To establish the existence of a trust, the
onus
probandi lies on the party who alleges it. In general, length
of time is no bar to a trust clearly established to have once
existed, and where fraud is imputed and proved, length of time
ought not to exclude relief.
But as length of time necessarily obscures all human evidence
and deprives parties of the means of ascertaining the nature of the
original transactions, it operates by way of presumption in favor
of innocence and against imputation of fraud.
In what cases the lapse of time will bar a trust.
Effect of length of time in raising a legal and equitable
presumption of the extinguishment of a trust, payment of a debt,
&c.
The lapse of forty years and the death of all the original
parties deemed sufficient to presume the discharge and
extinguishment of a trust proved once to have existed by strong
circumstances by analogy to the rule of law, which after a lapse of
time, presumes the payment of a debt, surrender of a deed, and
extinguishment of a trust where circumstances require it.
This was a bill in chancery filed in the court below by the
plaintiff, George W. Prevost, as administrator
de bonis
non, with the will annexed, of
Page 19 U. S. 482
George Croghan, deceased, against the defendants Simon Gratz,
Joseph Gratz, and Jacob Gratz, administrators of the estate of
Michael Gratz, deceased, for a discovery and account of all the
estate of G. Croghan, which had come to their hands or possession
either personally or as the representatives of M. Gratz, who was
one of the executors of G. Croghan, who died in August, 1782,
having appointed M. Gratz, B. Gratz, T. Smallman, J. Tunis, and W.
Powell, executors of his last will and testament. All the executors
except W. Powell died before the commencement of the suit. B. Gratz
died in 1800, and M. Gratz in 1811. W. Powell was removed from his
office as executor in the manner prescribed by the laws of
Pennsylvania after the death of M. Gratz, and the plaintiff was
thereupon appointed administrator
de bonis non with the
will annexed. The bill charged M. Gratz and B. Gratz (the
representatives of B. Gratz not being made parties) with sundry
breaches of trust in respect to property conveyed to them in the
lifetime of the testator, and with other breaches of trust in
relation to the assets of the testator after his decease, and also
charged the defendants with neglect of duty in relation to the
property and papers of G. Croghan which had come to their hands
since the decease of M. Gratz.
The first ground of complaint on the part of the plaintiff
related to a tract of land lying on Tenederah River in the State of
New York which was conveyed by G. Croghan to M. Cratz, as
containing 9,050 acres, by deed dated 2 March, 1770, for the
consideration expressed in the
Page 19 U. S. 483
deed of $1,800. The deed was upon its face absolute, and
contained the covenants of general warranty, and for the title of
the grantor, which are usual in absolute deeds. At the time of the
execution of the deed, G. Croghan was in the State of New York, and
M. Gratz was at Philadelphia. The land thus conveyed was, in the
year 1795, and after the death of G. Croghan, sold by M. Gratz to
one Lawrence in New York for a large sum of money. The plaintiff
alleged that this conveyance made by G. Croghan to M. Gratz, though
in form absolute, was in reality a conveyance upon a secret trust,
to be sold for the benefit of the grantor, and he claimed to be
allowed the value of the lands at the time the present suit was
brought, upon the ground of a fraudulent or improper breach of
trust by the grantee, or at all events to the full amount of the
profits made upon the sale in 1795, with interest up to the time of
the decree. This trust was denied by the defendants in their answer
so far as respects their own knowledge and belief, and if it did
ever exist, they insisted that the land was afterwards purchased by
M. Gratz, with the consent of G. Croghan, for the sum of 850� 15s.
5d, New York currency. It appeared from the evidence that G.
Croghan and B. and M. Gratz were intimately acquainted with each
other, and a variety of accounts were settled between them, from
the year 1769 to a short period before the death of G. Croghan;
that he was involved in pecuniary embarrassments, and extensively
engaged in land speculations: and some portions of his property
were conveyed to one or
Page 19 U. S. 484
both the Messrs. Gratz upon express and open trusts. It also
appeared, that in an account which was settled at Pittsburgh in
May, 1775, between B. and M. Gratz, and G. Croghan, there was the
following item of credit:
August, 1774. By cash received of Howard
for 9,000 acres of land on Tenederah, sold
him for �8,50l. 15s. New York currency, is here . . �797. 12s.
6d.
Interest on �7,97l. 12s. 6d. from August 1774,
to May 1775, is eight months, at 6 percent . . . . . 31. 18s.
1d.
