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his right as administrator of the husband. The, interest in the slaves, the subject matter of the bill is, probably, defective for want of this suit, or that they are in any way liable to acaverment; but as it is defective upon another count to him for the same, or chargeable for ground, which we shall presently state, it is their services. unnecessary to express a definitive opinion up

on this one.

The purchase of Lavinia, by Blacklock, of the life tenant, was lawful, and vested in him the title and right to her service and increase, until the termination of that estate, in 1840. The sale by him of Betsey to Coleman was also lawful; and whether or not the others continued in the family and belonged to him at his decease, and passed to the widow and children, as part of his estate, is nowhere stated in the bill.

The will of Elizabeth Edwards bequeathed to Sarah Nutt, her daughter, the slave, Lavinia, together with her future increase, during her life, and, at her death, to Elizabeth, the granddaughter, the wife of the intestate, and to her heirs forever. And the daughter, before the termination of the life estate, and after the slave came into her possession, sold her to one Nicholas F. Blacklock, residing in There is no averment that the children, who the city of Alexandria, since deceased, leaving are made defendants, took any interest in them a widow and three children. These children at his decease, as his heirs, next of kin, or and the husband of one of the daughters are legatees; and, as we have already stated, not made defendants, and also the husband of the even so much as possession. The only allegaonly living child of George Coleman, who, it is tion in this respect is, "that, since the sale to charged, purchased Betsey, one of the chil- Blacklock by Mrs. Nutt, the said Lavinia has dren of Lavinia, and William D. Nutt, his ad- had a numerous increase, to wit, children and ministrator. These comprise all the defend-grandchildren, most of whom have been sold, ants. or otherwise disposed of, as your orator is inThe bill prays that the defendants may be formed and believes; and that some of them decreed to make restitution of the slave La- are now going at large, or are in the possession vinia, her children, and grandchildren, and of the family of the said Blacklock;" but in also to make compensation for the services of the possession of what members of the family, the same since the right of the intestate ac- or whether in the possession of any of those crued; and, further, that they discover the who are made defendants, are matters left altonumbers and names of the children and grand-gether to conjecture and surmise. children, and the person or persons in whose The same vagueness and uncertainty exist in possession they are, or who own or claim them, respect to the charges against the other defendor either of them; and also various other facts ants. and circumstances tending to establish the title of the complainant to Lavinia, and her increase, which it is not material further to notice.

The ground of objection upon the demurrer, in this part of the case, is, that there is no direct or positive averment in the bill that the defendants, or either of them, have any interest in the slaves in question, or that the slaves themselves are in their possession, or under their control, or in the possession or under the control of either of them; and which ground of objection, we are of opinion, is well taken, and fatal to the relief prayed for.

There is not only no direct averment of possession or control, but the contrary appears upon the face of the bill. It is charged that Lavinia and her daughter Maria reside in the town of Alexandria, and go out to service, accounting therefor to the family of Nicholas F. Blacklock, for and in behalf of the widow, who is not a party to the bill; that Polly and 182*] her children *reside in the city of Washington, with persons unknown; and that Betsey and her children are either in the actual possession of Richard Davis, the husband of the daughter of George Coleman, deceased, or under the control of William D. Nutt, his administrator.

Possession is thus shown to be out of the defendants, with the exception of Betsey and her children, who are stated, as we have seen, to be either in the possession of Davis, or under

the control of Nutt.

It is apparent, therefore, upon the face of the bill, that the complainant has set forth no title to relief against these defendants, or either of them, whatever may be the right which he has shown to the slaves themselves; as it is not averred that they or either of them have any

There is no averment that Betsey and her children belonged to Coleman at his decease, and passed to his widow and children, or that they had any interest in the same, the only allegation, in this respect, being, that they are said to be in the possession of Davis, the sonin-law, or under the control of Nutt, the administrator.

