In order to constitute a valid marriage in the Spanish colonies,
all that was necessary was that there should be consent joined with
the will to marry.
The Council of Trent, in 1563, required that marriage should be
celebrated before the parish or other priest or by license of the
ordinary and before two or three witnesses. This decree was adopted
by the King of Spain in his European dominions, but not extended to
the colonies, in which the rule above mentioned, established by the
Partidas, was permitted to remain unchanged.
An ecclesiastical decree,
proprio vigore, could not
affect the status or civil relations of persons. This could only be
effected by the supreme civil power.
In 1803, Collins obtained from the military commandant at Mobile
a permit to take possession of a lot of ground near that place, and
made a contract with William E. Kennedy that the latter should
improve it so as to lay the foundation for a perfect title, and
then they were to divide the lot equally.
Kennedy's ownership of a hostile claim, whether held then or
acquired subsequently, enured to the joint benefit of himself and
Collins, and when Kennedy obtained a confirmation of his title
under the acts of the commissioners appointed under an act of
Congress, he became a trustee for Collins to the extent of one-half
of the lot.
The deeds afterwards made by Kennedy, under the circumstances of
the case, did not destroy this trust, but the assignee, having full
knowledge of the trust, must be held bound to comply with it.
This assignee obtained releases, for an inadequate
consideration, from the heirs of Collins, who had just come of age,
were poor, and ignorant of their rights. These releases were
void.
Before Kennedy conveyed to the assignee just spoken of, he had
conveyed the property to another person who held it as a security
for a debt and who, when the debt was paid, transferred it to the
same assignee to whom Kennedy had conveyed it. This added no
strength to the title, but only gave to this assignee a claim to be
reimbursed for the money which he paid to extinguish the debt.
The absence of the complainant from the state and the late
discovery of the fraud account for the delay and apparent laches in
prosecuting his claim.
The controversy had its origin in transactions long anterior
Page 51 U. S. 175
to the acquisition of the country by the United States, and
involved also the discussion of events long afterwards, so that the
case became very complicated and the record voluminous. Being an
appeal in chancery, all the evidence was brought up to this Court.
Instead of giving a narrative of the case, it appears best to set
forth the grounds of complaint in the bill and of defense in the
answer.
The defendant in error, Sidney E. Collins, was complainant below
in a bill in equity against the heirs and executors of Joshua
Kennedy, deceased, and others. The bill sets forth that the
complainant is both heir and devisee of his late father, Joseph
Collins, and sole heir-at-law of his deceased brothers George and
Joseph, the co-heirs and co-devisees with himself of his father's
estate. That Joseph Collins, his father, had obtained a grant of a
certain lot of land from the Spanish government in or near the City
of Mobile. That William E. Kennedy claimed an interest in the same
lands through a grant to one Alexander Baudain. That on 21
November, 1806, Collins and Kennedy entered into an agreement to
divide the land between them, Kennedy to have the northern half and
Collins the southern, Kennedy covenanting "to improve the lot by
fencing and ditching so that it might not be forfeited." That in
pursuance of this agreement, Kennedy held possession of the lot and
made the necessary improvements during the time that Spain held
possession of the territory. That when it came into possession of
the United States, the Collins and Baudain permits or claims were
both laid before the commissioners. That the first report of Mr.
Crawford, the commissioner, was unfavorable to both. That Collins
being at this time dead, his claim was not revived by Kennedy, but
it was renewed under the Baudain grant alone, and in July, 1820, a
favorable report was made in favor of Kennedy in virtue of the
Baudain grant, and the legal title confirmed in him by the Act of 8
May, 1822. That in the meantime, to-wit, on 2 March, 1820, a deed
was made by W. E. Kennedy reciting the original agreement between
Collins and himself, and conveying the southern half of the lot to
James Inerarity, the administrator of Collins, for the use of the
estate, with a covenant for further assurance to Inerarity or the
heirs of Collins, on the issuing of the patent for the land.
