stroyed by fire in the city of New York in the | with her, she never expressed the least objecyear 1835." tion to the appointment. That William Taylor The bill then proceeded to state that a deed left no accounts, never having interfered with was drawn up, which she signed, without read-the property, or received it into his possession, ing or hearing it read; that, so far from the or any of the rents, issues, or profits, the same marriage settlement upon her mother being an being left in the custody or possession of the inducement to the execution of the deed, as is cestuis que trust entitled thereto. He denies alleged, she now finds, in the recital, she had that the trust deed was made by compulsion or never at that time heard of any such marriage undue means, or that it was made by her when settlement; but, on the contrary, the deed was under age; but, on the contrary, avers that the extorted from her by the most unfair and fraud- same was made freely and voluntarily, and that ulent means, and was executed by her as the she was then of full age, as would more fully price of peace with her father, mother, and appear by a letter written by her to her father, family. dated 10th January, 1828, a copy of which he annexed to his answer.

The bill then stated the marriage of the oratrix with James Taylor, on the 28th of April, 1820; that she had, soon afterwards, used all the means in her power to convince her husband that the deed was fraudulent and invalid, but that he objected to family disputes about property, and averred that his own individual property and means of support were sufficient for his family. It then stated that she did not discover the amount of injustice which had been practiced upon her until the year 1839, when she discovered that, under the deed, in case she died before her mother, her children would be cut off from all share in the property. It then stated the death of Taylor, the trustee, and the appointment of Goodwin in his place, and averred that she was entirely ignorant of the use of her name, which was signed to the petition without her authority.

The answer of the executors of William Taylor was filed 6th November, 1843, and states that they do not believe their testator acted as trustee, though he may have assented to the trusteeship; that they have never seen any account of his as trustee, and do not believe he left any; for he regarded the matter as a mere family arrangement, and left everything in the hands of the cestui que trust, then entitled to the use of the same. They deny the right of the complainant to call on them for an account of the personal property conveyed in trust, because by the trust deed Julia Scarborough, who is still living, has the use of it for life; nor can they give any account of said property, or the rents and profits of the real estate, because the said real and personal property never passed into the hands of their testator in his lifetime, nor into their control or possession since his death, but had always been in the possession and management of Julia Scarborough, the cestui que trust, entitled to the same under the deed.

The bill then stated that Godfrey Barnsley had intermarried with her sister, Julia Scarborough, and resided for a long time in the house in question; that he had committed waste upon the goods and chattels bequeathed to her (the oratrix), had sold or otherwise disposed of The joint answer of Godfrey Barnsley and a considerable portion of the stock of liquors, Julia, his wife, was filed 19th February, 1844, and that waste had also been committed by and in substance states that the complainant Julia Scarborough, the mother; that Barnsley always called her mother's house her home, and knew that the oratrix had a claim to the per-lived as much there as with her uncle; that sonalty; that she had applied to Goodwin, the trustee, to come to an account with her, which he had refused to do.

The bill then contained a number of interrogatories for the defendants to answer; prayed that the deed might be decreed fraudulent and void, and that the defendants might come to an account with her, and that the real estate, goods, chattels, plate, furniture, books, prints, rents, and profits, might be decreed to be the separate property of the oratrix, not subject to the debts or liable to the creditors of her husband, James Taylor, etc., etc.

she was not an infant at the time of the execution of the deed, having been born on the 4th of August, 1806; that they do not know of any *consideration other than that stated in [*193 the deed; that Julia Scarborough lived on the premises at the time of its execution, and that William Scarborough sometimes resided in Darien, and sometimes on the premises, until 1833, after which he generally resided on the latter; and that complainant never, as far as they know, pretended to have any claim thereto; and as late as April or May last, 1843, when defendant, Julia Barnsley, in consequence of rumors which had reached her, asked complainant “if it was true, as she had been informed, that she (the complainant) intended to attempt to set aside said deed," she stated, “she had no such intention." They deny, as utterly and entirely untrue, the statement of the complainant of unkind treatment by her family, Robert M. Goodwin, the trustee, filed his and never heard or knew of any, or of any imanswer on the 6th of November, 1843, admit-portunity or coercion used towards her to inting the existence of the trust deed, and that it was under his control; and stating that he consented to act at the request of Horace Sistare, who married the complainant's sister, and of Joseph, her brother, and that he supposed he was acting with her consent, not only because her brother signed her name to the petition for his appointment, but because, in conversations

