English v. Lane

| Ala. | Jan 15, 1835

By Mr. Chief Justice Sapfold :

This was an appeal by English, from a decree of the Circuit Court of Mobile, dismissing his bill.

The bill was filed against Lane in October, 1830. The allegations, in substance, are — that English, the complainant, was owner of twenty eight negroes — that he was indebted by judgments to the amount of two thousand three hundred dollars or two thousand four hundred dollars, for which he was imprisoned on ca. sa. — that Lane was an old acquaintance, whom he considered his friend, and with whom he advised how he could best relieve himself, suggesting thé necessity of selling some of his negroes to effect his release — that Lane dissuaded him from selling any, saying the object could be effected by the hire of them, so that he could save all— that he had known the same done by others in like condition, by the aid of friends, and from the long acquaintance and friendship he felt for him, he Lane, would undertake to arrange the matter accordingly — that it was agreed between them that Lane would take the negroes, and manage and use them as his own, pay off the executions, and pay five or six hundred dollars of other debts, and retain the negroes until their labor should repay him, and then return them to English — that when-the contract came to be executed, Lane said it was necessary for his security he should have a bill of sale, absolute on its face ; but promised it should be surrendered when he was reimbursed ; and with this understanding, he, complainant, gave the bill of sale, confiding in Lane as his friend, and delivered him the negroes, twenty eight in number — 'that they were worth nine thousand dollars, would have sold for that sum in cash, and were worth two thousand dollars per year — that Lane had had them since that time, (March, 1826) their hire for the time being worth seven or eight thousand dollars — that Lane now contends that the sale was absolute, and refuses to re-dclivcr the negroes unless repaid the amount advanced. The complainant alleges, the conveyance was agreed and intended as a mortgage, and tha^ the negroes had increased to the number of thirty one. The bill contains interrogatories to all the material facts charged» and among others, ¡'Was not the agreement as above stated, and if not, what, was it ? Did he, Lane, not pay off the executions, &c. and what did they amount to ? How much money did he advance besides the executions ? Did he not take receipts, and if so, where are they ? The complainant prays that the negroes be restored, and that the bill of sale be surrendered and cancelled, and for such other and further relief as shall be just and equitable.

The answer of Lane admits, that being sent for by English, he visited him while in jail — that English wanted money to relieve himself from the imprisonment, to the amount of about two thousand five hundred dollars — that being his friend, he endeavored to make arrangements to raise the requisite sum of money out of the hire of the slaves, and took upon himself much trouble and pains endeavoring to effect an accommodation for English, but his efforts failed — that finally, to relieve his friend from jail, he agreed to purchase the negroes himself, and did purchase them all of English, without any condition whatever — that there was no trust, the sale being absolunte, and so understood between the parties, and that an absolute bill of sale was executed accordingly, a copy of which he exhibits, by which it appears English sold to him all said negroes for three thousand dollars, this being the consideration expressed in the bill of sale. The respondent avers, that the negroes are indefeasibly his, the complainant having no right to redeem — that he paid English the three thousand dollars, and has since paid for him the amount, he believes, of two thousand five hundred dollars more, making together five thousand five hundred dollars — that he was induced more by friendship for English, than by any motives of interest, to make the contract — that to effect the accommodation, be was under the necessity of borrowing three thousand dollars on his own credit, and that he paid that sum to complainant as part consideration of the purchase of said negroes, and not as a loan to be paid by their hire, or to be secured by a pledge of them, which he avers did not enter into his contemplation, nor that of the complainant, as he verily believes, and that no word or promise passed between them, from which such an inference could be drawn. He further answers, that in addition to the consideration expressed in the bill of sale, he has since paid judgments against the said complainant, at his request, to the amount of two thousand five hundred dollars, or there--abouts, and which judgments he believes existed, with executions thereon, at the sime of the contract aforesaid — that he believes the sum he agreed to pay, and has paid for the ne-groes, is fully their value, or more, and that the contract has been an injury to him. On these allegations and denials, proof was taken.