The bill also charges, that about this time W. E. Kennedy became
very intemperate; that his brother Joshua, who had unbounded
influence over him, and was a witness to the deed to Inerarity, and
acquainted with the title of Collins' heirs in the property,
contrived a scheme to defeat it and defraud the heirs. That in
pursuance thereof he obtained a deed from W. E. Kennedy to
Page 51 U. S. 176
Samuel Kitchen, his father-in-law, for the Collins half of the
lot, antedated so as to appear to be prior in date to the deed to
Inerarity. That Joshua Kennedy transacted the business in Kitchen's
name, at first without his Kitchen's knowledge, and paid the
consideration, if any was paid, and afterwards took a transfer from
Kitchen to himself, for a nominal consideration. That in 1824, in
further pursuance of the same scheme, he procured a deed from W. E.
Kennedy for all his property, and, among other things, a claim or
grant from the Spanish government to one Price of a very suspicious
character, which had been rejected by the commissioners. That
having succeeded in obtaining a confirmation of the Price claim in
1829, he surveyed it over the claim of Baudain previously confirmed
to W. E. Kennedy in right of Baudain, in 1822, and took a patent
under it. That this was done for the purpose of complicating the
title and defrauding the heirs of Collins. The bill charges also
that Joshua Kennedy, in further prosecution of this scheme, had
certain proceedings entered on the docket of the Circuit Court of
Mobile in the name of William Kitchen against James Inerarity, and,
without bill, answer, or pleadings of any kind to furnish any key
to the claim of Kitchen, a decree was entered, in pursuance of
which Inerarity made a deed to Kitchen for the Collins half of the
land, in consideration of Kitchen paying to him a debt claimed by
Forbes & Co., of which firm Inerarity was a partner against
Collins' estate, amounting to the sum of $2,233, the property
conveyed being then worth $75,000, and now $200,000. That having
thus complicated the title of the heirs of Collins to the land in
dispute, Joshua Kennedy applied to George and Sidney E. Collins,
the heirs, as soon as they came of age, representing that their
claim was of no value whatever, and utterly hopeless, but that, for
the sake of peace and quieting his title, William Kitchen was
willing to give them each the sum of $1,000. That by means of these
fraudulent misrepresentations, he obtained deeds from them to
Kitchen releasing their claims. That William Kitchen was a
brother-in-law of Joshua Kennedy, and a young man without means
residing in the family of Kennedy, and his name was used by him for
a cover, and that he took a conveyance from Kitchen as soon as the
complete title was supposed to be thus fully vested in him by these
fraudulent schemes and contrivances.
The bill prays for a conveyance of the land, and an account of
rents and profits.
The matters of defense set forth in the several answers of the
defendants, and relied upon in the argument of the case, were
substantially as follows:
1. That the will of Joseph Collins was not properly proved.
2. That the complainant and his brothers were illegitimate,
Page 51 U. S. 177
and therefore incapable of inheriting from their father or from
one another.
3. That Collins had no valid claim to the property. That his
concession was abandoned after its rejection, and no possession
ever taken under it, nor any attempt made by Collins or his heirs
to obtain a title under it.
4. That Joshua Kennedy held the lot under a grant from the
Spanish government to Thomas Price and a confirmation of the same
by the United States, and a patent issued in 1837.
5. That the deed to Inerarity was
"a special transaction, and not a recognition of title in
Collins' heirs, given to enable Inerarity to recover a debt due
from Collins' estate to John Forbes & Co., or as a
compromise."
That the deed to Samuel Kitchen was prior in date to that of
Inerarity. That Kitchen was a
bona fide purchaser without
notice, that he paid for the land through Joshua Kennedy, who was
indebted to him, and that in pursuance of his purchase Kitchen took
possession of the lot and made improvements, and afterwards gave
Joshua Kennedy a written obligation to convey to him, and that the
"transaction was closed" in 1834 by his making a deed to William
Kitchen at the request of Joshua Kennedy.
6. That the title of Collins, whatever it was, if any, was
extinguished and transferred to William Kitchen by the deed of
Inerarity made under a decree of the court and in consideration of
the payment of the debt claimed by Inerarity in behalf of Forbes
& Co. against Collins' estate.
7. That the claim of complainant was extinguished by his own
release and that of his brother to William Kitchen for a
consideration paid by Joshua Kennedy.
8. And lastly, the answers, denying all fraud, insist that the
full value of the property was paid by Kennedy to the administrator
and heirs, and that the sale and releases so made have been
acquiesced in by complainant for many years, without any offer to
return the consideration or annul the deeds, until after the death
of Joshua Kennedy.