Sundry intermediate steps were taken to bring the defendants all into court, which it is 192*] not necessary to mention. At *length they all came in and answered, except Julia Scarborough, the mother and Joseph Scarborough, against which two parties an order was obtained, taking the bill pro confesso.

duce her to sign the deed; that they always believed the execution of the deed was the free, voluntary act of the complainant, and intended to fulfill the design of Robert Isaac, whose title they insist is more than doubtful, in consequence of the marriage settlement of 1805; that they are advised that the said deed was and is valid, as between the parties to the same, and

The

therefore William Scarborough could not make that he gave any reason for declining. any conveyance to Robert Isaac; and that he parties present, when the deed was executed, always held the premises subject to the mar- were the complainant's father and mother, and riage settlement, and that they have always the witnesses. I did not see or hear the comheard it in the family, and so believe, that the plainant read the deed, but I was then, and still complainant executed the deed freely and vol-am, satisfied that she knew the contents, and untarily, with a view to carry out the wishes approved of it. and intentions of her uncle, which would have "To the sixth cross-interrogatory the witness otherwise been defeated. They further allege answering saith: I do not recollect the questhat no marriage settlement between the com- tion being put to the complainant, whether she plainant and her husband was ever executed, knew the contents of the deed, nor do I recoland he having been recently declared bankrupt, lect whether any consideration money was ofany interest which she may have in the prop-fered; if there was, it was a piece of coin, proberty, or any claim against them, belongs to the ably a dollar, in the usual way, in such cases; said James Taylor, or his assignee in bank-I think I was in William Scarborough's house ruptcy. The answer then explains the defendant Godfrey Barnsley's actings and doings with respect to the property.

The answer of James Taylor, the husband of the complainant, admitted all the material | facts charged in the bill, and stated that before the marriage he had advised her not to execute the deed, believing, from her representations, that she was unkindly treated by the family; that he had been requested by William Scarborough to be a witness to the execution of the deed, but declined to be so, and that his belief of the unhappy situation of the complainant operated upon him in a great measure to consummate his engagement to marry her twelve months prior to the period before intended.

Several witnesses were examined on the parts of the complainant and defendants. The fol194*] lowing were the answers of the subscribing witnesses to the deed, viz., Andrew Low and John Guilmartin, touching its execution.

Andrew Low:

"To the fourth direct interrogatory the witness answering saith: I was intimate in the family of the late William Scarborough, both before, in, and after 1828; I was a subscribing witness to the signing of the deed, and after it was signed the complainant expressed to me that she was then satisfied, and was glad that she had done it, or words to that effect.

"To the fifth direct interrogatory the witness answering saith: I was present, as stated before, at the execution of the deed; it is impossible, at this distance of time, to remember all that then transpired, but this I am certain of, that the complainant knew the contents of the deed, and approved of it; in fact, as I have before said, she herself told me so.

"To the fourth cross-interrogatory the witness answering saith: I became acquainted | with the circumstances I have stated, relative to the property, from my personal intimacy with William Scarborough and his family, and upon my connection in business with the late Robert Isaac. I was a subscribing witness to the deed at the instance of William Scarborough.

"To the fifth cross-interrogatory the witness answering saith: I do not know by whom the deed was drawn; the other subscribing witness was Mr. Guilmartin; he was requested to be so by William Scarborough. There was a change of one of the witnesses of the deed, in consequence of James Taylor, who had previously arranged to be a witness, declining to be so after his arrival at William Scarborough's house, for that purpose. I do not remember

about two hours previous to signing the deed, and left soon after.

