he is informed and believes, that no such deeds as are' mentioned in the bill are on record in the Clerk’s office.
    He denies that the said sale and conveyances, if any such conveyances were made, were bona Jide and for the best consideration the said farm could be made to produce ; and insists that' the said sale was fraudulently made ; and that the said Isaac. Mulford was, by the said complainant, by and through a fraudulent and corrupt agreement entered into by and between the complainant and the said Isaac prior - to the sale, procured to bid off said farm for the complainant; so that the same was in fact bid off and bought by the complainant himself, at his own sale, corruptly, and contrary to his duty as one of said Administrators ; by 'reason whereof this defendant submits that the said sale was void.
    , He denies that $1,800 was, at the time of said sale, a fair price for the said farm ; and says that the farm was then worth $>3,000, and would, if fairly sold, have brought a much larger Sum than $1,800.
    He says he has been informed and believes, that the complainant, intending, through his agent, the said Isaac Mulford, to buy the said farm for his own use, for the purpose of enabling; him to buy the same below its fair value, corruptly and con-' trary to his duty as Administrator, took measures to depreciate the property and prevent its. bringing a fair price, by giving out, and procuring his mother, the said widow, to give out, that she would not release her .right of dower unless the complainant should get the property, and by leaving it a matter of doubt, at the sale, whether it was sold clear of her dower, and by refusing to show the premises to persons who were desirous of purchasing and applied to him to show the same, and by giving out and circulating a report, at the sale, that he would not give up the possession to the person who might purchase the farm, and that they would have to bring an action to recover the possession, and by other fraudulent and corrupt practices.
    He denies that he was, at the time the said deeds are stated by the complainant to have been made, or at any previous time, made fully acquainted with and had information or knowledge that the said Isaac Mulford had agreed to sell or let complainant have said farm ; and denies that the said conveyance from the Administrators to the said Isaac, and from the said Isaac to the complainant, were made with his knowledge and consent; and says that he was absent from the state (as above stated) ; and had no knowledge of the sale and conveyance, or of the circumstances attending the sale, or of the making of the deeds, or any information respecting the same. And says, that he never gave any consent, directly or indirectly, to the purchase of the said farm by the complainant for $1,800, or to the making of any conveyance thereof to him, if any such conveyance has ever been executed.
    He denies that on the decease of the widow, on the 24th of March, 1842, or shortly after, the complainant paid him one-fifth part of the said sum of $600, or at any other time or in any other manner; and denies any agreement made or entered into, or any consideration whatever being given to him, after or before tbe decease of the said widow, on account of said purchase money for said farm, or bis consenting to tbe said sale in any manner.
    He denies, that with a full knowledge on bis part of all the circumstances stated by the complainant, the complainant had quiet possession of said farm without any claim of right or title thereto by this defendant or the other heirs; and says, that, on the contrary, he always denied the complainant’s title, and, on one or more occasions, so intimated to the complainant) who, as this defendant insists, well knew, from the first, that his title was questioned, and would be investigated, and who, well knowing his own fraudulent and corrupt practices to obtain said farm, could not he ignorant of the defectiveness of his title. And he submits, that the complainant is chargeable with full knowledge of all the consequences of his illegal acts, and had no right, in law or equity, to expect or require of this defendant any warning or notice thereof.
    He denies that the repairs and permanent improvements made by the complainant amount to anything like the sum he has stated; and submits, that the complainant has had the use of the farm since the sale, and that whatever improvements he has toado were made yoluntarily and at his own risk, without any encouragement to do so from this defendant, or, so far as he knows? from the other defendant, and, if lost by him, will be lost by his •own wrongful and fraudulent conduct.
    He admits'the bringing of the ejectment; and submits, that, by the well settled rules of this State the complainant has no title (&c.)
    He submits, that all and every the matters in the bill mentioned and complained of are matters which may be tried and ■determined at law, and with respect to which the complainant is not entitled to any relief in this Court; and he prays the same benefit of this defence as if he had demurred to the bill.
    The answer of Minch is the same, except that he says he was •unwell at the time of the sale and did not attend it; and admits, that, sometime after the death of the widow, the complainant, in a settlement this defendant had with him about other ■dealings, accounted to this defendant and allowed him $120, stated by the complainant to be one-fifth of the sum included in a bond given by the complainant to the said widow for one-third of the amount for which the said Administrators had sold the said farm purchased as aforesaid by the complainant; but this •defendant denies that he received the said sum under any engagement or understanding that he acquiesced in or agreed to the said sale; and he denies that he accepted the same as his ¡share of the purchase money thereof.
    Replications.

      Auley McCalley Wood,

    a witness produced on the part of the 'defendants in the above cause, being duly sworn, deposeth and ¡says: I was called upon by William Smith, to view the Mason .Mulford property, several years ago; I cannot tell exactly when; it was after Mason Mulford’s death. After we viewed the land 'We went to view the house; I was some acquainted with the lines; at the house we talked with the widow. The widow ■seemed affronted, and said if any body else than Benjamin bought, she would not sign the deed. We left the house and went up to the tavern, and saw Mr. Benjamin Mulford there. He lived at Salem at that time. He asked me if I was going to bid at the property. I told him yes. He said his mother would not sign the deed, or he said she said she would not sign the deed, I do not remember which. I think this was the day the property was to be sold. The old gentleman, William Smith, had come down for the purpose of buying the property. I was authorized by Mr. Smith to go as high as $2,500, unless I was stopped, or could get the property for less. We did not bid in consequence of what was said about the widow’s signing the deed.
    Being cross-examined, on the part of the complainant, says : I am near seventy years old. I have been deaf more than twenty years. I do not recollect that there was any person present when the conversation happened between Benjamin T. Mulford and myself. There were other persons present at the conversation with the old lady, who interpreted what she said, otherwise I should not have known what she said. I was at that time deafer than I am now. (The witness is now so deaf that his examination cannot be conveniently taken except by written interrogatories. This is admitted by the parties.) No person told me what Benjamin said to me at the tavern. He talked to me so plainly that I was satisfied as to what he said. Mr. Thomas Smith and his father both told me what the old lady said. At the time of the sale I was not so frequently in the habit of having conversation with Benjamin as now. There was very little conversation between us. He took me out and asked questions and I answered him. He did not say that he did not want his mother to sign. The conversation between us was on the porch at the tavern.
    Being again examined on part of defendants, says: I had a conversation with Benjamin since the subpena was served, which I commenced myself, and in it he told me that he did not say his mother would not sign, but that he said she said she would not sign.

      (It is. objected on part of complainant’s counsel, to all that part, of the above evidence relating to the conversation between witness .and the widow, and the cross-examination is subject to that objection.)

      Thomas Smith,
    a witness produced on the part of defendants, ■being duly sworn, deposeth and says: My father’s name was William Smith; he is dead. I know that my father talked of buying Mason Mulford’s farm, after his death, at the time it was advertised by the administrators. I think about twelve years ago. I went with father to look at the farm; it is in Roadstown, where Benjamin T. Mulford now lives. We went to look at the farm. We saw the old lady. Auley McWood was there. I mean by old lady the widow of Mason Mulford, •and mother of Benjamin. Mrs. Mulford said she would not sign the deed if any other person than her son Benjamin bought. We went from the farm to the tavern. Neither father or I had any conversation with Benjamin that I know of. My father had spoken to Mr. Wood about buying the farm. He told him to give $2,500 if he could not get it for less, I supposed my father considered the farm worth $2,500. I did not make any calculations as to what it was worth.
    Being cross-examined on the part of complainant, says; I was forty years old last May. Neither myself or father had viewed the farm before that day. He then lived in Gloucester county, about twenty-five miles from Roadstown. I don’t know that we walked all over the farm on that day. I did not know anything about the lines. Mr. Wood, father and myself were together. We went to Wood’s house after him. When father told Mr. Wood to give $2,500 for the farm, we were at Mr. Wood’s house. This was before we had been on the farm. We reached Mr. Wood’s in the forenoon. I dont think we were on the place more than three-quarters of an hour. The house was not in as good condition as we expected to find it. I don’t know but what we found the fencing in as good condition as we expected to find it. Father has been dead nine years last September. The old lady was alone when we had the conversation with her. I don’t know the age of the old lady; she appeared to he an elderly woman.
    Being again examined on part of defendants, says: I was present at the sale. Mr. Wood did not bid for my father. My father told me when we were going home, the reason he did not hid or buy the farm was, because the widow would not sign the deed.
    (Complainant’s counsel objected to the whole of the testimony, and cross-examination was made subject to this exception.)

