Wilson v. Watts

Eccleston, J.: Before looking into the evidence in this case, I will examine the principles, chiefly relied upon by the appellant, as grounds of objection to the correctness of the relief granted to the appellee by the decree appealed from. 1st. It is said the appellee cannot deny the title of the appellant to any portion of the estate purchased by him, under the sale ratified by the order or decree of the court, in the case of Hook against Watts, (the appellee,) because his petition, signed and filed in' that case, his written consent to the ratification of the sale, and the decree thereon, will estop him. And no parol or written evidence can have the effect of adding to, altering or varying that decree. 2nd. That a party voluntarily choosing to express himself in the language contained in a deed, or other written instrument, must be bound by it. And the proof in this case shows, that the petition and consent above referred to were voluntarily signed by Watts with a knowledge of their contents. He therefore cannot be permitted to prove a different intent from that plainly declared in those instruments, 3rd. That the paper marked P, the consent to the ratification of the sale, and the decree upon it, merged all previous negotiations, including paper J. And therefore, neither agreement J or any prior transactions can have an injurious influence upon the appellant’s title under the sale by Taggart, the trustee. In the absence of fraud and mistake, these three positions contain sound legal principles ■, but no matter how closely the door may be shut and supposed to be securely locked for concealing fraudulent transactions, it may, nevertheless, be opened by the magic key of a court of equity, for the purpose of exposing to examination the illegal and inequitable instruments and acts intended to íiave been concealed, — 433 — Á judgment or decree, based upon fraud or imposition, is no less subject to the control of a court of equity than a deed or other contract. In Hall & Wife, vs. Hall, et al. 1 Gill, 391, Judge Dorsey says, “no principle is better settled, than that by no device or form of proceeding or solemnity of the instruments, or means used for its perpetration or concealment, can you deprive a court of equity of the power Of Unkennelling a fraud.’ ” See also page 387. In Pickett vs. Loggon, 14 Ves., 234, Lord Chancellor Eldon says; “As to the fine it has long been settled, that if a conveyance by lease and release, or bargain and sale, has been obtained by means which in this Court have the character of imposition, fraud, oppression, or undue advantage, a fine Constituting part of that assurance, which is so affected, whatever may be the effect at law, is no bar to relief in equity. The person deriving a title Under it is a trustee, and the Species of relief is by directing a reconveyance.” See also Bowles vs. Orr, 1 Young & Coll., 473, (Exchequer in Equity.) 1 Madd. Ch., 300, and 5 Gill, 277, Tomlinson, et al., vs. McKaig, et al. The appellant’s counsel have relied, with much confidence, upon the second principle above stated, and seem to think it must entitle them to claim a reversal upon the authority of Wesley vs. Thomas, 6 H. & J., 24, and McElderry vs. Shipley, et al., 2 Md. Rep., 25. In each of those cases, however, When the court announce that a party is to be bound by the language in which he voluntarily chooses to express himself in a deed, they mean, of course, such voluntary choice as the law considers a sufficiently free exercise of will to Constitute the deed a valid instrument, in the absence of fraud; but they surely had no reference to a contract executed under an undue or fraudulent influence. An act done under an influence arising from misplaced confidence, Will not, in a court of equity, be considered a voluntary act resulting from choice. 1 Story’s Eq., secs. 221, 222. In the first case, at page 27, the court say: “It is most true that the eourt of chancery in the exercise of its moral jurisdic — 434 — tion, as it has been emphatically termed, will upon the proof of fraud, mistake, or surprise, raise an equity, by which the agreement of the parties shall be rectified.” The decision was made in 1823, and the complainant could have no relief on the ground of fraud, because the bill contained no allegation of fraud. In McElderry vs. Shipley, et al., the bill did not charge fraud previous to, or in the agreement; but that, since its execution, there was a fraudulent attempt to deprive the complainant of the benefit which it was the object of the agreement to secure. At page 35, the court say, “that parol evidence is inadmissible in a case like the present, to contradict, add to, or vary the terms of a written instrument; and although a court of chancery will, upon proof of fraud, mistake or surprise, raise an equity by which the agreement will be rectified according to the intent of the parties, it will not interfere where the instrument is such as the parties themselves designed it to be. For if they voluntarily choose to express themselves in the language of the deed, they must be bound by it.” In support of which Wesley vs. Thomas, and other cases, are referred to. An effort was made in Watkins vs. Stockett, 6 H. & J., 435, to convert a deed, absolute on its face, into a mortgage. It appeared that, either by the grantor himself, or, in his presence, the conveyancer was particularly instructed to pass an absolute estate, and the court remark: “No room is left for the inference of circumvention or fraud. He transferred his estate with his eyes acknowledgedly open to the nature and quality of the estate which was transferred, and was intended to be transferred.” Again, on page 445, it is said: “Indeed where fraud is charged, and the evidence establishes it, it has been remarked, that the statute of frauds may very properly be put out of the way, since the object of such evidence is not properly to contradict the instrument, but to raise an equity de hors the instrument, in contradiction of an intent which no law or statute will be suffered to assist or protect.” There no fraud was alleged, and consequently none could be proved, according to the determination in Wesley vs. Thomas. — 435 — It must be evident, that in the cases which have been noticed, when speaking of the binding effect of language in which a party “voluntarily chooses to express himself,” in a deed, the courts had no intention to deny, or even to restrain in any degree, the well established authority of a court of equity to grant relief against a deed or other instrument obtained by fraud or circumvention. The doctrine of merger, relied upon as the appellant’s third ground of objection to the appellee’s claim for relief, cannot be sustained, if paper P, the consent to the ratification of the sale, and the decree based upon it, can be shown to have been obtained by fraud or imposition. Any other theory would exclude, in many cases, the best evidence of fraud. The last written agreement made between parties, will, in the' absence of fraud, mistake or surprise, merge all prior negotiations, so that by them its terms cannot be contradicted, added to or varied. But such prior negotiations will be admitted as evidence of fraud, mistake or surprise, when they tend to sustain an allegation of either. In Davis vs. Calvert, et al., 5 G. & J., 303, upon issues sent from the orphans court, Ch. J. Buchanan said: “Fraud vitiates every thing with which it is connected. A will or testament therefore, which is obtained by fraud, is void; and though fraud is never to be presumed, yet it is not necessary to prove it by positive and direct testimony. But being usually wrapt up in mystery, if well concerted, it is generally by circumstances only, by inductions of particulars, some of them often apparently trivial, that it can be brought to light and defeated. And in a question of fraud, any fact, no matter how slight, bearing at all on the point at issue, and not wholly irrelevant, may be admitted.” See also 1 Knapp., 81. In Jones vs. Hardesty, et al., 10 G. & J., 416, the appellant objected to oral evidence of an agreement, because there was a written contract, and the court say: “If the oral contract referred to had been reduced to writing by the parties, or if it was intended that the assignment should be such written contract of the parties, then might it be