Jones v. . Sasser , 18 N.C. 452 ( 1836 )

It is said, that if these deeds do not operate to convey the title, yet the plaintiff, by being a party to that of the 11th, is estopped to deny the right of Arthur Jones, Senr. It is not a technical legal estoppel. Estoppels are not favoured in law; at least, such as arise from the acts of the parties, because they exclude the truth, and are only admitted for the purpose of repose. Therefore, wherever a deed passes an interest, however small, it cannot operate as an estoppel. 4 Com. Dig. Estoppel, E. (8). Co. Litt. 451, a. Mobley v. Runnels, 3 Dev. Rep. 306. Here an interest does pass by the deed, (provided it can operate at all,) but it is a certain and limited one to the 1st January, 1831; and when it is remembered that at the time of the execution of the deed, under which the plaintiff claims, there was a parol agreement and understanding, that Arthur Jones, Senr. should retain possession of the property during his life, there is nothing in this deed inconsistent with the plaintiff's interest, there being no words of limitation in it. If a man take a lease for years of his own land, by deed indented, the estoppel doth not continue after the term ended; for, by the making of the lease, the estoppel doth grow, and, consequently, by the end of the lease, the estoppel determines. Co. Litt. 47, b.

But it is alleged, that if no legal estoppel be created by that deed, yet the plaintiff, by being present, and assenting to the execution of the deed of the 15th, or not then making known his title, is prevented from afterwards setting it up; in other words, that his conduct operates as a kind of equitable estoppel. It will be remembered that we are now in a court of law, and trying how far these deeds and this conduct will operate, to transfer the legal title of the plaintiff. The subject of dispute is a slave, and our laws recognize only three modes by which this species of property can be conveyed inter vivos. 1st. By a deed of gift, attested by a witness, and regularly proved, c. 2nd. By a bill of sale. 3d. By an actual sale, and delivery of possession. If this doctrine be established, it will operate as a virtual repeal of our acts of assembly. Indeed, it appears to be confined to courts of equity, and is not properly an estoppel, either at law or in equity, but being regarded as a fraud practised upon a party, it affords a ground of application to a court of equity, to compel the party guilty of the fraud, to convey his interest, which he kept concealed when he ought to have disclosed it. Roberts on Frauds, 528. Raw v. Potts, Prec. in Chan. 35. S.C. 2 Vern. 239. Hunsden v.Cheyney, 2 Vern. 150. Meade v. Webb, 1 Bro. P. C. 308. Hanning v. Ferrers, Eq. Ca. Abr. 357. Hobbs v. Norton, 1 Vern. 136. Barret v. Wells, Prec. in Chan. 131, are all cases of relief sought for and obtained in equity upon this ground. And no case can be found, where the silence of the party at the time of the execution of an instrument, conveying property to which he had title, has been held to convey title at law to property, which the law required to pass by deed. Mushat v. Brevard, 4 Dev. Rep. 73. The only case in which this principle has been applied at law, was the sale of a horse, which did not require to be conveyed by deed. Bird v. Benton, 2 Dev. Rep. 179.

It is insisted that this doctrine is founded upon the supposition that the party, by his silence, practises a fraud upon a purchaser, by permitting him to part with his money or property for property to which the vendor had no title, and of which defect of title, he was at the time aware. 1 Fonb. Eq. 163. But it does not and cannot apply as betweenvolunteers, for there no fraud can be practised. Raw v. Potts, 2 Vern. 239. 1 Fonb. Eq. 168. Upon the same principle, it has been held, that a mere naked lie or affirmation, made with intent to deceive, is not sufficient to sustain an action; but it must be shown that the party to whom it is made, has sustained damage by it. Pasley v. Freeman, 3 Term Rep. 51.

