1. Positive statements in an answer to a bill in equity -- the
answer being responsive to the bill -- are not to be overcome
except by more testimony than that of one witness, but by such
superior testimony they may be overcome, and where, as was the fact
here, seven witnesses asserted the contrary of what was averred in
such answer, the answer will be disregarded.
Page 69 U. S. 424
2. A man may lawfully transfer all his interest in property
which is about to become the subject of suit, U.S. for the purpose
of making himself a witness in such suit, and while his testimony
is to be carefully and perhaps suspiciously scrutinized when
contradicting the positive statements made by a defendant in equity
responsively to the complainant's bill, such testimony is still to
be judged of by the ordinary rules which govern in the law of
evidence, and to be credited or discredited accordingly.
3. The introduction of children as witnesses in an angry family
quarrel rebuked by the Court.
This was a suit relating to certain transactions of a man of
advanced years and of somewhat marked characteristics and temper
named Jonathan Tobey, a farmer and old resident, as his father,
whose name he bore, had been before him, of the neighborhood of New
Bedford, in Massachusetts.
Mr. Tobey, it seemed, had, through a long life, been an active
person in county affairs of the region round New Bedford, a road
contractor for the county &c. As one consequence either of this
fact or of a temper naturally inclined to controversies, he was not
unfrequently in suits, and among other suits had a bitter one --
prolonged through twenty-five years -- with his county. [
Footnote 1]
"It occasioned considerable feeling. There was a good deal of
discussion about it. Tobey issued one or more pamphlets for
distribution. He had some very warm personal supporters, and there
were some who were opposed to him. He was a noted man."
The present controversy, although it had nothing to do with
county concerns, seemed to have excited more interest in the
neighborhood of its origin than, as a private controversy, properly
belonged to it. One cause for this was perhaps that it had the
element of a family quarrel. Tobey, Senior, or, as he is otherwise
above styled,
Jonathan Tobey, in order to be himself a
witness in the cause, had sold all his interest in the subject of
suit, once his own, to a son named
Stephen Tobey, who was
now suing his own brother-in-law, one
Page 69 U. S. 425
Horatio Leonard, and a certain
Nehemiah Leonard, father
of this brother-in-law Horatio. Numerous members of the family of
Tobey -- William Tobey, Leonard Tobey, Joshua Tobey -- came to the
support of their brother or kinsman; Mrs. Hannah Tobey, at the age
of seventy, coming with them; while minors from the house of
Leonard -- Master Horatio Herbert Leonard, Master Stephen Henry
Leonard, and Miss Laura Anna Leonard -- the last
at the age of
eleven -- testifying to what had been said in "the nursery" --
were produced in support of theirs. Twenty witnesses were called to
impeach Tobey, Senior's, character, including, as the counsel for
the defendants noted in their brief,
"mayors, members of the legislature, councilors, justices of the
peace and of the quorum, county commissioners, deputy sheriffs,
city marshals, aldermen, assessors, city treasurers and collectors,
trustees of the lunatic state hospitals, keepers of the jails, and
overseers of the house of correction,"
while these were met by twenty, and
seven added, not
less worthy of belief, as Tobey's counsel seemed to signify, in the
fact that their judgment and integrity had evidence quite as good
as the preamble of a patent and that
their posts of honor
had been the private station. These all testified that Tobey Senior
was entirely worthy of belief, and some descriptions which he gave
of the boundaries of his generally described "homestead"
hereinafter mentioned, and which descriptions of his it was
attempted to attack, seemed to have been more accurately conceived
by him and told than they were either conceived of or told by
others who denied them.
The suit, therefore, was somewhat special in its circumstances,
and in its questions of fact -- the form into which it was resolved
by this Court -- presented conflict in the evidence.
