81 Va. 132 | Va. | 1885
delivered the opinion of the court.
The record of the cause presents the following case: William H. Tams, late of the city of Staunton, Va., was the cashier of • the “ Central Bank of Virginia,” from the time of its institution, about the year 1853, up to the time of its suspension in 1865.
By authority vested in the said William H. Tams, as trustee, under the deed of trust aforesaid, he sold the said banking-house property, on the 18th day of November, 1865, to Dr. Briscoe B. Donaghe, for the sum of $5,500, as set forth in a contract in writing, signed by the said parties, and now filed as part of the record in this cause. Under the terms of the said contract of sale, said Tams reserved', as a part of the consideration, the use of the dwelling-house portion of the said building for two years, and also a portion of the banking-house part, for his purposes as trustee in Avinding up the business of the old bank under the deed of trust aforesaid.
On the 20th day of November, 1865, the said Donaghe paid on the said purchase $3,000, as appears from the receipt of William H. Tams, trustee, to him, written on the said contract of sale. On the 4th December, 1865, the said Donaghe paid, on the said purchase, a further payment of $500, Avhich was receipted for by the said William H. Tams, trustee, written upon the said contract. On the 12th day of January, 1867, said Donaghe paid the residue of the said purchase money, amounting, principal and interest, to the sum of $2,139.77; and thereupon, the said William H. Tams, trustee, delivered, to said Donaghe a deed of conveyance for the said property,
Very soon after this sale to Dr. Donaghe by William EL Tams, trustee, the said Tams commenced the business of a broker, in connection with others, under the firm name and style of William H. Tams & Co., and occupied this old Central Building for the purpose, as the tenant of the said Donaghe. This business was soon succeeded by the “Virginia Insurance Company ”—a banking concern of which said Tams was cashier—which continued to occupy the said property, as the tenant of said Donaghe. This last named business was succeeded by the “Virginia Banking and Trust Company,” of which said Tams continued as cashier, and which remained in said building, as the tenant of said Donaghe, up to the time of its suspension in 1875.
At the time of the sale of this Central Bank property by Tams, trustee, to B. B. Donaghe, as aforesaid, November 18th, 1865, the said Donaghe was (as shown by the evidence in the record) a wealthy man, with ample ready means, and was one of the few, if not the only person in Staunton, at that time, who was able to buy the said property and pay for it in the time said Donaghe did.
William EL Tams and Dr. B. B. Donaghe were very intimate personal friends; and, from the date of the purchase of this property by said Donaghe to the date of William H.
The bank account of said Donaghe, kept with said Tams, running from early in 1866 to October, 1874, shows that said Tams charged said .Donaghe regularly, to the day of Tams’ death, in August, 1873, with the taxes and costs of insurance upon the said property, and credited the said Donaghe regularly thereon, with rent for the said building, at the rate of $500 per year, up to the date of his (Tams’) death, in August, 1873. And it further appears from the record filed as evidence in this suit, of the common law suit of Hendren & Echols, Trustees of the Virginia Banking and Trust Company v. B. B. Donaghe, brought in the circuit court of Augusta county, at the March term, 1876, to recover from said Donaghe the amount of a draft due said company, that said Donaghe filed, as ah offset to the said claim, an account for rent due him for the said building which was occupied by the said company after said Tams’ death; and upon that plea and offset, the said circuit court gave judgment for said Donaghe.