James Conway, a witness on the part of the complainant,states that he was the sheriff who had the custody of English— that the executions amounted to from twenty three to twenty five hundred dollars- — that Lane paid them, and said he was to pay all the debts of English — -that he was a subscribing witness to the hill of sale — that no conversation passed between ' - the parties at the time it was executed. This witness further deposes, in answer to questions by the counsel of Lane,that English said to him soon after the bill of sale was signed, that he was grateful to Lane for his kindness, and well satisfied with the arrangement made — that he preferred the arrangement with Lane, to that which had been proposed by one Mills, both of whom had proposed to take the property and relieve him from debt — that on his asking English in what manner the property was to be taken, ho appeared unwilling to state the particulars of the contract, and remarked that Robert Singleton had set up a claim to his negroes, which was unjust, but that his debts should be paid if it took !the whole of nis property.

Robert Singleton, also a witness on the part of the com- - plainaut, says he had particular knowlegc of English’s debts and negroes; — that the cash value of the latter, at the time of the conveyance, ,vas eight thousand five hundred to nine thousand dollars — that English liad received the 'most of them as his patrimony, and they would then have sold for the price mentioned — that they would have hired for fifteen hundred dollars per year, at any time while Lane had them — that from an intimate acquaintance with English’s debts, he docs not think all he owed would have exceeded $3000-; — that twenty two to twenty five hundred dollars thereof were'in executions in the hands of the sheriff: he’ also proved that Lane professed to be an old acquaintance ahd friend-of English, and expressed a wish to relieve him, but said he must be made perfectly secure if he did so, — that lie, deponent, had a claim on the negroes, and that Lane was unwilling to advance 'money on them until'this claim was relinquished ; conse ponent relinquished his claim in favor of Lan pose of inducing him to advance money to rel? that deponent understood at the time of his r that Lane was to advance money enough to debts, on the latter putting the negroes in th Lane ; whether this was to be done by bill of s? gage, witness knows not; Lane then remarked that it take a longtime for the'negroes to work out the sum ; but that English, or any of his friends might at any time redeem them by re-paying him the rhoney; that this conversation was held in the jail, while English was confined therein; hó was not present at the execution of the bill of sale, andknows not what arrangements were agreed on after he left the parties, which was anterior to the consummation of the contract.

Jeremiah Austill, a third witness examined for the complainant, states, that at the time of this contract, he and Lane occupied different rooms in the same building in Me kilo, were collected in the business of weighing cotton, and very intimate — that Lane being sent for by English, to go to Blakely, went, and returned a day or two afterwards, then informed witness that the debts for which English was confined, amounted to about three thousand dollars — that English had proposed to him, if he would' advance three thousand dollars, to relieve him from jail, he, English, would allow him two thousand dollars in addition to the three thousand, making five thousand dollars for the advance, and^ would give him a bill of sale for his negroes- — that witness and Lane thought it a very good operation for Lane, and made some calqulation, how long it would take for the hire of the ne- * groes to discharge the five thousand dollars, if hired at Mobile Point, and concluded on two or three years — that after the contract and receipt of the negroes, by Lane, he made application to hire them' at the Point, but failed ; afterwards, he put them to making brick at a different place, where they re-, mained twelve or eighteen months, .when Lane said the business was unprofitable, and sent them on a farm. Deponent further states, that from his conversation'with Lane after his first visit to Blakely, and while the ncgociation was pending, he understood, that, when from the hire of the ne-groes he should realise the sum of five thousand dollars, and the interest on'the three thousand dollars, advanced by him, the negroes-were to be returned to English, and the bill of sale given up; also, that after the contract had been consummated, and before the negroes were sent to the farm, Lane s^id to him, he had become embarrassed in conse-quenco of the advances to English, which he had not been able to realise from the negroes — that he either had made, or intended to make a proposition to English, that if the latter would pay him the amount he claimed,- by a certain day, he would return him the negroes, and if he did not do so, he, Lane, would be under the necessity of selling some of his own negroes, and would never retnrn to English tlie negroes received of him — that upon the dissolution of the connection between deponent and Lane, some misunderstanding arose between them, since which, they had not been so intimate as before — that Lane had never, since the conversations mentioned, given him reason to believe, either by conversation or 'action, that the arrangement proposedby.English had not been carried into effect — that Lane borrowed ¡the three thousand dollars, and paid it as mentioned, not having it otherwise ; and deponent does not believe he made more than seven or eight hundred dollars a year by the negroes, but he has no positive knowledge on this point — that the negroes, when re- ■ ceived by Lane, could have been hired at auction at from fourteen hundred to sixteen hundred dollars,' but in that way they would have been more exposed to' loss from hardships, than when under the charge of one interested in their welfare.