--------------
�829. 10s. 7d.
Upon the back of another account between B. & M. Gratz and
G. Croghan, which was rendered to the latter in December, 1779,
there was a memorandum in the handwriting of G. Croghan in which he
enumerates the debts then due by him to B. & M. Gratz,
amounting to �1,220 1s. 2d., and then adds the following words:
"paid of the above �144 York currency, besides the deed for the
land on the Tenederah River 9,000 acres patented, which memorandum
appeared to have been made after the conveyance of the land to M.
Gratz."
It also appeared that the value of the land, as fixed in the
account of May, 1775, was its full value, which was proved by
public sales of adjoining lands at the same period when Howard was
asserted to have purchased the land. A counterpart of the account
of 1775
Page 19 U. S. 485
was also in the possession of M. Gratz, in which the word Howard
was crossed out with a pen, but so that it was still perfectly
legible, and the name of Michael Gratz, in his own handwriting,
written over it. M. Gratz continued in possession of the Tenederah
land, paid great attention to it, and incurred great expenses in
making improvements on it after the year 1786. The mother of the
plaintiff was the heir of G. Croghan, and it was proved that his
father had unreserved and frequent access to the papers of G.
Croghan, and resided several years in Philadelphia with the view of
investigating the situation of the estate, and finally abandoned
all hopes of deriving any benefit from it. The account of May,
1775, from which the alleged trust was sought to be proved, was
delivered over to him by the representatives of M. Gratz, among the
other papers of G. Croghan.
The second principal ground of the plaintiff's complaint
respected a judgment obtained by the representatives of one W.
McIlvaine, against G. Croghan, which was purchased by B. Gratz,
during the lifetime of G. Croghan, and was by him assigned to S.
Gratz, one of the defendants, who, under one or more executions
issued on that judgment, became the purchaser of certain lands
belonging to G. Croghan. It appeared that on 30 March, 1769, G.
Croghan gave his bond to W. McIlvaine for the sum of �400, which
debt by the will of McIlvaine became on his death vested in his
widow, who afterwards intermarried with J. Clark. A judgment was
obtained upon the bond against G Croghan, in the name of W.
Page 19 U. S. 486
Humphreys, executor of McIlvaine, in the Court of Common Pleas
in Westmoreland County, Pennsylvania, at the October term, 1774,
upon which a
fi. fa. issued, returnable to the April term
of the same court, in 1775. On 8 March preceding the return day of
the
fi. fa. Bernard Gratz purchased this judgment from
Clark and received an assignment of it, for which he gave his own
bond for �300 and interest. About this time, G. Croghan was
considerably embarrassed and several suits were depending against
him. Bernard Gratz, having failed to pay his bond, was sued by
Clark, and in 1794 a judgment was recovered against him for �89 6s.
10d., the balance then due upon the bond, which sum was afterwards
paid by M. Gratz. The judgment of Humphreys against G. Croghan was
kept alive from time to time until 1786, and in that year, on the
death of Humphreys, J. Bloomfield was appointed administrator
de bonis non with the will annexed of Humphreys, and
revived the judgment, and it was kept in full force until it was
finally levied on certain lands of G. Croghan. In the year 1800, B.
Gratz assigned this judgment to his nephew, S. Gratz, one of the
defendants, partly in consideration of natural affection, and
partly in consideration of the above sum of �89 6s. 10d., paid
towards the discharge of the bond of B. Gratz, by his (Simon's)
father, M. Gratz. S. Gratz, having thus become the beneficial owner
of the judgment, proceeded to issue execution thereon, at different
times, between September, 1801, and November, 1804, caused the same
to be levied on sundry tracts of land
Page 19 U. S. 487
of G. Croghan in Westmoreland and Huntington Counties, of five
of which he, being the highest bidder at the sale, became the
purchaser. The tracts thus sold, contained upwards of 2,000 acres,
and were sold for little more than $1,000. The title to some part
of this land is still in controversy. Shortly after the assignment
of the judgment to B. Gratz, on 16 May, 1775, G. Croghan, by two
deeds of that date, conveyed to B. Gratz, for a valuable
consideration therein expressed, about 45,000 acres of land. A
declaration of trust was executed by B. Gratz on 2 June, 1775, by
which he acknowledged that these conveyances were in trust to
enable him to sell the same, and with the proceeds to discharge
certain enumerated debts of G. Croghan, and among them the debt due
on the McIlvaine bond, and to account for the residue to G.
Croghan.
