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ment is binding, for the compromife was of a doubtful right, and fo contemplated by the parties. So where the parties have all equal means of knowledge, and have a full opportunity to know the fact, and make a mistake, equity will not relieve.

s An artful fervant who had great influence over a weak mater procured a conveyance of real eftate, to qualify him to kill game according to the English law, and a fictitious confideration was inferted in the deed. The fervant then claimed to hold the estate by the conveyance, as a gift, and on a trial at law his title was eftablished. But equity relieved on the ground of fraud, impofition and undue influence, and the rule was laid down, that where a confideration was expreffed in the deed, the claimant could, not fet up a different confideration, or claim as a gift, and that fuch an attempt was an evidence of fraud. The party imposed upon, at whose fuit the conveyance was fet afide, was not fo weak as to be unfit to manage his affairs, but only fo weak as to be liable to be impof ed upon.

A perfon obtained a conveyance without confideration, from another, over whom he had great influence and command, and who, tho he could not legally be confidered as a lunatic, or idiot, yet was a very weak man, unfit to manage his bufinefs, and liable to be impofed upon. Such conveyance was fet afide in favor of the heir, and the circumftance of not reading the deed to the perfon, was confidered as a badge of fraud. Tho it appeared that he intended to difinherit the heir, yet as it appeared that fuch intention was owing to the fraud of him who obtained the conveyance, it was determined that this would bring it back and revelt it in the heir. Here the relief is grounded on the fraud and impofition, without any adequate confideration, for if the agreement had been fairly made, and a reafonable confideration given, it would have been binding. So far then, equity may relieve weak and fooliha men, from their agreements, and this is abfolutely neceflary to protect them against sharpers: but if a man of common fente, ia the exercife of his reafon, makes a foolish bargain, not having been deceived by any mifreprefentation or fuppreffion of the truth, he can have no redrefs. For equity may relieve the weak and fool

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ith, from their contracts, when an unfair advantage is taken of their weakness or folly but will never relieve men of sense from their contracts, when they were overtaken by weakness and folly,

Conveyances which operate to the prejudice of purchafers, may be fet afide for fraud. Faulkner having a deed of land unrecorded, fold the land to Stedman for a debt, who fuppofed the deed to have been recorded. Afterwards, Faulkner with a view to defeat Stedman's title, applies to the perfon of whom he purchafed, for a new deed to his fon, on giving up the deed to himself, ftating that as his deed had not been recorded, a new deed might on that being given up, be fafely given to his fon, and concealing the fact, he had given a deed to Stedman. The original vender fufpecting no fraudulent defign, took up the old deed and gave one to the son, which was recorded, and which defeated Stedman of his legal title. He then brought his petition in equity against the Faulkners, and the original vender. Faulkner attempted to rebut the equity of Stedman's claim, by fhewing that he did not owe the debt for which the deed was given; and that therefore, he was justified in taking fuch a measure to defeat it. On enquiry, this fact was found to be falfe, and the court set aside the deed to the fon, and decreed that the person who conveyed to Faulkner, fhould convey to Stedman.

Creditors may apply in equity to have deeds vacated, which were fraudulently calculated to defeat their title, tho generally fpeaking, they have remedy at law, as fraudulent conveyances are void at law, against creditors.

E. G. was largely indebted, and having property, purchased lands of Tilden, and took the deed to his father, to screen the land from his creditors. The father mortgaged as collateral fecurity, part of the land to Davis, for his own debt. Fifk, one of the creditors to the fon, levied an execution thereon as his eftate, and then applied to Davis, and requefted him to levy the execution which he had obtained for his debt fecured by the mortgage on the other lands of the father, and permit him to fatisfy his debt, by the land taken by his execution-But Davis refused. Fisk then

brought

brought his petiton in equity, against the father, Davis, and Tilden, praying that the conveyance from Tikien, to the father, and from him to Davis, might be fet afide, and Tilden ordered to releafe to him. To this there was a plea in abatement, and it was argued that Davis was a creditior to the father, and therefore dood in equal equity with Fisk, and that in like cafes, the condition of the poffeflor was beft. For Fifk it was contended, that the land really belonged to the fon, who was his debtor, that Davis might relinquifh his claim upon the mortgaged premifes, and fecure his whole debt by levying on the other lands of the father: that unless Fifk could hold the lands in queftion, he must lose his whole debt, and that it was a rule in equity, that where one claimant has more than one fund to refort to, and another has only one, the first fhall refort to that fund on which the fecond has no lien. The court fuftained the petition-but it is was withdrawn without a trial on the merits. The decifion however fettles the point that where one claimant has feveral funds to refort to, and another has but one, that the firft fhall refort to the fund which is out of the reach of the fecond-and that they would have fet afide the deed and ordered conveyances which would have been competent to fuch purpose.