The record also contains letters written by Lane to English, during the imprisonment of the latter, evincing the strongest friendship, sympathy and anxiety for his release, and .promising to do all in his power to raise money to effect the object, without a sale of the negroes, and in the manner most conducive to his interest; ,

William S. Littell was examined as a witness for the defendant. He says, he was about to take the negroes on hire, and advance three thousand dollars, which’ was supposed by English, Lane and himself, to be the amount necessary to relieve English — that he endeavored to raise the money, Lane persuading him to do so, and aiding him in the effort, but the arrangement failed. He was willing!, had he succeeded, to have advanced the three thousand dollars, to be reimbursed by the hire of the negroes. He was to have given, on the proposition of Lane, ten dollars per month, for the hire of the men, and eight dollars for the women ; these terms were less than the current prices, and so intended, in consequence of his paying so large a sum in advance. This, witness afterwards saw English deliver the bill of sale to Lane.

,j. Darington, a witness on the same side, deposes to mat-tors of hearsay and inference mainly, which having been ob- ' jected to at the time, and being now considered inadmissible, I omit to notice, except that he estimates the value of-the negroes at only seven thousand dollars, saying there were. . twenty fire or thirty in n.u,mber.

J. A. Cooper, on the same side, deposes, that he was present when the bill of sale passed between the parties — heard much conversation, between them previous to the contract, all importing a sale — that the bill of sale Was delivered by English to Lane, at a coffee house in. Blakely — that Lane paid the sheriff money, the amount unknown, and English was discharged» After the writings were passed, deponent has an indistinct recollection of hearing Lane say to English, that if he would pay him back the money in a certain time, (when, not recollected) he would restore the negroes ; and thinks Lane intimated his opinion, at the, same time, that ho had paid the value of the negroes, blit of this, is not certain. Jack F. Ross was also examined for defendant. His tes- ' timony, consisting mostly of the declarations of Lane, being objected to at the time, the following only is considered evidence — that in 1826, he paid Lane five thousand three hundred and seventy, five dollars, on an order from S. Hunter; also, that he, about the same time, purchased of Lane, a house and lot, at five or six hundred dollars, which he considered a low price.

The cause having been heard in the Circuit Court, on the, bill, answer, exhibits, and proof, -the chancellor decreed for the defendant, and dismissed the bill. This decree is now assigned as erroneous.

The questions involved have been fully discussed in the ar-'"'ent, various authorities cited, and the claims of each. ;w> V -¡.‘ornately presented in the most imposing aspect.

' f í¡ subject may be resolved into the following questions: I. Is it competent for the complainant to show, by 'parol. .hat the contract was intended to operate as a mortgage ?