The bill charged that the assignment of this judgment was
procured by B. and M. Gratz, or both of them, after the death of G.
Croghan, and that nothing was due upon the judgment, or if anything
was due it was paid upon the assignment out of moneys belonging to
the estate of G. Croghan. But the evidence disproved these charges
and showed that the assignment was made to B. Gratz in the lifetime
of G. Croghan and that the judgment never was paid or satisfied by
G. Croghan, or out of his estate.
The defendants, in their answer, denied to their best knowledge
and belief all the material charges of the bill, and upon
replication the cause was heard in the court below upon the bill,
answer, evidence,
Page 19 U. S. 488
and exhibits, and a decree was pronounced dismissing the bill as
to all the charges except that respecting the lands lying on
Tenederah River, and as to this a decree was pronounced in favor of
the plaintiff for all the profits made upon a sale of those lands
by M. Gratz. From this decree, both parties appealed to this
Court.
Page 19 U. S. 492
MR. JUSTICE STORY delivered the opinion of the Court, and after
stating the proceedings in the court below, proceeded as
follows:
The first point upon which the cause was argued respects the
tract of land on the Tenederah River. It appears from the evidence
that this tract of land, containing 9,050 acres, was conveyed by
Col. Croghan to Michael Gratz by a deed bearing date on 2 March,
1770, for the consideration expressed in the deed of �1,800. The
deed is upon its face absolute, and contains the covenants of
general warranty and for the title of the grantor, which are usual
in absolute deeds but are unnecessary in deeds of trust. At the
time of the execution of the deed, Col. Croghan was in the State of
New York and Michael Gratz was at Philadelphia. The lands was,
after the death of Col. Croghan and in the year 1795, sold by
Michael Gratz to a Mr. Lawrence, in New York, for a large sum of
money. The plaintiff contends that this conveyance made by Col.
Croghan to Michael Gratz, though in form absolute, was in reality a
conveyance upon a secret trust, to be sold for the benefit of the
grantor, and in this view of the case he contends further that he
is entitled to be
Page 19 U. S. 493
allowed the full value of the lands at the time that the present
suit was brought, upon the ground of a fraudulent or improper
breach of trust by the grantee, or at all events to the full amount
of the profits made upon the sale in 1795, with interest up to the
time of the decree.
The attention of the Court will therefore be directed in the
first place to the consideration of the question whether this was a
conveyance in trust, and if so of what nature that trust was, and,
in the next place, whether that trust was ever lawfully discharged
or extinguished. If there be still a subsisting trust, there can be
no doubt that the plaintiff is entitled to some relief.
It appears from the evidence that Col. Croghan and Bernard and
Michael Gratz were intimately acquainted with each other, and a
variety of accounts was settled between them from the year 1769 to
a short period before the death of Col. Croghan. During all this
period, Col. Croghan appears to have had the most unbounded
confidence in them, and particularly by his will, made in June,
1782, a short time before his decease, he named them among his
executors, and gave to Michael Gratz, in consideration of services
rendered to him, five thousand acres of land, and to his daughter
Rachel Gratz, one thousand acres of land on Charter Creek, with an
election to take the same number of acres in lieu thereof, in any
other lands belonging to the testator. The situation of the parties
therefore was one in which secret trusts might probably exist from
the pecuniary embarrassments in which
Page 19 U. S. 494
Col. Croghan appears to have been involved, as well as from his
extensive land speculations. And in point of fact, some portions of
his property were conveyed to one or both of the Messrs. Gratz,
upon express and open trusts.
Still, however, the burden of proof to establish the trust in
controversy, lies on the plaintiff. The circumstances on which he
relies are, in our judgment, exceedingly strong in his favor, and
sufficient to repel any presumption against the trust drawn from
the absolute terms of the deed. In an account which was settled at
Pittsburgh in May, 1775, between Bernard and Michael Gratz, and
Col. Croghan, is the following item of credit:
August, 1774. By cash received of Howard for
9,000 acres of land, at Tenederah, sold him for
�8,50l. 15s., New York currency, is here . . . . . . �797 12s.
6d.
Interest on 797l. 12s. 6d., from August 1774,
to May 1775, is eight months, at 6 percent . . . . . 31 18s.
1d.
-------------
�829 10s. 7d.