contended, in the absence of all proof of fraud, surprise or mistake, that the oral — 436 — evidence offered by the appellee was inadmissible.” The appellant’s objection was not sustained, because the court did not consider that the parties had reduced their agreement to writing. And it is a necessary inference, from the language just quoted, that even if the agreement had been reduced to. writing, the parol evidence would not have been excluded, if it tended to prove an allegation of fraud, surprise or mistake. This principle is mqst explicitly announced in Henderson vs. Mayhew, et al., 2 Gill, 409. “Parol evidence,” it is there said, “is inadmissible to change or contradict the terms of a written instrument. Strangers to the instrument, when authorized to impeach or contradict it, may offer parol testimony for that purpose; and so a grantor may, in a controversy with the grantee, if he charges the same to have been obtained by fraud or mistake.” Here isa statement of the general rule which forbids the use of parol evidence for the purpose of contradicting or changing a written contract, but exceptions to the rule are also stated, one of which admits even a party to the instrument to impeach it by parol proof where fraud or mistake is alleged by him. When there is a written contract in relation to land, and some of the terrqs or provisions in the verbal agreement of the parties are not included in the writing, but omitted by design, even on the express understanding that such provisions should be carried into effect in the same manner as if they had constituted part of the written instrument, if there is no fraud, undue influence, surprise or mistake, either in the making of such contract or in reducing it to writing, parol evidence, alone, will not be admitted to enforce the omitted provisions, or for the purpose of contradicting, adding to or varying the written instrument; although subsequently to its execution one of the parties has fraudulently refused to comply with the omitted provisions, and in open violation of good faith and fair dealing, insists upon his right, under the statute of frauds, to have the contract, as written, carried into effect. Such I understand to be the law of Maryland. But I have seen no case, in which it has been held that a court of equity will refuse relief (o a party of weak mind — even — 437 — though the weakness is not very great — harrassed with debt, having good reason to apprehend that nearly, if not quite, all the property he has, is about to be sold under a mortgage, without any means of his own to liquidate the debt, and who, thus situated, placing confidence in the ability, willingness and intention of a person offering his friendly assistance to prevent the property from being sacrificed, is, after placing such confidence in these professions of friendly aid, and through the influence of the person making them, induced to enter into a written contract or conveyance, which, in terms, professes to convey or transfer an absolute title to the whole property, for a sum far less than its actual value; when it appears by written and parol evidence combined, that notwithstanding the absolute character of the written contract, the vendor was led to believe he was nevertheless to be entitled to a part of the property, or to some interest therein; and yet subsequently to the written instrument the vendee fraudulently claims the whole title absolutely. In my opinion a court of equity is bound to grant relief to a confiding and deceived party, even against an absolute conveyance, when his grounds for relief are sustained by written and parol evidence combined, against the unrighteous demands of one, who, for the sake of gain, has abused the confidence produced by his professions of friendship towards a man in distress. Whenever parties stand in a confidential relation towards each other, and any advantage is taken of that confidence, relief in equity will be administered with as much promptness as upon any other ground whatever. In Billing vs. Southee, 10 Eng. Law & Eq. Rep., 39, 40, the Vice Chancellor says: "There is no part of the jurisdiction of this court more useful or more well founded than that which assumes the control over all transactions between persons occupying confidential relations towards each other. This jurisdiction ought to be exercised, whatever be the circumstances and position of the parties between whom the confidential relation exists, whether attorney and client, guardian and ward, or surgeon and patient.” The latter relation was the one then under consideration. Other cases recognize the rule as applicable to. — 438 — other instances than those here enumerated — such as trustee and cestui que trust, principal and agent, a clergyman and one of his flock. The instances mentioned by the Yice Chancellor, were therefore intended only as examples in illustration of the rule, and not as restricting the general proposition previously stated by him, to the enumerated cases. And why should not the rule apply to all, as well as to particular cases of confidential relations, which afford a favorable opportunity, of obtaining an unfair advantage, or of exercising an improper influence? And it may be correctly said, there are few of such relations, which will enable a party more easily, or more effectually to obtain an advantage, or to exert an undue influence than when he has created a confident belief that he is acting the part of a friend, for the purpose of relieving a man of weak mind in distress, expecting to be deprived of his property by a pressing creditor, and that property constituting nearly, if not quite all the means which he has for the support of himself and family. Speaking of the extent of the rule, in Gibson vs. Jeyes, 6 Ves., 276, where a contract had been made between a client and his attorney, Lord Eldon uses the following language, in regard to the emus of proving the correctness of the transaction: “It is necessary to say broadly, that those who meddle with such transactions, take upon themselves the whole proof, that the thing is righteous.” And on page 278, he says: “It is asked, where is that rule to be found? I answer in that great rule of the court, that he who bargains in matter of advantage with a person placing confidence in him, is bound to show, that a reasonable use has been made of that confidence; a rule applying to trustee, attorneys, or any one else.” When used in such connection, “any one else,” of course includes any party standing in a confidential relation, where the propriety of his contract is called in question. In Brooke, et al., vs. Berry, 2 Gill, 102, the court say: “It can hardly be insisted that the appellee has not, in a contract with his principal, obtained a conveyance of his lands at a price greatly below their value, which of itself would induce a court of equity, (apart from the mental incapacity of the — 439 — principal,) to set aside the contract, unless it were shown, by competent testimony, that the contract was entered into in a way and under circumstances, which made it apparent that there had been no abuse of confidence, no undue influence, no imposition or material concealments practiced by the agent upon the principal, which could cast a shade of doubt as to the fairness and honesty of the transaction.” Here, because of the relation of principal and agent, inadequacy of price alone was deemed suflicient to require satisfactory proof from the latter that the contract was fairly and honestly made. In addition to the authorities I have referred to, see also those cited by the judge below, in regard to fraud arising from undue influence in cases of confidential relations between the parties. In view of the authorities,' 1 think there can be no doubt that when fraud is charged, parol evidence, especially when aided by written proof on the subject, may be admitted for the purpose of impeaching a written contract, whenever such evidence tends to show the existence of a confidential relation between the parties, that the contract is very disadvantageous to the vendor, who is a man of weak mind and much embarrassed in his affairs; and such evidence has a tendency to establish facts from which the inference may be drawn, that there has been improper influence exercised, or imposition practiced upon the vendor by the vendee, for the purpose of securing to himself an unfair advantage in the contract. A conveyance cannot be successfully impeached for imbecility or feebleness of intellect alone, unless it be such as would justify the jury, under a commission of lunacy, in putting his property and person under the care of the Chancellor. But weakness, far short of that in degree, if coupled with other circumstances showing that such lesser weakness has been taken advantage of, will be sufficient to set aside a deed. 1 Knapp., 78. 