M. Is the evidence sufficient for this purpose ?

3. Are tbe allegations and prayer of the bill, appropriate to the. remedy souglit ?

I. Numerous cases have been referred to, showing that a written contract cannot be contradicted, varied or explained, by parol, which is an inferior grade of evidence ; and that where an agreement is reduced to writing,-all previous negotiations resting in farol, are extinguished by the written contract, and cannot be. resorted to, to help out or explain its meaning. The first branch of the proposition is conceived to be true, as a general rule, but subject to various exceptions. The latter branch is admitted to be true, and to be. without exceptions, other than those applicable to the first branch. To sustain this latter position, it is sufficient to refer alone to the case of Parkhurst v. Van Courtlandt,^a cited defendant. There the chacnellor remarked, “ I appreheqd the rule to be too reasonable, and too well settled, to be now disturbed, that where an agreement is reduced to writing, all previous negotiations are resolved into the writing, as being the best evidence of the certainty of the agreement.— Every thing before resting in parol, becomes thereby extinguished or discharged.” — See also, Vandervoort vs. Col. Insurance Company,^b and Mumford vs. McPherson.^c Another case mainly relied upon by the. counsel for the defendant in error, is that of Watkins vs. Stackett’s adm'rs.^d That was . suit in chancery, seeking the right, of redemption against a deed for lands 'and slaves, which, was absolute on its face. The court of appeals of Maryland ruled, that parol evidence was inadmissible to yary or contradict the clear import of a written, instrument, as well in equity as at, law, except where, fraud is charged, or in cases of trust. But that court, in the same case, held, that fraud may he inferred from facts and circumstances, from the character of the contract, or from the condition and circumstances of the parties. Also, that where fraud is charged, and the evidence establishes it, even in questions of title to land, the statute of frauds may very properly bo put out of the way, since the object of such evidence in not properly to contradict the instrument, but to raise an equity dehors the instrument, in contradiction of an intent to defraud, which no law or statute will be suffered to assist or protect; and so where mistakes are proved to exist, a court of equity will reform the contract; and that in such cases the power of the court to interfere seems indisputable.

The defendant’s counsel have insisted with great zeal, and apparent earnestness,- that relief cannot be had in a case like this, on proof, against the positive denial of the answer. 1 This principle, so far as tenable, is more particularly .applicable to allegations of mistake, in the absence of fraud or trust, and is so recognised in the case last referred to. It was there said, “ The answer denies the existence of a mistake, and in such cases, there should be the strongest possible proof.” Reference is there also made toa declaration of' Lord Thurlow, “ that the proof of a mistake should be estab-. lished as much to the satisfaction of the court, as if it were admitted, and that the difficulty of doing this is so great, that there is no instance of its prevailing against a party insisting there is no mistake.” This is believed to be the nearest approximation of authority to the principle contended for in this • case,, of any quoted in argument, and by it, I think the principle is carried too far : but, as has been shown, this doctrine applies exclusively to cases of alleged mistake, in contradistinction to trust and fraud. The ■ reason for this distinction is obvious : an allegation of mistake imputes no dereliction of moral principle to the defendant — no distrust of his honor or integrity. A charge of fraud, or breach of trust, imputes all these, and seeks redress for injury thereby sustained, or threatened.

Many cases were cited by the complainant’s counsel, showing, that the right of establishing by parol, that a conveyance, absolute on its face, was intended to operate as a mortgage, is an exception to the general rule, respecting the conclusive effect of written instructions ; especially in cases ol fraud on the part of the defendant. I admit, however, that the parol evidence must be strong and satisfactory.

In Washburn vs. Merrills,^a it had been agreed between the ° parties to a deed for land, that it should be executed as a mortgage, but by mistake and accident, it was executed as an absolute deed. A bill having been filed to redeem, the defendants pleaded the statute of frauds and perjuries, and that there was no note or memorandum of such agrccr ment. The court held, that parol evidence was admissible, to show the mistake, and therefore decreed a redemption.

In Ross vs. Norvell,^b the bill charged, that the conveyance, (being-for slaves) though absolute in its form, was intended as a security, and that it was verbally agreed at the time, that the plaintiff might redeem at any time, upon payment of principal and interest. The answer in that case admitted the conveyance, but insisted that the sale was absolute, and was intended as a satisfaction of a prior debt due to the defendant. It does not appear in that case, that the bill contained any express charge of fraud, more than the allegation of the facts and circumstances, from which it was to be inferred. The court, however, on proof of the parol agreement for redemption, treated the case as one of trust and fraud, and, against the denial of the answer, decreed a redemption. The principle was at the same time recognised, on the authority of' English cases, “ that parol evidence, where there is a deed, is not to be admitted in all cases, nor refused in all that “ every caso must depend on its circumstances-.”

In Hatter vs. Etenaud,^c the right of redemption on an ah-solute bill of sale, on proof of a parql. agreement at the same time, to that effect, was sustained. That suit was instituí cd by the vendee or mortgagee, to obtain a decree for the sale of the negroes, in payment of his debt, and the answer did not deny the intention of the contract, but alleged a failure of the consideration. The case shows, that in I'-outh Carolina, also, a parol agreement' that an absolute deed shall opéralo only as a security for a debt, will be enforced.