This leads to the inquiry, in what position do those claiming under the deeds of the 11th and 15th of August, stand as to the plaintiff? And it is insisted that they are all volunteers. As to that of the 11th, there is as before observed, no consideration, either pecuniary, or of any other kind, expressed or pretended — it is a mere loan or donation. As to that of the 15th, there is no consideration set forth, moving from the trustees — no money paid, or to be paid by them. The only pretence is, that they have undertaken to pay Arthur Jones, Senr.'s debts; but this is to be done out of the property; and, if not paid, the only penalty is, that they shall forfeit their title to the property. They do not profess to be benefitted by the deed, nor do they intend to be charged. Nothing less than a valuable consideration will avail under the stat. 27th Eliz. to overthrow a precedent voluntary deed. Twine's case, 3 Rep. 81. And there is no case to show that even a bona fide conveyance to a trustee, for payment of debts, will have this effect. Roberts on Frauds, 369. The purchaser, to take advantage of this statute against a precedent voluntary conveyance, must be a bona fide purchaser, not in legal, but in vulgar and common intendment. Roberts, 370. 3 Rep. 83, b. 2 And. 233. Medham and Beaumont's case. Newland on Contracts, 405. 4 Cruise's Dig. 382. Marriage is a sufficient consideration to establish a second conveyance, and to render a prior one fraudulent and void, as against such second conveyance. But a conveyance to a man's children, or to his wife after marriage, by way of jointure, will not enable them to avoid a preceding conveyance. Douglas v. Wood, 1 Ch. Ca. 99. 4 Cruise's Dig. 383. The same construction is placed upon our act of 1784, (Rev. ch. 225, sec. 7,) as on the 27 Eliz. McCree v. Houston, 3 Murph. 429. If they are both voluntary, the first deed conveys the property. Where there are two voluntary conveyances executed, chancery will not relieve the latter against the former, and he who has the legal estate shall hold it. Goodwin v. Goodwin, 1 Chan. Rep. 173. 4 Cruise's Dig. 406.

As to the admissibility of the trustees as witnesses; — wherever a fact is to be proved by a witness, and such fact be favourable to the party calling him, and the witness will derive a certain advantage from establishing the fact in the way proposed, he cannot be heard, whether the benefit be great or small. Marquand v. Webb, 16 Johns. Rep. 89. A witness on the voire dire stated, that the lessor of the plaintiff had formerly assigned to him the premises in question, for a temporary purpose, that he had given up the deed to the lessor of the plaintiff, and had never had possession of the premises; held that the witness was incompetent, on the ground of interest. Den ex dem. Scales v. Bragg, 21 Eng. Com. Law Reps. 388.

The evidence of the conversation between the plaintiff and his father was improperly rejected, it not being a mere naked declaration, but part of the res gestae, the inducement operating upon him to sign the deed.

The plaintiff should have been permitted to show that the deed of gift to him was founded upon a valuable consideration, although nothing but agood consideration was expressed therein. If the trustees were purchasers for value, then against them it was necessary for the plaintiff to show, that his deed was not merely voluntary, and therefore fraudulent in law against such a purchaser. Claywell v. McGimpsey, 4 Dev. Rep. 89. To rebut this imputed fraud, he should have been permitted to show that his deed was fortified by a valuable consideration. Sugden on Vendors, 473. 2d. But the deed of the 15th of August settles the question between the defendant and plaintiff. That is founded upon a good and valuable consideration. A pecuniary consideration is not necessary — any other valuable consideration will answer. Here there was an adequate valuable consideration flowing from the trustees. The plaintiff's counsel contend, that as the debts were to be paid out of the property, there could be no consideration; but the covenants on the part of the trustees were personal covenants, and bound them to pay the debts, whether the property was sufficient or not. They were bound at all events. The construction that the trustees, by not paying the debts, would only forfeit their estate under the deed, will not hold. A condition is always for the benefit of the grantor, and not of the grantee; and Arthur Jones, Senr. could, upon their refusal to pay, have recovered of them. A question arises, can the trustees be purchasers, to set aside a previous voluntary deed? Nunn v. Wilsmore, 8 Term Rep. 521. If they sustain the character of real and bona fide purchasers, they may set aside the previous donation. McCree v. Houston, 3 Murph. 429.