The immense mass of evidence taken under the authority of the
circuit court occupied a printed volume of nearly five hundred
pages. The following is an abstract of the points which the
complainant sought to establish. It is not necessary to refer to
the evidence in support of each point.
1. That the plaintiff claimed the south half of the Baudain
claim in Mobile as the devisee of his father and the heir of two
brothers under a Spanish grant to his father and articles of
agreement between his father and William E. Kennedy and possession
under them and a deed confirmatory of them.
2. That the title of Alexander Baudain became perfect
Page 51 U. S. 178
by the confirmation of the United States under an Act of
Congress dated 8 May, 1822, relative to claims of lots in
Mobile.
3. That a fraud was practiced in the deed made by William E.
Kennedy to Samuel Kitchen, and that Joshua Kennedy was a party to
it.
4. The participation of Joshua Kennedy in the preparation of the
deed to Samuel Kitchen, his beneficial interest in that deed, and
his conception of the fraudulent design, are shown by the use that
was made of it, by the relations between the parties, and by the
fact that all the benefits flowing from it came to him.
5. That Joshua Kennedy brought forward the claim of Price for
the fraudulent purpose of superseding the Baudain claim, in which
Collins had an interest, and thus obtaining the whole for
himself.
6. That Kennedy, after having obtained a confirmation and
location of the Price claim, purchased from the children of Collins
all their rights under circumstances which show the purchase to
have been invalid.
7. That the deeds from the children of Collins were made to
William Kitchen, and ought to be set aside.
8. That William Kitchen conveyed to Joshua Kennedy, who obtained
a patent in 1837 for the Price claim, covering the land in which
Collins had an interest.
9. That the children of Collins left the State of Alabama, and
the fraud was not discovered until after the death of Joshua
Kennedy in 1838 and in the progress of a suit which ensued
thereupon. The plea of limitations therefore does not apply.
10. That the purchase money paid to the children of Collins was
greatly below the real value of the property.
On the other hand, the points which the defendants endeavored to
establish by the evidence were the following:
1. That Joseph E. Collins was never married to Elizabeth
Wilson.
2. That the agreement in 1806 between William E. Kennedy and
Joseph E. Collins was not a settlement of conflicting claims under
the Baudain grant.
3. That Kennedy had a right to waive the conditional concession
from Collins and throw himself upon his own better title, and that
in fact he did disavow all title derived from Collins.
4. That the deed made in 1820 from William E. Kennedy to Samuel
Kitchen was not fraudulently made for the benefit of Joshua
Kennedy.
Page 51 U. S. 179
5. That the purchase made by Joshua Kennedy from the children of
Collins was fair and
bona fide; that their interest was
only contingent, after paying their father's debts; that the
property was a marsh liable to be overflowed, and at the distance
of several squares from the business parts of the city whose value
was entirely speculative, and that Kennedy paid as much as their
interest in it was worth.
6. That Joshua Kennedy never attempted to complicate the title
or obscure the rights of other persons.
7. That the enhanced value of the property is owing entirely to
Joshua Kennedy's industry and judgment in reclaiming and defending
it at great expense, and that a court of equity should not deprive
his heirs of this advantage without clear proof of fraud.
It has already been mentioned, that the evidence taken in the
cause was very voluminous to sustain the above positions upon both
sides, some of which indeed are rather inferences in law than
distinct allegations of fact.
But the two classes are so intermingled together that it
appeared impossible to separate them and yet give a thorough
explanation of the case.
On 13 April, 1847, the cause came on for argument in the circuit
court, which rendered the following decree,
viz.:
"
SIDNEY E. COLLINS v. THE HEIRS AND EXECUTORS OF JOSHUA
KENNEDY"
"This cause this day came on to be heard, and it is ordered,
adjudged, and decreed that the deeds of Sidney E. Collins and his
brother, George Collins, to William Kitchen, be set aside, and that
the representatives of Joshua Kennedy account for the rents and
profits received from the said south half of the said lot of land,
and also the money derived from the sale of any portion thereof,
together with interest thereon, and that the said representatives
be allowed for all permanent improvements made on the said land;
also the money paid to Sidney E. and George Collins, with interest;
and that it be referred to the master to take an account between
the parties, in conformity to the principles of this decree."