The case of Markee vs. Markee,^a appears conclusive oii this point. There, the subject of controversy was real estate, and the bill sought a redemption of the premises. The defendant set up an absolute sale, and denied lhe fad of the loan ; but at the samé time admitted his subsequent consent to give time to return the money, and take back the conveyance. It was there shown, clea'rfy, by, parol proof, that a loan was intended, not a purchase and sale, and that- for this purpose the cnnveyance was exéputed. The chancellor remarked, that on the strength of the authorities, and on the proof of the loan, and of the fraud, on the part of the defendant in attempting to convert a mortgage into an absolute sale, he should decree an existing right in the complainant to redeem; He maintained that various adjudications in the courts of r, , -, ■■ . , . ••1b England sustained tqe principle.^b

The case Of Clark vs. Henry,^c is, in principle, the same, _ > . . « was ruled.in the court or errors, that a conveyance or personal property, absolute in terms, if intended by the parties to be a security for a debt, is a mortgage; -and that this is the rule,, whether the intention is manifested by a written defeasance executed simultaneously with the conveyance, or by the parol declarations, or the acts of the parties, it was in that ’case, also declared, that there is no exception tb the rule that a conveyance ivhich is once a mortgage is always a mortgage. Many other decisions, both English and American, might bd quoted to the same effect, but these are considered sufficient tb establish the principle conclusively, that in cases of trust, fraud, accident, or mistake, chancery is competent to afford relief. And that where there has been a breach of trust, or a fraud committed by setting up a conveyance as an absolute sale, in violation of a parol agreement, expressed 'and understood between the parties at ,the same time, that it should operate only as a mortgage, it will be sustained as a mortgage ; and this, notwithstanding • the answer positively deny the párol agreement, provided, it be sufficiently proved, and the moriga gov or vender lias not participated in the fraud- • ulent intent.^a

3. Then does the evidence in this case sufficiently estab-hsh tne parol agreement r .

The depositions of the witness Austill, may be regarded as the positive evidence of one witness to the existence of the parol agreement at, and subsequent to the execution of the deed '; for though he was not present at the time, Lane and the witness were very intimate, and connected in other business. Lane had communicated to him the propositions of English, and his own intention to advance money on a pledge of the negroes, but to take the conveyance in the form of an absolute bill of sale for bis better security — had informed him that three thousand dollars was the sum necessary to' relieve < English, but that he was to receive a nett premium of two thousand dollars for the advance, the whole to be paid from the hire and use of the slaves. They had calculated the transaction, and concluded that in three years or less the profits of the slaves would reimburse Lane the five thousand dollars, and that it would be a beneficial -arrangement to him as well as to English. Lane expressed much friendship for English, and a strong desire to relieve him in any way safe to himself: such were the avowed intentions of Lane down to the time of his visit to English, when the bargain was consummated and the negroes delivered ; and though the close intimacy between Lane and the witness, continued for some time afterwards, not a whisper or the slightest intimation was given of any modification of the contract. On the contrary, twelve or eighteen months afterwards, and after Lane had stopped the slaves' from brick-making, and sent them on the farm, he spoke of them to witness as still being English’s property, but said he intended to insist on the sale as absolute, unless English would immediately reimburse him for the advance he had made, and by which he said he had been injured. This I consider fully tantamount to an express declaration, at the execution of the deed, that it was to be subject to redemption, especially when it is shown by other witnesses that the terms of the contract were not express at the time of executing the conveyance, but that a mysterious silence was observed by both the parties, as though Lane had required it under a belief or pretence fhat it was necessary for his security, and that English in his anxiety to be released, and confidence in Lane’s friendship and honor, had acquiesced in the form and manner most acceptable to the latter.

