V. May Term, That proof might have been oral. If such evidence were 1854. offered and received over the objection of Brown, the proBROWN per way of presenting the question for review in this Court, WOODBURY. Seems to be by bill of exceptions as in a case at law. Oral evidence of exhibits does not become a part of the record in chancery any more than at law, unless made so in the legitimate mode. So that as the record stands, the proof of the assignment at the hearing will be presumed to have been made without objection from Brown, or that his objection was not interposed at the proper time. 8 Blackf. 401. 2. But does the answer sufficiently deny the assignment, so as to put the complainant upon the proof of it? We think not. Brown simply "denies having any knowledge of the assignment." He does not deny its being made. His "knowledge of the assignment" was not essential to its validity. Nor did his denial of such knowledge put the validity of the assignment in issue. It was wholly immaterial whether he knew it or not. If he meant to put the plaintiff to the proof of the assignment, he should have denied the fact under oath. Allowing to the answer in chancery the same force as to a plea of non-assignment, the defendant has not brought himself within ss. 216 and 217, R. S. 1843, p. 711. The oath or affirmation, in such case, should be, that the party has reason to believe, and does verily believe, that such assignment was not made, &c. The second objection is equally untenable. Brown set up in avoidance as to part certain matters of payment. If they were not allowed by the Court, we must presume that the ruling was correct, for it does not appear that the defendant offered any evidence in their support. He has, therefore, nothing to complain of. The proof of all facts in avoidance lies upon the party alleging them. But in looking over the exhibits it appears that in point of fact he has been allowed all the credits claimed. The decree is less than the face of the papers would authorize, by the exact sum set up in the answer. Per Curiam.-The decree is affirmed, with 10 per cent. May Term, damages and costs. D. Moss and R. L. Walpole, for the plaintiff. H. C. Newcomb, for the defendants. 1854. JENNINGS JENNINGS V. KEE and Wife. In cases in chancery, the Supreme Court will seldom increase the amount of the decree against the appellant, except where it is glaringly inadequate. Land of an intestate held by equitable title (no deed having been made to him) was sold by his widow, it did not appear by what authority, and a part of the purchase-money was received by the guardian of one of the heirs. In a proceeding by such heir, who had attained to adult age, against the guardian for an account, Held, that it was competent for the heirs to affirm the sale and follow the proceeds. Held, also, that an election to take the proceeds was of itself an affirmance of the sale. In cases of delinquency and neglect on the part of a guardian, the Courts will presume in favor of the ward and against the guardian, as strongly as the facts will warrant. An acknowledgment or admission made by an administrator can not bind the heirs. 5 257 141 179 June 12. APPEAL from the Tippecanoe Court of Common Pleas. Monday, It appears that James Cory, the father of Mrs. Kee, owned a quarter-section of land in Ohio, where all the parties then resided. To pay off a small debt, he exchanged lands with his brother, Elnathan Cory, and received for the difference in value a sum sufficient to discharge his indebtedness. He conveyed to his brother, and in 1828, before Elnathan had made him a conveyance, died, leaving Martha Cory, his widow, and Abigail and Jane Cory, his children and sole heirs. Abigail intermarried with Jennings, the appellant; Jane with Kee, the appellee. At the death of her father, Jane was eleven or twelve years old. After the VOL. V.-17 May Term, 1854. JENNINGS V. KEE. marriage of her sister, she resided with Jennings until her own marriage in 1838. Martha Cory, the widow, and one Adkinson, administered on the estate. Martha empowered Jennings (it does not appear by what authority) to sell the land. Jennings sold accordingly, and the deed was made by Elnathan Cory to Vandeveer, the purchaser. It does not appear whether Vandeveer had any notice of the equity of the Cory heirs. The sale was for 1,400 dollars-half in cash, and the other half on time. This money, thus passing into the hands of Jennings and Mrs. Cory, it is contended was paid out on the debts of the estate, though the evidence as to the existence of the alleged debts is conflicting and by no means satisfactory. For instance, the alleged claim of Elnathan Cory for from 500 to 800 dollars, which it is contended James, the ancestor, was indebted to him at the time of the exchange of land, is but feebly supported and strongly impeached. It is very improbable