From this decree, the defendants appealed to this Court.
Page 51 U. S. 180
MR. JUSTICE GRIER delivered the opinion of the Court.
It will not be necessary in the consideration of this case to
notice particularly the great mass of documents and testimony
spread upon the record further than to state the results as they
affect the several points raised by the pleadings and argued by the
counsel.
1. The first of these in order is that which relates to the
sufficiency of the probate of the will of Joseph Collins, under
whom the complainant claims. But as his claim to two-thirds of the
property in dispute is through his deceased brothers, he is
compelled to remove the objection which has been urged to his and
their legitimacy, and if he can succeed in this and thus establish
his right by descent, the decision of the question as to his title
by devise will be unnecessary. We shall therefore proceed to
examine the second point, as to the legitimacy of the
complainant.
2. It is not denied that the complainant and his deceased
brothers Joseph and George were the children of Joseph Collins by
Elizabeth Wilson, but it is contended that the parents were never
legally married.
The evidence on this subject is as follows:
Joseph Collins resided in the country south of the 31st degree
of north latitude, between the Iberville and Perdido, and died
there about the year 1811 or 1812, while that country was still in
the actual possession of the Spanish government. In the year 1805,
he resided in Pascagoula. Elizabeth Wilson resided also in the same
place, and in the family of Dr. White, who was a syndic or chief
public officer in that place. A contract of marriage was entered
into by Joseph Collins and Elizabeth Wilson before Dr. White, who
performed the marriage ceremony. The parties continued to live
together as man and wife, and were so reputed, till the death of
Collins. It is true that some persons did not consider their
marriage as valid because it was not celebrated in presence of a
priest, while others entertained a contrary opinion. It is in proof
also that Collins himself, when he made his will, entertained
doubts on the subject.
It is a matter of history that many marriages were contracted in
the presence of civil magistrates, and without the sanction of a
priest, in the Spanish colonies which have since been ceded to the
United States. Whether such marriages are to be treated as valid by
courts of law is a question of some importance, as it may affect
the titles and legitimacy of
Page 51 U. S. 181
many of the descendants of the early settlers. It is not the
first time that it has arisen, as may be seen by the cases of
Patton v. Philadelphia, 1 La.Ann. 98, and
Phillips v.
Gregg, 10 Watts. 158.
The question, then, will be whether an actual contract of
marriage, made before a civil magistrate and followed by
cohabitation and acknowledgment but without the presence of a
priest, was valid and the offspring thereof legitimate according to
the laws in force in the Spanish colonies previous to their
cession.
That marriage might be validly contracted by mutual promises
alone, or what were called
sponsalia de presenti, without
the presence or benediction of a priest, was an established
principle of civil and canon law antecedent to the Council of
Trent.
See Pothier, du Contrat de Mariage, Part II., ch.
1; Zouch, Sanchez &c., and
Dalrymple v. Dalrymple, 2
Hagg.Cons. 54, where all the learning on this subject is
collected.
Whether such a marriage was sufficient by the common law in
England previous to the Marriage Act has been disputed of late
years in that country, though never doubted here.
See the
case of
The Queen v. Millis, 10 Cl. & F. 534.
On the Continent, clandestine marriages, although they subjected
the parties to the censures of the Church, were not only held valid
by the civil and canon law, but were pronounced by the Council of
Trent to be
"vera matrimonia." But a different rule was
established for the future by that council in their decree of 11
November, 1563. This decree makes null and void every marriage not
celebrated before the parish or other priest or by license of the
ordinary and before two or three witnesses.
But it was not within the power of an ecclesiastical decree,
proprio vigore, to affect the status or civil relations of
persons. This could only be effected by the supreme civil power.