The facts and circumstances detailed by other witnesses, appear totally irreconcilable with any other conclusion than that the right of redemption was intended, and ultimately agreed upon and understood between the parties. If not, why should English, after proposing to sell only part of his slaves to relieve himself, and when about one third in value would have been sufficient to pay his debts, have made so great a sacrifice in the sale of the whole. The witness, Singleton, who appears to have had thebest opportunity of knowing the value of the slaves, thinks they were then worth in cash, eight thousand five hundred or nine thousand dollars. It is true, Darington also speaks of having been well acquainted with them, and estimates their value at only seven thousand dollars; but it is worthy of notice, that he appears not to have known the number ; he says there were twenty five or thirty ; without more certain knowledge, his testimony on tbis point, must yield to that which is more definite. The other proof that the negroes could have been hired at fourteen hundred to sixteen hundred dollars a year, corroborates Singleton’s estimate of their 'value. It is shown by the testimony, and even admitted by the answer, that the sum necessary to relieve English did not exceed two thousand five hundred dollars, and that the aggregate of his debts was not more than three thousand dollars. Then, this latter sum at most, would have given English temporary relief, time, and liberty to effect, what appears to have been his anxious de~ sire, the preservation of the larger portion of his negroes: or if he chosd to sell all as an absolute conveyance, perhaps in this kind of property, more than any other, we may well ~conc1ude he could at any time, iii or out of jail, have received something near their value. I admit the principle, if he did in fact sell at a greatly inadequate price, without fraud or circumvention, but voluntarily, and in the exercise of a legal Lapacity, that the inadequacy alone,, does not avoid the sale. But at the sarne~time, I maintain that gross inadequacy may imply fraud, an~ is a circumstance proper to be taken into consideration, with other facts, to determine the intention d the parties, and the true character and object of a eontract.^a

These circumstances are far from.being all tending to show the existence of an agreement between the parties reserving the right of redemption. The previous conversation held by Lane with Singleton and English, in the jail, when the former reiterated the tale of his long acquaintance with, and friendship for English, and consequent desire and intention to relieve him by advancing the requisite sum of money, to be repaid by the use of the slaves-his declarations at the same time, that he intended to be made perfectly secure in the advance, but that English or any of his friends might at any time redeem the slaves by refunding him the money; and his having in this way prevailed on Singleton to relinquish a claim which he had on the slaves, as a farther inducement for him, Lane, to risque the advance; these facts strongly corroborate the same presumption. It is also worth~r of special `notice, that all the witnesses who professed to know any thing of the amount paid by Lane to, or for English, understood the sum to be only three thousand dollars,. or less.They derived their information from Lane a short time before the execution of the deed, and pending the negotiation. Such was the understanding of Conway, the sheriff-of Singleton, who had an intimate knowledge of English's debt~of Ausrill, with whom J~ane held the most unreserved corn-munication on the subject — and of Littell, from a conversation with English and Lane.

1 admit.that such conversations and negotiations may have been extinguished by, or merged in the written contract subsequently entered into, and that the courts are bound so to consider it, when such appears to have been the fact from the circumstances attending the consummation : yet, as in this case, nothing appears in connection with tiie actual contract to repel the conclusion, and especially as Lane insists that the consideration was different, and more than that expressed in the deed, I consider this kind of proof available as circumstantial or presumptive evidence that the sum was correctly expressed in the instrument — that the sum expressed in the deed as the consideration thereof, should be little, if any more than one third of the value of the property conveyed, and two thousand five hundred dollars less than the sum which the answer avers was agreed upon and actually paid for the property, is not one of the least surprising features in this extraordinary case. To these views, may be added the facts in evidence, by Coopér, that after the deed had been passed, he has an indistinct recollection of hearing Lane say to English, that if the latter would refund the money within a certain period he would restore the negroes. This is evidence from one of the defendant’s witnesses, strongly tending to the same result. The expressions of gratitude by English, soon after signing the deed, for Lane’s kindness, and of his preference for the arrangement made, over that proposed, by another, to advance money on a pledge of the negroes, clearly indicate the same understanding. The record contains no evidence showing any disposition on the part of English, to defraud creditors, or any claimant of the property. Conway proves that immediately after the execution of the conveyance, he said he would 'pay his debts, if it took all his property. Singleton was the only claimant of the property, of whom we have heard, and he relinquished, in favor of Lane, to aid in the arrangement, which Lane informed him was. to. be a pledge, and which, if otherwise intended, was also a fraud on him. '