The radical vice in the bill is, that no case is made out against these defendants, or [*183 either of them-no foundation laid creating a liability, legal or equitable, to deliver the slaves to the complainant, or to account for their value or services; they seem to have been made parties, one and all, as witnesses to establish a supposed right of the intestate to the property, under the idea that, from their connection with the families of the former owners of the life interest, they might be able to give some information on the subject. Story's Eq. Pl. secs. 234, 244, 245, 510, 519; Cooper's Pl. 41, 42; 2 Johns. Ch. 413.

There are other objections taken to the relief sought in this form, which are worthy of consideration; but as the ground above stated disposes of the case, it is not important that we should examine them.

The complainant having, in our judgment, failed to set forth any foundation for relief, the right to the discovery, which is claimed as incidental, of course fails with it. Story's Eq. Pl. sec. 312 and note; 17 Maine, 404; 3 Edw. 107; 3 Beav. 284.

The decree below must be affirmed.

Order.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Columbia,

holden in and for the County of Alexandria, 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.

CHARLOTTE TAYLOR, by James M. Walker, her next Friend, Appellant,

V.

JAMES TAYLOR, Julia Scarborough, Godfrey
Barnsley and Julia, his Wife, Joseph Scar-
borough and William Scarborough, Robert
M. Goodwin, Norman Wallace, and Andrew

T. Miller.

Equity-conveyance to parents by female child just of age-not prima facie void-set aside.

of

A deed from a female child, just of age, and living with her parents, made to a trustee for the benefit of one of those parents, founded on no real consideration, executed under the influence misrepresentation by the parents, and containing in its preamble a recital of false statements, ordered to be set aside, and the property reconveyed to the grantor.

The principles upon which a court of equity interferes to protect persons from undue and improper influences examined and stated.

HIS was an appeal from the Circuit Court

Georgia, sitting as a court of equity.

On the next day, namely, the 6th of June, 1819, Scarborough confessed a judgment in favor of Andrew Low for $87,534.50.

On the 13th of May, 1820, Scarborough executed a deed in fee-simple of the above described property to Robert Isaac.

On the 18th of November, 1820, Scarborough was discharged as an insolvent debtor by the Chatham County Inferior Court.

On the 2d of January, 1825, a sale of Scarborough's furniture took place by the marshal, under an execution which had been issued by virtue of a judgment obtained against him by Andrew Low. The property was all purchased by Isaac, according to the following schedule. It is inserted here for the purpose of being compared with the inventory which was taken of Isaac's property after his death, and which will be stated in its proper place: *Andrew Low v. William Scarborough.—[*185 Marshal's Sales.

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60 00

75 00

30 00

25.00

To silverware

400 00

To carriage and gig
To pair carriage horses
To saddle horse...

250 00

200 00

80 00

To furniture in bed room,
No. 3

To furniture in bed room,
No. 4

To furniture in bed-room,

No. 5

To kitchen furniture.

$2,940 00

184*] *The bill was filed in the Circuit Court by Charlotte Taylor, formerly Charlotte Scarborough, a resident of the State of New Jersey, to set aside a deed which she alleged had been obtained from her in an illegal and fraudulent manner. The defendants were James Taylor, her husband, some of the members of her family, Robert M. Goodwin, who had become the trustee under the deed after the death of William Taylor, the original trustee, In February, 1826, an agreement was made and Wallace and Miller, who were the executors of William Taylor, the original trustee. amongst the partners constituting the firm of Prior to the year of 1819, William Scar. Low & Company, by which the house and borough, a merchant residing in Savannah, became embarrassed in his affairs, and on the 5th of June in that year executed a mortgage for the purpose of securing his indorsers upon certain notes; the indorsers being Andrew Low & Company, and William Taylor. The firm of Andrew Low & Company was composed of Andrew Low, Robert Isaac (who had married William Scarborough's and sister), James McHenry.

The property mortgaged consisted of certain stocks and real estate, amongst which was the following lot: "All that lot of land, and the buildings and improvements thereon, situated, lying, and being in the city of Savannah afore said, bounded on the east by West Broad Street, on the south by a street or lane thirty feet wide, and on the west and south by the lots contiguous to the same, containing ninety feet in front, and being the lot and buildings opposite Mr. Daniel Hotchkiss, and recently erected by the said William Scarborough."