At the November term, 1866, of the circuit court of Augusta county, one Robert G. Bielde, of Staunton, filed a bill in the said court against William H. Tams, trustee of the Central Bank, charging, among other things, that said Tams was himself the real purchaser of the property, and for an inadequate price; that said Tams was removing from the said premises a valuable stable, and praying for an injunction to restrain said Tams from removing the said stable from the premises, and
On the 26th of November, 1866, an amended bill was filed in the said cause; and at the January rules, 1867, the said Tams, trustee, filed an elaborate and well-considered answer, under oath, to both the original and amended bills aforesaid, in which he says that he and the other officers of the bank, who were preferred creditors under the deed of trust, were in such pressing need of the means of subsistence, having been turned loose without such means after the war, that he sold this property, as the only available asset of the bank, to satisfy his own and their most exigent needs; that he made the sale of the property on the 18th day of November, 1865, to Dr. B. B. Donaghe, who had since expended thereon between $900 and $1,000 in repairs; that the Virginia Insurance Company, in connection with himself as trustee, is occupying the said building as tenants of Dr. Donaghe; that the sale was a bona fide one, made in good faith; and he filed a copy of the contract of sale and the evidence of Dr. Donaghe’s payments, with his said answer; and he filed also a communication from said Donaghe saying that if the court should think it desirable or proper to set aside the sale to him he would consent to it, upon the terms that the amount of his purchase money, with interest, and the amount expended by him in repairs and improvements, should be refunded to him. After this sworn answer of Tams, trustee, showing that Donaghe was the owner of the property, was filed, the plaintiff, Bickle, who was a
About October, 1868, during the pendency of this Bickle suit, charging that the property had been sold by Tams to Donaghe for an inadequate price, said William H. Tams, trustee, made a second deed for the property, to B- B. Donaghe, which was duly recorded in the clerk’s office of the husting court of Staunton, Va., reciting therein, as a further consideration paid by said Donaghe for the said property, the surrender of a certain debt held by the said Donaghe against the trust fund. The said debt was of little or no value; but, for whatever it might be worth, he surrendered it as additional consideration to the $5,500 for the property. From this time on, there was never any question as to Dr. Donaghe being the lawful owner of this property—he using and enjoying the' rents, paying the taxes, insurance and repairs, until the death of said William H. Tams, in August, 1873. A few days after the death of William IT. Tams, Dr. Donaghe received a letter from Mrs. M. A. Tams, the widow (appellee), asking him for a receipt for the $7,500 in money paid to him, by her, in her room, for the property. To this letter Dr. Donaghe replied, at once, and emphatically denied that she, M. A. Tams, had ever paid to him, any such sum of money, or other sum, as she alleged, for said property. From and after the receipt of this letter from Mrs. M. A. Tams, Dr. Donaghe consulted and employed able and eminent counsel, Mr. Cochran and Mr. White, to resist the claim of Mrs. M. A. Tams, and to protect him in his own right to the said property.
The evidence in the record shows, that Dr. B. B. Donaghe was a pure and good man, and a skillful physician in large practice; though, an exceedingly careless and inattentive business man, taking little or no care of his business affairs, the management of which he had committed and confided wholly and
The deed, which was thus suddenly and unexpectedly sprung upon Dr. Donaghe at this “chamber scene” (as it is called in this record), had been prepared by Judge J. W. G. Smith, of Staunton, a lawyer of ability and distinction, who was Mrs. Tams’ brother, and the trustee of her estate under her father’s will, and yet he was not present, nor was any notary or witness, other than Mrs. Tams’ two daughters—one of whom was a child thirteen-and-a-half years of age.
The competency of both these witnesses was objected to, and noted in their depositions upon the ground that they are daughters of Mrs. M. A. Tams and grand-daughters of Judge Daniel Smith, deceased, under whose will they are interested as reversioners in the settlement of the trust fund upon their mother for her life; and because Dr. B. B. Donaghe is dead, they having been parties to the original transaction, which is the subject of controversy as to which they testify.
The case stated in the bill, and the decree of the court, assert a resulting trust, which declares null and void the deed made for this Central Bank house and lot by William H. Tams, trustee, to B. B. Donaghe, for value fully paid and acknowledged, and which has been duly recorded for nearly twenty years, and takes it away from the widow and children of B. B. Donaghe, and conveys it by a commissioner of the court to the plaintiff, M. A. Tams.
“A resulting trust is one which arises by operation of law. Thus, if one pays the purchase money of an estate and takes the title-deed in the name of another, in the absence of all evidence of intention, the law presumes a trust, from the natural equity that he who pays the purchase money for property ought to enjoy the beneficial interest. But as a resulting trust is a mere matter of equitable presumption, it may be rebutted by facts which negative the presumption. And what
“The trust must he clearly alleged in the bill, not only in terms, but all the facts must be set out from which the trust is claimed to result. And the facts, in all cases, must be proved with great clearness and certainty.” Perry on Trusts, p. 155, sec. 137.
“The resulting trust not within the statute of frauds, and which may be shown without writing, is when the purchase is made with the proper moneys of the cestui que trust, and the deed not taken in his name. The trust results from the original transaction at the time it takes place, and at no other time, and it is founded on the actual payment of money, and on no other ground.” (2d Johns Chancery Reports, p. 415, quoted with approbation by Judge Bouldin in Phelps v. Seeley, and by Judge Christian in Miller v. Blose’s Ex’ors, 30 Gratt., p. 744. See also Neil v. Keese, 51 Amer. Decis. 746.)