1 Story's Eq., sec. 237. The weakness of mind in the present case is not such as, of itself, could justify setting aside a conveyance. G. W. McConkey, in testifying with regard to Watts’ intellect, says: “If you include business of importance, Watts is — 440 — not a man of business habits. If there is any financiering In the business, Watts is not a man calculated to transact business ojf that kind.” He acted as a justice of the peace for several years. He was reappointed, but the witness does not know whether he swore in or not; Edward Riley says: “ He really thinks Watts is úot a man of business and of business habits;” He does not think “ Watts is a man of ordinary understanding, competent to make contracts, and would not trust him to make a contract for him.” He thinks “Watts is in his usual mental faculties 5” does not know that “he ever Was deprived of his mental faculties.” The witness does not know much of Watts’ transactions. His buying and selling has been in a very limited way since he has been in the deponent’s neighborhood. He is a man who is compos mentis, but his business habits are very limited. The witness does not know, but should judge that Watts conducted his business himself; R. Hook says: “He should not judge that Watts was a man of business and of business habits.” This witness was a judge of the magistrates’ court, and for a short time Watts was also one of the judges, and sat in the court two or three times, but took no active part in the business of the court. He believes Watts does transact his own business, and should judge he was a man of common sense. The witness never had much business with him. This testimony is not very strong proof of imbecility, but, connecting it with the circumstances of the transaction, I regard him so far below mediocrity as to allow his weakness of mind to be treated as worthy of consideration in the inquiry, whether he has been overreached through the instrumentality of abused confidence. On the 27th of April 1846, Watts filed in Baltimore county court a petition in relation to the claim under the mortgage given by him to Hook. The petition states, that S. H. Taggart, as trustee under the mortgage, had, during the same month, advertised the mortgaged property for sale, but postponed the sale. That Watts had contracted to sell the property to Wilson for the sum of two thousand one hundred — 441 — dollars, being more than sufficient to pay the debt, including interest and costs. That the petitioner had notified the trustee of said sale, and had requested him to report it, but he refused to do so, and intended again to advertise the property. The object in filing the petition was; to obtain from the court an order directing the trustee to report the said sale. Watts signed the petition, and annexed to it is the following admission : “ I admit the facts above stated, so far as I am concerned: —G. B. Wilson.” This is written evidence of an agreement for a sale of thé entire mortgaged property, the title to which should be passed under the mortgage; through this instrumentality of a sale to be reported by the trustee. The trustee and Isaac Tyson, Jr.,' (who had become assignee of the mortgage,) filed answers to the petition, objecting to A report being made as prayed for. But, on the 17th of November 1849, the objections of Tyson were withdrawn, and the cause submitted, without argument, by a solicitor for Watts and Wilson, and by Mr. Taggart, as trustee and solicitor for Hook: — whereupon the court passed an order, directing “thé trustee to report the sale proposed by the parties, and set forth in the said petition. On the 20th of November 1849, the trustee, in obedience to the court’s order, reported “the salé of the mortgaged premises in the proceedings mentioned unto the said Greenbury B. Wilson, for the sum of twenty-one hundred dollars; cash, to be paid on the ratification of the sale, with interest from the 27th April 1846, the day of sale:” The same day on which the report was made Wilson and Watts filed their written • consent to the immediate ratification of the sale as reported,, and on that day the Court passed an order of final ratification. The same day the trusted executed a deed to Wilson for the mortgaged premises; and two days after it was put upon record. The proof shows; beyond dispute, that in April 1846, Watts was poor,- and had good reason to fear he was about to lose his real estate on which he lived; and on which he relied for support. A letter, dated the 9th of April 1846, to Watts from Wilson, — 442 — shows that he had been engaged in endeavoring to effect such an arrangement with the mortgagee and his trustee, or attorney, (Mr. Taggart,) as would stop the sale under the mortgage. After proposing that Watts, and Hook the mortgagee, should call on Saturday following, the letter concludes: “ I can- satisfy him about your security, and will go with him and you to Taggart’s and save you from sacrifice.” The witness, Davis, says, that about April 1846, Wilson represented himself as the friend of Watts; and that Wilson said he felt a disposition to befriend Watts, to prevent him from being cheated or defrauded by Isaac Tyson, Jr. Davis also says, he and Wilson had frequent conversations, and the latter said that Tyson was endeavoring to wrong Watts and to get the mines for less than their value, calling Tyson sometimes rather opprobrious names. J. Hook, tlie original mortgagee, being examined as a witness, testifies, that he believes he saw Wilson in 1846, and took him .to be a friend of Watts; that Wilson wished to take up the claim against Watts’ property, and, of course, the witness took him to be a friend of Watts. ■ And from what he saw he thought Watts placed confidence in Wilson. Mr. Taggart says, as well as he can recollect, either after the first or second advertisement of the farm for sale, by him, as trustee, according to his understanding of the matter, Wilson, as the friend of Watts, called at the office of the witness, and stated that he had not the money, but offered his notes for the whole mortgage debt, which the witness declined taking. Tyson testifies, that, as well as his recollection serves him, Watts and Wilson, together, called at his counting-room, and Wilson appeared to be the friend and counsellor of Watts. The witness so considered him at the time. They offered him the Bare Hill mines, and wanted to know what he would give for them. The property offered was that part of the farm which had been leased to Samuel Davis, being sixteen acres. L. T. Watts, the daughter of the appellee, says, Wilson was at her father’s house two or three times a week, and every Sunday; that her father placed confidence in Wilson, at the time, as his friend. — 443 — D. Stewart, Esq., speaks of a conversation between himself and Wilson, either in 1846 or 1847. He is rather doubtful .which, but is disposed to think it was the latter year. Wilson represented that he had called at the request of Watts, and in consequence of the witness having written to Watts, the object of the proposed interview with whom Wilson wished to know. Mr. Stewart told him that he was a friend of Watts, and desired, if he could, to promote some satisfactory arrangement between Isaac Tyson and Watts in regard to the mineral lands of Bare Hill. Wilson said that no such arrangement could be made with Tyson; that Tyson wanted to take the advantage of Watts, and that he intended to protect Watts, so far as he could, from imposition. Wilson spoke of the said mineral land as being very valuable, and said they were important to Watts as his main dependence, and that Watts should not sacrifice them; that there was no chance of his arranging with Tyson for them at anything like a fair value. Robert Wilson says, that Wilson, the appellant, stated to the witness, in the presence of Watts, “that he was the friend of Watts, and that he merely would undertake this thing to get him out of the clutches of Isaac Tyson, Jr., and Mr. Davis. He said that they were both trying to rob him (Watts) out of his house and home.” This conversation occurred in 1846 or 1847. The witness had similar conversations with the appellant at his office, at the farm, and at the mine. The appellant also said to this witness, in the presence and hearing of Watts, “that the mine was invaluable, and there was no telling the amount of money it was worth, and that he would not take any amount of money for it if he was Mr. Watts; that it would turn out to be a fortune for him. He also said, that if he was Mr. Watts he would not let Isaac Tyson, Jr., have it for any consideration.’’ The same witness says: “ Wilson told him that when Watts gained the law-suit between him (Watts) and Isaac Tyson, Jr., that it was his (Wilson’s) intention to put it,” (of course meaning the mine,) “into a stock company — putting the stock up to about one hundred thousand dollars — and that they, (Mr. Watts and himself, Wilson,) would retain either fifteen or twenty-five — 444 — thousand dollars apiece, so as to have the greater portion of the controlling power of the working of the mines, or words to that effect.” R. Hook, referring to a conversation between him and Wilson, in 1849, says, the substance of it was, that Wilson was acting as the friend of Watts. The witness “cannot tell the conversation, but it was on the subject of the Bare Hill mines. ” On a subsequent examination this witness says, he understood Wilson to say that he was. the friend of Watts, and intended working the mine jointly with him when they got lid of the difficulties then hanging over their heads. T. -Mitchell states, that to the best of his recollection, in June 1849, he conversed with Wilson in the presence and hearing of Watts, when Wilson proposed that the witness should go and take charge of the Bare Hill copper mine under-Watts and himself, Wilson saying “they intended to work it systematically, and they intended to make captain of deponent.” In regard to the value of the property Samuel Davis says, that, in his opinion, tire copper mines were worth $60.00 in April 1846. “He does not know what other people would have thought about the price they would bring at public auction at that time, but he thinks they would have brought six thousand dollars.” This witness professes to be familiar with the character and value of copper mines generally, and he had a lease for five years on those mines, commencing in 1845. At the close of his lease, however, he was not able to pay his debts, as appears by his apswer to the fifth cross-interrogatory. J. Hook, (the mortgagee,) supposes the farm in April 1846 “was worth a good deal more than the amount of the mortgage debt. He does not know what it was worth, but he Would have been willing to give moje for it than his mortgage d,ebt.” T. Mitchell thinks it hard to tell what the mines were worth in the summer and fall of 1849, but that if they had been for sale at public auction, they would have brought “ten thousand dollars at the least calculation.” He worked in those mines in 1849, and never did anything in his life, as a business, but work at copper mines. — 445 — According to the testimony of James Farquharson, he, either as agent for Davis and Tyson, or for Tyson alone, made Watts an offer of four thousand dollars for the property, Watts reserving to himself one-fifteenth of the ore, also the dwelling-house and a few acres of'land attached; which offer was rejected. This occurred, the witness thinks, in the spring or summer of 1846; and Tyson was exceedingly anxious to get the property. G. W. White, the defendant’s only witness, says, when he first became acquainted with the mines, about the 4th of May 1850, they were not worth five dollars. They were partly filled with water, to remove which would probably cost from four to five thousand dollars, and take at least seven months to do the work. He likewise says: “ Before the monthly yield of the mines in ore was sufficient to meet the monthly expenses of working them, said Wilson must have been out of pocket at least ten thousand dollars, for moneys paid in cleaning the water out, for machinery, and other incidental and necessary expenses in working them, and for digging and breaking ground, and clearing it out, and in sinking shafts and driving cross-cuts through ground in which there was little or no ore found or obtained.” From estimates differing so widely, were it necessary to do so, it might not be a very easy task to ascertain the true value of the property; but no such necessity exists. From Wilson’s own declarations, it appears that, in 1846 and afterwards, he considered the mines to be of great value; certainly, valuable enough to render a sale of them for the amount of the mortgage claim a sacrifice; which claim, it seems from the auditor’s report of the 27th November 1849, with interest and costs added, the interest being calculated to the 27th April 1846, amounted to only $15.66 less than $210Q, Still Wilson insists that for $2100 he purchased the whole estate, absolutely, in April 1846. And this he does, although his own declarations, viewed in connection with the other proof in regard to value, must warrant the conclusion, that from 1846 to the fall of 1849, at least, the property was worth $4000, if not considerably more. Wilson says to Watts, in a letter dated the 22nd of October — 446 — 1846, “as respects the weighing of the ore, I suggested to Davis the propriety of getting you to see it weighed, as you were interested.” And again, “if any one of those hands who are experienced in mining would call and see me, I might propose something to induce him or them to search out another spot where ore could be found, either on your place or ours, by promising a fee.” In a letter, dated the 8th of April 1847, Watts is informed of the abundant supply of copper ore upon the premises, and of its very rich quality, as ascertained by analyzing a portion of it. And then, in reference to the suit pending between Tyson and Watts under a lease to Petherick, it is said, “Tyson’s lawyer says he expects they will appeal, but he has not done it yet; whether he does or does not, is of but little consequence to us. I think matters look bright now, but you must be cautious how you talk and who you talk to; plenty of money ahead — - only have patience. ” The 20th of May 1847, is the date of a letter which contains the following language, “ Well, the more mines that are found and worked the better for us; and if the ore is found on Buchanan it must still run back on your ground, so let them go ahead.......Only keep cool and look sharp, the money will come, sooner or later, in no small sums. ’ ’ The italics in the quotations from these letters are my own. If, as Wilson now contends, he had purchased the entire estate in April 1846, how was Watts so interested in the ore as to make it proper in October following, that he should see it weighed? Or why say, “either on your place or ours,'’’’ speaking of searching for another spot where ore might be found; when it was known that Watts had not owned any other real estate except the mortgaged premises? And if the whole property had been sold for the sum of $2100, why, in the following year, should Watts be informed of the quantity and richness of the ore? Why told, “plenty of money a-head, only have patience?” having reference to finding ore on “Buchanan,” — which adjoins the property in dispute: — why say to Watts “it must still run back on your ground?” And why tell him, “only keep cool and look sharp, the money will — 447 — come, soomr or later, in no small sums 9” If he had sold the entire estate for a specified sum he could not be entitled to any thing more, and therefore, so far as he was concerned, it was a matter of no importance whether there was “plenty of money a-head” or not — whether he had patience or not— whether he did or did not keep cool and look sharp — or whether or not “the money would come, sooner or later, in no small sums.” Although the petition of 1846, and the proceedings consequent upon it, would, of themselves, seem to indicate,,that for the consideration of $2100 Wilson should have a title to the whole property, yet his acts, his declarations, and his letters, must have been designed, or, at all events, were