Note. When a deed is vold in equity for fraud, Insanity, drunkenness, duress, undue influence, imbecility, Infancy, or fraud on marriage, from ward to guardian, to trustee from cestui que trust, to executor from heir. See note to 16 L. ed. U. S. 429.

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On the 26th of August, 1827, Isaac made his will, which contained the following clause: "Seventh. Item, I give and bequeath unto my beloved niece, Charlotte Scarborough, all my right, title and interest in and to the lot, dwelling-house, and all other improvements thereon, which formerly belonged to her father, William Scarborough, on West Broad Street, in the city of Savannah, known in the plan of said city as lot No. together also with the plate, furniture of all kinds, books and prints, all which were purchased and paid for at marshal's sales by me."

On the 16th of October, 1827, Isaac died. ecutors, but only three acted, viz., William Eight persons were named in the will as exScarborough, William Taylor, and Norman Wallace, to whom letters testamentary were granted on the 17th of January, 1828.

On the 9th of January, 1828, the will was proved, and on the next day, viz., the 10th, Charlotte Scarborough, the niece and [*186

devise of the deceased, addressed the follow-ham County; and whereas the said Charlotte ing letter to her father, William Scarborough: Scarborough, to whom the aforesaid devise was made, being of lawful age, and being desirous of conveying or carrying the said marriage settlement into effect, according to the original intention of the parties thereto, hath determined to convey all her right, title, and interest in said property in trust for that purpose. Now, this indenture witnesseth, that the said Charlotte, in consideration of the premises, and from natural love and affection for her her sisters and brothers, and also in considerasaid beloved mother, Julia Scarborough, and tion of the sum of one dollar, to her in hand paid by the said William Taylor of the secknowledged, hath granted, bargained, and ond part, the receipt whereof is hereby acsold, released, conveyed, and confirmed, and release, convey, and confirm, unto the said by these presents doth grant, bargain, and sell, William Taylor, his heirs and assigns, all her right, title, and interest in and to the said forth, together with the buildings and improve

"My ever-honored Father,-From a sense of my unworthiness, I am convinced that the love my dear uncle bore me, and which dictated his bequest to me in his last will, would not, could he now see my conduct, condemn me for pursuing the feelings of a heart strongly and sincerely devoted in affection to the members of my family. Having arrived at an age when I may with impunity legally make a transfer of that which has been so generously placed at my discretion, I unhesitatingly follow this course of conduct, unbiased by any control whatsoever; and in the liberty I am now using, I am acting by my own free will, dictated by my feelings alone, and unknown to any person. Thus, then, I most emphatically transfer all my right to the said property (the gift of my ever-lamented uncle), to my beloved mother, to be used and enjoyed as her unquestionable right, during her lifetime; and at her death and yours, to be equally divided between my sisters, brothers, and myself, my right operating in no manner in my favor to the exclusionments thereon, with the appurtenances, and

of the other members of our family.

"In thus making a transfer of the said property, I trust my much loved parent will acknowledge one slight proof of my gratitude for Most thankful do I feel for being made the simple instrument of accomplishing the will of him who has so kindly and generously placed his confidence in me; and in acting thus, convince the world that my devoted affection for him was pure, disinterested, and unbiased by any future expectation.

all his nurierous kindnesses lavished on me.

"I am, dear Sir, your most affectionate and grateful daughter,

"Charlotte D. Scarborough. "Savannah, January 10th, 1828."