“ The cases uniformly show that the courts have been deeply impressed with the danger of parol proof as tending to perjury and the insecurity of paper title; and they have consequently required the payment of the cestui que trust to be clearly proven. The court has felt the necessity of requiring full and convincing proof of payment as the basis of a resulting trust in favor of the one making it, as against the one having the legal title.” (50th Amer. Decis. 620; 51 Amer. Decis. 746.)
“ So cautious have the courts been in the reception of such evidence, although the proofs have been allowed to be read, if there was any secret in the cause not understood the relief sought has been denied.” (50 American Decis. 620; 51 Idem. 746.)
“ There is no doubt that a resulting trust may be set up by parol testimony against the letter of a deed ; but the testimony to produce this result, must in each case, be clear and unquestionable. Vague and indefinite declarations and admissions, long after the fact, have always been regarded as unsatisfactory and insufficient, and, I think, with good reason.” (Phelps v. Seeley, 22 Gratt. 589.)
In the light of these clear and conclusive authorities as to the law of resulting trusts, the question for this court to decide is, “Who paid the purchase money? whose money was paid to William H. Tams, trustee, as the consideration in the deed made to said B. B. Donaghe by said Tams, trustee, conveying this property in controversy to said B. B. Donaghe in absolute and unconditional fee-simple title, in pursuance of the written contract of sale made between them November 18, 1865?”
We have seen that the appellee, Mrs. M. A. Tams, in August, 1873, a few days after the death of her husband, William H. Tams, writes a letter of request to Dr. B. B. Donaghe, that he would send to her a receipt for the $7,500 in money which she alleged she had paid into his hands, in her room, for this house (the Central Bank building), alleging that she told him at the time it was her (my) “ own money.” To this note Dr. B. B. Donaghe sent promptly a positive and emphatic denial that she had ever paid to him $7,500, or any other sum of money in her room.
This correspondence, which is without date, it appears from Mrs. Tams’ note, took place “one week” after the death of William H. Tams, in August, 1873.
Yet, notwithstanding this positive denial of her assertion
To this letter Dr. B. B. Donaghe replied:
Staunton, January 22d, 1874.
“Mary A. Tams—My dear friend,—Your letter of the 13th inst. was received, in which you inclose your bond to me for $5,000, dated January 13th, 1874, and payable at three years, in discharge of that amount loaned by me to your husband, to relieve him from his difficulties arising from the result- of a suit with Mary B. Kinney. I accept the bond in discharge of that debt. I am having my business matters with Mr. Tams investigated and straightened up as far as practicable, and*145 when the same is completed, will be ready for a final settlement with you as his executrix. Thanking you for your renewed expression of kind feeling,
“ I am sincerely your friend, B. B. Donaghe.”
Dr. B. B. Donaghe died in September, 1879, and in June, 1881, Mrs. M. A. Tams filed her bill in this suit, in which, laying her claim, and stating her case with particularity, as to when, how, with what, and to whom she had paid the purchase money which she alleged to have paid for this property, stated under oath “that on or about the 18th day of November, 1865, she placed in the hands of the said Briscoe B. Donaghe, solvent bonds and securities belonging to her separate estate to the amount of $5,500, with the request that he would purchase, in his own name, but for your oratrix, the house and lot aforesaid ; that said B. B. Donaghe did contract and receive a deed for.the said property in his owp. name, but that the purchase price thereof1—to wit, $5,500, was wholly paid with the means of your oratrix, and that not one dollar of the same was paid or advanced by said B. B. Donaghe. As a matter of course her husband knew and understood that the said B. B. Donaghe was acting for your oratrix; and that the securities transferred to him in payment for the property belonged to your oratrix.” This very case made in the bill of Mrs. Tams is such a case as a court of equity regards with distrust and disfavor. Mr. Tams, her husband, who, by her own positive averment, knew and understood that said B. B. Donaghe was acting for Mrs. Tams, sold at a private sale, for the benefit of his own wife, the property which he held in trust as the fiduciary of the broken bank and its creditors.
This is the statement of her case as made in her bill, differing widely, materially, and egregiously, both as to the amount and the charader of payment alleged to have been paid by her
But not only must the plaintiff state her case in her bill clearly and with particularity as to when, and how, and with what she paid the purchase money, but the case stated must be supported by full, clear, and convincing proof. A resulting trust in favor of a party claiming to be the cestui que trust, against the grantee in a clear fee-simple deed of conveyance, can arise only when it shall be established by “ dear and unquestionable” proof—“with great clearness and certainty”—that the party claiming against the deed paid the purchase money, and paid it at the time of the transaction. See Perry on Trusts (supra), p. 155, sec. 137; Phelps v. Seeley, 22 Gratt. (supra), 589.