      Henry Dowdney,

    a witness produced on part of defendants, being duly sworn, deposeth and says : I was present at the sale of Mason Mulford’s property, about twelve years ago. I think the farm was bid off near the farm. The farm house is about one hundred and fifty yards from the tavern. I am not positive where it was hid off. I do not recollect the conversation between Benjamin T. Mulford and myself; it seems like a dream to me. My recollection is too indistinct to he qualified about it. I think 'Benjamin Mulford come to me and asked me to bid on the property, that it was going for less money than ho was willing to give for it. I did hid for it, and think lie said he was willing to give $1,800, and it was going for less than that. It was hid off to Isaac Mulford.
    Being cross-examined on part of complainant, says: I think there was a conversation between mo and Mr. Mulford, but as to wording it I cannot. I told Mr. Mulford some three or four years ago that I did not recollect of bidding for the property. Since then I have had a conversation with John S. Mulford, and it is that conversation which has brought this recollection to my mind. I do not know who kept the tavern at that time. It strikes mo that Mr. Mulford said the farm was going for loss than ho was willing to give lor it.

      Being again examined-in-chief, says : My telling Mr. Mulford that I did not bid on the farm, arose in consequence of Mulford’s talking to me about a suit respecting the property. Says he, you bid on the farm; says I, I didn’t: he says, I think you did. That was all that passed at the time. I think this was since the suit about the farm. Mr. Mulford was at my house last evening; we were talking about the sale of the property and about my bidding on it, he said the property was set up at $1600, and he asked me to bid on it, and then I bid $50; then Mulford made another bid; and then I bid $50 more, and Mulford bid $50 more, and the property was knocked off at $1,800. He said he had told Mr. Mulford that he would give $1,800 for the property, and that if it was bid off for less he would have to give Mr. Isaac Mulford the difference, and that he would rather it would go in the family.

      Joseph Harris,
    a witness produced on the part of defendants, being duly sworn deposeth and says : I am thirty-five years old this coming May. I remember hearing of the sale of the Mulford farm. I lived at that time, either with Isaac Mulford, my grandfather, or in the house opposite his. Benjamin T. Mulford come to see grandfather; their conversation was about the home property of Mason Mulford. Benjamin wished it not to go out of the hands of the family. He made some remark about the children, but I do not remember what it was; in substance that they would not get the property. I was going about my work and do not remember exactly. He mentioned John S. Mulford’s name. I think this was a few days before the sale; a week, or it might be two weeks. I did not hear all the conversation between them. After that, Benjamin’s horse stood at the hitching post of Isaac Mulford’s house, between the time of the above conversation and the sale. I was at the house opposite, which my grandfather repaired for me, and where I lived at the time, or did live afterwards. I started across the road to grandfather’s, and as I went over he and Benjamin come out of the house. Benjamin passed to his house, and as he passed said, I shall depend on you to bid off the property, and grandfather told him he would; that is the substance of what I heard at that time. This Was only a day or two before the sale; may have’ been the same day, can’t say as to that. Some length of time after that, Benjamin came there again; Benjamin and grandfather were in the kitchen together. I went to the door and heard Benjamin’s voice; I did not hear what he said. I passed immediately in, and only heard grandfather’s reply; grandfather stood on the floor with a paper in his hand, and says, ño sir, yon can’t have that writing; if you wish it you can have a copy, but that piece of paper can never go out of my bands; I think he said, while she lives. I bought that property for you, and I would not willingly see her taken the advantage of. I don’t recollect that Benjamin made a reply, hut he drew up the table and took a copy.
    Being cross-examined, says: Grandfather has been dead eight years this spring. He was one of the commissioners to divide the estate of Mason Mulford, deceased. The first conversation was out near the wagon house. I cannot say what I was doing. I was near grandfather when Benjamin came up. I do not recollect what I had been doing before that, nor what I went at afterwards. I have had nothing to call my attention to this conversation until a subpoena was served on me about a year ago. I do not know that I can recollect any one thing that was said by my grandfather or Benjamin at that time. I have said the conversation was about the home place, hut cannot give the words. I don’t know what time in the day it was. I stopped when I met grandfather and Benjamin at the second conversation. Benjamin went immediately away after saying I will depend on you to hid off the farm. My father’s property and Benjamin Mulford’s join; thero has been a dispute about the lines; I should think so from the mad-lane between them. I have not taken part with David Minch and Jonathan Bowen in the prosecution of their suits, and have not promised to pay a part of the expenses. Question. Is there a kind feeling between you and Benjamin T. Mulford 1 There is ; he has taken the advantage of me two or three times, and I want no more dealings with him. I think my attention has not been called to any of these conversations, until about a year ago. I was, not at the sale.
    >■ Being examined in chief, says.; I had- a. conversation with. Benjamin Mulford this week a. year ago, at Miller’s hotel, in Bridgeton. I had been subpoenaed as a witness, between these parties,- on. the part of Minch. He called me out in refei'ence to another matter, and. the conversation turned on this. I asked-him, why, Benjamin, did not grandfather buy that property for you 1 he told me he did not, but that he bought it for himself, and he, Benjamin, afterwards concluded to take it off his hands. I told him I always thought the other way, that grandfather bought it for him. With that we parted.

      Jacob Harris,
    a witness produced on the part of defendants, being duly sworn, deposeth and says ; I am fifty-eight years old this coming May. I am acquainted with the Mason Mulford home farm. I own land adjoining it; did not own it at the time of the sale; bought it in -1842. I heard of the sale of the Mulford farm at the time, but was not at the sale. I was acquainted with the neighborhood, but not particularly with that farm, .. I acquainted with the draft and boundaries of the farm. (Between the time it was offered for sale and the sale of it I heard Isaac Mulford say, that he would give a thousand dollars more for the farm than it was bid at, but he did not want it. It was worth twice what it was bid to. Objected to.) I thought Isaac Mulford valued it higher than I considered it worth. The impression on my mind now is, that his valuation was upwards of $3,500, but I do not remember what it had been bid at. I thought at the time that $3,000 was about the worth of it, but I was not much acquainted with the value of property in that neighborhood. I understood that the farm had been put up, and was adjourned on Isaac Mulford’s bid, and this conversation with him was between that adjournment and the day of sale. Isaac Mulford was my wife’s father.
    Being cross-examined. I expect I was told what the farm was bid to, but do not remember. Isaac Mulford told me it was adjourned on his bid. I can’t say for how long a time the sale was adjourned. There is a misunderstanding between Benjamin T. Mulford and myself about our lands. The result of this dispute is that he has thrown me to commons, and I have been obliged to put up my own fence. I had not walked over and viewed the farm before the conversation between Isaac Mulford and myself. I had been on it as a surveyor, and had run two or three lines on it, in surveying other property. My being on it was confined to the boundaries. I did not advise David Minch or Jonathan Bowen to commence this prosecution. To the best of my knowledge I did not advise John S. Mulford or any other person to commence a prosecution for this farm. I have said, I would bear a portion of the expense if they would commence a prosecution, but not now. It was.when I owned land adjoining the farm, which I do not now own. I did at that time oifer to bear a part of the expense. I promised to do it, and I considered my word an agreement. I made no other agreement. I should have done it if they had gone on with the suit.
    Being again examined in chief. The reason I made the offer to bear a part of the expenses of the suit was, that my wife was an heir of Isaac Mulford. A few days after the death of Isaac Mulford, B. T. Mulford moved from 100 to 150 rods of fence which had been fenced as a line fence between Isaac Mulford and him, and set it from two to four rods on land that I. Mulford had had in possession all his life time, from the time he purchased it. In order to recover that land, we applied to Lucius Elmer to prosecute him. In the investigation, it was discovered that Isaac Mulford was only the bidder at that property and that Benjamin was both buyer and seller. We were advised by our attorney that that would bo the easiest way to come at it, because in the deed made by Isaac Mulford to Benjamin Mulford, this strip of land was included, which was not covered by the Mason Mulford survey of the home property. The home property is now worth §4,000. It is not worth much more now han it was then, excepting the general increase of the value of land. He has put on and taken off. I am under no obligations to pay any part of the expenses of this suit. I have nothing to do with it.