amply sufficient, to induce a confident belief on the part of Watts, that under the title thus to be transferred he was not to part with his entire estate. Wilson had declared his intention to save the property from being sacrificed by a sale under the mortgage. Now, if a sale for the mortgage claim would have been a sacrifice, so would an absolute sale for $2100. Watts therefore could not have imagined his professed friend was engaged in doing the very thing he had censured others for designing to do; and which he had said it was his intention to prevent. As a friend, Wilson had interceded with the mortgagee and his trustee to prevent a public sale under the mortgage, and had offered to give his own notes for the whole claim. He had declared, both in and out of Watts’ presence, that he was acting as his friend in the matter; spoke of the great value of the property, especially to Watts, as being his main dependence for support; of the intention of others to take advantage of him, and to rob him of his house' and home; and avowed his determination to protect him from imposition, and to save his property from being sacrificed. Such proof as is set forth in the previous part of this opinion can scarcely leave a doubt, that Watts was thereby led to believe he was dealing with a friend, whose purpose was not to acquire a title to the estate for his exclusive use, but to preserve for Watts, at least a portion of the property or some interest in it. But if, after an examination of this proof, there — 448 — should be any doubt on the subject, that doubt must be removed when such proof is considered in connection with the paper marked'J; which is in'the following language: “Thomas B. Watts, and his wife Mary Ann Watts, has sold to Greenbury B. Wilson one-half of the farm he now occupies on Bare Hill, call’d Bare Hill, cont’g 93|- acres, more or less, together with the entire control and privilege of mining for copper and other minerals, and carrying away on the whole tract forever, with the understanding that one-half of the ne^t proceeds of all minerals are to be paid over to said Thomas B. Watts, and his heirs and assigns. The said Thomas B. Watts, his heirs and assigns, to have the exclusive benefit of all crops rais’d by him on said farm. Baltimore, 15th Feb’y 1849. Thos. B. Watts, G. B. Wilson. In the event that G. B. Wilson raises a stock company, or can sell the whole tract for a handsome remuneration, to the mutual advantage and benefit of both parties equally concerned, then the parties hereto are respectively bound to such an. arrangement, their heirs and assigns. Witness, this 15th February 1849.- A. Clifton.” This agreement is not only signed by the appellant but he admits it to have been written by him. But the appellant says, admitting that paper J proves a sale of only one-half of the farm, at that time, it does not preclude the possibility of showing the acquisition by Wilson of a title to the other half, between the date of that agreement and the perfection of the title by the deed from Taggart as trustee. And it is insisted that the ownership of the entirety by Wilson, is conclusively established by the acts and declarations of the complainant, and by the paper marked P, dated the 1st of June 1849, which is as follows: “All my right, title and interest in the Bare Hill copper mines, and the houses and improvements appertenant thereto, during the term of five years, from the tenth day of July 1845, with the right of reversion and possession, as secured to me, I hereby assigne and transfer to G. B. Wilson, for value received. Tho. B. Watts, (Seal.)” — 449 — Wilson admits that he wrote the exhibit AWB, and requested Watts to sign it. P, it appears, is in the handwriting of Watts and is an exact copy of AWB. Although this paper professes to have been executed for the purpose of assigning and transferring the property “for value received,” yet, from the appellant’s admissions, it is evident he did not pay anything as consideration, or purchase money, for the estate, until after the sale was ratified by the court; and his admissions also show clearly, that paper P was not based upon any other consideration than that mentioned in the petition and in the trustee’s report of sale. Prior to the execution Of this paper, (P,) the petition stated a sale had been made at the price of $2100. The oral declarations and letters of the appellant, in connection with paper J, show, that for the $2100 not more than one-half of the estate had been sold. And yet, without any obligation on Wilson, to pay one cent of additional consideration, at his request, Watts executed paper P, which professes to assign and transfer all his right, title and interest in the mines. These circumstances, viewed in connection with the nature and terms of the application of the appellant to the appellee, to execute this instrument, furnish satisfactory evidence, that it was not to be a new contract, in regard to any other sale between the parties, than the one previously made, and which was to be consummated under the petition and the proceedings upon it, and consequently, in a court of equity, should be subject to all the qualifying terms connected with that original contract. Wilson says: “That he did present to Thomas B. Watts the complainant’s exhibit, marked AWB, admitted to be in this respondent’s handwriting, and requested him to sign it as evidence of his, the complainant’s, sale to this respondent of the Bare Hill farm and copper mine, so that said respondent could use it at the approaching Uial between himself and said Davis, because this respondent’s deed from said Taggart to this respondent was not then executed.” Thus the request was not for evidence of a new, but of the old sale. And if Wilson intended, by this instrument, without any additional or-new consideration, to secure to himself any larger portion — 450 — of the estate than he was entitled to, under the existing eon - tract, it was imposition, practiced by him, upon the party whose confidence he had gained by his professions of intended friendly assistance. It may well°be doubted, whether P was not intended merely for the purpose of enabling Wilson to use it in a controversy between him and Davis, and not designed to have any effect as between the present parties. No use was made of it in the mortgage case. The day of sale, as there reported, was the date of the petition, from which date interest was to be charged. And although paper J was made an exhibit in the original bill, the answer to it contains not the slightest allusion to P. It was first brought into the cause by the defendant, under the commission to take testimony. The inference, that this paper was only designed to be used on the trial between Wilson and Davis, is aided by the fact, that it does not profess to include the whole mortgage property, as mentioned in the petition, and the sale as ratified, but relates only to the “Bare Hill copper mines and the houses and improvements appurtenant thereto, during the term of five years from the tenth day of July 1845, with the right of reversion and possession thereof.” And the lease to Davis bears date the 10th of July 1845, is for five years, and includes only sixteen acres of land, within which are the mines and the improvements attached to them. This paper is dated the 1st of June 1849, and yet, during that month, in a conversation between the witness Mitchell and the appellant, in the presence of the appellee, in relation to the Bare Hill mine, it was proposed by Wilson, that the witness should take charge of the mine under Watts and Wilson, the latter saying, “they intended to work it systematically,, and they intended to make captain of deponent.” From the testimony of J. T. Watts it will be seen, that after the year 1849, and shortly after he had left his father, (the appellee,) Wilson said to the witness “he was doing very wrong in leaving his father as he had done, that the business was then about to be settled between Tyson, Davis, himself, (Wilson,) and deponent’s father, and he thought then that — 451 — they would be able to realize something right handsome from the copper mines, and he said he saw no necessity at all for deponent’s leaving home.” R. Hook likewise had two or three conversations with Wilson, in which he was understood to say: “That he was the friend of Mr. Watts and intended