The Church might punish by her censures those who disregarded her
ordinances. But until the decree of the council was adopted and
confirmed by the civil power, the offspring of a clandestine
marriage which was ecclesiastically void would be held as
canonically legitimate. In France, the decree of the council was
not promulgated, but a more stringent system of law was established
by the Ordonnance de Blois and others which followed it. In Spain,
it was received and promulgated by Philip the Second in his
European dominions. But the laws applicable to the colonies
consisted of a code issued by the Council of the Indies antecedent
to the Council of Trent, and are to be found in the code or
treatise called
Las Siete Partidas
Page 51 U. S. 182
and the Laws of Toro. The law of marriage as contained in the
Partidas is the same as that which we have stated to be the general
law of Europe antecedent to the council -- namely "that consent
alone, joined with the will to marry, constitutes marriage." We
have no evidence, historical or traditional, that any portion of
this code was ever authoritatively changed in any of the American
colonies, nor has it been shown that in the "Recopilacion de los
Indies," digested for the government of the colonies by the order
of Philip the Fourth and published in 1661, nearly a century after
the Council of Trent, any change was made in the doctrine of the
Partidas on the subject of marriage, in order to accommodate it to
that of the council. It may be supposed that, as a matter of
conscience and subjection to ecclesiastical superiors, a Catholic
population would in general conform to the usages of the Church.
But such conformity would be no evidence of the change of the law
by the civil power. Indeed, the fact that the civil magistrates of
Louisiana had always been accustomed to perform marriage ceremonies
where the parties were Protestants or where no priest was within
reach is conclusive evidence that the law of the Partidas had never
been changed, nor the decree of the Council of Trent promulgated,
so as to have the effect of law on this subject in the colony. The
case of
Patton v. Philadelphia, already referred to, shows
the opinion of the Supreme Court of Louisiana on this subject,
which, on a question relating to the early history and institutions
of that country, should be held conclusive.
3. These preliminary questions being thus disposed of, our next
subject of inquiry must be whether Joseph Collins had any right or
title to the land in dispute which descended to and vested in his
heirs.
On 3 January, 1803, Joseph Collins, who was captain of dragoons
and surveyor of the district, made application to Don Joaquim de
Osorno, Military Commandant of Mobile, and obtained a permit, in
the usual form, to take possession of a certain lot of marshy
ground therein described near to or in the City of Mobile. The
permit was dated on 26 April, 1803. This, though merely an
inception of a title, was capable of being ripened into a legal
title by possession and improvement, which would give him a right
to call on the Intendant General to perfect his grant by a complete
title. In order to keep up his possession and improvement on this
lot, Collins entered into agreement under seal, dated 21 November,
1806, with William E. Kennedy, by which Kennedy covenanted to
improve the lot, "so that, by fencing and ditching, the said lot
may not be forfeited, and that he will begin to improve
Page 51 U. S. 183
said lots immediately." By this agreement, Collins was to have
the south half of the lot and the north half was to be conveyed to
Kennedy.
Whether Kennedy was at this time the owner of the Baudain claim
to the same lot and the compromise of their conflicting claims was
in part the consideration of this contract, or whether the Baudain
claim was first purchased by Kennedy in 1814, when its transfer
bears date, is a question of no importance in the case. For it is
clearly proved that Kennedy took and held possession of the lot and
made the improvements in pursuance and under his contract with
Collins. And whether we consider him as agent, partner, or tenant
of Collins, his purchase of another claim would enure to their
joint benefit. He could not use the possession and improvement made
for Collins to complete an imperfect and abandoned grant to
Baudain, as was done, and by such act exclude Collins from his half
of the lot. The deed which Kennedy afterwards gave to Inerarity
shows clearly that he entertained no such dishonest intention. For
after acknowledging by this deed his contract with Collins and
stating his intention to complete the title under the Baudain
permit or grant, he proceeded to substantiate his title before the
commissioners by proving the possession and improvements made by
him under his contract with Collins as the meritorious foundation
of his claim, and thus obtained a favorable report from the
commissioners under the Baudain grant, which had been before
rejected for want of such proof.
By the Act of Congress of 8 May, 1822, ยง 2, all claims to lots
in the Town of Mobile on which favorable reports had been made by
the commissioners
"founded on orders of surveys, requettes, permissions to settle,
or other written evidence of claims derived from either the French,
British, or Spanish authorities and bearing date before 20
December, 1803, and which ought in the opinion of the commissioners
to be confirmed, were confirmed in the same manner as if the title
had been completed."
By this act, the legal title to this lot became vested in
William E. Kennedy. A patent would be but further evidence of a
title which was conferred and vested by force of the act itself.