3d. It is further contended, that the plaintiff is estopped to set up his title. The plaintiff's counsel contend that estoppels are odious. They are not odious, except in particular cases of technical estoppels. Wherever one man stands by, and permits others to deal, upon the supposition of a particular state of facts, he shall not set up his interest to disturb any arrangement, founded upon such a supposition of facts. Such estoppels are not odious, but highly favoured. They are intended to favour truth and justice, and to operate against bad men and fraudulent conduct. Personal property may be disposed of here, without a deed. If one agrees, in consideration that another will pay his debts, he shall have a particular slave, and delivers such slave, the sale is good. Such is the case here. The trustees stipulate for the payment of old Arthur Jones's debts; the plaintiff stands by, and permits the old man to sell the slave; he must be bound, and there will be a valid transfer of the slave. But if the plaintiff is not estopped as to the trustees, he must be in respect to the other children, who are parties in the division. One child cannot assert his title to property, disposed of by a parent among his children, to which they have all assented, because he could not do so, without its being a fraud upon the rest. In cases of this kind, resort must be had to equity, where real estate is concerned, because that cannot pass without a deed; but this rule cannot apply to personal property, to the transfer of which no deed is necessary. All the cases on this subject referred to by the plaintiff's counsel, were cases concerning real estate.

As to the admissibility of the trustees as witnesses; the being a trustee does not exclude a man from being a witness. He must be interested in the cause.

The private conversation between the plaintiff and his father, not in the presence of the trustees or the other children, was certainly inadmissible. — Our duty is to ascertain and pronounce, whether the instruction complained of be in law erroneous. If it be, the judgment must be reversed. In discharging this duty, we must not permit our understanding to be in the least swayed by the equity or hardship of the case. Whatever these may be, must be left to the decision of the tribunal to which the country has given jurisdiction of such matters. The security of all requires, that in a court of law whatever the law prescribes, should be sacredly observed.

To uphold the construction complained of, it must be shown that by force of one or the other or both of these deeds, or by the legal effect of the conduct of the plaintiff, or by the combined operation of these instruments and this conduct, the plaintiff has lost his property in the slave sued for, which cannot be, unless he has thereby transferred it to some other. The construction therefore necessarily holds, that the plaintiff has transferred his slave. We feel ourselves obliged to declare, that in this respect it is erroneous.

The negro in dispute is not conveyed nor attempted to be conveyed in either of the deeds by name. If comprehended within them, it must be because he is included within the general words used by Arthur Jones the elder, "my estate," or "my property," or, "all the property I possess." We hold it clear, that these general words do not pass or purport to pass anything which was not held by the grantor as his own property. We cannot understand them as applying to the property of others, in the occupancy of the grantor. It is indispensable, therefore, before any operation upon this slave can be ascribed to these instruments, that it shall appear that the slave was then held by the grantor as his property, and was not held as the property, and by permission of the plaintiff. The law always presumes that every possession is consistent with right. If the negro was then the property of the plaintiff, retained by his father under agreement with the plaintiff, it was held as the property of the plaintiff. If there was evidence tending to establish the fact, that although the slave was then in truth, and to the knowledge of the father, the property of the plaintiff, he was nevertheless held adversely to the plaintiff, and as his own property, (on which point we forbear to venture an opinion,) still theCourt could not assume such to be the fact, and upon the faith of that fact declare the slave included within this general description.

It is strenuously urged, however, that the plaintiff was concluded, and estopped by his deceitful concealment and misrepresentation of the ownership of the property conveyed by his deed, from setting up any claim under that deed, to the injury of those whom he thus deceived and imposed upon. It is conceded, that this exclusion or bar is not strictly a legal estoppel, for usually no man is estopped by any oral admission, or even any written admission not of record or under seal. But it is insisted, that upon the principles of good faith, a man ought not to be allowed to repudiate his own representations made to influence the conduct of others, whereby he has derived any advantage, or they have been induced either to part with their property, or to forego a benefit, or incur an onerous responsibility. And it is contended, that upon this principle has been established a species of equitable estoppel, which renders such representations, when thus acted upon, conclusive evidence of the truth of the facts so represented. Distrusting my ability to free this doctrine of quasi estoppels from the perplexities which involve it, I shall not undertake to define its extent. I shall content myself with saying, that so far as equitable estoppels have been definitively recognised as rules of law, this Court will unhesitatingly and cheerfully so respect them. But it cannot but apprehend, that they have sometimes been incautiously admitted in Courts of law, from a solicitude to advance the justice of a particular case, although from the nature of their jurisdiction, and the inflexible forms of proceeding, these Courts were not competent to the exact administration of equity. Thus it has happened, that legal certainty has been prejudiced, without the compensating advantages of effecting complete justice. All estoppels — whether estoppels at common law, or these equitable estoppels — are founded upon the great principles of morality and public policy. Their purpose is to prevent that which deals in duplicity and inconsistency, and to establish some evidence as so conclusive a test of truth, that it shall not be gainsaid. But as the effect of an estoppel may be to shut out the real truth, by its artificial representative, estoppels, whether legal or equitable, are not to be extended by construction. In legal phrase, they are not favoured. No man is to be precluded from showing the truth of his claim or defence, unless it be forbidden by a positive rule of law. And especially should that rule be unequivocal, which sets up unsolemn acts or declarations, supposed to be ascertained through uncertain, defective, erring, or fallacious testimony, as an absolute bar to all further investigation. It is, in general, more safe, instead of annexing an arbitrary effect to such acts and declarations, to leave them to the jury as evidence of whatever inferences of fact can thence be fairly deduced. Fraud, indeed, will not thus be always defeated; but he who is thereby injured, can obtain remuneration in damages for the wrong sustained, from a Court of law; and he who is threatened with injury will find protection against the wrong meditated from a Court of equity, which, in the exercise of its appropriate jurisdiction, converts the fraudulent agent into a trustee.