working the mine jointly with him when they got rid of the difficulties then hanging over their heads.” Even so late as the 22nd of November 1849, (the very day on which the trustee’s deed was put upon record, and two days after the date of the final ratification of the sale and date of the deed,)'Wilson wrote to Watts a letter, in which it is said: “Richard Hook saw Johnzee and will have the money taken out of Taggart’s hands; nothing done in the other matter, but we expect you will be in to-morrow morning, as it will be necessary for you to deed one-half of Bare Hill to me, according to our agreement.” This letter is admitted to be in the handwriting of Wilson, but in consequence of not being signed by him, it is objected to as inadmissible evidence. For want of the signature it could not be used to establish an express trust, for a writing not signed will not transfer an interest in land or create a trust. But such a letter or writing as this will be admitted as evidence in support of a charge of fraud or imposition, in the same manner that parol proof will be allowed for such a purpose. With such proof before me, I cannot believe that paper P was designed to be evidence between the parties of a full claim in Wilson, either to the whole of the mortgage premises, or to the mines with their appurtenances. After a very laborious and thorough examination of the case, I am brought to the conclusion, that the parties stood in a confidential relation toward each other, the appellee having great confidence in the appellant, and the latter having much influence over the former. This was the consequence of poverty, great embarrassment, and some degree of mental weakness on one side, with a voluntary offer of assistance and relief on the — 452 — other, accompanied with acts indicating the sincerity of such an offer. Under these circumstances the parties entered into a contract, which, according to the terms set forth in the petition, would seem to be an absolute sale of the whole mortgage premises at $2100. A price greatly below the full value of the property. The proof, however, makes it perfectly evident, that Watts was led to believe he had actually sold but a part of his estate. And to the influence of Wilson, resulting from Watts’ confidence in him, may be ascribed, not only the terms of the contract, as stated in the petition, but also the consent to the ratification of the sale, the latter believing himself safe in the hands of a man who came forward to relieve him in time of need, with the avowed purpose of saving his property from being sacrificed. How could he imagine that the man who was promising to do this was then actually engaged in making a contract, by which he was securing to himself the entire property forever, for a mere trifle above the amount due upon the mortgage, a sacrifice for which claim the professed friend had repeatedly promised to prevent? Whenever a title, although absolute on its face, has been acquired at a price much below the real value, by a vendee standing in a confidential relation to his vendor, if from written and parol evidence combined, it appears satisfactorily that the former has led the latter to believe he is, nevertheless, to continue the real owner of part of the property, the vendee should not be permitted to keep the whole. And such title having been acquired, through the instrumentality of a decree, will not prevent the title from being impeached, if the influence arising from such a relation continues to exist at the time of the decree. A party claiming tile whole title, under the circumstances stated, would be committing fraud of such a character as the morals of a court of equity should never permit to be successfully carried into effect. And applying this doctrine to the present case, I think the evidence, fully entitles the complainant to relief. I agree with the judge below in that portion of his opinion in which he argues, that tho decree in the mortgage case is — 453 — liable to be impeached upon the ground of fraud or undue influence: and that the consent of Watts to the ratification of the sale is not a sufficient confirmation of the original contract to remove all objection to the validity of the decree. He very correctly holds, that subsequent acts will not amount to confirmations of previous contracts, which are liable to be impeached for undue influence, unless it appears that the influence has ceased to exist when the subsequent acts occur. And I also agree with him in believing, that in this case the evidence is quite the reverse of tending to show that the influence which the appellant had acquired, at the time of the original contract, did not exist when Watts consented to the ratification. Another ground in opposition to the relief claimed by the complainant is, that if the transaction between the parties is a fraud, it is such upon the rights of third persons. And under the rule, in pari delicto potior est conditio defendentis, the complainant will not be permitted to allege his own fraud to invalidate his own contract. The object of the rule was to discourage fraud by preventing the accomplishment of its design. But to apply the rule as now insisted upon, instead of operating as discouragement, would really be giving a premium for fraud. It would inflict punishment upon a party, who, in consequence of misplaced confidence, under circumstances of distress, had become the dupe of undue influence, and would reward, not merely a participant in the fraud, but the chief actor in its concoction, he being the only party who, at the time of filing this bifl, and ever since, could be injuriously affected by granting the relief sought by the complainant. Particular reference is made, in this opinion, to such evidence as I rely upon in support of the views expressed; it is, therefore, unnecessary to say, whether the evidence not used is admissible or should be rejected under the appellant’s exceptions. Upon the ground of fraud and imposition, I think the averments contained in the original and amended bills, and the proof in the cause, entitle the complainant to relief. And the title of the parties to the property should, in my opinion, be — 454 — settled upon the basis of exhibit J. I have arrived at this conclusion in consequence of being fully satisfied, that whilst the parties stood in a confidential relation, Wilson acquired great influence over Watts,.which influence was mifairly exercised, for the purpose of securing to the former a title to the whole estate, by inducing the latter to believe the title was, in reality, only to be such as that described in the exhibit J. We have seen, that in Wesley vs. Thomas, it is said, a court of chancery, in the exercise of its moral jurisdiction, “will, upon the proof of fraud, mistake or surprise, raise an equity by which the agreement of the parties shall be rectified.” And in McElderry vs. Shipley, et al., it is likewise said, “A court of chancery will, upon proof of fraud, mistake or surprise, raise an equity by which the agreement will be rectified according to the intent of the parties.” From what has been said, it will be seen, that I do not concur with my brethren in holding that the decree below should be reversed and the bill dismissed. In my opinion the cause should be remanded, under the act of 1832, ch. 302, without reversing or affirming the decree, for the purpose of correcting, what I consider, a mistake of the judge, in regard to the net profits of the mines. But as the majority of this court think the bill should be dismissed, and as this opinion is already long enough, I shall not undertake to point out the mistake to which allusion has been made. Le Grand, C. J. I dissent from the conclusions arrived at by my -brother Eccleston, in the very full and elaborate opinion he has given in this case. But few words will be necessary to point out the grounds on which rest that difference, In my opinion, on legal principles, there ought not to be the slightest difficulty in reversing the decree of the circuit court. And all that can arise, in any aspect of the case, grows out of an association with it of matters which have, according to well known and universally acknowledged decisions, nothing whatever to do with the questions involved. What is the case 9 The complainant alleges, in substance, — 455 — that a fraud has been practiced upon