Having thus obtained the legal title in his own name, Kennedy
required no deed from Collins or his representatives, but became
seized thereof for his own use as to the northern half, and for the
use of Collins, or in trust for his heirs, as to the southern.
Inerarity might have maintained an action of covenant on his deed
and compelled him to transfer the legal title by a further
assurance. There might be some question, perhaps, whether the legal
estate did not immediately vest in Inerarity
Page 51 U. S. 184
by estoppel. But as the conveyance is a deed poll in the nature
of a quitclaim and release, without a warranty and with a covenant
for further assurance to Inerarity or the heirs of Collins, it most
probably would not. But for the purposes of this case, the question
is wholly immaterial. Inerarity, as a creditor of the estate of
Collins, would have a right to demand the payment of his debt
before he should make a transfer to the heirs. But whether as
holder of the legal or equitable estate in trust, his beneficial
interest amounted to no more.
Some objections have been urged to the view we have taken of
this transaction on the ground that the contract made in 1806 with
Collins was not binding. But although we cannot perceive the right
of persons, who have purchased the legal title from Kennedy, with
full notice of the trust, to object to a contract which Kennedy has
executed, we shall proceed to notice them. The first objection is
that Collins did not sign the indenture or articles of agreement of
21st November, 1806, and was therefore not bound to convey to
Kennedy, and there was therefore no consideration which could make
the deed binding on him. But the deed on its face purports to be an
indenture, of which Collins, from the nature of the transaction,
would be holder of the counterpart, signed by Kennedy. The
original, which is signed by the grantor, would be in possession of
Kennedy the grantee, who cannot object to the validity of his
covenant, because a paper is not produced which, if in existence,
is in his own possession. Much less could he be heard to make this
allegation after the contract has been executed by his own deed
sealed and delivered in pursuance of it.
It has been objected also that the original contract with
Collins was void as against the policy of the law. But it was
certainly not against the policy of the laws of Spain, under which
it was made. for it was a fulfillment of the conditions of the
grant made to Collins. And it cannot well be said to be contrary to
the policy of the laws of the United States, who have confirmed the
land to Kennedy in virtue of the very possession and improvements
made in pursuance of the contract.
Thus far, then, we have in 1822 the legal title to the whole lot
vested in W. E. Kennedy, in trust, as to the southern half, for the
heirs of Collins.
4. What, then, was the effect of the deed made to Samuel
Kitchen, dated, or antedated, some two months before the deed to
Inerarity?
The circumstances which tend to show that this deed was made
after that to Inerarity, and for the purpose, if possible, of
defeating it, are very strong and convincing.
1st. Joshua Kennedy, who acted as the agent for Kitchen, or
Page 51 U. S. 185
used Kitchen's name for his own purposes, was a witness to the
deed to Inerarity, and made no objections nor suggestions that he
had bought and paid for this lot a few days before as agent of
Kitchen -- a circumstance not easily accounted for, if such had
been the fact. 2d. The deed to Kitchen was acknowledged after that
to Inerarity, at the same time with another deed from W. E. Kennedy
to Joshua Kennedy, containing property previously sold to
Inerarity, and having the same witness, Diego McBoy.
"And thirdly. The frequent declarations of Joshua Kennedy that
the object of the deed made to Kitchen, through his intervention,
was to defeat Inerarity's claim to that property."
And lastly, the fact that Samuel Kitchen gave Joshua Kennedy an
obligation to convey the lot to him on request, which was
afterwards fulfilled by giving his deed to William Kitchen for a
nominal consideration, and that William's name was used by Kennedy
for the purpose of covering and complicating the transaction.
But it is a question of no importance in the case whether the
deed to Samuel Kitchen was delivered on the day it bears date or
that on which it was acknowledged. He was not the purchaser of a
legal title without notice of a secret equity. The rule with regard
to purchasers of a mere equity is
prior in tempore potior in
jure.
The equitable title of Collins, of which the deed to Inerarity
contained a new acknowledgment, had its origin at least as far back
as 1806. So that even if we could bring ourselves to believe that
Joshua Kennedy, whether acting for Kitchen or himself, had
purchased and paid his money without notice of the title of
Collins' heirs, it would not enable him to defeat their claim. The
legal title first became vested in W. E. Kennedy in 1822, and
passed by his deed of 1824 to Joshua Kennedy, with full knowledge
of the trust. His attempt to defeat it by covering the land with
the vagrant and probably fraudulent claim under Price after he had
obtained the legal title from the United States was as unsuccessful
as the first, and wholly inoperative except to show the shifts and
contrivances resorted to in order "to defeat Inerarity's
claim."