The pretension of the appellee, M. A. Tams, to be the equitable owner of the property in controversy, and the decree of the circuit court in favor of her right, rest solely upon the parol evidence of Mrs. Tams’ two daughters in regard to the interview between Mrs. M. A. Tams and Dr. B. B. Donaghe in the “ chamber scene,” and the evidence of B. G. Mayo.
On the 19th day of January, 1884, Rosalie B. Whittle was examined as a witness in this case, and she testified as to this chamber scene: “ Yes, I was in the room; my sister Fannie and myself were the only persons present besides Dr. Donaghe and my mother. Well, a few days after my father’s death, my mother sent for Dr. Donaghe; said she wanted to see him on a matter of business. He came, and in a few minutes after being in the room mother got the deed. Mother said: ‘ Doctor, here is the deed to my house I want you to sign.’ Dr. Donaghe said: ‘Does John Green think it best for you to have it now?, She said ‘Yes.’ Then Dr. Donaghe said, ‘I will sign it with pleasure; you ought to have had it long ago.’ When he got
Fannie L. Tams testified: “I was present. Dr. Donaghe called at mother’s request. She said, Doctor, I want you to sign my deed—a deed to my house. He replied, Does John Green think it best to have it made ? She said Yes; and he said, I will sign it with pleasure. After signing it he said I will take it to the bank and acknowledge it before Mr. Wayt, and get him to go up and get Mrs. Donaghe’s acknowledgment. I will bring it back in a few minutes. My buggy is at the door. This is all.”
On cross-examination she said : “ She (my mother) requested me to come in to be there in case it was necessary to do anything for her, and to be present as a witness.”
These two daughters of Mrs. M. A. Tams—one of them a mere child at the date of the occurrence—give the details of this “chamber scene,” which took place eleven years before, in almost exactly the same words. They both state, with special and guarded emphasis, that they were present by their mother’s request as witnesses.
Why was this unusual and altogether remarkable course pursued in having a deed executed? Mrs. Tams had a
Fortunately, it will not be necessary to comment further upon the testimony of these two young ladies, except to say (after comparing it with all the congruities of the case arising out of Dr. Donaghe’s constant, unvaried and contemporary conduct of refusal and resistance to the claim of Mrs. Tams) that it proves nothing but the fact of the interview and the signing of the paper by Dr. Donaghe, and his taking it away with him from the extraordinary and painful scene. They do not prove that it was acknowledged or delivered; and they do prove that this “is all.” It is remarkable that Dr. Donaghe (according to these special witnesses who were there with their ears open to hear and their eyes to see everything that was said and done) should have signed that deed without reading it, or being invited to read it! Yet, it is equally to be remarked that if he did sign that paper (as the evidence in the record shows) for the purpose of calming a female patient, whom he feared would “ die or go crazy on his hands,” he was provident and sensible enough to take it away with him and destroy it. These young ladies—one of them a mere child—were not disinterested witnesses of that chamber interview; and in testifying eleven years after the occurrence, they may, without intending to do so, totally alter the effect and meaning of what was said, even if they had at the time a full and correct apprehension of every point.
Sir William Grant says, in Lench v. Lench, 10 Ves.: “the slightest mistake or failure of recollection may totally alter the effect of the declaration.”
The evidence of the witness, Mayo, is utterly insufficient to warrant the decree which takes this property away from the appellants and nullifies their solemn, recorded title deed, even if that testimony were credible, consistent, and uncontradicted by the record. The deposition of this witness, E. G. Mayo, was
“The building in controversy was held by Dr. Donaghe for M. A. Tams, and belonged to her. I make this statement upon information from the late Dr. Donaghe directly to me. I have no means of now stating the exact date, but it was some little time after the death of Mr. Tams, and, on the morning of the day following the making of a certain deed, presently to be mentioned, that Dr. Donaghe called upon me in the office I then occupied as cashier of the Virginia Banking and Trust Co. He appeared much distressed in mind, and, calling me to the back part of the room, opened the conversation by saying, that when he purchased the Old Central Bank building, he did so for Mrs. Tams, and that it belonged to her, that on the previous day he had executed a deed for the same to her, and acknowledged it before Mr. John Wayt, as notary public; that then, upon his request, Mr. Wayt had carried such deed to his wife, Mrs. Donaghe, for the purpose of obtaining her signature and her acknowledgement to it; but that Mrs. Donaglie had declined to sign the deed in view of some missing and unaccounted bonds left by. him with Mr. Tams for safe-keeping. * * * In more than one conversation with the late Mr. John Wayt he spoke of this matter to me, making a like statement.”