him by the appellant; and in this: That the defendant induced him to consent to the purchase, by the defendant, of certain property belonging to him, and which had been authorised to be sold by a trustee to secure the payment of a mortgage debt with which it was encumbered; that in pursuance of this inducement, he did consent, and, accordingly, as is shown by the record of proceedings in the cause, he, by petition, asked the court to ratify the report of the trustee setting forth such sale — which was done, and in conformity therewith, a deed for the property was made by the trustee to the defendant. The complainant alleges this was a fraudulent transaction, and that it was never the intention of the parties, the defendant should thus acquire a title to the whole property. The bill asks that the decree of Baltimore county court, ratifying the sale to the defendant, may be annulled and the deed of the trustee declared void, and for an account of the profits, &c. The complainant does not pretend he did not know, when he signed the petition to the county court, what he was doing. The case now sought to be made for him is, that the defendant being of superior mind, and exercising great control over him, because of his supposed friendly feeling, induced him (intending to defraud him) to consent to the report of sale, and its ratification by the court. There is no direct proof whatever, of any secret understanding between the parties, that the transaction should not be what it appeared on its face to be; and the existence of any such is positively and unequivocally denied by the defendant, as is also all contrivance, <fcc., to defraud the complainant. Now it is conceded (and it could not be well denied) by my learned brother, that no relief would be granted to a complainant so situated; unless the transaction be tainted with fraud. The general principle being admitted, the only inquiry remaining is: Is there such fraud, if any, in this case, as will take it out of the unquestioned and undeniable general principle? — 456 — As a general rule, fraud vitiates all things in a court of equity. But this rule has its limitations. It is the wisdom and the policy of the law, to protect the innocent and helpless from the bad practices of the evil and fraudulently minded; and whenever a proper case presents itself, relief is never withheld. One of the exceptions to the general rule, (and the one which in my judgment governs this case,) is, that where both parties to the suit have knowingly participated in the fraud, all relief, as between them, will be denied. The maxim, in pari delicto potior est conditio defendentis, is everywhere acknowledged and enforced. If this rule be applied, how stands this case? Thus: The complainant, according to the facts alleged by himself in his bill, unites with the defendant in the practice of a fraud on a court of justice, and now asks that a court of equity — the fraud having been consummated — will remit him to rights which he claims were by force of a secret, unwritten agreement, reserved to him. It cannot be done, unless every decision heretofore made on analogous cases be set aside or overruled. It may be safely averred there cannot be found, save one — and that was by a divided court — a decision, either in England or in this country, in which relief was granted in a case similar to this. The fact is, the whole matter has been most completely and decisively settled by the adjudications of the highest tribunals of this State. In the case of Freeman and Sedwick vs. Sedwick, 6 Gill, 28, one infinitely stronger than that now before us, the court recognize and adopt the rule, that relief will never be granted where the parties zxeinpari delicto. That was the case of one brother conveying his property to another, to keep it out of the reach of the creditors of the grantor, accompanied by another agreement in rvriting, although to be considered secret, obliging the grantee to reconvey in a certain contingency. What said the court, when asked to enforce by decree the agreement to reconvey? It refused to do so, and on the obvious ground of public policy, that those who. enter into fraudulent contracts, so far as they are concerned must abide — 457 — tile consequences. In the case tb which I refer, the principal authorities in England and this country are reviewed, and all shown to inculcate and establish the doctrine 1 have already, indicated. It is not necessary to re-state them here. They will be found fully and accurately set out in the volume of Reports to Which reference has been given. As had been stated, the complainant does not pretend ignorance of the character of the paper which he signed. The case of McElderry vs. Shipley, et al., 2 Md. Rep., 25, shows; that in such a case a court of equity will not give a different meaning to the paper from that which its language imports; so that, were it competent by parol to show the parties intended something other than that expressed, the instrument would not be reformed. Of course I allude to a case in which there was an absence of mistake or fraud. These views, in my judgment, fully dispose of this case. But it is said, the complainant at the time of the transactions was of a weak mind, liable to be easily imposed upon by the cunning and knavish, and because of this mental imbecility; readily became the dupe and victim of the defendant: In what this imbecility consisted does not appear. While it can be clearly deduced from the evidence in the cause, that some of the witnesses éntertained no very high opinion of his “'financiering” abilities, it is also clearly shown by the proof, that he was not non compos mentis, and that, he transacted his own business, gave deeds and leases, and mortgages; and acted for years as one of the judges of the district courts of his county. The language of J udge Archer, in the case of Watkins vs. Stockett, 6 H. & J., 443, is very pertinent to this branch of the case: — He says: “'It was observed by a distinguished jurist, Sir Joseph Jek'yll, that where a weak man gives a bond, if there be no fraud nor breach of trust in its obtention, equity will not set aside the bond, for the weakness of the obligor alone, if he be compos mentis. Nor will a court of equity measure the size of men’s understanding and capacity, there being no such thing as an equitable incapacity where there is a legal capacity. This is undoubtedly the — 458 — safest doctrine, where there is a total absence of all fraud and imposition.” It must be borne in mind that this is a case between the parties, and only the parties, to the alleged fraud. Were it a ease between the creditors of the complainant and the defend - ant, a different class of principles would be applicable. In the latter case, the creditors would not be estopped by any fraudulent act of either the complainant or defendant, but would be at full liberty to inquire into the whole transaction. For wise purposes — and the experience of centuries has demonstrated the wisdom — the law has established certain, fixed, and inexorable principles for the administration of justice, for the protection of the rights of property, and for the ascertainment of truth. These are not lightly to be departed from. If they are to be disregarded in one instance, why not in all? The indulgence of mere sympathetic feeling, however honorable to the instincts of human nature, furnishes no excuse for such judicial partiality. There is no canon of the law of more universality than, omnis innovatio plus novitate pertwrbai quam utilitatc prodest; and, in a commentary on it, a very learned writer very properly remarks: “ It is an established rule to abide by former precedents, stare decisis, where the same points come again in litigation, as well to keep the scale of justice even and steady, and not liable to waver with every new judge’s opinion, as also because the law in that case being solemnly declared and determined, what before was uncertain, and perhaps indifferent, is now become a permanent rule, which it is not in the breast of any subsequent judge to alter or vary from according to his private sentiments.” And again, “If, as has been observed, there is a general hardship affecting a general class of cases, it is a consideration for the Legislature, not for a court of justice. If there is a particular hardship from the particular circumstances