5. We come now to the consideration of the validity of the deeds
of release obtained from George and Sidney E. Collins, in 1829 and
1830.
At this time, the property had risen in value, with a prospect
of a much greater increase, and the frailty of the title was but
too transparent to a man of the judgment and shrewdness of Joshua
Kennedy, notwithstanding the means used to obscure it. The heirs
had just come of age. They were ignorant of the nature or value of
their title. Kennedy is not only
Page 51 U. S. 186
in possession of their land, but of the legal title. He
persuades them to release their title to William Kitchen for the
sum of one thousand dollars each -- a sum which, to young men just
out of their apprenticeship, poor, and ignorant of their rights,
would appear large and attractive. Kennedy is well acquainted with
the nature and value of their claim; they are wholly ignorant of
it. He informs them that their claim is worthless, but that Kitchen
was willing to give them this sum for the sake of peace and
quieting his title. Besides, he had so complicated and covered up
the title that it was impossible that they could comprehend it or
know the value of their claim if the documents had been laid before
them. Under such circumstances, should a chancellor hesitate in
setting aside the releases, if it appeared that the title thus
obtained was for a consideration much below the value of the
property? It needs no citation of authorities to show that deeds
obtained under such circumstances would be held void.
6. The transfer by Inerarity of the equitable trust title held
by him can add nothing to the validity of Kennedy's title. Whether
transferred by him voluntarily or through the medium of a decree in
chancery can make no difference in this case. Nor is Inerarity
liable to any imputations of collusion or improper conduct in the
matter. He was bound to transfer his title to the heirs on payment
of his debt. And when their releases to Kitchen were produced by
which he appeared to be substituted to their rights, Inerarity, who
was ignorant of the means used to obtain them, might justly believe
that he was bound to convey to him. He did so after consulting
counsel and after a decree in equity. Such a decree would be made
as a matter of course. But its effect would only be to substitute
Kitchen or Kennedy to the rights of Inerarity. The title would be
still subject to the trust for Collins' heirs, and unless their
title was vested in Kennedy by these releases, he held the land
still subject to their rights. But when the release to the heirs
are set aside, Kennedy is entitled to recover the money paid to
Inerarity, as there is no allegation that the debt claimed by
Forbes & Co. against Collins' estate was not justly due.
But before leaving this part of the case, it will be proper to
notice an objection urged with some plausibility in the argument.
The record exhibits much contradictory testimony as to the value of
this property at the time the releases were executed, and it has
been contended that Kennedy paid the full value for it, being
altogether over $4,000. After such a length of time, it may be
expected that the estimates of witnesses from recollection will
differ widely. But when we look at the public assessments, and the
sales of contiguous property about the
Page 51 U. S. 187
same time, which are the best tests, it would seem that the
boast of Joshua Kennedy himself, that "he had bought for $4,000
property worth $40,000," was not an exaggeration of the truth. But
assuming the true value to have been one-half that sum, and taking
into consideration the facts and circumstances already stated, we
think the circuit court was fully justified in setting aside these
conveyances and decreeing that the defendants should account.
7. The absence of the complainant from the state and the late
discovery of the fraud fully account for the delay and apparent
laches in prosecuting his claim which have been objected to on the
argument.
The decree of the court below is therefore
Affirmed, but with this addition: that the master, in taking
the account of rents, profits, sales &c., shall allow to the
defendants the sum paid to James Inerarity for his claim against
the estate of Joseph Collins.
Order
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the Southern
District of Alabama and was argued by counsel. On consideration
whereof it is now here ordered, adjudged, and decreed by this Court
that the decree of the said circuit court in this cause be and the
same is hereby affirmed with costs and with this addition: that the
master, in taking the account of rents, profits, sales &c.,
shall allow to the defendants the sum paid to James Inerarity for
his claim against the estate of Joseph Collins, and that this cause
be and the same is hereby remanded to the said circuit court to be
proceeded with in conformity to the opinion of this Court.