"To the seventh cross-interrogatory the witness answering saith: James Taylor, now the husband of the complainant, had been asked by Mr. Scarborough to attest the deed as a witness, and he consented to go with me to the house for that purpose; *after closing [*195 our place of business, I asked him to accompany me; he said he would soon follow me, which he did; he did not express himself opposed to the execution of the deed, that I am aware of; I certainly never heard him. It was not known or understood by me, that he was under an engagement to marry the complainant; the previous year there was something of the kind spoken of, but he and the complainant had disagreed, and I was given to believe that it was all broken off. At the dissolution of the partnership of Low, Taylor & Company, in 1834 or 1835, James Taylor was largely indebted on private account to the said firm; and sometime in 1835 I granted him a discharge from the said debt, in consideration of his giving up to me every description of property belonging to himself and his wife, except his household furniture, which I allowed him to retain; he did not at this time mention to me that he or his wife had any claim to the property in question, or I should have claimed it in conformity with our agreement. I had never heard of his making any claim to the property conveyed by the said deed, or any part of it, until advised of it by William Robertson, under date of the 16th February, 1844.”

John Guilmartin:

"To the first direct interrogatory the witness answers and says, that his name and handwriting is to the instrument as a witness, and that he subscribed as a witness, at the instance of William Scarborough, the deed now presented to him, being the original deed from complainant to Wm. Taylor, in trust.

"To the second direct interrogatory the witness answers and says, he cannot say positively he does, but it strikes him that there was a question or two asked Miss Charlotte Scarborough, viz., whether it was with a free will; he does not recollect the time; but that he does not recollect that Andrew Low, senior, was present when he came in; Mr. Scarborough said he had sent for witness, as such to a deed from Miss Scarborough to her mother, of property, which as a dutiful child she had made. `Witness asked Miss Scarborough if it was her voluntary act. Mr. Lowe replied, that witness was called in to witness the deed, and for no other purpose; she did not read the deed, or hear it

read in witness's presence.

at Mr. Scarborough's house, in West Broad Street."

It was executed | tween actual and constructive fraud. There is no difference, legally, in the degree of the fraud, and the distinction is between the same kind of fraud, one supported by evidence of actual imposition, and the other being inferred from circumstances. In neither case does the court regard the morality or immorality of the

At the April adjourned Term of 1846, the cause came up for argument before the Circuit Court, when the bill was dismissed.

The complainant appealed to this court. It was argued by Mr. Holmes for the appel-transaction. Ex-parte Bennett, 10 Ves. 393; 8 lant, and Mr. Johnson (Attorney-General) for the appellee.

196*] *Mr. Holmes first remarked upon the lapse of time, which he contended was not sufficient to bar a recovery. 3 Atk. 558; 2 Eden, 285; 2 Story's Eq. secs. 1520, 1521; 1 Howard, 189; 4 Howard, 560.

The points raised by the pleadings in behalf of complainant, for cancellation of the deed,

were:

1. Duress.

2. Want of consideration

3. Fraud, growing out of the relation of the parties as parent and child, trustee and cestui que trust.

1. Duress. [Mr. Holmes commented upon the evidence in the case, to establish this.]

Wheat. 463. All such cases are forbidden by "the morality and policy of the law, as it is administered in courts of equity." Michoud v. Girod, 4 Howard, 503.

The whole doctrine on this subject has been condensed and illustrated by this court, in the case of Michoud v. Girod, 4 Howard, 503. The case is too recent to require any particular examination. There the executors, being themselves co-heirs and legatees, bought the estate of their testator at a public sale judicially ordered, denied any fraud in fact or intention, declared that the purchases were rightfully made for a fair price, and yet this court say, in reference to such a transaction, that “an executor or administrator is in equity a trustee for the next of kin, legatees, and creditors, and that we have been unable to find any one well considered decision, with other cases, or any one case in the books, to sustain the right of an executor to become the purchaser of the property which he represents, or any portion of it, though he has done so for a fair price, without fraud, at a public sale." Ibid. 553, 1st. Of parent and child. All contracts and 557. This language covers the whole ground conveyances, whereby benefits are secured by contended for, though the purchase in that children, to their parents, are objects of jeal-case having been per interposition personam ousy. 1 Story's Eq. Jur. sec. 310; 2 Atk. 85, was the reason, probably, why the court de258; 4 Wash. C. C. 397; 12 Peters, 253; 2clared that it "carries fraud on the face of it." Johns. C. 252.