Now, let it be remarked, that, at this speaking, both Dr. B. B. Donaghe and Mr. John Wayt had long been in their graves, and their lips were sealed in death; and that the foregoing statement of the witness embraces no fact or circumstance capable of being contradicted or investigated. Sir William Grant, in the case already cited, of Lench v. Lench, 10th Ves., p. 513, in speaking of the testimony of a witness, says she swears to no “fact or circumstance capable of being contradicted or investigated; but merely to a naked declaration that the purchase was made
Chancellor Kent, in Borstford v. Burr, in commenting upon the parol testimony by which a trust was sought to be engrafted upon a written instrument, says: “ This is a remarkable instance of the inaccuracy and fallacy of human testimony, and shows the great danger of giving much latitude to those implied trusts, founded on naked declarations, in opposition to the solemnity and certainty of written documents.”
The statement of this witness (Mayo) in regard to this alleged interview with Dr. Donaghe in August, 1873, the next morning after the chamber scene, is utterly inconsistent, not only with Dr. Donaghe’s and William H. Tams’uniform, constant and consistent course of action in regard to this property, and Wm. H. Tams’ sworn and solemn answers in several suits in the circuit court of Augusta, and in Rockingham county, as proved abundantly in the record, but it is wholly irreconcilable with Mayo’s own action and statements as to the ownership of this property. It is utterly inconceivable—absolutely incredible— that Dr. Donaghe could have sought out Mayo and called him aside and made to him the communication which Mayo states that he did, when, the day before, the same day, and all the time after he had received Mrs. Tams’ letter, giving him the first intimation that she claimed the property, he was, as is shown in the record, to his counsel, employed to resist that claim and defend his own right, and to his friends, denying what Mayo says he admitted. Is it conceivable that Donaghe, soon after he had denied Mrs. Tams’ claim, as asserted in her
But Mayo’s own statement to Mr. White, who went to him shortly after this alleged interview with Donaghe, and demanded of him to know why he (Mayo) had stopped crediting Dr. Donaghe with the rents for this property, which William H. Tams, his predecessor, as cashier, had regularly and without fail credited to Dr. Donaghe upon the books of the bank from the day of sale—November 18th, 1865—to his death in 1873, was that Mrs. Tams had told him to do so, and he believed it was all right. And in answer to Mr. White’s direct demand to know if Dr. Donaghe knew of his action in the matter, he said not that he knew of. Is it not strange, passing strange, that he did not then say to Mr. White, Dr. Donaghe’s counsel, why
But this witness, Mayo, testified pointedly and particularly to sundry other essential, and material allegations in his deposition, as to every one of which explicit statements he is absolutely and flatly contradicted by the facts in the record. He states in his answer to the fourth question in his deposition that “neither said insurance nor premiums, nor tees were either in whole or in part charged to or accounted for by Dr. B. B. Donaghe.” It appears from Dr. Donaghe’s bank account that both the insurance and taxes were regularly charged to him on that account, and accounted for by him.
He states : “ Mr. Tams, as agent of the Continental Fire Insurance Company of New York, insured said building in his own name, paying the premium himself, and I, as his successor as such agent, insured it in the name of Mrs. M. A. Tams, charging the premiums to her.” The books of the bank (as shown in the evidence) show that Mr. Tams did not pay the insurance, but charged every dollar of it to Dr. Donaghe during his (Tams’) lifetime; and if it was insured by Mayo for the benefit of Mrs. Tams, and the premiums charged to her,” it could have been shown, as she kept her accounts in that bank as long as it existed.
He states that no claim was asserted for rent by or in behalf of Donaghe, when it is proven by the evidence of Mr. White that, upon learning from Major Bell, the president of the bank, when he was settling Dr. Donaghe’s over-draft with the bank,
Thus it is proven by the record that every material fact stated in Mayo’s deposition is contradicted by the evidence except his statement about Donaghe’s alleged admission in the interview with him (Mayo), which is incapable of being expressly contradicted by proof, because it is located at a time when no one but Mayo and Donaghe are alleged to have been present, and Donaghe is dead. The maxim, “falsus in uno falsvs in omnibus ” may be inverted and applied to the evidence of this witness, Mayo, that, being proved mistaken or false in all his other material statements in his deposition, we may conclude that he is false or mistaken as to the alleged interview and the admissions imputed to Donaghe.