The outline case on which the proceeding, one in equity, rested
-- as derived from the record and from the statement of the learned
Justice (Wayne), who presented the whole with great detail and
clearness before giving the judgment of the court -- was
essentially as follows:
In 1830, Tobey Senior owned certain real estate situated
Page 69 U. S. 426
in New Bedford and Fairhaven, part patrimonial, part acquired by
purchase. For the two preceding years he had been engaged in
building a county road, and had been obliged to obtain loans for
that purpose. and, among others, one of $5,000 of Mr. William
Rotch, Junior, a gentleman of fortune who had wanted him to make
the county road by a special route, and who seems to have been
kindly disposed to him. Finding in 1830 that he could not obtain
payment of the county of what he claimed except by a long
litigation, he made, without request, a mortgage to Mr. Rotch to
secure this indebtedness. The mortgage conveys "my homestead farm,
situate in the said New Bedford, being the same which I hold by
virtue of the last will and testament of my father, Jonathan
Tobey." After the making of this mortgage, he bought, in 1837, a
wood lot of one Sweet, and, in 1839, obtained title to another
tract of land from the commonwealth. In 1846 he conveyed all his
real estate in New Bedford and Fairhaven to one of his sons named
Stephen and another son, Leonard in mortgage to secure a debt which
had been due for a long time to this son -- as it seemed, a dutiful
one -- Leonard, in 1848, assigning all his interest in the mortgage
to his brother Stephen. In 1849, Mr. Rotch made peaceable entry
upon the premises mortgaged to him for the purpose of foreclosing
his mortgage. From 1830 down to the filing of this bill, old Mr.
Tobey remained in possession of all the property referred to in
both mortgages, and used and occupied them as his own. He never
paid any interest or any part of the principal of the Rotch
mortgage, and never paid any rent for the premises, and during the
lifetime of Mr. Rotch was never called upon so to do. In 1858, the
administrators of Mr. Rotch, then lately deceased, brought an
action of ejectment against him to remove him from the mortgaged
premises. When this action was about to ripen into a judgment,
efforts were made by Tobey, the father, and his son Stephen to
raise money to buy the mortgage, it being known by them that it
could be bought for considerably less than the amount of it. Among
others, Tobey Senior applied to his son-in-law
Page 69 U. S. 427
Horatio Leonard, to obtain through him assistance of
his father,
Nehemiah Leonard. The Leonards ascertained
that the mortgage could be bought for $2,500, and that they then
could have a year to pay it in. They then informed old Mr. Tobey,
as was alleged by them, the Tobeys, that if they, the
Tobeys (father and son Stephen), could provide for the payment of
this amount before it would fall due, and would give as security
all Tobey Senior's real estate and would transfer Stephen's
interest under his mortgage, they would help them by purchasing the
Rotch mortgage. The Leonards, it was certain, did purchase for
themselves or for somebody else the mortgage of Mr. Rotch.
At the time of the negotiation it was proposed, according to the
statement of the Tobeys, that Tobey Senior and his son Stephen
should cut $1,000 of wood off the place towards the debt. Tobey
Senior was at this time sick, and Horatio Leonard got the deeds
from the Tobeys to him drawn up. It had been agreed,
as was
said by the Tobeys, that a writing should be also drawn up,
stating the terms upon which the property should be reconveyed.
No such writing was ever made. Leonard, according to the
account given by the Tobeys, insisted on having absolute deeds and
quitclaims, with a release of dower by the wife of Jonathan Tobey,
an aged woman, of Tobey's other property as well as of the
homestead in order, as he said, that the title might be clear on
its face, and that he might borrow money if he wanted to do so, and
such deeds were made. After the deeds passed, on the same day,
Horatio Leonard applied to his father-in-law, old Mr. Tobey, for a
bill of sale of all the stock and farming utensils on the farm,
which was given him.
After this, Stephen Tobey began to cut wood, and cut about one
hundred cords. Horatio Leonard also sold to one Hawes standing wood
to the amount of $840. In June, Horatio Leonard became embarrassed
in business, and his father, Nehemiah, undertook to aid him. To
secure himself in so doing, he took the Tobey estate from his son
and sold it. Old Tobey and his son Stephen then made
application
Page 69 U. S. 428
for a reconveyance to them of this property, in accordance with
what they called or deemed their right, offering to pay; as they
said that it had been agreed they should have a right to do.
Upon this application, Leonard, the father, refused to convey to
the Tobeys, except on payment of $5,000; and, upon their refusal to
take the land upon these terms, he sold it to the defendants, R.
& J. Ashley, for that sum; they agreeing to convey to one
Spooner a portion of the estate.
Stephen Tobey, who, by his father's transfer to him, was sole
party in interest, now filed his bill in the Circuit Court of the
United States for the Massachusetts District, against all these
parties; that is to say, against Leonard, father and son, Ashley,
Spooner, for a reconveyance, as above said; for compensation in
waste and damage in cutting and removing the wood and grass -- the
complainant offering to perform what he called his part of the
agreement, by paying such sums of money and doing such other acts
as the court should deem equitable and just.