of the case, nothing can be more dangerous or mischievous than, upon those particular circumstances, to deviate from a general rule of law.” In the case before us the party complaining knew what he was doing5 he does not even pretend ignorance. To him should be applied the language of Lord Chief Baron Richards, — 459 — in Roberts vs. Roberts, 4 Eng. Exchq., 448. That was a case in which a bill was filed for the purpose of setting aside a voluntary demise of certain hereditaments for a term of years, executed by the testator, in his lifetime, to the defendant, to kill game. In his opinion the judge said: "I do not think the plaintiffs are entitled to a reconveyance; the deed was executed maturely; the grantor knew the effect of it. There was no fraud, at the time, between the brothers; with respect to them the transaction was perfectly fair. But it appears by the evidence that the object of the deed was to give the defendant the appearance of a qualification, and that it was executed for no other purpose; that was a fraud on the law, and I cannot perceive what right that gives the plaintiffs to come into a court of equity to call for a reconveyance." It was suggested, in the course of argument at the bar, that the county court had, under the circumstances of the case, no jurisdiction under the provisions of the act of 1826, chapter 296. In this opinion I cannot concur. Although under that act the authority to sell is derived from the bond of the trustee, and the power of attorney, executed by the mortgagee, and not, primarily, under á decree of a court of equity, as in other cases, yet “the jurisdiction of the court becomes complete on the report of the sale. When this is once made, the equitable cognizance of the court obtains, and thereafter equitable principles, such as are applicable to sales under decrees in chancery, control die disposition of the case; and, according to these, it is the well established practice for courts of equity to ratify sales, made without public notice, whenever the parties in interest shall signify, in writing, their assent to such a purpose. The case of Andrews vs. Section, 2 Bland, 629, is sufficient authority for this doctrine. For the reasons given, I am of opinion, the decree of the circuit court ought to be reversed and the bill dismissed. Mason, J.: I frankly confess I have had great difficulty in coming to a conclusion in this case, and I would be the better satisfied if the result to which 1 have at last arrived, was as firmly sane — 460 — tioned by my own mind, as my conclusions usually are. The difficulty with me grows out of the circumstance, that the proper application of the statute of frauds, which Chief Justice Buchanan has said, “probably generates as many frauds as it prevents,” leads to results, in this particular case, which are repugnant to sound morals and fair dealing. The evidence has failed to satisfy my judgment, that the defendant, Wilson, practiced a fraud upon the complainant, in inducing him to make the application to the court to have the sale of the trustee reported and ratified in the proceedings upon Hook’s'mortgage; in other words, that Watts was induced to do one thing in that matter, under the influence of Wilson’s deceptions, while he supposed he was doing another. While I am satisfied that the ratification of the sale to Wilson was made-with the full understanding and knowledge of Watts as to the nature of the transaction, yet I am equally clear that there was a secret or private understanding between them, that Wilson was eventually to have but one-half of the property and Watts the other, an understanding which Wilson, in bad faith, now refuses to recognise. While Watts has been, in this particular, made the victim of misplaced confidence in Wilson, there is no power in this court to grant him relief. If I am correct in the conclusions to which I have come in regal'd to the facts of this case, the law regulating such a state of case is plain and well settled, Where it cannot be shown that the contract had its inception in the fraud of the party against whom the relief is sought, but that he is merely making a fraudulent use of the statute, to ke.ep an advantage obtained through the reliance of the opposite party on his. good faith and fair dealing, no relief can be granted. . The principiéis broadly sanctioned by Chief Justice Buchanan, in delivering the opinion of this court in Lamborn vs. Watson, 6 Har. & John., 252. He there says: “The action, is not founded on deceit, &c., practiced by the defendant, by which the plaintiff was tricked into a false confidence, and seduced into a contract by which he has lost his property; but on a verbal agreement respecting the sale of lands, not sought for, or moving from the defendant, but procured by — 461 — the plaintiff himself for his own purposes, on which, without overturning the statute of frauds, an action at law will not lie.” And again he says: “ But they cannot entertain actions upon verbal contracts within the statute, on the ground of fraud, in refusing to perform them; if they could, it would be to permit a plaintiff, in the shape of an action on the contract, to recover in damages, not for the breach of the contract as such, but for a fraud subsequently conceived, and on which the action was not founded, as is attempted in this case, which would be to amend the statute in relation to such contract.” The same doctrine was held in Lamborn vs. Moore, 6 H & J., 422. Our brother Eccleston, in his opinion in this appeal, also sets out the same principle correctly, not agreeing however in its application to this case. See also the notes to the case of Wollam vs. Hearn, (White & Tudor’s Eq. Cases, 355,) 71 Law Lib., 540. The same principle is recognised in Wesley vs. Thomas, 6 Har. & John., 24, and McElderry vs. Shipley, 2 Md. Rep., 25, where this court announce broadly that parties must be bound by the language with which they may think proper to express themselves, in a deed or other instrument. The statute of frauds is as binding in equity as it is at law, and therefore the fact that the relief is sought in this case in a court of equity does not vary the principle. If the views I have taken in regard to the facts of this case be correct, the defendant, Wilson, has very justly made himself liable to the severe animadversions directed by Judge Buchanan, in Lamborn vs. Watson, against the defendants in that case, as well as those of our brother Eccleston in his opinion in this case against the present defendant, but as we cannot grant the complainant the relief he seeks, a moral castigation upon the defendant would do but little to heal the wounds which he has sustained in his property and rights. Notwithstanding it might have been understood between these parties, that while Wilson was to appear from the proceedings to have purchased the entire estate, he nevertheless, by a secret agreement, was only to have one-half, I do not think that such an understanding would amount to such a fraud upon the court as to place the parties in pari delicto. — 462 — The only parties interested in the proceedings to foreclose the mortgage were the creditor and the mortgagor. The power of the chancery court was invoked only to enforce the payment of the mortgage debt, and to protect at the same time the rights of the debtor. Any arrangement, therefore, which would produce these two results, though in a way somewhat different from that employed by the court in its usual course of proceeding, could hardly be deemed a fraud upon the court, or upon any party having an interest in the matter. Watts, himself, could, not be said to be defrauded, if he participated in the arrangement, knowing what he was doing; nor was the creditor, because, by it, he obtained his money; nor was the court, because its powers and functions were not perverted from their legitimate purposes, but were permitted to perform their office in securing to the creditor the fruits of his debt. Concurring with the Chief Justice in the conclusions to which he has arrived, but not in all the reasons he assigns, the decree must be reversed and the bill dismissed. Under the peculiar circumstances however of this case, and as the subject of costs is under the unrestricted discretion of the court, I think the appellant should pay all costs in both courts. Decree reversed and bill dismissed.