the 1826. Harding V. Handy. Handy V. ance, though the party. was not a lunatic. In a still more recent case," Lord Eldon relieved against a bargain with an expectant heir, where there was no fraud or imposition, upon ground of inadequacy of consideration, where there was an inequality of condition in the par- Harding: ties. Mere inadequacy of consideration was held insufficient, but, coupled with the other circumstance, was deemed a sufficient ground to annul the contract. In Huguenin v. Baseley,' a settlement by a widow, upon a clergyman and his family, was set aside, as having been obtained by undue influence, and abused confidence in the party, as the agent of the grantor's affairs, upon the principle of public policy and utility, applicable to the analogous cases of guardian and ward, attorney and client, &c. It was there earnestly contended, that the law of England does "not prevent a prodigal disposition by a person of sound mind." But the argument was overruled by Lord Eldon; and the words of Sir S. Romilly, arguendo, in that case, are remarkably pertinent to the present: "Though no direct authority is produced, your lordship, dispensing justice by the same rules as your predecessors, upon such a subject, not confined within the narrow limits of precedent, will, as a new relation appears, look into the principles that govern the human heart, and decide accord a 16 Ves. Rep. 512. cheq. Rep. 127. See also Oliver v. Court, 8 Price's Ex b 14 Ves. Rep. 273. Griffiths v. Robins, 3 Madd. Rep. 191. Harding Handy. Handy V. Harding. 1826. ingly." The same principles and authorities had been applied, by a Court of justice of our own country, to a case almost the same with the present in all its material circumstances." They are applied in every system of jurisprudence having a due regard to the protection of the weak from the artifices of those who have the means of unduly influencing or controlling their conduct. Thus, in the countries governed by the Roman law, the provisions of positive law prohibiting donations inter vivos, between persons standing in certain peculiar relations of mutual confidence and dependence, are extended by equity to other relations of a similar character, and falling within the reason of the prohibition.' The Court below seems to have considered, that it might have been justified, on these principles, in declaring the deeds in question utterly void, though, in framing its decree, it thought proper to take a more mitigated view of the defendant's conduct. Mr. Coxe, (with whom was Mr. Webster,) for the defendant, Handy, argued, (1.) That there was a defect of jurisdiction in the Court below, proceeding as a Court of equity. A complete and adequate remedy at law existed. If the deeds were invalid on the ground of fraud and imposition, that question might be tried in an a Whelan v. Whelan, 3 Cowen's Rep. 537. action at law. It had been so tried and deter- 1826. mined." Harding V. Handy. Handy V. 2. It appeared, on the face of the bill itself, that there were other children of Comfort W. who are his heirs at law, but who had not been joined in the present suit. They were equally Harding. interested with the other plaintiffs, and should, therefore, have been joined. Their interests are also affected by the decree. It is not too late to take advantage of this objection." 3. The bill contained multifarious matters which ought not to be joined. Each of the defendants claimed to have the legal estate in him, in opposition to each other. There was no privity between them as to their respective interests; and before the plaintiffs could have any interest in vacating the deeds of the defendant, Handy, the deed of the defendant, Caleb W., must be removed. The establishment of their right against one defendant was a prerequisite to their calling upon the other to answer. 4. The main object of the bill, and that attained by the decree, was to enforce specifically a parol agreement, alleged to have been made between the two defendants, denied by the defendant, Handy, and not proved by any competent testimony. The contract proved is wholly different from that alleged. Such a contract as is a Smith v. M'Iver, 9 Wheat. Rep. 532. b Coop. Eq. Pl. 33. Pr. Reg. 299. Hinde's Ch. 2. 1 Vern. Rep. 100. 5 Wheat. Rep. 842. VOL. XI. 15 Bart. Eq. 31. n. 1. Harding 1826. alleged, and now attempted to be enforced, is deficient in mutuality." It, also, virtually admits the sanity and competency of the grantor, Comfort W., which is now made the ground for setting aside the deeds. V. Handy. Handy 5. If, however, he was in the state of mind in which the bill represents him, the plaintiffs, by their agent, participated in the fraud, and, therefore, have no right to call upon a Court of equity to interfere, to relieve them from the web in which they have entangled themselves." 6. The plaintiffs are barred by lapse of time. 7. The decree sanctions an attempt to establish a contract concerning lands, and a trust in real estate, by parol evidence. The proof of a trust lies on the party who alleges it. In this case, the conveyances are absolute on the face of them, and the evidence of a trust is wholly aliunde. To warrant the Court in decreeing the execution of a parol declaration of trust, the evidence should be plain and unambiguous. The taking the conveyance was not in part performance. The act of part performance must be such as the party would not have done with any other view than in execution of the alleged agreement. This secret trust, and the allegation of part performance, are both denied by the an a Newl. Contr. 152. b 14 Ves. Rep. 288. c Prevost v. Gratz, 1 Peters. Rep. C. C. 364. S. C. 6 Wheat. Rep. 494. d Wharton's Dig. 580. e 4 Ves. jr. Rep. 108. 1826. swer, and this settles the question. The secret trust cannot be proved by parol testimony, espe- Harding cially where it is made with a stranger to the estate without consideration.' V. Handy. Handy V. 8. The bill does not distinctly allege the incompetency of Comfort W., and the imposition Hardingsaid to have been practised on him, so as to put these facts in issue. The decree must conform to the allegata. Some substantial ground must be stated. Old age alone is not sufficient." 9. If these facts had been ever so distinctly put in issue, they have not been proved. Where fraud is alleged, it must be fully proved, and will not be presumed. The presumption of law is in favour of a party executing an instrument." The question is confined to the state of mind at the time of executing the instrument. Two witnesses deposing sunæ menti, are to be credited before a hundred proving insanity. The law will not measure a man's understanding, and a partial diminution of intellect is not sufficient to invalidate the deeds; nor is there any such thing as an equitable incapacity, where there is a a 6 Ves. Rep. 39. b 2 Johns. Ch. 405. 7 Cranch's Rep. 176. 11 Mass. Rep. 342. 13 Mass. Rep. 443. 4 East's Rep. 577. n. 1 Eden's Rep. 515. 1 Cox's Rep. 15. c 1 Ves.jr. 19, 20. 4 Dessauss. 518. d Cas. temp. Talb. 116. 1 Madd. Ch. 208. |