There is no question of the identity of the land here stated to
be sold to Howard with the tract conveyed to Michael Gratz by the
deed in 1770. If the conveyance to Michael Gratz had been
originally made for a valuable consideration then paid, it seems
utterly impossible to account for the allowance of this credit upon
any sale at a subsequent period. It seems
Page 19 U. S. 495
to us, therefore, that the only rational explanation of this
transaction is that the conveyance to Michael Gratz, though
absolute in form, was in reality a trust for the benefit of Col.
Croghan. What the exact nature of this trust was, it is perhaps not
very easy now to ascertain with perfect certainty. It might have
been a trust to sell the lands for the benefit of Col. Croghan and
to apply the proceeds in part payment of the debts due from him to
Bernard and Michael Gratz, or it might have been a sale of the
lands directly to Michael Gratz, in part payment of the same debt,
at a price thereafter to be agreed upon and fixed by the parties,
and in the meantime, there would arise a resulting trust in favor
of Col. Croghan by operation of law.
Time, which buries in obscurity all human transactions, has
achieved its accustomed effects upon this. The antiquity of the
transaction -- the death of all the original parties, and the
unavoidable difficulties as to evidence, attending all cases where
there are secret trusts and implicit confidences between the
parties, render it perhaps impossible to assert with perfect
satisfaction, which of the two conclusions above suggested,
presents the real state of the case. Taking the time of the credit
only, it would certainly seem to indicate that the trust was
unequivocally a trust to sell the land. But there are some other
circumstances which afford considerable support to the other
conclusion. Upon the back of an account between B. & M. Gratz
and Col. Croghan, which appears to have been rendered to the latter
in December, 1769, there is a memorandum
Page 19 U. S. 496
in the handwriting of Col. Croghan, in which he enumerated the
debts then due by him to B. & M. Gratz, amounting to �1,220 1s.
2d., and then adds the following words: "paid of the above �144
York currency, besides the deed for the land, on the Tenederah
River, 9,000 acres patented." This memorandum must have been made
after the conveyance of the land to M. Gratz, and demonstrates that
the parties intended it to be a part payment of the debt due to B.
& M. Gratz, and not a trust for any other purpose. The
circumstance too, that the word "paid" is used strongly points to a
real sale to M. Gratz, rather than a conveyance for sale to any
third person. And if the sale was to be to M. Gratz, at a price
thereafter to be fixed between the parties, the transaction could
not be inconsistent with the terms of the credit, in the account of
1775. It will be recollected that M. Gratz resided at Philadelphia,
and the conveyance was executed by Col. Croghan at Albany. There is
no evidence that the consideration stated in the deed of �1,800, or
any other consideration, was ever agreed upon between the parties,
and the circumstance that no sum is expressed in the memorandum of
Col. Croghan, shows that at the period when it was made, no fixed
price for the land had been ascertained between the parties. If
then it remained to be fixed by the parties, whenever that value
was agreed upon, and settled in account, the resulting trust in
Col. Croghan would be completely extinguished. It is quite
possible, and certainly consistent with the circumstances in proof,
that B. & M. Gratz might not have been acquainted with the
Page 19 U. S. 497
real value of the land or might be unwilling to take it at any
other value than what, upon a sale, they might find could be
realized. From the situation of Col. Croghan, his knowledge of the
lands, and his extensive engagements in land speculations,
ignorance of its value can scarcely be imputed to him. If,
therefore, M. Gratz afterwards sold it to Howard and Col. Croghan
was satisfied with the price, there is nothing unnatural in stating
the credit in the manner in which it stands in the account in 1775.
It would agree with such facts, and would by no means repel the
presumption, that the land was not originally intended to be sold
to M. Gratz. It would evidence no more than that the parties were
willing that the sale so made, should be considered the standard of
the value, and that M. Gratz should, upon his original purchase, be
charged with the same price for which he sold. Upon this view of
the case, the resulting trust would be extinguished by the consent
of the parties, and no want of good faith could be fairly imputed
to either.
But it is said that there is no proof that any such purchase was
ever made by Howard, and the trust being once established, the
burden of proof is shifted upon the other party, to show its
extinguishment, and if this be not shown, the trust travels along
with the property and its proceeds down to the present time.
It is certainly true that length of time is no bar to a trust
clearly established, and in a case where fraud is imputed and
proved, length of time ought not,
Page 19 U. S. 498
upon principles of eternal justice, to be admitted to repel
relief. On the contrary, it would seem that the length of time
during which the fraud has been successfully concealed and
practiced is rather an aggravation of the offense, and calls more
loudly upon a court of equity to grant ample and decisive relief.