2. Want of consideration. It is admitted that mere inadequacy of price is not of itself a distinct ground of relief in equity. But, under peculiar circumstances, it may amount to such fraud as will be relieved against. 1 Story's Eq. sec. 246; 1 Desaus. Eq. Rep. 651; 11 Wheat. 124. 3. The relation of the parties; and,

2d. The relation of trustee and cestui que trust. Taylor, the grantee in trust, and Scarborough, were two of the executors of the will of Isaac. The will was proved only five days before the execution of the deed. Executors are trustees for legatees. 1 P. Wms. 544, 575; 1 Story's Eq. sec. 322; 7 Ves. 166; 1 Story's Eq. sec. 423; 10 Peters, 639.

Both executors and ordinary trustees are prohibited by the rules of courts of equity, from considerations of general policy, from dealing with those whose interests are intrusted, during the continuance of the fiduciary relation. 1 Story's Eq. secs. 321, 322; Hatch v. Hatch, 9 Ves. 292; 1 Johns. Ch. 497, 620; 4 Johns. Ch. 303; 7 Johns. Ch. 174; Lewin on Trustees, 376, Willis on Trustees, 163; Fonbl. Eq. book 2, sec. 7, and notes; 1 Madd. Ch. 110 et seq. 2 Madd. Ch. 132; Sugden on Vendors, 421 to 436; Wormley v. Wormley, 8 Wheat. 421; 1 Peters, C. C. 364; 4 Desaus. 654; Ex-parte Bennett, 10 Ves. 381, 385, 386; 14 Ves. 91, 273; 13 Ves. 47.

The case of Hatch v. Hatch, 9 Ves. 292, proves that the rule of prohibition extends to conveyances without consideration of money, as for friendship, kindness, and regard, etc., etc. And it is settled in Ex-parte Bennett, 10 Ves. 393, that, in order to set aside the sale, it is not necessary to show that the trustee has made any advantage. And see 1 Story's Eq. sec. 322.

197*] *The conduct of the executors having been a breach of trust, it is unnecessary to consider the distinction, if any really exists, be

And in the same case this court, commenting upon Davoue v. Fanning, said: "The inquiry in such a case is not whether there was or was not fraud in fact. The purchase is void, and will be set aside at the instance of the cestui que trust, and a resale ordered, on the ground of the temptation to abuse, and of the danger of imposition inaccessible to the eye of the court." Ibid. 557.

It would be difficult in principle to recognize a distinction between Davoue v. Fanning and the case at bar. In that case a purchase was made per interposition personam for the wife of the executor; here a voluntary conveyance (by which is meant a conveyance without consideration) is taken to one executor for the benefit of the wife of another—that is, for the benefit of that other, and who himself procured the conveyance to be made. If Searborough had taken the conveyance directly to himself, or through Taylor, the executor, for his own benefit, *such a transaction [*198 could not stand. Will it be permitted to stand, his wife being the cestui que trust for life?

[Mr. Holmes then argued that the marriage settlement, which was stated in the deed to be one of the considerations thereof, had been treated by all parties for a long time as a void instrument; and then proceeded to examine the doctrine of estoppel as applicable to the case.]

If, then, for any of the reasons assignedduress, the relation of the parties, fraud actual or constructive the deed of complainant cannot be upheld as a family compromise, between which and the present case there is not the

least analogy, the question then recurs, To as to her filial duties, and her rights to the what relief is complainant entitled? property left her by her uncle; and of extreme

1. She is entitled to have the deed can-urgency and harsh treatment on the part of her celled.

2. To an account of the personal property,

and

3. To an account of the rents and profits of the real estate from the executors of William Taylor, the trustee, and

4. To a settlement of the entire fund upon trustees for her separate use during life, and after her death to her children,.or such other equitable settlement as the court may decree. Mr. Johnson, for the appellees, contended: 1. That, as it is now admitted that complainant was of age at the time the deed of 22d January, 1828, was executed by her to William Taylor, the character of the said deed takes it out of the principles by which, in certain cases, deeds are in equity considered void, because of the relations of the parties to the same. Pratt v. Barker, 1 Sim. 1; 2 Cond. Eng. Ch. 1; Hunter v. Atkyns, 8 Cond. Eng. Ch. 303, 313, 321; Tendril v. Smith, 2 Atk. 85; Manners v. Banning, 2 Eq. Cas. Abr. 282; Smith v. Low, 1 Atk. 490; Cory v. Cory, 1 Ves. Sen. 19; Brown v. Carter, 5 Ves. 876; Hotchkiss v. Dickson, 2 Bligh. 348; Tweddell v. Tweddell, 11 Cond. Eng. Ch. 1-8; Jenkins v. Pye, 12 Pet. 241, 253.

parents, to procure its execution; and of the hope, by a compliance with their importunities, of reconciling her parents to her marriage with her husband, which marriage they had theretofore opposed. The objection of non-age must be surrendered in this investigation, it being ascertained that the complainant was some few months over majority when the deed was executed. The other allegations, as resting upon the proofs in the cause, and upon the law as applicable to them, remain for consideration.