On the 22d of January, 1828, Charlotte executed the deed which it was the object of the present suit to set aside. It recited a proposed marriage settlement of 1805, and then pro

ceeded as follows:

"And whereas, from neglect, the said deed was not recorded in Chatham County and State of Georgia, and whereas, in the year 1819, the said William Scarborough having failed in trade, and some doubts having been suggested as to the validity of the said marriage settlement, from the omission to record the same as aforesaid, the said William Scarborough did, in consequence of such doubt, transfer and convey all his right, title, and interest, if any remained to him, in and to the aforesaid named and described lots of land, to his principal 187] creditor, Robert Isaac, of Savannah, his heirs and assigns, in part satisfaction of his debt; and whereas the said Robert Isaac hath recently departed this life, leaving the last will and testament, whereby he bequeathed and devised to the said Charlotte Scarborough, his niece, all his right, title, and interest in the said lots of land, the dwelling-house and improvements thereon, together with the plate, furniture of all kinds, books and prints therein, which were purchased by the said Robert at marshal's sales, in the city of Savannah, which said last will and testament has been duly proved before the Court of Ordinary of Chat

lots of land herein before described and set

together with the plate, furniture of all kinds, which lots, buildings, improvements, furnibooks and prints, hereinbefore referred to; ture, plate, books and prints, were devised to her by the said Robert Isaac, as hereinbefore set forth. To have and to hold the said lots of land, with the other premises and appurtenances, unto him, the said William Taylor, his for the use of the said Julia Scarborough, wife heirs and assigns; in trust, nevertheless, to and of the said William Scarborough, for and during the term of her natural life, not to be in any manner, or by any means, subject to, or liable for, the debts of the said William Scarborough, her said husband; and from and after the decease of the said Julia Scarborough, then in further trust to and for the use and benefit of said Charlotte Scarborough, and such of her brothers and sisters, children of the said Julia, as shall be living at the time of the decease of the said Julia Scarborough, equally to be divided between them, share and share alike."

The deed then contained a covenant for further assurances, and was executed in [*188 presence of Andrew Low and John Guilmartin.

On the 25th of January, 1828, Scarborough, as a qualified executor of the estate of Isaac, exhibited an inventory to the court, from which the following is an extract:

"In the house formerly the property of Wm. Scarborough, and bought by Robert Isaac at Marshal's sales, as per his certified copy: Furniture in room No. 1

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passage, No. 2.
dining-room, No. 3.

$240 00

205 00

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302 00

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large dining-room No. 4.
up-stairs passage, clock and

494 00

lamp

40 00

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bed-room No. 1.

187 00

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"Petit De Villers,

"W. Rose,
"J. B. Herbert,

}

10 00 426 00

230 00

Appraisers."

In April, 1829, Charlotte Scarborough married James Taylor, one of the defendants in the present suit. They removed to New York to reside, in 1835, and afterwards to New Jer sey, where the complainant resided at the institution of this suit. Julia Scarborough, the mother of the complainant, resided in the house in question, at and after the execution of the deed, as did William Scarborough, the father, with occasional absence, until 1835, when he rented it to Barnsley, who had married one of his daughters, and who was also one of the defendants in the present suit.

On the 12th of June, 1838, William Scarborough died.

In the early part of 1840, a petition was filed in the Superior Court of Chatham County, in the names of the different branches of the Scarborough family, stating the death of William Taylor, the trustee under the deed, and praying that Robert M. Goodwin might be appointed in his place; which was accordingly done. To this petition the name of Charlotte Taylor was signed as follows: "For Charlotte Taylor, Joseph Scarborough."

189*] *On the 4th of September, 1843, Charlotte Taylor filed her bill against all the parties enumerated in the commencement of this statement.

It recited the devises of the will, stated that she was the niece by marriage of Robert Isaac, and an inmate and resident of his family, with whom she continued to reside until his death, when she removed to the residence of her father and mother, being the house devised to her (the oratrix) by the will. It then averred, that, upon her return to the family of her parents, her reception was harsh and unkind; that she was charged with having dictated to the testator, Robert Isaac, the disposition of the property, with ruining the prospects of the family, and breaking the heart of her father. The bill then proceeded thus:

for a considerable time preceding his death, borne a decided antipathy to the said Julia Scarborough.

"And your oratrix further showeth unto your honors, that, when in answer to these and other repeated importunities most unkindly pressed upon your oratrix, your oratrix would hesitate or refuse to enter into and yield to the proposed arrangement, your oratrix's reluctance and refusal would be ascribed to the influence of the said James Taylor, who was described to be a merciless, grasping man, who would sacrifice anything for a gain.