But length of time necessarily obscures all human evidence, and as
it thus removes from the parties all the immediate means to verify
the nature of the original transactions, it operates by way of
presumption, in favor of innocence, and against imputation of
fraud. It would be unreasonable, after a great length of time, to
require exact proof of all the minute circumstances of any
transaction or to expect a satisfactory explanation of every
difficulty, real or apparent, with which it may be encumbered. The
most that can fairly be expected in such cases, if the parties are
living, from the frailty of memory, and human infirmity, is that
the material facts can be given with certainty to a common intent,
and, if the parties are dead, and the cases rest in confidence, and
in parol agreements, the most that we can hope is to arrive at
probable conjectures, and to substitute general presumptions of
law, for exact knowledge. Fraud or breach of trust ought not
lightly to be imputed to the living, for the legal presumption is
the other way, and as to the dead, who are not here to answer for
themselves, it would be the height of injustice and cruelty to
disturb their ashes, and violate the sanctity of the grave unless
the evidence of fraud be clear, beyond a reasonable doubt.
Now disguise the present case as much as we may,
Page 19 U. S. 499
and soften the harshness of the imputation as much as we please,
it cannot escape our attention, that if the plaintiff's case be
made out, there was a meditated breach of trust, and a deliberate
fraud practiced by M. Gratz, or Bernard Gratz, with the assent of
M. Gratz, upon Col. Croghan. If the sale to Howard was merely
fictitious, it was an imposition upon Col. Croghan, designed to
injure his interest, and violate his confidence. If the fraud were
clearly made out, there would certainly be an end to all inquiry as
to the motives which could lead to so dishonorable a deed between
such intimate friends. But the fraud is not clearly made out; it is
inferred from circumstances in themselves equivocal, and from the
absence of proofs, which it is supposed must exist if the sale were
real, and could now be produced.
In the view which the court is disposed to take of this case, it
must consider that Howard was a real, and not a fictitious person.
It is then asked why are not the facts proved who Howard was, where
he lived, and the execution of the deed to him. It is to be
recollected that this proof is called for, about forty years after
the original transaction, when all the parties, and all who were
intimately acquainted with the facts, are dead. It is called for,
too, from persons some of whom were unborn and some very young at
the period to which they refer. They cannot be supposed to know and
they absolutely deny all knowledge of the facts. What reason is
there to suppose that Col. Croghan did not know who Howard was? He
had a deep interest in
Page 19 U. S. 500
the value of the property, and could not be presumed to be
indifferent to such inquiries, as every considerate man would be
likely to make, in such a case. And after this lapse of time, it is
fair to presume that he did know the purchaser, and was satisfied
with the purchase. But it is said that no deed is produced. Now it
does not necessarily follow that if a sale was made to Howard that
the contract was consummated by an actual conveyance of the land.
If M. Gratz was the
bona fide owner of the land, he might
sell it to Howard by an executory contract, and take a bond or
other security for the purchase money, and from a failure to comply
with the contract, M. Gratz might afterwards have refused to give a
deed to Howard. And in this case, if in the intermediate time the
settlement was made with Col. Croghan, the credit must have been
allowed in that account as it stands, and having been once allowed,
M. Gratz could not, on a recession of the sale, have been entitled
to countermand that credit. He would have been bound to take the
land at the sum which he had elected to allow for it, and for which
he had sold it. On the other hand, supposing a deed actually to
have passed to Howard the latter may have become dissatisfied with
his bargain, or have failed to pay the consideration money, and
have yielded it back to Gratz, and dissolved the purchase. But this
circumstance could not have varied the situation of Gratz in
respect to the settlement with Col. Croghan. All that was
important, or useful, or necessary, as between them upon the
supposition that the trust was merely a resulting trust, until the
price
Page 19 U. S. 501
was fixed, was that the price should have been satisfactorily
ascertained and agreed to between them. In this view of the
transaction, there could be no ground to impute fraud to M. Gratz,
nor could his conduct involve a violation of trust. In the absence
of all contrary evidence, is it not just, is it not reasonable, to
presume such to have been the reality of the case? That there is no
evidence to the contrary may be safely affirmed.