      John S. Mulford,
    a witness produced on the part of the defendants, (complainant’s counsel objects to the examination of said witness, he being one of the administrators of Mason Mulford.) (At the request of defendant’s counsel, counsel of complainant produced a deed from the administrators of Mason Mulford to Isaac Mulford) being duly sworn, deposeth and says : I am the son of Mason Mulford, deceased, and one of the administrators of his estate. Benjamin T. Mulford was administrator with me. We sold the home place. (Being shown deed produced by complainant, dated March 1, 1837, marked Exhibit A.) I think this is the deed we made for the property. My name is to it. I had forgotten signing it. I was very much against the way it was sold, and paid so little attention to it after it was bid off, that I had forgotten whether I signed it or not. I do not know the handwriting in the body of the deed. I do not know the handwriting of the two interlined words, <c Joseph Bacon,” in the deed. Do not think ,they were there at the time of signing the deed. The property was not sold the first time it was setup. It was adjourned on Isaac Mulford’s bid. I had it adjourned myself., I considered .there was some gouging going on. It was adjourned upon the bid of $1,800. After-wards I went to Isaac Mulford’s, and called him out, and asked him if he was buying the farm for Benjamin or for himself. He said he was buying it for Benjamin. I told him it was not fetehing.half value. He said no ; I will give more than that myself for it. And between the day it was adjourned and the time to which it was adjourned, I heard of William Smith. I went to Thomas Smith, his son, and got him to let the old man know this farm was for sale. The day of the sale I went down to the house that is on the, farm ; went into the house, and the first one almost that I saw was Benjamin. He said I had took a great deal of pains to send for Smith to come and buy the farm apd run it up on him. , I told him he had been gouging from the first part of the sale to the last, and didn’t pay no regard to his oath whatever. He said I was a liar, and called me several bad names, and amongst the rest shook his fist in my face. I went out of the house and went up to the tavern where the property was to be sold; the time came round, and the property was set up again. Isaac Mulford bid $1,600; it was cried a spell at that. Benjamin Mulford called Henry Dowdney out of doors. Mr. Dowdney came in presently, and bid $100 more on the property. A short time afterwards Mr. Isaac Mulford bid another $100. I called Mr. Isaac Mulford out of doors, and asked him whether he was buying this property for himself or buying it for Benjamin. He said he was buying it for Benjamin. I told him that was not according to what ho told me before. He said then, he would give more for it himself: he said he would give more money for it, but Benjamin pressed him so hard to buy it for him that he could not get clear of it. I went into the house and called out William Smith. I asked him if he was not going to bid at the property. He said he had been to the house and talked with Benjamin, and he was mad, and would not show him the property. He and his son went up stairs, and looked at the house themselves, and Benjamin went out into the shod with Auley McWood; and he said further, that mother said she would not sign the deed if any body bought it but Benjamin. I insisted on his buying it, and said that mother would sign the deed, and every thing should be made right according to the advertisement, and if not that he should lose nothing by it. He went into the house; likewise I did. He would not tell me whether he would or not. Then Benjamin called me out again. He said I was trying to get the property run up on him, and swore it should not be knocked off to any but him, or to Isaac Mulford for him. I went into the house again, and spoke to several to bid, but they said there was no use, Benjamin would have the property. I think Henry J. Smalley was one of the persons I spoke to. I think his objection was, that his father-in-law, Isaac Mulford, was buying it for Benjamin, and did not want him to bid against him. I took Mr. Smith out again, and requested him for to bid on it, and asked him how much money he was willing to pay for the property. He said he was willing to .•give either $2,400 or $2,500, and more to, if he could get it without a lawsuit. After going in again, Benjamin called me ■out again. He told me I ought to let it have been knocked off ■to him-; that he could have it for $1,600 as well as for $1,800, iif he had not got Dowdney to bid $100 on it, so as to make Isaac sgiVe another hundred. I told him it should not be knocked off 'at that price, no how, but if he would bid $400 more, though that was not half value, it would about pay my father’s debts, and it might be knocked off to him. He swore he would not give a cent more, and it should be knocked off to him; that Plummer, the crier, would do as he said. I told him that he would do as I said, and would not knock it off to him. I was pretty much at a stand, the time was out in a few days; the court had set. I had no one to consult with, and let it go pretty much as he pleased. There is not a word I have said here but what is the truth; the whole truth to the best of my knowledge. I considered the farm at that time fairly worth $8,600 or $4,000. The property was advertised and set up to be sold clear of my mother’s dower. Mother was not bound to sign that deed except her word. She never told me that she would not sign it; she always told me she would. I don’t recollect that Benjamin told me that mother would not sign the deed if any body bought it but him. I don’t know that she ever did sign any thing. She told me she did not. She never claimed any dower, except the interest of one-third the money it sold for.
    This deponent, upon his cross-examination, further says: I was fifty-four the 10th day of September last. I reside at Roads-town. Since the death of my father I have lived five years in Roadstown and the other part in Salem. I gave to Jonathan Mulford a judgment bond in 1847. I think there was judgment entered thereon, and one-fifth of this farm levied on by Sheriff Murphy, so I understand. I did not to my knowledge direct sheriff to levy on it. He may have said something to me about it, but I do not recollect what. It seems to me he did. The consideration of the bond was $800, I think, loaned to me by Jonathan Mulford. I used, part of the money, and paid my debts with the other. I did not at that time pretend to own any other real estate than my interest in this farm. I married Jonathan Mulford’s sister. My brother Benjamin and I are not on good terms, and never shall be without he makes amendments for what he has wronged me out of. We have been at variance pretty much ever since the commencement of sale of my father’s property. We do not talk together when we meet. He has robbed me and cheated me so much that I do not like him, and never shall, until he makes amendments. I may have said if he had been dead years ago I should have been better off than I am now. I most think I received my share of the $600 bond given to my mother in lieu of dower. Mother lived five or six years after the sale. I didn’t recollect giving a receipt for $120, my share of that bond. I may have done so. I believe there was a bond for $600 given to my mother. I always understood that that bond was given by Benjamin for her dower in the farm. (Witness being shown Exhibit B, on part of complainant, being a receipt from witness to Benjamin T. Mulford, for $120, dated August 2, 1842, the body of receipt being in the handwriting of Elias P. Seeley, deceased,) says the name thereto is in my handwriting. I don’t ever remember to have seen the bond. Wit* ness being shown Exhibit C, on part of complainant, being a bond from Benjamin T. Mulford to his mother, for $600, dated March 1, 1837, says that he subscribed his name as a witness thereto, but has no recollection thereof. I was on good terms with my brother at the death of my father. I do not contribute any thing toward the expenses of this suit. I don’t know positively that David Stretch has commenced a suit for the recovery of my share of the farm sold by Sheriff Murphy. I do not recollect being at Thomas H. Dudley’s office with Jonathan Mulford about such suit. There was no arrangement made with me and Jonathan Mulford at the time I gave him that bond, that he should purchase my share of the farm and commence suit to recover the same. I think I heard him say it. should bring the amount of his bond, or he would purchase. I do not remember going to William Nelson and asking him to take a conveyance from Jonathan Mulford for my share of the farm, to keep Jonathan Mulford’s creditors from getting it. I don’t recollect that I went to Nelson particularly about the farm; there might have been some conversation about Jonathan Mulford’s breaking, but I can’t say what it was. I have no recollection of asking Nelson to take a conveyance from Jonathan Mulford of that farm at all. There might have been some conversation about it; I do not recollect what it was. I never did, to the best of my knowledge, tell Nelson that Jonathan Mulford did not give any thing for that farm. I never did tell Nelson how Jonathan Mulford come to have my share of that farm. I don’t recollect of having any conversation with Nelson about the farm. I have been at Dudley’s office for Mr. Minch. I dont think I ever did go to Dudley’s office for the purpose of getting him to commence a suit for my share of this farm. I can’t tell where I was when I gave that bond to Jonathan Mulford. Can’t recollect whether it was in Camden or Philadelphia. Part of the consideration of the bond was for an old debt, and part for money paid down. I can’t tell what part was for the old debt. We had dealings for many years.
    (Counsel of complainant in addition to the objection to this witness altogether, objected to all that part of his examination in chief relating to conversations between him and Isaac Mulford, William Smith, Henry S. Smalley, and his mother.

