Lee v. Beatty

Chief Justice Robertson delivered the Opinion of the Court. Judge Marshall did not sit in this case. Alexander K. Marshall, who claimed under a junior patent, having sold a tract of land to one Sampson, for which Henry Lee, claiming under the elder grant, had obtained a judgment in ejectment, made a contract with Lee for quieting Sampson’s title, the written memorial of which agreement, dated 1811, and signed by both parties, recited that Marshall was to pay to Lee eight dollars per acre, for all the land within a designated boundary, to which Lee should make a title, and also legal interest on the principal sum until paid, and that a survey should be made to ascertain the quantity. It seems that Lee claimed under the heirs of Wood and Fox; and he therefore agreed that, if the title should be found not to be good, “ he would ‘pay back’ to Marshall “ eight dollars per acre for any part of the land for tohich “ Wood and Fox was not good.’’'’ At the time of the contract, Marshall paid to Lee five hundred and thirty dollars, endorsed as a credit on the obligation for the price; and, in 1813, he paid four hundred dollars, for which he held a separate receipt. Shortly after the date of the contract, Ward’s heirs, who claimed under a junior grant, sued Lee in chancery, enjoining his judgment in ejectment, and praying for a final decree perpetuating the injunction: and that suit [205] was not finally disposed of until the year 1833; when the injunction was dissolved as to the land embraced by the contract between Marshall and Lee. But Lee having never made a conveyance to either Marshall, who died in 1825, or to Sampson, or to Beatty, who had bought Sampson’s interest, and.moreover, having never obtained the title of all the heirs of the patentees Fox and Wood — Beatty brought a suit in chancery against him, in the year 1830, for obtaining a specific execution of the contract with Marshall. Lee, in his answer, insisted that the whole of the consideration had not been paid. But a jury, impanneled by the Court to try the question of payment, decided that the whole price agreed to be paid had been settled; and thereupon a decree was rendered for a specific execution by a conveyance of the legal title to one hundred and ninety eight acres of the ascertained quantity embraced by the contract. Lee now seeks a reversal of that decree, because, as he still insists, Marshall never paid more than the two sums before mentioned, amounting, in the aggregate to nine hundred and thirty dollars, and leaving a balance of one thousand and fifty four dollars of the principal sum yet unpaid. Two depositions were read, for the purpose of proving full payment. One of these states that Lee said to the mother of the deponent, but a short time before Marshall’s death, that Marshall had said that he (Lee) would, he feared, give his (Marshall’s) family trouble after his death; but that he had no cause for any such apprehension, because all their accounts, except for a tract of land, not the one now in controversy, had been settled, and that Marshall had “all the papers” and that nothing remained between them which could enable him to give Marshall’s family any trouble. The other deponent stated that Lee, being indebted to him two thousand dollars, drew an order on Marshall, in the year 1823, for seven hundred and fifty dollars, which Marshall refused to pay; and that he, afterwards, in presence of both of them, inquired why the order had been drawn and protested; when Marshall observed, that he had protested it because, up [206] on a settlement of all their accounts, nothing would be due from him to Lee; and the latter, suggested that he believed that would be the fact, but that he had drawn the order because he had supposed that he and Marshall, could settle it.” And this was all the positive testimony on either side. The retention of the bond by Lee, without any credit upon it, or receipt against it, except the credit for five hundred and thirty dollars, and the receipt for four hundred dollars; the inability of Lee to make a title,and the right of Marshall to withhold payment until a title had been made, and the continued pendency of the suit enjoining the judgment in ejectment, are all facts which conduce strongly to repel any presumption of payment which might otherwise have arisen from lapse of time, and to show that the two depositions for Beatty do not prove the payment of money upon a bond not due or demandable at either of the times mentioned by the deponents; but should be understood as proving only a settlement of accounts then due and respecting other transactions. On the other hand, the fact that Marshall was, by an express stipulation in the contract, bound for interest from the date of it, and the fact that the quantity of the land could have been ascertained at any time, by survey as provided for in the contract, and that Lee undertook to refund to Marshall, if the title should be ascertained to be insufficient, conduce to the conclusion that, it may have been Marshall’s interest to pay the whole consideration as soon as convenient, and that, in some way probably without actual payment, he had, in his life time, settled the entire balance. And this deduction, which is far from being intrinsically unreasonable, is fortified, in no slight degree, by the concurrent facts proved by the depositions to which we have adverted — by the fact that he certainly did make payments though not literally bound to do so, and therefore, also, by the long lapse of time. Upon a careful analysis and due consideration of all these antagonist facts and deductions on each side, we are inclined to think that they leave the scales of indue [207] tive probability very nearly equipoised. And therefore, as Beatty might not be entitled to a decree for a specific execution, in a case of so much doubt, without paying the balance claimed by Lee, we might feel it our duty to reverse the decree, had there been no finding by a jury as to the litigated and doubtful fact of payment. A Oh’x may decide every question of fact for himself; but any question which be considers very doubtful, he may, and should, refer to a jury. But the verdict is to satisfy the eon science of the Chancellor; and, if he is not satisfied with it, he should disregard it; on the other hand, if he concurs with the jury, or, if his mind still oscillates, he should allow the verdict to be decisive. See the Petition and Response. The Circuit Judge might have decided the facts without the aid of a jury. But if, as was doubtless the case, he felt strong doubts upon all the facts as exhibited, and therefore desired an inquisition by a jury to relieve his conscience, it was altogether conformable with the practice of the British chancery, and was also peculiarly proper, to summon a jury to try the facts, and decide on the question of full satisfaction. As to doubtful matters of fact, a court of equity has a discretion to refer the question to a jury; and Mr. Mad-dock (in his Chancery, 2 vol. p. 276,) says that “when “the evidence is so equally balanced on both sides, that “it becomes doubtful which side preponderates, the “Court, in such cases, will direct an issue in order to relieve its own conscience, and to be satisfied by the “ verdict of a jury, of the truth or falsehood of the facts, ‘‘controverted, lest, taking upon itself to pronounce de- “ cidedly a matter of such uncertainty, it might do injustice to one of the parties, by determining against the “real truth of the fact.” If, however, the Judge shall, after a finding by the jury impanneled in such a case and for such a purpose, be well satisfied that the facts did not authorize the verdict, or preponderated decidedly against it, he would have the unquestionable right to disregard the finding by the jury, and render such a decree as he should have done in the first instance, without the aid of an inquisition. But if, as we should presume would generally be the case when a jury had been properly ordered, the Judge should, after the finding, as before, consider the facts as being equiponderant or very nearly so, he should not disregard the verdict, but should render such a decree as would be proper in a case tried by a jury in a court of law. The verdict-should be entitled to some influence, and should at least be respected as the opinion of twelve [208] intelligent and impartial men, upon doubtful facts which they were peculiarly qualified to determine, and were therefore summoned to determine. [By Mr. Owsley.] Giving such credence and effect to the verdict in this case, and considering the facts as very doubtful, independently of the finding, we are of the opinion that it was proper for the Circuit Judge to decree a specific execution without requiring further payment. We are, also, inclined to the opinion, as before suggested, that there was no actual or formal payment in money of the balance appearing after deducting the nine hundred and thirty dollars; but that this balance was adjusted in some claim or account Marshall had on Lee, and which was understood between them, as being set off against it, and thus only extinguished. Wherefore, we do not feel authorized to reverse the decree, which must therefore be affirmed. June 1.