The Leonards, father and son, filed separate answers
responsive to the bill, and denying positively and specifically
its allegations. But the testimony of seven unimpeached
witnesses, Messrs. Jones Robinson Edward Chase, George Barney,
Sampson Reynolds, Alden Lawrence, Leonard Tobey, and William Tobey,
tended to show or did show admissions by the Leonards that the
transaction was a mortgage only, or in the nature of one.
On the other hand, the testimony of T. M. Stetson, Esq., a young
professional gentleman of good character in New Bedford, who had
been counsel of the elder Tobey and was more or less familiar with
the case and with the understanding of both Tobey and Leonard as
expressed to
him at
certain times and places and
under circumstances not, perhaps, the best to educe the fullest
ideas of the parties, went to a different conclusion. It appeared,
however, as a fact, that after Leonard the son had got a conveyance
from the Tobeys, he wished his father-in-law, Tobey Senior, to
devise the property to him in his will, a draft of which he
Page 69 U. S. 429
caused to be prepared to this effect without Mr. Tobey's
knowledge.
The other defendants in the case, the Ashleys, Spooner, and
Hawes, also filed answers, denying the allegations, but leaving it
reasonably plain that they were not purchasers from the elder
Leonard, without notice of the claim of Tobey.
Some defense was made, too, in supplemental answers setting up a
conditional conveyance by Tobey Senior to one Clap, and some
similar conveyance to the Wareham Bank.
The Massachusetts statute of frauds thus enacts:
"No trust concerning lands, except such as may arise or result
by implication of law, shall be created or declared, unless by an
instrument in writing, signed by the party creating or declaring
the same, or by his attorney."
The court below dismissed the bill, the presiding judge giving
an opinion at length. On appeal, the case was ably argued here by
Messrs. Sydney Bartlett and Thaxter, for the appellant, Tobey, and
by Messrs. Olney and Thomas,
contra, the argument turning,
in part, on the point how far the case was affected by the
Massachusetts statute of frauds; a matter thought by this Court
unnecessary to be considered by it.
MR. JUSTICE WAYNE, having stated the pleadings, delivered the
opinion of the Court:
This cause has been argued with ability, and we are brought to
the consideration of it with every advantage, in any way applicable
to the rights of the parties in a court of equity, by the written
opinion of our brother who tried it, and gave the decree in the
circuit court.
The allegation is that the purchase made by the Leonards of the
Rotch heirs was in behalf and for the benefit of the Tobeys, and
that the conveyances by the Tobeys were made as security for the
payment by them of the notes for twenty-five hundred dollars, given
to the Rotch heirs. This is the issue between the parties, and the
question is which of them is sustained by the proofs.
Page 69 U. S. 430
"Denials in answer to a bill in equity to the extent of their
relation to facts within the knowledge of the respondent, when they
are responsive to the allegations of the bill of complaint, must be
received as evidence. Courts of equity cannot decree against such
denials in the answer of the respondent on the testimony of a
single witness. On the contrary, the rule is universal under such
circumstances that the complainant must have two witnesses, or one
witness and corroborative circumstances, or he is not entitled to
relief. The rule stands upon the reason, that when a complainant
calls upon the respondent to answer allegations, he admits the
answer to be evidence, and if it is testimony in the case, it is
equal to the testimony of any other witnesses, and the complainant
cannot prevail if the balance of proof is not in his favor; he must
have circumstances in addition to his single witness in order to
turn the balance. [
Footnote
2]"
This, no doubt, is the general rule of chancery. [
Footnote 3] but it is one which does not in
the present case apply, for here
seven unimpeached
witnesses state that in business interviews either with Horatio or
Nehemiah Leonard, in relation to their purchase of the homestead
farm or to matters in some way connected with it, the defendants,
one or the other of them, said, in language which could not be
mistaken, that the purchase of the Rotch mortgage had been made to
assist Jonathan Tobey to pay the debt due upon it. We proceed to
state this testimony, and the impressions made upon us by it.