      Richard Bawacliff,

    of Bridgeton, a witness produced on the part of complainant, being duly sworn, on his oath says: I am forty-one years of age. I moved into Roadstown in 1838, just after the sale of Mason Mulford’s farm. David Minch, one of the defendants in this cause, owned land adjoining the said farm. I remember having a conversation with said Minch shortly after the farm was purchased by Benjamin T. Mulford; he was engaged in putting up a partition fence. We were talking about Mulford having purchased the farm, and he found .no fault, either with Mulford’s having purchased the farm or with the price at which he bought the same. The farm at that time was very much out of repair; the fences generally were kept up by sassafras hedge-rows, and at the conversation above referred to, Minch told me he had sold to Mulford rails to repair the fences on said farm. The soil was in a very low state. I remarked to Minch that I thought the farm went low at the sale, and that he was able to buy the same, and might as well have done so; he replied, I don’t know about that. From the reply I inferred that he thought the farm brought about what it was worth. I purchased real estate in the neighborhood of the farm about that time; real estate was then generally selling low. I paid $14 per acre. I have heard, that at the time of the sale, the widow of Mason Mulford had said that she would not sign away her right of dower in the farm, if any other person than Benjamin Mulford purchased. I never heard her say any thing about it. I have seen the same farm recently, and see it frequently. The farm is very much improved since Mulford purchased. I resided two years in Roadstown, in the years 1838 and 1839. Mulford was engaged in improving the farm by carting marl on It and repairing the fences. The buildings were very much down when I lived there, which Mulford afterwards improved-He has built a large wagon house, moved and repaired the barns, and built an addition to the house. From the improvements which he has put on the farm, and the general rise in the value of the real estate in this neighborhood, I should think it was now worth at least $5,000.

      Belford M. Bonham,

    of Stone Creek, a witness produced on the part of complainant, being duly sworn, on his oath says : I am about forty years old. I am acquainted with the homestead farm of Mason Mulford, and have been since 1816. I was not present at the sale of the farm by the administrators, but understood that Isaac Mulford bid it off at the sale. At the time of the sale the farm was in a reduced state; fences out of order, and back part of the farm in a low state of cultivation; the front was in rather a better condition. Only a small part of the farm lies fronting on the road.. I have but a slight recollection of the buildings, but think they were considerably out of repair. Mr. B. T. Mulford has been improving the farm by carting on marl, gravel and manure, ever since he owned the same. ■ He has built a large and convenient wagon house, repaired the barns and house. On the 25th September instant, I walked all over the farm in company with Thomas Ware, Esq., and we made an estimate of what we thought the land would now bring, in the same state as it was when sold by the administrators, and also an estimate of what it would bring in its present state, and we made the difference between the two estimates, $2,175. In these estimates we did not include the buildings. Real estate in 1838 was generally selling low, and is now selling high. I should think the rise in the price of real estate between 1838 and this time is about one-half. I am engaged in surveying and conveyancing about this county, and often hear this subject talked of by persons who are buying and selling.

      Thomas Ware, Esq.,

    a witness produced on the part of complainant, alleging himself conscientiously scrupulous of taking an oath, on his solemn affirmation, says : I am in the 58th year of my age. I was present at Roadstown at the sale of the Ma•son Mulford farm by the administrators, in the year 1837. The property was bid off by Isaac Mulford, and I supposed him to be the purchaser. I have always lived near the said farm, excepting one year. I am well acquainted with the farm. I fenced a part of it on shares before Mason Mulford’s death. At the time of the sale the farm was poor, excepting five or six acres lying on both sides of the main road. The fences were generally poor, and the buildings considerably out of repair. Real estate was selling low at that time, but I thought the farm went for less than it was worth, but no one would bid more. I saw nothing about the sale but what was fair. I had heard before the sale that the widow would not release her right of dower, and -supposed the farm would be sold subject to her dower, until I heard the conditions of sale read. I have not seen or heard the •conditions of sale since the time of sale, but my impression is that part of the purchase money was not to be paid, but the interest secured to the widow during her life. I recollect Henry Dowdney made two or three bids against Isaac Mulford at the sale. Do not remember that any other persons hid. There were a good many persons at the sale, which took place in the bar room of the tavern at Roadstown. I think both Benjamin and John S. Mulford were present. I had no conversation with JohnMulford at the time, about the sale, nor do I remember of his being or expressing dissatisfaction about the sale. I haye examined the farm recently in company with Belford M. Bonham and Hosea Moore. Mr. Bonham and myself made an estimate of what the farm would bring now, in the condition it was when sold by the administrators, and an estimate of what it would bring in its present improved condition, and the difference was $2,115. I should think if the farm should now he put in the market, in the same condition as it was in 1831, it would bring $3,500. Without taking into consideration the improvements made to the buildngs b y B. T. Muford, I should think the farm would now bring $5,615. There has been a great rise in the price of property since 1831. Some has more than doubled itself, and other has not.

      David Veal,
    of Hopewell, a witness produced on the part of the complainant, being duly sworn, on his oath says : I married Nancy, one of the daughters of Mason Mulford deceased. My daughter Sarah was one of the heirs-at-law of Mason Mulford. I was not present at the sale of Mason Mulford’s farm by the-administrators. I thought the farm sold low, hut was satisfied with the price it brought, considering the way property was then selling. Property was then selling low. I can safely sa,y that real estate would now bring one-half or one-third more than it would then.

      John D. Hires,

    of Greenwich, a witness produced on the part of complainant, being duly sworn according to law, on his oath says : I have been acquainted with the Mason Mulford farm for some years before Mason Mulford’s death. I mooed into Roads-town in 1838. The farm at that time was poor, the hack part of if light. Benjamin T. Mulford moved on the farm in the spring of 1839; he rented it the year previous. He was improving the property both before and after he moved on it, by putting on marl, lime, manure and guano. The buildings and fences, when I moved to Roadstown, were very poor, and not a fence that would have turned cattle had the hedge-rows been cut down. The rails were generally oak, and rotted and old. Benjamin T. Mulford built a large wagon house on the farm five or six years ago. There are two barns he moved on the farm since he purchased ; he has raised the barn on the farm when he bought, six feet in height, new roofed and otherwise improved it. He has enlarged and improved the hay house. He has also added improvements to the dwelling-house. While these improvements were going on I lived in the neighborhood, and Mulford called on me to assist him. I think he has dug two new wells on the premises. At the time the farm was sold by the administrators I do not suppose it would have averaged fifteen bushels of corn to the acre; it would now bring more than fifty bushels to the acre. I have been engaged in farming for five years past, and have occasionally worked on this farm.