*"And your oratrix further showeth [*190 unto your honors, that when again, in reply to the urgent importunity of the said Julia Scarborough, your oratrix inquired of her what your oratrix should do, your oratrix, after a confer ence between the said Julia and William Scarborough, was informed that your oratrix should address a letter to the said William Scarborough, to the effect that, supposing the said Robert Isaac had intended the property should be divided between your oratrix, her mother, sisters, and brothers, your oratrix wished that he, the said William Scarborough, would consent that your oratrix should so have the property disposed of that the said Julia Scarborough should have it during her life, and that after her death it should be divided between your oratrix, her two sisters and two brothers.

"And your oratrix further showeth unto your honors, and expressly charges, that at this stage of the matter your oratrix sought an interview with the said James Taylor, and, after relating to him the circumstances above detailed, asked his opinion and advice as to the duty of your oratrix in the premises, and that his reply was, in substance, that individually he cared nothing about the course your oratrix might pursue, as he was well off, and that he would never meddle with a copper of the value of the property, but advised your oratrix, as she valued her own interest, not to yield to the arrangement proposed by the parents of your oratrix.

"And your oratrix further showeth unto your honors, that at the time referred to the af. fairs of the said William Scarborough were in a very deranged and embarrassed condition; that he was utterly unable to pay his debts; and that, as a consequence, his family having but very small resources independently of him, their pecuniary situation was pitiable and distressing; and that, urged by his consideration, by the unhappiness and even misery which your oratrix was suffering from the treatment of the family and their importunity, and influenced, too, by the hope that her marriage with the said James Taylor might thereby receive the consent of her parents, your oratrix finally yielded, and wrote the letter to her father, reciting, in substance, as your oratrix charges, that the said Julia and William Scarborough were to have the house, furniture, etc., during their lives, and that at their death the plate, with the crest of the family, was to be given to your oratrix's brothers as their share, and the house and lots divided be

"And your oratrix further showeth unto your honors, that day after day your oratrix's situation in her father's family became more and more unpleasant and harassing, in consequence of their unkind and, as your oratrix charges, their cruel treatment of her; that your oratrix was at the time an infant under the age of twenty-one years, having been born, as your oratrix charges, on the 4th day of August, in the year of our Lord 1807; that your oratrix was closely watched by her father, mother, and sisters, secluded from society and the advice of friends, and even denied the liberty of communicating with the defendant, James Taylor, whom your oratrix was then under an engagement to marry; that your oratrix was importuned and urged by her mother, with the advice and the countenance of her father to relinquish your oratrix's rights under the will aforesaid, and to settle the property on your oratrix, her mother, brothers, and sisters; and with the view of effecting this object, it was particularly urged that the said Robert Isaac, by the said devise and bequest in the seventh item of his said last will and testament, had so conveyed the said property, between your oratrix and her sisters. Your oratrix lieving that your oratrix would divide the same in the manner proposed by your oratrix's parents as before stated, although your oratrix at the time knew that the said Robert Isaac had,

charges the above to have been the substance of the writing, but that she cannot now ascer tain the particulars, as the original draft, which was kept by your oratrix, was de- [*191

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 appointmc.t 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 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 a considerable portion of the stock of liquors, and that waste had also been committed by Julia Scarborough, the mother; that Barnsley knew that the oratrix had a claim to the personalty; 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.

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 joint answer of Godfrey Barnsley and Julia, his wife, was filed 19th February, 1844, and in substance states that the complainant always called her mother's house her home, and lived as much there as with her uncle; that she was not an infant at the time of the execu tion 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 duce her to sign the deed; that they always bewas under his control; and stating that he con-lieved the execution of the deed was the free, sented to act at the request of Horace Sistare, voluntary act of the complainant, and intended who married the complainant's sister, and of to fulfill the design of Robert Isaac, whose title 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.

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

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