In addition to this, it may be asked whether M. Gratz had any
adequate motive for practicing a deception in this case. Men do not
usually act under circumstances such as are imputed to M. Gratz,
unless from some strong inducement of interest. It cannot be
presumed that any man of fair character, such as M. Gratz is proved
to have been, could perpetrate a fraud or deception without some
motive that should overbalance all the ordinary influence of
prudence and honor. If there be anything beyond all doubt
established in this case, it is that the value of the land, as
fixed in the account of 1775, was its full value. It is proved by
public sales of adjoining tracts, at the very period when Howard is
asserted to have purchased the land, and so far from there being
any chance of an immediate rise in value, the state of the country,
on the very eve of the Revolutionary War, forbade the indulgence of
every such hope, and must have dissolved every dream of
speculation. As far, then, as we can investigate motives, by
referring to the general principles of human action, there does not
seem to have been any motive for disguise or concealment on the
part of Michael
Page 19 U. S. 502
Gratz towards Col. Croghan. The reasonable conclusion,
therefore, would certainly be that no such disguise or concealment
was practiced.
There is one circumstance also which has been thought to have
thrown some cloud over this part of the case, that upon the opinion
already indicated, would admit of a favorable exposition. It is
this: in the possession of M. Gratz, a counterpart of the account
of 1775 is found, in which the word "Howard" is crossed out with a
pen, but so that it is perfectly legible, and the name of "Michael
Gratz" is, in his own handwriting, written over it. The writing
seems to be of great antiquity, and supposing that there was a real
sale to Howard which was afterwards abandoned, it is not unnatural
that M. Gratz should, after the event, have communicated the fact
to Col. Croghan, and with his consent, altered the account, so as
to conform to it. Or, the interlineation might have been made in
the account, after the failure of the contract with Howard in order
to show against which of the firm of B. & M. Gratz this sum
ought to be charged, in the adjustment of their partnership
concerns. It adds some force to these considerations, that Col.
Croghan continued, during the residue of his life, to entertain the
same friendship and confidence in M. Gratz, and this, at least,
demonstrated his belief that the Tenederah lands had not been
unjustly sacrificed by him.
If we look to the subsequent conduct of M. Gratz, in relation to
the Tenederah lands, his great expenses in making improvements on
it, after the year 1786, and his diligent attention to it, it leads
to the
Page 19 U. S. 503
conclusion that he always considered himself as the real
bona fide owner. His possession of it must have been known
to the parents of the plaintiff, whose mother was the heir of Col.
Croghan, and it is proved that his father had the most unreserved
and frequent access to the papers of Col. Croghan, and that he
actually resided several years in Philadelphia, with the express
view of examining the estate, and finally abandoned all hopes of
deriving any benefit from the fragments that were left of it. The
very account now produced by the plaintiff, by which this trust is
brought to light, was delivered over to him by the representatives
of M. Gratz, among the other papers of Col. Croghan, and yet if
there had been anything false or foul in the transaction, it seems
almost incredible that M. Gratz, into whose possession it came as
early as 1782, should have suffered it to remain as a monument of
his own indiscretion, and an evidence of his want of good
faith.
If, on the other hand, the trust is to be considered as a trust
to sell, and apply the proceeds to the payment of the debt due to
B. & M. Gratz, most of the considerations already stated will
apply with equal force. If the sale was real and Howard did not
comply with the terms of sale, Col. Croghan having knowledge of the
fact, might have been well satisfied to let M. Gratz hold the land,
at the price thus fixed by the sale. To him it must have been
wholly immaterial who was the purchaser if the full value was
obtained, and that it was obtained, in Col. Croghan's own judgment
seems undeniable. The only
Page 19 U. S. 504
question is whether such knowledge can be inferred, and after
such a length of time, under all the circumstances of this case, we
are clearly of opinion that it ought to be inferred. Col. Croghan
had it in his power to make inquiries on the subject; if he did and
was satisfied, his acquiescence was conclusive; if he did not, he
considered that the sale, as between himself and Gratz, was
consummated when the price was fixed, and was willing that the
trust should be deemed extinguished forever. If, after the lapse of
forty years and the death of all the original parties, we were to
come to a different conclusion, it would be pressing doubtful
circumstances with uncommon "rigor" against unblemished characters,
where the confidence reposed was so intimate, that the whole
evidence could not be presumed to be before us. We should indulge
in opinions which might be erroneous, and might, in an attempt to
redeem the plaintiff from a conjectural fraud, inflict upon others
the most gross injustice. We think, therefore, that the true and
safe course is to abide by the rule of law, which, after a lapse of
time, will presume payment of a debt, surrender of a deed, and
extinguishment of a trust, where circumstances may reasonably
justify it. The doctrine in
Hillary v. Waller, 12 Vez.