      Hosea Moore,

    of Bridgeton, a witness produced on the part of complainant, being duly sworn according to law, on his oath says : I was one of the commissioners appointed by the Orphans’ Court, of the county of Cumberland, to make division of the real estate of Mason Mulford. I think the appointment was made in the fall of 1836. In making this division we were directed by)the administrators, Benjamin T. and John S. Mulford, to leave out of the division of the real estate of Mason Mulford the farm that was afterwards sold by the administrators. I am a practical surveyor, and at that time surveyed around this in order to give the courses and distances, and make out the number of acres it contained. In doing this I made myself acquainted with the situation of the farm. (Witness being shown Exhibit marked JVo. 1, says : this is the map of the farnrimade by me at that time.) About four acres lying on the Greenwich road was in a pretty good state of cultivation, and I should judge about ten acres lying on the south side of the Roadstown and Bridgeton road was in the same state of cultivation; the balance of the farm was very poor, and the fences all around the back part of the farm were oak, and very poor. I remember going over this farm last year in company with Thomas Ware, Esq. I saw considerable improvement made ip. the buildings, fences and land. At least two-thirds of the farm will now produce three times as much as it would in 1836 and 1837. I mean the back part of the farm.

      George Ayars,

    of Bridgeton, a witness produced on the part of complainant, being duly sworn according to law, on his oath says: I am a practical house carpenter. I was called upon by Benjamin T. Mulford, in company with David A. F. Randolph, to examine the improvements made by him on the farm where he now lives in Roadstown, formerly owned by Mason Mulford, and sold by his administrators after his death. Mr. Randolph and myself examined and estimated the improvements to the dwelling house and the outbuildings, separately, and afterwards compared our estimates together, and came within a few dollars of each other. The whole improvements amounted to about $2,200. Mr. Randolph has in his possession the estimates made at the time. According to my recollection, we estimated the improvements on the house at $800, the new wagon house at about $600, one barn at about $300, the two barns moved on the property and the hay house we estimated at about $500. These improvements have been made within a few years by Mr. Mulford.

      Ilosea Moore,

    being recalled on part of complainant says : The last time I was on the farm in question, my attention was called to where the fence then stood on the line between the farm of B. T. Mulford and the Isaac Mulford farm, and to where that fence formerly stood. It had been moved to the west about one rod in its widest place, about the middle of the line. The removal at the beginning and end of the line was less than one rod.
    Deeds and papers marked Exhibits No. 2, No. 3, No. 4, Aro. 5, No. 6, No. 7, are presented on part of complainant, and made Exhibits in this cause.

      Hugh R. Merseilles,

    of Bridgeton, a witness produced on the part of complainant, being duly sworn according to law, on his oath says: That he is Surrogate of the county, of Cumberland,' and being shown papers marked Exhibit 8, 9,10 and 11, says they are respectively true copies from papers on file and of record in said Surrogate’s office.

      Jeremiah H. Lwpton,
    of Bridgeton, a witness produced on the part of complainant, being duly sworn according to law, on his oath says: that I am acquainted’ with the handwriting of Jonathan Bowen ; I have seen him write, and have papers in my possession written by him ; and being shown Exhibit No. 12, says I am satisfied that is in the handwriting of Jonathan Bowen.
    The cause was argued in the Court of Chancery by

      A. Browning and P. D. Vroom

    for the complainant, who cited Sug. on Vendors, 391, 2, 3; 3 Bro. Ch. 120; 8. Ves. Jun. 345; Roberts on Frauds, 78 to 129; 14 John. Rep. 179; 6 Ib. 385; 3 Harr. Rep. 73; 2 Story’s Eq. Jur. sec. 799b, 1235, 1237 note 4; White’s Eq. Cases, 140, 2, 4; 1 Gilman, 615 ; 5 John. Rep. 43; John Ch. 43; 7 Pick, 1; 6 Halst. Rep. 44.
    And by T. H. Dudley and L. Q. C. Elmer

    for the defendants, who cited 6 Halst. Rep. 392; 3 Harr. Rep. 73; White’s leading cases in Equity, in Law Lib. 144; 3 Gill and John. 164; 1 Jac. and Walk. 204, 265, note; 1 Story’s Eq. Jur. sec. 522; Ib. sec 61, 2, 64; 3 Eden’s Rep. 280; 14 Ves. J. 91; 3 Bro. Ch. 6 333 4 John. Rep. 536; 1 John. Ch. 482.
    The cause was argued in this Court by

      Browning and P. D. Vroom for the appellant,
    And by T. H. Dudley and J. T. Nixon

    for the respondents.
   The Chancellor dissolved the injunction.

The order of dissolution was appealed from.

The order dissolving the injunction, was unanimously

Reversed.


source: Caselaw Access Project

license: Public Domain

text:
    Wm. C. H. Waddell, appellant, and Ephkaim Beach respondent.
    The case in Chancery is reported ante, page 299.
    P. D. Vroom, and Mr. Harring, of New York, for the appellant.

      A. C. M. Pennington and A. Whitehead for the respondent.
   The decree of the Chancellor was affirmed unanimously.


text:
    The Executors of John P. Quick, appellants, and Elizabeth Fisher et al respondents.
    The case in Chancery is reported ante, page 6T4.

      W. Halsted and P. D. Vroom for the appellants.

      R. S. Field and W. L. Dayton for the respondents.
   The decree of the Chancellor was affirmed.

For affirmance, the President (Chancellor Williamson,) Green, Ch. J., Neyius, Elmer and Ogden, Justices, and Risley, Schenck, Cornelison, Arrowsmith, Wills, Judges. For reversal, Valentíne, Judge.


author: Potts, J.

text:
    Alfred Woodward, appellant, and Cornelius Woodward and al, respondents.
    The case in Chancery is reported ante, 127.

      W. Halsted and P. D. Vroom for the appellant.

      Vredenbergh and J. F. Randolph for the respondents.
   Potts, J.

Anthony Woodward died on the 9th of May, 1840. He had been twice married. By his first wife he left one son, James Woodward, who is the father of the complainant. By his second wife, Caroline, who survives him, he left five children, Keziah, Elizabeth, Hannah Ann, William and Anthony. The bulk of his estate, after payment of debts, consisted of the homestead farm worth $10,000 to $15,000. He left no will. But some days after his death a deed was found in a private drawer of his desk, bearing date the 19th day of August, 1825, ■signed and sealed by him, and drawn in the ordinary form of a deed of bargain and salo, purporting, for and in consideration of the sum of $400, to convey the said homestead farm to his grandson, the complainant in this cause.

The complainant, claiming this property under this deed, brought an action at law to obtain possession of the farm from the widow, and having failed in that, filed his bill in Chancery to have the possession delivered up to him together with the title deeds and an account for rent since the death of his grandfather, and alleging that this deed was in the nature of a settlement, and had been executed under peculiar circumstances, •which are set out in the bill, and that it had been delivered to him by his grandfather soon after the time it bears date and before the second marriage, and had been left by him in the hands of the grantor for safe keeping, he, the complainant, being at that time a minor. To this bill the widow and children by the second marriage filed an answer; and subsequently the complainant filed a supplemental bill against the administrators of Anthony Woodward for an injunction to restrain them from selling any part of the said farm for the payment of debts, which was granted, and the administrators filed their answer to said supplemental bill. Replications were put in, a large amount of testimony was taken; and the cause having been heard before the Chancellor, he was of opinion that the complainant should be left to his remedy at law, and ordered the injunction to be dissolved and the bill dismissed ; and thereupon this appeal was taken.