that Elnathan would have paid 200 dollars in the land exchange at the very time that James owed him 800 dollars. To credit the difference of the land on the claim, would, unexplained, be the natural course of events. The estate was never settled up, so that there is no means of knowing very distinctly what its situation was. Jennings, the appellant, was appointed Jane's guardian, it seems, in Ohio; and continued to act as such in this state. It does not appear that he ever settled up his guardianship; so that there are but slender means of ascertaining with accuracy how that stands either. In 1837, Jennings admitted that there were 1,200 dollars to be divided among the three-mother and two daughters; and that he had received Jane's share. He afterwards paid 300 dollars. On this state of facts, there was a decree against Jennings in the Court below for 216 dollars and 90 cents. To reverse this decree, Jennings appeals. We are not disposed to disturb this decree. A fair de duction from all the facts, would, we think, authorize its increase considerably. But Courts will seldom interfere in that way, unless, as in cases like that of Benton v. Shreeve, 4 Ind. 66, where the decree is glaringly inadequate in amount. It is objected that the land was not properly conveyed so as to divest the title of the heirs of Cory; and therefore that the proceeds of this irregular sale are to be regarded as held in trust, not for the heirs of Cory, but for the purchaser, Vandeveer. Perhaps the Cory heirs might still proceed for the land; but that point is not before us, and we do not decide it. But admitting it to be so, that does not preclude them from affirming the sale and following the proceeds. It is very clear they can not have both the land and the purchase-money. If they elect to take the proceeds of the land, that is itself an affirmance of the sale. So far as Kee and wife are concerned, that election has been made by the institution of this suit. Were this the proper tribunal, the proper parties before the Court, and a proper case made on these facts, a Court of Equity would order a deed of conveyance to Vandeveer, and, if thought necessary, appoint a commissioner to convey. We can see no force in that objection. Nor can we give much weight to the account which Jennings sets up in his answer, claiming for Jane's board, clothing, &c., while she lived in his family. The evidence is conclusive that her services were of more value than her board, &c. The strong presumption is, that neither Jennings, on the one side, nor Jane, on the other, ever thought of making charges of this character against each other till after the institution of this suit. Jennings having set up such matters in defence, it was competent for the complainants to show that the matters charged had been paid for or discharged in some other way. The whole case looks bad, or at least inexcusably negligent, on the part of Jennings. Why did he not settle with the proper Court as guardian, and produce the record of that Court as evidence of the correctness of his course in discharging the duties of the trust he had accepted? In May Term. 1854. JENNINGS V. KEE. May Term, all cases of delinquency and neglect, the Courts will presume in favor of the ward and against the guardian, as strongly as the facts will warrant. 1854. KELLER V. DUNCAN. It is contended that the Court below erred in suppressing that part of Mrs. Cory's deposition, which related to the amount of moneys received by Jennings as guardian. Had Mrs. Cory proceeded legally to sell the realty as administratrix, and disposed of the proceeds according to law, the records of the proper Court would have shown how much money she had paid to Jennings as guardian, after the administration was closed. This she did not do. The heirs were the owners of the real estate, and are not to be charged at the pleasure of the executor or administrator with debts. Mooers v. White et al., 6 Johns. C. R. 360. As against the heirs, or either of them, her evidence was clearly inadmissible. Nor was she, in any sense, either individually or in her fiduciary capacity, a party or privy, so as to entitle her admissions to the character of evidence. She stood in no such relation that either what she said or did could bind the heirs. She could only affect their rights by a judicial proceeding in substantial conformity to the statute. Her evidence was correctly excluded. Per Curiam.-The decree is affirmed, with 2 per cent. damages and costs. R. C. Gregory, J. Pettit and S. A. Huff, for the appellant. G. S. Orth, E. H. Brackett and H. W. Chase, for the appellees. Monday, KELLER and Others v. DUNCAN. ERROR to the Wabash Circuit Court. Per Curiam.-The judgment in this case is affirmed with costs, for the reasons given in Keller v. Duncan, ante, p. 243. D. M. Cox, for the plaintiffs. J. M. Wheeler, for the defendant. |