261, 266, on this subject, meets our entire approbation. It is
there said that general presumptions are raised by the law upon
subjects of which there is no record or written instrument not
because there are the means of belief or disbelief, but because
mankind, judging of matters of antiquity from the infirmity and
necessity of their
Page 19 U. S. 505
situation must, for the preservation of their property and
rights, have recourse to some general principle, to take the place
of individual and specific belief, which can hold only as to
matters within our own time, upon which a conclusion can be formed
from particular and individual knowledge. In our judgment, the
trust in the Tenederah lands, such as it was, must be now presumed
to have been extinguished by the parties, in the lifetime of Col.
Croghan. There is no ground, then, for relieving the plaintiff as
to this part of his claim.
The remaining point in this case respects the McIlvaine bond and
judgment. On 30 March, 1769, Col. Croghan gave his bond to Wm.
McIlvaine, for the sum of �400, which debt, by the will of
McIlvaine, became, on his death, vested in his widow, who
afterwards intermarried with John Clark. A judgment was obtained
upon this bond against Col. Croghan, in the name of Wm. Humphreys,
executor of McIlvaine, in the Court of Common Pleas, in
Westmoreland County, in Pennsylvania, at the October term, 1774,
upon which a
fi. fa. issued, returnable to the April term
of the same court in 1775. On 8 March preceding the return day of
the
fi. fa., Bernard Gratz purchased this judgment from
Clark, and received an assignment of it, for which he gave his own
bond for �300 and interest. About this period, Col. Croghan appears
to have been considerably embarrassed in his pecuniary affairs, and
several suits were depending against him. Bernard Gratz having
failed to pay his bond, was sued by Clark, and in 1794, a
judgment
Page 19 U. S. 506
was recovered against him for �89 6s. 10d., the balance then due
upon the bond, which sum was afterwards paid by M. Gratz. The
judgment of Humphreys against Col. Croghan was kept alive from time
to time until 1786, and in that year, on the death of Humphreys,
Joseph Bloounfield was appointed administrator
de bonis
non, with the will annexed, of Humphreys, and revived the
judgment, and it was kept in full force until it was finally levied
on certain lands of Col. Croghan, as hereafter stated. Sometime in
the year 1800, Bernard Gratz assigned this judgment to his nephew
Simon Gratz, one of the defendants, partly in consideration of
natural affection, and partly in consideration of the above sum of
�89 6s. 10d. paid towards the discharge of the bond of Bernard
Gratz, by his (Simon's) father, Michael Gratz. Simon Gratz having
thus become the beneficial owner of the judgment, proceeded to
issue executions on the same, and at different times between
September, 1801, and November, 1804, caused the same executions to
be levied on sundry tracts of land of Col. Croghan, in Westmoreland
and Huntington Counties, of five of which he, being the highest
bidder at the sale, became the purchaser. The tracts so sold,
contained upwards of 2,000 acres, and were sold for little more
than $1,000. The title to some part of the land so sold appears to
be yet in controversy.
Shortly after the assignment of the McIlvaine judgment to
Bernard Gratz, on 16 May, 1775, Col. Croghan (probably having
knowledge of the assignment, though the fact does not appear)
Page 19 U. S. 507
by two deeds of that date, conveyed to B. Gratz, for a valuable
consideration expressed therein, about 45,000 acres of land. A
declaration of trust was executed by Bernard Gratz on 2 June, 1775,
by which he acknowledged, that these conveyances were in trust to
enable Bernard Gratz to sell the same, and with the proceeds to
discharge certain enumerated debts of Col. Croghan, and among them,
the debt due on the McIlvaine bond, and to account for the residue
with Col. Croghan.
The subject of the McIlvaine judgment was very minutely
considered in the court below by the learned judge who decided the
cause, and the principal grounds on which the plaintiff relied for
a decree were so fully answered there that a complete review of
them does not seem to be necessary in this Court. It is observable
that the bill charges that
Page 19 U. S. 508
the assignment of this judgment was secretly procured by Bernard
or Michael Gratz, or both of them, after the death of Col. Croghan,
and that nothing
Page 19 U. S. 509
was due upon the judgment; or if anything was due, it was paid
upon the assignment out of moneys belonging to the estate of Col.