Two questions are pi'esented to the consideration of this Court. 1. Was this a proper case for a decree in Chancery upon the merits ? And 2d. If so, is the complainant entitled to the relief he prays 1

1. Upon the first point, I think the Chancellor erred in dismissing the bill on the ground that the party ought to be left to his remedy at law. It is very true that if we look at this case as involving merely the naked question of a title to land claimed under a’'deed, and for the ordinary account of mesne profits, the courts of law furnish not only the appropriate but the exclusive forum for its settlement. But the bill alleges as a ground of relief that the deed in question was in the nature of a family settlement — a provision made by the grandfather for the grandson before his second marriage, upon the faith of which other connexions of the family had acted in the distribution of their property ; and a serious question of fraud is raised in the answer in respect to it, both of which are questions proper for a court of equity. And_besides this, the defendants, instead of demurring to the bill for want of equity, or pleading to the jurisdiction of the Court, have so far submitted to it as to put in answer, take testimony and go to the hearing upon the merits. And although undoubtedly the question of jurisdiction may be raised by way of answer, and such question was so raised here, yet, I think, clearly, as the case stood, it ought to have been decided upon the merits. And as this Court, on this appeal, has the whole case before it and may make such order as the Chancellor ought to have made upon the hearing, I proceed to examine the next question proposed, to wit:

2. Is the complainant entitled to the relief he prays ?

He claims the promises in question under a deed drawn in the usual form of a deed of bargain and sale, proved to be in the handwriting of Anthony Woodward, to the complainant, his grandson, and signed and sealed by the grantor in the presence of two witnesses, conveying to him, the said Alfred Woodward, the homestead farm by metes and bounds, for the consideration of four hundred dollars. Laying out of the question the allegation made in the bill, denied in the answer and not proved, of a personal delivery of this deed to Alfred, the case stands as follows upon the material facts in the pleadings and proof:

The complainant was brought up from the age of about four years by his grandfather and educated. The grandmother died in 1822, and on the 28d August, 1825, Anthony Woodward married his second wife, Caroline, one of the defendants.

Isaac N. Woodward, one of the subscribing witnesses to the deed, testifies that a few days before his second marriage Anthony Woodward came to Moses Irvin’s store, at Prospertown, and after talking sometime passed to the other side of the counter and took a paper out of his pocket, laid it on the counter, and then took out a newspaper and partly opened it and laid it over the written part of the paper, and then spoke to witness and one Smith and asked them if they would witness his signing to it. He signed and acknowledged it to be his hand and seal for the uses and purposes therein mentioned; and then Smith and witness witnessed it. He then folded up the newspaper and the paper they signed and put them in his pocket again, talked some time and went home. Witness didn’t know what the paper was; nothing was said about delivering it, nor was any money paid. Alfred’s name was not mentioned. This is all that appears in relation to the execution of the deed, except that Smith,, the other witness, when called to prove the deed after the decease of Anthony, swore that he saw him sign and seal it as his voluntary act and deed.

We have then the testimony of several witnesses as to conversation had with Anthony. Tallman says that before Anthony’s second marriage he told him he was going to leave Alfred the farm, and that he said pretty much the same thing at other times, but not after the marriage. Stout testifies that in 1838 he told him that Alfred had a deed for the farm; that it was in the desk. He said this in the presence of his daughter Elizabeth at his own house, and that Caroline, his wife, was not far from him-when he said it. Witness does not undertake to give the precise-language used. Camp says one day when he was chopping in Anthony’s woods, which is a part of the farm, in 1836, Anthony came to him. Witness said, u this is a pretty woods,” and he replied, c< yes — it will be Alfred’s.” Homer says, that, upon the marriage he thinks he heard Anthony on one occasion tell Samuel Throp he had either willed or deeded his place to Alfred. Dorothy Kennedy says that before the marriage she was at Anthony’s to tea, and that discoursing about wills he told her what he should do if he married a second wife; it would-be his will, he said, that what he and his first wife had got together should be left to his first wife’s children — it would be right and what he should do ; and what he and his second wife-got together should be for his second wife’s children; that would be what he should do and what was right if he ever married a second wife ; and that Caroline was present at this conversation. There is evidence also that Joseph Bullock, the maternal grandfather of. Alfred, in 1827 altered his will, and reduced a legacy to Alfred from $1,000 or $1200 to $100, under the expectation that Alfred would get his grandfather Woodward’s farm.

The deed, as we have seen, bears date on the 19th August, 1825. There is no evidence, except what complainant himself said, that it was ever out of Anthony Woodward’s possession, or indeed that it was ever seen hy any body, after it was signed, during his life time. He died on the 9th May, 1840, and on the 29th of the same month, when the administrators and appraisers were engaged in making the appraisement at the mansion house, it was found in á private drawer in the desk of the deceased, with other papers. Alfred, who was present, took hold of it, looked at it, said it was Ms deed, or the deed he had been looking for, or what he expected to see, or words to that effect. Caroline was called in hy him, and Judge Lawrence then read the deed, laid it down, and Alfred took it up and put it in his pocket. When asked at the time whether he had ever had possession of that deed from his grandfather he said u no he said his grandfather had. showed, or read it to him in the furnace house. He said ho expected he might have had it, hut he was going away to school and did not care to take it with him, or something like that. He said he had not paid anything, hut he expected, or his grandfather said he was going to give Mm the farm. This is substantially the case made hy the complainant.

1. The defendants insist that this instrument was not in the nature of a family settlement, and is not within the rules of equity which goveivi such settlements. And I think this must he conceded: 1. Because the deed itself does not purport to be such upon its face ; it is in the ordinary form of a deed of bargain and sale. If it had been intended as a family settlement it would, I think, have contained something to convey such an idea; at any rate we have no right to presume anything without evidence, contrary to the plain words of the instrument. 2. The deed calls for a money consideration, greatly below the value it is true, but still it seems to me we are not at liberty to say that this particular sum, this $400 of consideration money, was not inserted for some unexplained purpose. And 3. It nowhere appears that Anthony Woodward in his life time ever, in public or in private, declared this deed to bo a deed of settlement, and a Court of Chancery will not assume that a deed of bargain and sale upon its face is a settlement deed, without conclusive evidence that it was intended as such.

'2. Then is it good as a deed of bargain and sale % The objection is that it never was delivered; that the consideration money was never paid ; that Anthony Woodward never had a present intention to consummate and complete the act, and never did so. That there was no manual delivery and no money paid •must be assumed as true. The complainant has failed to prove ¡an actual delivery by competent evidence; he admits there was no payment. The question of intention remains.

The law is well settled. There is no precise or set form in which a delivery must be made. A deed may be delivered by words without acts, or by acts without words, or by both acts and words. After a writing has been signed and sealed, an intent, coupled with acts-or words evincing such intent to consummate and complete it, and to part absolutely and unconditionally with it and the right over it, is sufficient to give it legal existence as a deed. Foley v. Van Teuyl, 4 Halsted 158; Shep. Touch. 58; Shelton’s Case Croke Eliz. 7; Hollingsworth v. Arcue, Croke Eliz. 356; Coke Lit. 36a.; Goodright v. Straham, Cowper 201; Goodrich v. Walker, 1 Johns. Cas. 253. And the books are full of cases to the same effect.

But the intention must clearly and satisfactorily appear. It is hardly necessary to cite authorities for so plain a principle. It runs through all the cases on the subject. Smith v. Moor’s ex’rs, 3 Green’s Ch. R. 485, and Crawford v. Bertholf and al, Saxton 467, are to this effect. In Lord v. Bennett, 8 Car. and Payne 124, the intent was deduced from the formal execution of the deed and its delivery by the grantor to a third person for the grantee, by the jury to whom the question was submitted. In Woodbury Minot’s R. 326, the intention to deliver was abundantly clear; there was a deed from father to son, a lease from the son of the premises to the father for life, and the papers deposited with a third person. So 6 Barn & Cress 668, Doe v. Knight was the case of a mortgage executed and deposited with a ¿third person. In the case of Eaton v. Scott, 6 Simms 32, one Hampton executed a mortgage to Filmer and Gilpin for ¿65,000 to secure certain trust monies in his hands, and it took effect as against other creditors, though there was no manual delivery. No question was or could be made here as to the intention of the mortgagor — that was clear. Somerby v. Arden 1 John Ch. 239 was the case of deeds made to trustees upon certain trusts, for the use of his daughter, signed, sealed, acknowledged, and after some time delivered to one of the trustees in presence of cestui que trust, with some verbal explanation of the intent of the grantors by way of annexing conditions to the grant, to which the cestui que trust did not accede. Before the deeds were delivered to the trustees they had been handed to the mother for the daughters; and the Court held that there was evidence of a full and absolute delivery, even before the delivery to the trustees. The case of Jane v. Burg, 2 Dyer 167 b. was the case of an actual delivery to a third party ; and Alford’s case in 2 Leonard is to the same effect. Clavering v. Clavering 2 Vernon 473 was a deed of settlement in trust; and so aro many of the cases cited; and in such cases it has undoubtedly often been held that no actual delivery is necessary; that the intent is sufficiently manifested by the formal execution of the instrument. But in cases other than deeds of settlement the authorities all concur that there must be a delivery, or some act equivalent to a delivery, or a clear intention on the part of the grantor, coupled with acts or words evincing such intent, to consummate and complete the transaction, and to part absolutely and unconditionally with the right.