The rules of law supposed to control the contracts of parties who do not stand upon a perfect equality, but who deal at a disadvantage on the one side, whether applicable to the relations of parent and child, trustee, and cestui que trust, attorney and client, or principal and agent, have been laid down in various cases in the courts both of England and of our own country. To trace these rules to the several cases by which they have been propounded would be an undertaking rather of curiosity, than of necessity or usefulness here, as the extent to which this court has applied them, or is disposed to apply them in cases resembling the present, may be found within a familiar and direct range of inquiry. They are aptly exemplified by the late Justice Story, in his treatise on Equity Jurisprudence, Vol. I. sec. 307, where, speaking of frauds which "arise from some peculiar confidence or fiduciary relation between the parties," *he re- [*200 marks: "In this class of cases there is often found some intermixture of deceit, imposition,

II. That if the deed was at any time within such principle, the long acquiescence, with knowledge, derives the grantor of the right to avoid it on that ground. Peck v. Randall, 1 Johns. 165; Mooers v. White, 6 Johns. Ch. 372; 2 Story's Eq. 736; Elmendorff v. Taylor, 10 Wheat. 168, 169, 171; Bank of United States v. Daniels, 12 Pet. 32; Foster v. Hodg-overreaching, unconscionable unconscionable advantage, son, 19 Ves. 185; Gregory v. Gregory, Coop. 201; Prevost v. Gratz, 6 Wheat. 497.

III. That there is no evidence of duress in fact, or of undue influence, or of fraud; that the deed was in all respects a fair and proper deed, being supported by the consideration of love and affection; and if that of itself was not 199*] sufficient, it is valid *by reason of the marriage contract between the father and mother of the complainant, of the 18th April, 1805, which was omitted to be recorded in Georgia, where the property lay.

Mr. Justice Daniel delivered the opinion of the court:

The object of the complainant below (the appellant here), as disclosed in her bill, is to vacate the deed, executed on the 22d day of January, 1828, by her before her marriage, conveying to William Taylor in trust for the use of the mother of the grantor for life (exempt from the debts of her father), and after the death of her father and mother, for the use in equal portions of the said grantor, and of her brothers and sisters, all the property real and personal which was given to the said grantor by the will of her uncle Robert Isaac, whose will is made an exhibit in the cause and referred to in the deed.

The grounds on which this deed is impeached are the following: "That it was founded on no real consideration; was executed during the non-age of the complainant, and whilst she was living in the family of her parents; that it was extorted from her by false representations, both

or

other mark of direct and positive fraud. But the principle on which courts of equity act in regard thereto stands independent of any such ingredients, upon a motive of public policy; and it is designed in some degree as a protection to the parties against the effects of overweening confidence and self-delusion, and the infirmities of hasty and precipitate judgment. These courts will therefore often interfere in such cases, where, but for such peculiar relations, they would wholly abstain from granting relief, or grant it in a very modified and abstemious manner." He proceeds (sec. 308): "It is undoubtedly true, that it is not upon the feelings which a delicate and honorable man must experience, nor upon any notion of discretion, to prevent a voluntary gift or other act of a man whereby he strips himself of his property, that courts of equity have deemed themselves at liberty to interpose in cases of this sort. They do not sit, nor affect to sit, in judgment upon cases as custodes morum, enforcing the strictest rules of morality. But they do sit to enforce what has not inaptly been called a technical morality. If confidence is reposed, it must be faithfully acted upon, and preserved from any intermixture of imposition. If influence is acquired, it must be kept free from the taint of selfish interests, and cunning, and overreaching bargains. If the means of personal control are given, they must be always restrained to purposes of good faith and personal good. Courts of equity will not, therefore, arrest or set aside an act or contract, merely because a man of more honor