Croghan. The bill
Page 19 U. S. 510
asserts no other ground for relief on this subject. The proof in
the cause completely establishes the material charges in the bill
to be false. The assignment
Page 19 U. S. 511
was made to Bernard Gratz, in the lifetime of Col. Croghan; the
judgment never was paid or satisfied by Col. Croghan, or out of his
estate, and no fraud is pretended in the bill to have taken place
in the levy of the judgment on Col. Croghan's lands, independently
of the legal inference to be deduced from the facts charged in the
bill. If Bernard Gratz was not, at the time, in the situation of a
trustee of Col. Croghan, there is no pretense to say that he might
not rightfully and lawfully purchase the judgment. And there are
very strong reasons to believe that it was purchased with the
knowledge and for the relief of Col. Croghan. It was somewhat
insisted upon in the court below that by a power of attorney of 10
July, 1772, Col. Croghan constituted Bernard and Michael Gratz
trustees of all his lands, with unlimited power to sell them and
pay off his debts. But this ground has not been insisted upon here,
and, indeed for the best reasons. There is the strongest
presumptive evidence that this power was never acted upon, or was
revoked and held a nullity before the time of the assignment in
question.
The ground that has been principally relied upon here is that
Bernard Gratz having taken the two trust deeds in 1775, already
referred to, in trust for the payment of this very debt out of the
proceeds of the sale of the lands conveyed by those deeds, could
not proceed to satisfy the judgment out of any other lands, without
notice to Col. Croghan, or his representatives. But there is not
the least evidence in the cause to show that any of the lands
Page 19 U. S. 512
conveyed by either of these deeds ever turned out productive.
And there are the strongest presumptions in the case, and it seems,
indeed, to be on all sides conceded, that either the title to these
lands wholly failed, or became altogether unsalable. There is no
reason to suppose that these facts lay more peculiarly in the
knowledge of one party than the other, and if the trust became
utterly frustrated and inert, there could not be any necessity of
giving a formal notice that Bernard Gratz must look to other
property, and particularly to the property in Westmoreland County,
upon which alone it is understood by the laws of Pennsylvania, the
lien of the judgment attached.
There is no proof that any assets ever came to the hands of
Bernard Gratz or Michael Gratz out of which this judgment was or
could be satisfied. Bernard Gratz was alone interested in it, and
it was kept alive from time to time, until the levies in question
were made. It will be recollected also that even if Michael Gratz
were disposed to connive, after the death of his brother, in the
levies of his son Simon William Powell, who was another executor,
had no such motive. And, it is not shown that, by any law or usage
in Pennsylvania, any notice is required to be given to any other
persons than the personal representatives of the deceased, of the
execution of any such judgment on lands, so that laches could be
fairly imputed to the executors for neglect to give notice to the
heirs of Col. Croghan of the sale. The very length of time during
which this judgment remained unsatisfied, is evidence of the
desperate state
Page 19 U. S. 513
of Col. Croghan's affairs, and the record abounds with
corroborations of the great embarrassments attending all his
concerns, and of apparent insolvency at the time of his decease. No
evidence has been submitted to us to establish that the levies on
the lands, under the judgment, were fraudulently conducted by the
sheriff, or that they did not sell for the full value of the title,
such as it was, which Col. Croghan had in them. It appears that the
title, as to some part of them, is still in controversy. And Simon
Gratz, the judgment creditor, had as much right, if the sale was
bona fide conducted, to become the purchaser, if he was
the highest bidder, as any other person.
Upon the whole, the majority of the Court entirely concurs in
the opinion of the circuit court upon this part of the case. But as
to the decree respecting the proceeds of the Tenederah lands, we
are all of opinion that it ought to be reversed.
If the court had felt any doubts as to the merits, it would have
been proper to have given serious consideration to the very able
argument made at the bar, respecting the defect of proper parties
to the bill. But, as upon the merits, the court is decidedly
against the plaintiff, it seemed useless to send back the cause
upon this objection, if it should be found tenable, when, after
all, the case furnished no substantial ground for relief in
equity.
DECREE. These causes, being cross appeals,
Page 19 U. S. 514
came on to be heard at the same time, and were argued by
counsel. On consideration whereof, it is ORDERED and DECREED that
the decree of the Circuit Court for the District of Pennsylvania in
the premises be and the same is hereby reversed. And this Court
proceeding to pass such decree as the said circuit court should
have passed, it is further ORDERED and DECREED that the
complainant's bill, as to all the matters contained therein, be and
the same is hereby dismissed, and that a mandate issue to the said
circuit court, to dismiss the same accordingly, without costs.