Looking to what was done by Anthony Woodward significant of his intention to convoy the farm to the complainant, the evidence goes no further than the mere drawing, sealing and signing of the deed as a private paper kept by himself, ready for delivery when, if ever, he should make up his mind to deliver it.

Nor when we examine the evidence as to what he said, are we at all relieved of the doubt as to what his intentions were. The testimony of complainant’s witnesses is as to remarks or conversations many years before the period when they were called to testify. The witnesses were examined in 1849. Tallman speaks of a conversation in 1825; Stout in 1838; Camp in 1836 ; Horner in 1825, and Dorothy Kennedy in 1825 ; and of these witnesses nobody but Stout speaks with any positiveness as to Anthony’s saying he had actually made a deed to Alfred, and that it was in his desk. And any one may conceive how easily Mr. Stout may, 9 years after such a deed was found in that desk, have imagined he had heard the fact from Anthony. Evidence of this kind is too vague, loose and unreliable to authorize a court of equity to say that it supplies what is wanting here — ■ evidence that at the signing of the deed the intent to deliver was coupled with the act.

And if we turn from these considerations to the circumstances, our doubts are rather increased than dissipated. Looking to the domestic relations of Anthony Woodward anterior to his second marriage, it is easy to perceive reasons why be should be disposed to give his homestead farm eventually to Alfred. He had but one son, to whom he had made already a considerable advance out of his estate. This was his only grandson, and had been cast upon him at an early age by unhappy differences between his parents; he had brought him up and was educating him for a profession; it was natural enough he should regard him, then, as his ultimate heir. And when the old gentleman was about to consummate a second marriage, considerations were present which were calculated to turn his thoughts and feelings in the same direction. There is enough in the case to warrant the supposition that he did, then, entertain serious thoughts of giving a deed to Alfred, for the farm, at some future time ; and that he prepared it in order that it might be ready when the time came for its delivery. But his circumstances changed; his marriage seems to have proved a happy one; a family of young children grew up around him, to whom he appears to have been tenderly attached; to one of his young sons bearing his own name he sometimes spoke of an intention to leave him the old homestead; and I can much more easily conceive that with these changing circumstances came a change of purpose, and that the old deed, long laid aside, was in the end forgotten by him, than I can conceive that, faithless to the natural affections of the heart, to the duties and obligations of a husband and father, he intended that this secret deed, after his death, should operate to disinherit his family, and pass nearly, if not the whole, of his property to a grandson, for whom he had already done much.

Besides all this the ease made in the complainant’s bill has in it some remarkable peculiarities. His allegation is that this deed was made, executed and delivered in August, 1825 ; that the absolute title then passed from Anthony Woodward to himself. He says the deed was delivered to .him without condition, or limitation; and that ho permitted the said Anthony to continue in the occupation and enjoyment of said farm as he had been prior thereto. And it is very clear that as this case stands upon the bill, the answers and the proof, if the title passed at all-to the complainant it passed at the time he alleges. If there ever was a legal delivery it was then ; if the intention was ever carried into effect so as to complete and validate the transaction it was then. And yet the conduct of the parties, that which is the best exposition of the intention on one side and the understanding on the other gravely conflicts with this theory. The act. was completed on the 20th or 21st of August 1825 ; the title passed out of Anthony Woodward; this large estate became absolutely vested in fee simple in Alfred; no lease for life stipulated for by the grandfather, not even a verbal stipulation for a tenancy at will; no agreement or request that the thing should be kept secret j and yet the whole transaction is buried for fifteen-years almost in the silence of the grave. No deed put on record or exhibited to a living eye ; no change of possession ; no claim of right: and nothing left after 15 years, but the deed found among the old papers of the grantor, and the vague recollection of scraps of casual conversations such as it is detailed after many years had passed, by some three or four witnesses. It seems to me improbable that Anthony Woodward should have thus placed himself at the mercy of even his grandson ; incredible, if he did so, that the fact should have been so long concealed from the inquisitive eye and ear of the neighbors.

Upon the defendant’s theory there is nothing incredible. It is natural enough to suppose that the old gentleman had, before his second marriage, and up to the period of it, thought of conveying this farm to his grandson; that he prepared this deed and signed it in the presence of witnesses, concealing the character of the instrument from them, and then put it in his desk to await his final resolution, supposing until certainly delivered it was as harmless as waste paper, and that, as he never did deliver it he never fully formed the intention ; never determined to give it vitality. With this theory all the facts proved in the ■case harmonize much better than with any other.

It is a question of intention. There is no case which holds that the mere act of drawing, signing and sealing a deed without delivery or a present intention to deliver, without the mind to complete the act, ever passed the title to an estate.

I am of opinion the decree of the Chancellor was right, though not for the reason he assigns, and that there should he an affirmance on .the merits.

The decree of the Chancellor was affirmed.

For affirmance, Justices Haines, Potts, Elmer and Ogden •, and Judges Risley, Schenck, Valentine and Wills.

For reversal, Judges Arrowsmith and Cornelison.


text:
    Simeon Brolasky, appellant, and Walters B. Miller and others, respondents.
    A purchaser of land at Sheriffs sale on judgment and execution at law subject to a mortgage may take advantage of usury in the mortgage.
    A mortgagor, a defendant in a foreclosure suit, the mortgaged premises having been sold by the Sheriff under judgment and execution against him, is a good witness in the foreclosure suit, for the purchaser at the Sheriff’s sale, a defendant in the foreclosure suit, to show usury in the mortgage.
    Usury should be strictly proved. It is not sufficient tor the party who sets it up to. make out a probable case.
    The case in Chancery is reported ante, page 626.

      R. P. Thompson and P. D. Vroom for the appellant.

      W. Halsted for the respondent.
   Potts, J.

The appellant, who was the complainant in the Court below, filed the hill to foreclose a mortgage on certain premises called The Washington House, at Cape Island. The mortgage was given by Clark and wife to Brolasky for $2,800, and is dated May 18, 1846. Subsequently to the giving of the mortgage several judgments were obtained against Clark, upon which executions were issued, tlio premises sold at Sheriff’s sale, and Walters B. Miller and Joseph Ware heeame the purchasers, subject to the above mentioned mortgage. To this bill filed by Brolasky to foreclose his mortgage, Miller and Ware put in an answer setting up usury in the inception of the mortgage. Testimony was taken, the cause heard, and the Chancellor, being of opinion ¿hat the complainant was not entitled to the'relief sought, dismissed the hill with costs, from which decree the complainant, took this appeal.

Three questions were made upon the argument. 1. Was it-competent for Miller and Ware, purchasers,_ who bought the-premises subject to this mortgage, to set up this defence against the mortgage? 2. Was Clark, the mortgagor, (who was a witness in the defence) a competent witness to prove the usury 1 And 3. Was the defence made out!

The two first of these questions were before the Court of Chancery in the case of Canning v. Wire 2 Hal. Ch. R. 73, and were both settled affirmatively. Lloyd v. Scott, 4 Peters 205, and Green v. Kemp, 13 Map. 515, are cases in point upon the first question. I concur in the opinion delivered by the Chief .Justice upon these points.

The third question remains. And upon a careful examination •of the evidence in support of the defence set up in the answer, I am unable to reach the conclusion that it is made' out. Usury should be strictly proved. It is not sufficient for the party who sets it up to make out aprobable case. We cannot undertake ••to guess away men’s rights upon vague or doubtful testimony.

' The defence depends almost, indeed I may say entirely, on the paper exhibits in the cause, and the testimony of Clark and Burk. The man who borrowed the money, and the man who -acted for him in making the contract, are the chief witnesses.