Horatio Leonard said to the witness Jones Robinson that he
himself and his father had given a note for it payable in a year
for $2,500, and that the complainant and his father must get the
wood off to meet it, and that he only wanted them to pay the note
and to pay himself for his trouble, and added it was to be paid for
from the wood, and if there was not enough, that he should sell
some of the real estate.
Page 69 U. S. 431
Another witness,
Edward Chase, swears that Horatio
Leonard said to him, after relating the circumstances of the
purchase of the Rotch mortgage, in connection with the impoverished
condition of the Tobeys, that he had taken hold to help them.
George Barney, a third witness, says that he had a
conversation with Horatio Leonard; that he mentioned that he had
purchased the farm formerly owned by Jonathan Tobey &c., with
an intention
to sell back to the owner; that he had done
so to prevent it from going into the hands of strangers, and to
keep a home for the old people, and
that he was to be
repaid the money spent in purchasing the farm.
Sampson Reynolds, a fourth witness, swears, that
Nehemiah Leonard said to him that his son had married Jonathan
Tobey's daughter, and that he had a notion to take up the Rotch
mortgage, cutting and selling wood enough to pay off the debt, and
letting the old man have a home there as long as he lived.
Alden Lawrence, a fifth, testifies that Nehemiah
Leonard said to him, that he had taken the property for the
accommodation of the old gentleman, as he was liable to be turned
out of house and home at any time; took it to preserve a home for
the old folks; and the witness understood him to say "that he
calculated to take the wood, and would then turn the property
back."
Leonard Tobey, the brother of the complainant, and a
sixth witness, deposes that he called upon Nehemiah Leonard, who,
after expressing his regret that there should be a misunderstanding
between his son Horatio and Jonathan Tobey, said, in substance,
that he would use his influence to get Horatio to convey the
mortgage to his father and brother, and that he was willing to give
up the place if the money was refunded. He also said that Jonathan
Tobey came to him as a last resort; that the arrangement was that
Horatio should see that wood enough was cut to meet the notes at
maturity.
William Tobey, the seventh witness, testifies that he
was intimately acquainted with Horatio Leonard for seven years,
Page 69 U. S. 432
including the year 1859, and that he called upon him at his
place of business in Boston in reference to the matter, and said he
had made a proposition to Stephen Tobey, that himself and Stephen
should buy the claim of the Rotch heirs; Stephen to put in his
claim; that they should be interested and improve the farm and
occupy it together; and that, if Stephen should
die without
heirs, his interest should be willed to the children of
Horatio. He added, that Stephen would not agree to it, and
seemed to have a feeling that it was meant to take advantage of
him.
"He expressed the wish that I would go to New Bedford and bring
about the arrangement, saying that he would pay my expenses. He
said his motives were pure, that he did not know it would be of any
use to him, but thought it would be to his children; that it would
be a good home for Stephen, and his father and mother, and that he
wanted the farm to remain in the family."
In reply to one interrogatory, the witness answered, that, after
speaking of other matters relating to the purchase of the farm,
Nehemiah Leonard added, that he had at first refused to assist in
raising the money to buy it; that he had finally agreed to it from
the friendly feeling he had for the Tobeys, and his only object for
complying with their wishes and his son's request was to benefit
the family. He also said that Jonathan Tobey came to him as a last
resort, and that the arrangement was that Horatio should see that
wood enough was cut to meet the notes at maturity.
The testimony of the preceding seven witnesses must be
considered in connection with that of Jonathan Tobey, who had sold
out all his interest in the property to his son, the complainant,
to
enable himself to be a witness upon the trial of the
cause.