This is deemed a sufficient review of the evidence, to determine the true character of the contract. Then, upon the principle contended for in argument, and maintained by the chancellor below, and which I fully recognise, that, in reference to facts responsive to the bill, the answer of the defendant must be taken as true, unless contradicted by two positive witnesses, or by one, and pregnant circumstances — how does this ease stand ? Austill is shown and conceded to be one positive witness, in disproof of the answer respecting the rig’ht of redemption. That all the other evidence detailed, furnishes pregnant circumstances, a concatenation of facts strongly corroborating the positive witness, we think entirely dear.

3. Then, the only remaining inquiry is, Are the allegations and prayer of thé bill appropriate to the remedy sought ?

Admitting that fraud in the conduct of the defendant was necessary to entitle the complainant to relief, it does not follow that, it must be charged eo nomine. The allegation of the. facts and circumstances from which the fraud is to be inferred, is conceived to be all that is necessary. This is sufficiently done in the bill before us. It also charges a trust and confidence, and a gross breach of that trust, and we think the evidence sustains the charge. If the defendant’s intentions ’ were locked up within his own breast, pending the negociation and at the time of its completion, his subsequent conduct may he regarded as a developement of. what they originally were. The circumstances of the case imply fraud from the beginning, and if in fact the fraudulent intent was subsequently conceived, this can be known to himself alone, and he can claim no-«advantage from it.

It is also charged, that the hire or profit of the slaves, have more than reimbursed the defendant the money he advanced, and the complainant prays to have the negroes restored, and the bill of sale cancelled, and for other or further relief, as his case may authorise. This is, in substance, a prayer for ' redemption. The parol proof on this point establishes the ~ fact, that a considerable sum has accrued to the defendant from the labor of the slaves, and that a much larger sum could probably have been raised by-keeping them hired out, as at first contemplated, perhaps sufficient to havé extinguished this lien upon them before the institution of this suit. If, however, by hiring them at auction, or otherwise, the negroes would have "been more exposed to hardship, injury, and ultimate loss, than by being used as they were, as one of the witnesses supposes, the complainant, (if the negroes be restored to him,) will derive a benefit from this source, and in consequence thereof, is entitled to a less rate of hire.

. As has already been remarked, the amount which has been advanced by Lane on these slaves, is enveloped in mystery and doubt. The answer and depositions do not enable us to decide this point as satisfactorily as could be wished ; and as the suit must be remanded, to effect other objects, we determine to leave this point open to such farther proof as either party may offer.

. We are satisfied, on a full view of the case, that the decree rendered below must be reversed, and that a decree should be rendered, securing to the complainant the right to redeem all the slaves with their increase, on payment or discount of the amount of money advanced by the defendant, and interest thereon until paid. That the bill of sale under which the defendant claims, be delivered up to the Circuit Court to be cancelled ; that the cause be remanded, that an account may be taken under the direction of the Circuit Court, of the amount of monies advanced by the defendant to the complainant, or in payment of Iris debts : also, an account of the profits, on an equitable estimate, from the hire or use of the slaves, from the time the defendant received them until the account may be taken.

Let a dqcre® of this court be entered accordingly.

a 1 Johns. Ch. R. 273.

b 2 Cai. Cas. 155" court="N.Y. Sup. Ct." date_filed="1804-08-15" href="https://app.midpage.ai/document/vandervoort-v-smith-5463352?utm_source=webapp" opinion_id="5463352">2 Caines 155

c 1 Johns. R. 414; 8 Wheat. 211.

d 6 Harris &Johnson, 435.

a 1 Day's Rep 139

b 1 Wash. 14.

c 2 Dess. 570.

a 4 Johns. Ch. R. 167.

b 2 Atk 99,258 3 Atk. 389—1 Pow. on Mor. 104, 4th Lon. edition.

c 2 Cowen 324

a 7 Johns. Ch. R. 40--1 Ver. 7.

a l Brown's C R. 149: 2 id. 150, 167 ; 2 Burr. 1012 ; 1 Pr. Wms. 310 ; Dess. 697 ; Newl'd on Con. 365