There is no doubt that Clark paid a bonus for the money ; but the question whether it was paid, in fact, to Burk for procuring, •or to Brolasky for making the loan, is, to say the least, involved in mystery.

It appears that early in 1846 Clark, being then the owner of ••this Washington House property at Cape Island, was a good deal in debt and pressed for money. Burk and Wineberner had a mortgage upon the property for $800, and Flanagan had another for $600, and the money was wanted on both. Under •these circumstances Clark applied to Burk to negotiate a loan for -him. He wanted $3,000 to relieve his present necessities.

.Clark says, in his testimony, that Burk had the control of both dhese mortgages ; and that in the negotiations for the loan he *;{Burk) made all the agreements and did all the bargaining. “ I never (he says) had anything to do with Mr. Brolasky about the negotiation or about the bonus. I never made any agreement with Mr. Brolasky that I would pay him $100 as a bonus for the loan. I never applied to Mr. Brolasky to make me a loan.

The result of Mr. Burk’s negotiation was, as it would appear upon the face of the papers, that he sold the Burk and Wineberner and the Flanagan mortgages to Brolasky ; that Brolasky received a mortgage from Clark on the above .mentioned property for $2,800; and that he turned in these two mortgages at their face as part of the consideration money.

The Brolasky mortgage appears to have been executed by Clark and wife at Cape May on the 18th May, 1846: it was acknowledged on the same day, but not recorded until the 25th of the same month. Burk and Brolasky lived in Philadelphia; Clark at Cape Island. The bond and mortgage were probably executed at Cape Island and sent up to Philadelphia in anticipation of the negotiation being completed. Clark says nobody was present at its execution but himself, wife, and Brognard, the Master before whom the acknowledgment was taken. .

On the 22d May it appears, from a receipt produced, that Burk received from Brolasky his two notes of that date, at 30 days, one for $500, the other for $800, on account of the mortgage of Burk and Winebrener of $800, and the Flanagan mortgage of $600, agreeing at the same time to have the said mortgages assigned to Brolasky if required by him. And powers of attorney were executed on the same day from Burk & Winebrener and Flanagan to Brolasky, authorizing him to acknowledge satisfaction on these two mortgages.

Upon the face of this transaction it is a sale of these two securities by the holders to Brolasky, and an acknowledgment of the receipt of his notes, on account, to the amount of $1,300. It does not appear that Clark had anything to do with it, or that it had anything to do with the |2,800 mortgage, subsequently received by Brolasky from Clark. I say subsequently, for there is no evidence that Brolasky had the $2,800 mortgage until three days afterwards, the 25th, when he put it on record.

The holders of these two mortgages had a right to sell, and Brolasky to buy them at a discount. That is not so unusual a transaction as to awaken suspicion. Mr. Clark’s interests Avere in no way affected by it. Brolasky got them, perhaps, for $1,300, less thirty days’ interest. There was, at the time, $1,466.30 due upon them for principal and interest. They were turned over to Clark at that sum on account of the $2,800 mortgage. But there is no usury in this. This was the first item which went to make up the $2,800.

The second item was a lot of goods furnished by Brolasky to Clark, amounting, as Clark swears, to upwards of $800. There is no evidence that these goods were charged at more than the market price. Clark makes no such statement. It appears he selected them himself from Brolasky’s stock, and such as he wanted and the stock did not furnish, Brolasky went out and purchased for him to-make up the bill.

The third item was a note for $516, given by Brolasky to Burk, to pay a note Clark owed him; and this, with $10 paid to Brognard, for drawing the bond and mortgage, as per Burk’s testimony, makes up the $2,800, allowing the bill of goods to have amounted to $807.70.

On the 25th of May, the three mortgages, to wit, the Burk & Winebrener, the Flanagan, and the Brolasky 'mortgages, were taken to the Clerk’s office in Cape May. A memorandum of that date is indorsed on the back of the two first, by the Clerk, certifying that he had that day canceled the said mortgages on the records of the county, and a similar memorandum was made by him on the back of the powers of attorney. At the same time the Brolasky mortgage was put upon record.

Now as between Clark and Brolasky, upon the face of this transaction, it would appear that Clark received,

1. The two mortgages of Burk & Winebrener and Flanagan, satisfied of fecord, amounting to $1,466.80
2. Merchandize, sworn by Clark at upwards of $800,say - 807.70
3. Note to pay debt due by him to Burk - 516.00
4. Expense of drawing papers - - 10.00
Making the exact amount of the mortgage - $2,800.00

The amount due upon the two canceled mortgages is ascertained by actual calculation. The charge for merchandize is not controverted by the evidence, and the amount may fairly be estimated from Clark’s evidence, at the sum at which it is put down. As to the note, Burk says it strikes him it was $516. He says : Clark owed me the $516 for a piece of property; for that I had his note; and the note was paid me by Brolasky giving me Ms note. That canceled so much of the money due from Clark to me.”

Now the main ground upon which the defendants rest their allegation of usury, is the transaction in regard to the sale of the Burk & Winebrener and Flanagan mortgage. There was $1,466.30 due on them, and Burk appears to have received only Brolasky’s notes for $800 and $500, at thirty days, as the consideration for them. And Burk says, c‘ in my settlement with Mr. Clark 1 did not allow him any more than .the proceeds of these notes.” And Clark in his testimony says, “ when Mm Burk and I settled, after he had negotiated the loan of Mr. Brolasky, he deducted a bonus of $100, which I allowed Aim.”

Clark, as we have seen, had nothing to do with the negotiation with Brolasky. That was managed entirely by Burk, who states that he was Clark’s agent in the transaction. Mr. Burk’s testimony then, might be expected to throw light upon the nature of the contract. But it does not. He seems strangely to have forgotten all the most material parts of the transaction. He does not even remember the sale of the two mortgages, the receipt, or the execution of the powers of attorney; and he does not undertake to swear expressly that he ever paid or allowed Brolasky a bonus for lending the money. He makes a ease out of which we may guess that there was usury, but takes care that we shall not do it upon his direct reponsibility. He says Brolasky u mentioned, a discount of five per cent.” He says,if At the time Brolasky asked me the five per cent. I told Mr. Clark, and he acceded to it;” and he says Mr. Clark allowed $100 for the bonus in our settlement. Mr. Brolasky claimed $100, and I settled it in that way.”

On the other hand, Jefferson H. Brolasky testifies that Bark told him {c he had sold the mortgages to my brother for $1,300;” that u he allowed my brother a discount of $100 on these mortgages ; the mortgages of Flanagan and Burk & Winebrener;” and that it was a fair business transaction.” Mary Ann Howell says, a I was present in Philadelphia at Mr. Brolasky’s house when William A. Burk called and offered the mortgages to Mr. Brolasky for sale. There were two, to [the amount of $1,400; one was for $800, the other for $600. The one of $800 was-given io Burk & Winebrener. The other of $600 to Flanagan & Son. He offered the two for $1,300. He said he wanted to raise money very badly, and did not want to mortgage his house» My brother replied that these two mortgages had been offered to him by Robert Smith at $1,300, and he refused to buy them. He persuaded Mr. Brolasky, after some time, to take them at $1,300. He was to have the papers fixed, and Mr. Brolasky was to call upon him and get them.” She says, at another time, when at Cape May, “ Burk spoke again of the two mortgages, and said he offered them and sold them for $1,300, and he had a right, they were his own, to sell them for $500 if he chose.” And again upon another occasion, she says “ Mr. Brolasky complained that Mr. Burk had been endeavoring to make the impression on Mr. Miller, that the $100 came out of the $2,800 mortgage; and Mr. Burk said it did not come out of that mortgage, but out of the two mortgages he sold.” And Henry Brolasky swears that Burk told him “ that the $100 was allowed on the two mortgages of $800 and $600; that it was a perfectly fair transaction.”

Upon the whole, I am of opinion that the allegation of usury is not sustained by the evidence, and that the decree of the Chancellor should be reversed.

The decree of the Chancellor was unanimously reversed.