Our first remark is that such a sale for such a purpose is
allowable, and that its lawfulness has been sanctioned by this
Court [
Footnote 4] even when
the sale was to a party who had no previous interest. We say next
that the attempt by the
Page 69 U. S. 433
defendants to discredit Jonathan Tobey as a man of truth is a
failure, in fact, from all that the witnesses, introduced for such
purpose, had said or could say about him, and that all that they
did say has been rebutted by the evidence of witnesses more
numerous than the former and as respectable. Some of them had known
Tobey for years in the social relations of his life and in his
public business; all of them swore without any qualification that
they believe him to be a correct man and that they would believe
him upon his oath. No point of his testimony in this case is
contradicted by any witness, and all that he has said is in harmony
with the motive which could only have induced him to place himself
in a position to aid in the restoration of his son to his rights,
to whom he owed a debt of six thousand dollars with long years of
interest, against the contrivance of a son-in-law to whom he owed
nothing, and who had succeeded in getting all of the estate of both
for a very insufficient consideration, without the payment of a
cent, in fact. Tobey's statement of his agreement with the Leonards
to give them a quitclaim for his entire estate has not been
disproved either directly or inferentially by circumstances or by
any witness, and has only been denied by the defendants in their
answers. He has neither qualified nor modified the facts to which
he has sworn in his replies to the questions put to him in behalf
of the complainant, or to such as were asked by the defendants. His
answers as to the lands which he owned, besides those included in
the Rotch mortgage, correspond with the subsequent surveys with as
much exactness as the circumstances of his manner of acquiring them
permitted. It is appropriate to say that his account is not
contradicted in the answers of the defendants to the bill,
excepting the effort made by them to enlarge the quantity of the
real estate to be attached to the homestead farm, contrary to its
boundaries, as it had been conveyed to Horatio Leonard by the Rotch
heirs. Tobey's narrative of his connection with William Rotch, how
he became indebted to him for his advances of money to construct a
county road which Mr. Rotch wanted to be made, to give him a
shorter and better route from his
Page 69 U. S. 434
place to Boston, of Mr. Rotch's offers to advance him money as
he might need it, if he would undertake the construction of the
road, and after he had completed it of the litigation for the sum
due to him under the contract, and of his losses in consequence,
are all substantiated by documents which show plainly the causes of
his pecuniary embarrassments, and of some of his peculiarities in
litigation during a long life, and up to the time when, as Nehemiah
Leonard has said, "he came to me as a last resort to get his aid to
purchase the Rotch mortgage."
The testimony of such a witness as Jonathan Tobey is to be
scrutinized, no doubt, carefully and with great caution, perhaps
with suspicion, before it can be allowed to invalidate the denials
of respondents of the allegations of a bill in equity. But we have
thus faithfully scrutinized it in this instance, in connection with
all the testimony introduced by the defendants, and without any
impression having been made upon us that Jonathan Tobey had not
told the truth in regard to this transaction.
The witness who is most relied upon by the defendants to prove
that there had been no stipulation for a bond or written instrument
between the parties for a reconveyance of the property to Jonathan
Tobey is T. M. Stetson, Esq., who had been the counsel of Tobey
from February, 1858, to December, 1859.
Fairer or more proper testimony, indeed, than that of this
gentleman could not have been given. It is marked by forbearance
and caution, but in our opinion it does not disprove that there had
been a private arrangement between the parties for a reconveyance
of the property to the complainant and his father, when the notes
given for the Rotch farm should have been provided for or were
paid. Mr. Stetson says that he told Jonathan Tobey and the
complainant that he could make no defense in the ejectment suit
pending against the plaintiff's title and evidence, and that it had
been delayed by his suggestion that it might be settled. That
afterwards he met Horatio Leonard, whom
Page 69 U. S. 435
he supposed to be a man of means, and told him he thought he
could make it an object to buy the property from the agent of the
Rotch heirs. He refused, on account of there having been so many
conveyances about the property and on account of the well known
character of Jonathan Tobey for litigation; but he said if he could
have the
whole property without any question or lawsuit,
that he did not know but that he would take it, but that he must
have
the whole or none. The witness told this to Mr.
Tobey. "We talked over the position of the suit," says Mr.
Stetson,
"and Mr. Tobey said that he might as well discontinue his
defense. This I told to Horatio Leonard. A few days after, Jonathan
Tobey, Stephen Tobey and Horatio Leonard came into my office.
Horatio said he had seen the agent for the Rotch heirs and had
learned their price. He said he was not going to get into a
lawsuit, and would not buy unless he could get a clear and good
title. He also asked me if I considered the Rotch title such a one.
I said that I did, with the evidence which they had, but that of
course it was better to get releases and quitclaims from everyone
who thought he had any interest in the property. I then stated that
I thought the better way for Leonard to get the whole title was to
have the Rotch suit perfected by a judgment and execution levied.
Leonard then said that was what he wanted and must have. Jonathan
Tobey seemed to wish Leonard to become the owner of the property,
and executed his quitclaim for it. Stephen Tobey, after some
conversation, executed his release, both being done before the
witness."