Again, it may be asked, why did Mayo never mention or allude to this alleged interview and statement imputed to Donaghe in 1873, until after his death in 1879, although there were (as the record shows) repeated opportunities and occasions of duty for his doing so, arising out of this very rent account with Donaghe, upon the books of the bank kept by Mayo? Why did Mrs. Tams never, from the date of the sale of this property by Wm. H. Tams to Dr. Donaghe, November 18, 1865, up to the death of said Tams, her husband, in August, 1873, ask for a receipt from Donaghe, or intimate in any way to him or to any one, that she had paid for this property, and that Donaghe had bought it with her money, and for her ?
Another witness, William P. Tams, a son of the plaintiff, who was a lad of fourteen years at the date of the purchase of this Central Bank property by Dr. Donaghe from his father, Wm. H. Tams, trustee, endeavors to prove, by an array of figures and calculations based upon error, that Dr. Donaghe did not possess, nor could command, the means necessary to buy and pay for this property in November, 1865 ; but the evidence in the record aboundingly and indisputably proves that Dr. Donaghe was at that time a wealthy man, and exceptionably able to buy and pay for it; that he did buy and pay for it in instalments credited upon the written executory contract in the handwriting and keeping of William H. Tams, who made and delivered to him a deed for it, in fee-simple and absolute right, which he placed upon the récords of Augusta county .court; that he took possession of the property and expended upon it about $1,000 in immediate repairs; that he rented the property out to William H. Tams, and to the various banking-concerns of which said Tams was, to his death, the managing-head and cashier, all of whom were his tenants, and paid to him regularly his rents up to his death, amounting to thousands of dollars; that he paid the taxes and insurance upon the property, and exercised full and unquestioned ownership of the property as long as he lived, from the day of its purchase—fourteen years.
Mrs. Tams alleges, in the case made by her bill, that the solvent bonds and other securities (which she says she took from the tin box which, with the key thereof, was in her custody, and gave to Dr. Donaghe to pay for this house and lot for her, amounting to $5,500, November 18th, 1865), constituted
But the evidenceqncontrovertibly shows that her trust fund, derived from her father’s will, was not in existence, or available, at the date of the purchase of this property by Donaghe from Tams, November 18th, 1865. The evidence of her brother and trustee—Judge J. W. G. Smith—shows that the corpus of that fund consisted of $2,700.00, proceeds of the sale of a house and lot in Harrisonburg, Va., and the entire residue of the fund was represented by the bond of her husband—• William H. Tams—with his father, William'Tams, as security, for the sum of $3,884.00, executed to. J. W. G. Smith as her trustee, and still held by said trustee and filed with his deposition in this suit. The said $2,700.00 is shown by the evidence to have been invested under the decrees of the circuit court of Rockingham county by E. T. H. Warren, commissioner, in stock of the Central Bank of Virginia, and to have remained so invested up to the failure and suspension of said bank in August, 1865, when said stock perished. And it appears fully and distinctly that in the only instance in which Mrs. Tams attempted to designate a single security taken by her from the said tin box, and with which she claims to have paid for this property, it is shown by overwhelming evidence that she did not own or possess at the time, or since, any such bond or security, which had been long before this sale transferred to other parties. And it does appear conclusively by the evi
We will not pursue this most painful and protracted investigation any further, except to say, to sustain the case made in the bill -would inevitably implicate that William H. Tams and Briscoe B. Donaghe were guilty of systematic and gross fraud in the sale of this property, of falsehood and deceit in the use and occupation of it through a long series of years, and that said William H. Tams swore falsely in his answers filed in the Bickle suit, attacking the integrity of the sale to Donaghe and the sufficiency of the price; and was guilty of making false entries and mutilating the bank accounts kept and made by him, as the cashier of the bank and the trustee of its assets and for its creditors.
The evidence shows, that Briscoe B. Donaghe and William H. Tams lived and died without reproach, and left to their respective families, that better inheritance than great riches, a good name; and justice, to the living and the dead, forbids the cruel ascription, of the fraud and double-dealing dishonor predicated of these good men, by the assertion and argument of this suit.
It is not necessary to notice the other assignments of error; since our conclusion is, that the decree of the circuit court
Lewis P. and Lacy J., dissented.
Decree reversed.