If this cafe had been tried on the merits, there might have been a queftion whether Davis had two funds to refort to, as the land in queftion was all that was mortgaged, and he had only a legal right to levy his execution on other eftate of G. without having a legal lien thereon: but this makes no difference in point of principle, for if Davis had two funds, then the decree must have been in favour of Fisk.

When debtors attempt to fcreen their lands from being taken on execution for their debts, by their creditors, courts of equity will interpofe. Thus if a man having a deed of land, neglects to record it, for the purpofe of preventing the levy of an execution upon it for his debts, the creditor may attach and caufe his execution to be levied in the fame manner, as tho the deed was recorded, and then by an application in equity, he may compel the vender to release to him, by which he will acquire a legal title. In a fimilar cafe the vender after the land was attached, took back the deed

4.2 Atk. 246.

deed on an agreement that the fame boull be void, for the purpose of defeating the creditor, who had attached. But he was decreed, to releafe.

If the parties in conveying lands fhould make any mistake in drawing the deed, in the defcription of the land, or the like, and the party to whofe advantage the mistake operates, should refute to rectify it, he might be compelled by a court of equity. So if the conveyance fhould be defective, wanting certain legal requifites, yet if the contract of sale was bona fide, and an adequate confideration given, by which the purchaser acquired an equitable title, he who has the legal title might be compelled in equity, to release to him who has the equitable estate.

A court of equity may decree the conveyance of lands, where a perfon has by a miftaken apprehenfion of the fubject given up his contract, and has no remedy at law. A man purchased lands of two joint-tenants, and gave to them jointly a note for the paynient, and took from them a bond for a deed on payment of the money within a certain time. Before that time one of the joint tenants died, having appointed the other his executor. Within the time limitted the purchafer paid the money to the furvivor, and took from him. a deed of the land. As the furvivor was executor to the deceased, the purchaser fuppofed that the deed vefted him with a compleat title to the land, and upon that mistaken idea, gave up his bond for a deed. He took poffeffion of the land and occupied it for a long time, when the heirs of the deceafed joint-tenant, being fued for a debt contracted by him for the purchase money of the land in queftion, brought their action at law for the recovery of the land. It was apparent that the purchafer, (as the right of furvivorship is not admitted by our law,) had not a legal title; but as he had paid for the land, to the perfon who had a right to receive the money, (the furviving joint-tenant being one of the promifices in the note, and executor to the deceased,) he clearly had an equitable title and the giving up the bond, being in confequence of a miftaken apprehension refpecting the effect of the conveyance, could not in good confcience prejudice his claim. On a bill in equity, the court decreed that the heirs who claimed the land, fhould releafe

:

a Mathewfon vs. Parkhurft, &c. S. C. 1792.

to

1

to the purchaser, and laid a perpetual injunction on all proceedings at law.

y Where a deed or will, is fuppreffed by a perfon deriving an advantage from fuch fuppreffion, the party claiming under fuch deed or will, may by application to a court of equity, obtain a decree to hold and enjoy the eftate, and the fuppreffor shall be ordered to convey.

Bill in equity may be brought to compel a perfon who has the deeds of another, to deliver them up; for in trover damages only could be recovered.

CHAPTER EIGHTH.

OF THE POWER OF COURTS OF EQUITY RESPECTING
CONTRACTS OF A PERSONAL NATURE.

UNDER

NDER this head I fhall confider, 1. The power of a Court of Equity, to decree the specific performance of perfonal Contracts. 2. The power of a Court of Equity to enforce the performance of a perfonal Contract, where there is no legal remedy.

3. The power of a Court of Equity to fet afide a perfonal Contract.

4. The power of a Court of Equity to relieve in cafe of Miftakes in perfonal Contracts.

1. The power of a Court of Equity, to decree the fpecific performance of perfonal Contracts.

a

It is a general rule, that where the matter refpects perfonal things, and lays merely in damages, there the remedy is at law only. As well, becaufe courts of law can give as full and effectual reparation in fuch cafes as courts of equity, as because the afcertainment of damages is the proper bufinefs of a jury, and cannot be adjusted by the confcience of a chancellor. But where the specific execution of a perfonal contract, is necellary to do effectual juftice, and anfwer the fubítantial intent of the parties; courts of equity will decree the agreement fpecifically, tho otlerwife

Nnn
JI P. Will. 7:18. ≈ 2 Alk. 306. 2 Paw. Coa. 15. 17.

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