The papers had been drawn by Mr. Stetson before the meeting at
his office, and we understand him to say that he does not recollect
by whom he was directed to draw them. We also understand him to say
that he knew nothing of any private arrangement between the parties
for a reconveyance of the property to the Tobeys before or after
the quitclaim deeds were given in his office. In fact, Mr. Stetson
confines himself to what occurred and was said there, without
alluding to any conversation they may have had elsewhere, leaving
the fact of an understanding for a reconveyance to the testimony in
the
Page 69 U. S. 436
case as that might be. In our view it is not at all likely that
such an arrangement would have been mentioned to him by either
party, before or when he was advising as counsel, or as the friend
or agent of all of them, how a title to the property could be
perfected. Such a device to defeat it as that one party was to have
a right to a reconveyance of the property, upon paying the notes
with interest, which had been given in payment for the Rotch
mortgage, and that Horatio Leonard was to have a title in paper to
the homestead farm, and all the real estate besides, with all the
advantages of using both for his own benefit, with a secret
condition to relinquish and reconvey to the Tobeys, would probably
have been met by Mr. Stetson with a suggestion that a condition of
that kind, under all the circumstances and his position then, would
not be consistent with the ethics of his profession, the law
requiring as a fairer mode in such a case that such a condition
should be a part of the deed, or if it was to operate as a
defeasance, that it must be "made
eodem modo, as the thing
to be defeated was created." [
Footnote 5]
We conclude that the testimony and corroborating circumstances
resulting from it, with other proofs in the record, overrule the
denials by the defendants of the allegations.
One of these corroborative proofs is the fact that after the
Leonards had ascertained that the Rotch mortgage could be bought
for twenty-five hundred dollars upon time, and had actually
bargained with the Rotch heirs for the purchase of it, according to
the described boundaries and contents of the homestead as set out
in the suit to eject Jonathan Tobey, and ascertained that he was
the owner of other real estate not a part of it, and that all of
the real estate had been mortgaged to the complainant -- Horatio
Leonard, under such circumstances, should have pretended and
represented to Jonathan Tobey and his wife that a quitclaim for the
property, with his wife's relinquishment of dower, was necessary to
give him a clear title to enable him to borrow money upon it; and
should then have stated to the Tobeys that he
Page 69 U. S. 437
must have conveyances for all of the real estate as a
prerequisite before he would buy the Rotch mortgage, being then the
purchaser of it, with arrangements then going on for him to secure
from the heirs of Rotch their title. We think that such a condition
was a menace, made at a time when the Tobeys were helpless and
deprived of all hope of getting relief, and that Horatio Leonard
must have known its effect would be to coerce them to compliance
with his terms. Under the circumstances as they are detailed in the
answer of Horatio Leonard, we view it as a contrivance to vest in
himself the whole property under the guise of buying the Rotch
mortgage for the benefit of Jonathan Tobey. It is difficult, too,
for us to credit the narrative of Horatio Leonard that an old man,
with an aged wife, pressed by embarrassment and distress, as he
then was, should have been willing to divest himself of everything
that he owned, without the reservation of something to live upon
and somewhere to live, and all this with the view of giving
everything that he had in the world to a son-in-law to keep the
homestead in the latter's family to the exclusion not only of
himself and wife, but all his other children, and particularly so
of his son, the complainant, to whom he owed at that time six
thousand dollars, with long years of interest, and who had been for
many years the stay and support of his father and mother. And this
aspect of the case, as to the arrangement for a reconveyance of the
property to the Tobeys, when Horatio Leonard demanded titles to the
whole of the property, is much strengthened by the fact that
Horatio Leonard, after having got a title to the homestead farm,
and conveyances for everything that the Tobeys had, became so
restless concerning the lawfulness of his right to the property
that he made a virtual acknowledgment of Jonathan Tobey's interest
in it by asking the old man to make a will in his favor, and
actually employed counsel to draw it, and that without having
previously mentioned his intention to Mr. Tobey. Mr. Stetson
mentions the fact in his testimony, and the accidental cause of its
having been defeated.
We have carefully examined and considered the whole
Page 69 U. S. 438
testimony given by the defendants in the case, but it is without
weight sufficient to counterpoise the conclusion to which we
tend.