We believe there is no rule of law which shuts out the plaintiff in this case from insisting on the truth of his claim, notwithstanding his former misrepresentations. The defendant, who may thus be disappointed, has not been deprived by these misrepresentations of what was before his; and the plaintiff, through the means of these misrepresentations, is not shown to have gained anything. The plaintiff stands upon his deed. The defendant has no claim upon the property as a purchaser. It is argued here, and so it was held below, that the instrument of the 15th August was executed for a valuable consideration. If it were so, we do not see how the estoppel would be helped thereby, until it is first shown that the thing in dispute is contained in that deed. The covenants of the trustees in that instrument are said to constitute a consideration of value; they are the consideration, however, only for the things thereby conveyed. But the consideration of value required to bring a case within the range of an equitable estoppel, is not such a consideration as might be sufficient to raise an use, or to give technical operation to a deed of bargain and sale. But one which makes him from whom it moves a purchaser in effect — shows that he has substantially bought what is transferred. It is not alleged that these trustees have paid or are liable to pay anything out of their own pockets because of this transaction — that they have advanced anything as the price of the conveyance, or that they will sustain any loss in case the conveyance should be partially defeated. But besides these objections, to hold that the plaintiff has by his representations or misrepresentations express or tacit transferred the slave in question, would be to violate the positive law of the state. There is no consideration moving to him for the pretended transfer — as to him then it is a gift. The act of 1806, declaring what gifts of slaves shall be valid, peremptorily declares, that no gift thereafter to be made of any slave, shall be good or available, either at law or in equity, unless the same shall be made in writing signed by the donor, attested by at least one credible witness, and registered as conveyances of land. The law cannot permit that an estoppel should be set up to defeat the law. Mytton v. Gilbert, 2 Term, 169.

We think there was also error in rejecting the testimony offered, that on the day of the execution, and before the execution of the instrument of the 11th of August, a conversation occurred between the plaintiff and his father, in which the latter assured him, that by becoming a party thereto, his right under the deed of gift would not be prejudiced. If it is sought to divest the plaintiff of his property by reason of his deceitful conduct, he ought to be permitted to show any circumstances attending the transaction, which may tend to prove that he was himself misled. Such evidence, too, if believed, shows the character in which the father held the property embraced in that deed.

We hold that there was no error in rejecting the testimony offered by the plaintiff to show a different consideration for his deed of gift, than that therein mentioned, nor in admitting the trustees to testify as witnesses for the defendant. The general rule with respect to averring and showing a consideration, we understand to be, that where a specific consideration is named in the conveyance, and none others referred to in general terms, that must be regarded as the sole consideration, and negatives any other: that where a consideration is specified and others referred to in general terms, it is competent to show these forth by evidence; and that when a deed is wholly silent as to the consideration, proof of the actual consideration is admissible. We see no reason for not applying the general rule to this case. We hold the witnesses competent, because it does not appear that they or any of them had a direct interest in the event of the suit.

The judgment is reversed, and a new trial must be awarded below.

PER CURIAM. Judgment reversed.