Nor is it inappropriate for us to say, concerning much of the
testimony introduced by Horatio Leonard, that when the father of a
family introduces the juvenile members of it as witnesses in such a
litigation as this has been, it cannot be done without its being
considered as a forlorn effort of parental obliquity.
As a result, we concur in the opinion that it has been
established by the proofs in this case, as the rules of evidence
require the denials of the allegations in a bill of equity to be
disproved, that the payment made by Nehemiah Leonard and Horatio
Leonard for the purchase of the homestead farm was intended by them
to be an advance of money for the benefit of Jonathan Tobey, that
the conveyances executed by Jonathan Tobey and his wife to Horatio
Leonard, and the release given by the complainant to him, of all
his interest in the real estate purporting to have been conveyed by
them, were intended by the parties to them, and were so received by
Horatio Leonard, as securities for the repayment of the notes with
interest for twenty-five hundred dollars paid by Nehemiah and
Horatio Leonard to the heirs of Rotch for the homestead farm, and
that the defendant, Horatio Leonard, agreed to reconvey the real
estate property attached to it, and all the rest of the real estate
conveyed to him, when payment should be made of the sum of money
advanced by the Leonards for the benefit of Jonathan Tobey, and
such reasonable compensation as might be claimed by them for their
agency and aid in the transaction. We are also of opinion -- when
the complainant tendered to Nehemiah Leonard the sum necessary to
pay the notes with interest, which had been given to the Rotch
heirs, at the same time asking for a reconveyance of the property
-- that he was entitled to it, and that it should have been made,
and that the subsequent sale of it, as it was made, was in fraud of
the complainant's rights.
Page 69 U. S. 439
We have carefully considered the answers of R. and J. and R.
Ashley, Spooner, and Hawes, to the allegations of the complainant's
bill. Notwithstanding their denials of them, their narratives in
each of their answers of their purchases of parcels of the real
estate in controversy, connected with the testimony, establish the
fact that when they respectively made their purchases of the real
estate from Nehemiah Leonard or from the Ashleys, that each of them
had such notice of the rights claimed to all of the real estate by
the complainant, and of what had been the rights to it by Jonathan
Tobey before he made a sale of it to the complainant, and that
neither of them can be protected in a court of equity as having
been
bona fide purchasers without notice.
Our attention has also been given to the supplemental answers of
the defendants to the bill of the complainant relating to a
conditional conveyance by Jonathan Tobey of real estate in the
County of Bristol to secure Clapp from any liability he might incur
by endorsing Tobey's paper, and Tobey's release of his interest and
transfer of all his rights in a conveyance to the Wareham Bank. In
our opinion, this interposes no obstacle to rendering a decree for
the complainant.
From the opinion which we have above expressed of the character
of the transaction between the Leonards and the Tobeys it becomes
unnecessary for us to discuss the point made by all of the
defendants in the cause that they were not liable to the
complainant, as the statute of Massachusetts had declared that no
action shall be brought upon any sale of lands, tenements, or
hereditaments, or of any interest in or concerning them, unless the
promise, contract, or agreement upon which such action shall be
brought, or some memorandum or note thereof, shall be in writing,
and signed by the judge charged therewith, or by some person by him
lawfully authorized.
Decree reversed and the defendants ordered to reconvey to
the complainant all the real and personal estate (Ashleys,
Page 69 U. S.
440
Spooner, and Hawes, to join in the conveyance of the real),
on repayment of the $2,500, with interest, deducting $840, with
interest, received by the defendant, Horatio, for wood standing on
the land and sold. The cause remanded, with directions to proceed
accordingly.
GRIER and CLIFFORD, JJ., dissented.
[
Footnote 1]
Tobey v. County of Bristol, 3 Story 800, the last case
apparently ever decided by Story J. Tobey, it was said, had removed
from Massachusetts to Rhode Island in order that he might sue in
the federal court and get his case before what all admitted was an
unprejudiced tribunal.
[
Footnote 2]
Opinion in this case on the circuit per Clifford J.
See also Clarke v. Van
Tiersdyke, 9 Cranch 160;
Hughes
v. Blake, 6 Wheat. 468; cited by the learned
Justice.
[
Footnote 3]
Parker v.
Phetteplace, 1 Wall. 684.
[
Footnote 4]
Babcock v.
Wyman, 19 How. 289.
[
Footnote 5]
Shepherd's Touchstone 390.
