Jenkins v. Pye/Concurrence Catron

Mr. Justice CATRON.

I concur with the majority of the Court, that the decree be reversed; but, differing most materially with the reasons and principles on which the opinion of my brethren proceeds, I will briefly state the difference, hoping sincerely I may be mistaken.

The cause must be reviewed here in the same form that the parties presented it to the circuit court: this is due to the court below, and the only mode we can pursue as a court of appeals.

The bill was filed in July, 1833: the answer in May, 1834: the replication in April, 1835: and, on the 11th of May, the cause was, by agreement, set for hearing; and on the 26th of October, 1835, was heard upon the bill and answers, with two additional facts, which the parties admitted of record; to wit: 1. That George Jenkins was, at the date of the deed from his daughter to him, in 1813, a man of large fortune, and so continued till his death. 2. That the deed conveyed all the estate to which the said Eleanor was in any manner entitled. Upon this case, the court, on the 26th of October, 1835, decreed for the complainants; and ordered an account to be taken of the rents of the property in litigation since George Jenkins' death, the parcels sold by him in his lifetime, and the value of the estate in 1813, &c.

On the 13th of May, 1837, the master commissioner eported; and on the 31st of October, 1837, the report was confirmed by a final decree of the court. Upon this proceeding, it will be remarked, that the decree of October, 1835, could not be reversed by that of 1837, on evidence furnished to the commissioner in taking the account, and which he reported to the court. The first decree could only have been reached by a petition for a rehearing, (if filed in time) or by a bill of review; and we must, therefore, examine the decree of 1835, on the facts then presented to the circuit court.

The bill alleges the conveyance of 1813 to have been executed without any valuable consideration; and that the daughter acted under the influence of parental authority. That it was executed without valuable consideration, the answers admit; but they deny that any constraint or parental authority was exercised, and respond that the deed was made freely and voluntarily. They also admit, that Eleanor Jenkins was born the 17th September, 1790; that her mother died in 1796; that when the deed was made, Eleanor was only eighteen months over twenty-one years of age, and that she was the sole heir of her mother; the father and grantee being tenant by the curtesy of the lands descended. That George Jenkins had two other children by a different mother, who are the defendants; and that he died in 1831, intestate as regarded his real estate.

Eleanor Jenkins married in 1815, and died in 1818; leaving the complainants her heirs.

It is also averred in the answers, that the property in 1813 was in a dilapidated condition; and that it had suffered by fire, which was a principal reason for making the conveyance. The averment is independent of any statement in the bill, is traversed by the replication; and no proof having been made to sustain the averment, of course it cannot be noticed here. The defendants also insist, that the bill should be dismissed because of the lapse of time, and the death of parties and witnesses.

This being the case presented to the circuit court in 1835, the question is, did that court err in ordering the defendants to account? Time and the death of George Jenkins aside, I think it impossible so to hold; consistently with the best established doctrines governing a court of chancery.

The elements of the decree below were, 1. That the grantor, Eleanor Jenkins, was a young heir, and a woman, when she made the conveyance; that it was of her whole estate, without consideration, and to a parent of large wealth.

2. That she was an heir of an estate in reversion, which descended to her in tender infancy; and in regard to the possession and enjoyment of which she must be deemed and treated, in a court of chancery, as an expectant heir.

3. She conveyed to the adult tenant for life, who was her father and natural guardian, with whom she resided, and on whom she was dependent.

I propose to examine the cause, such as it is found; not to speculate upon supposed cases of remainders acquired by purchase, and sold by him who thus acquired; nor upon cases where the tenant for life joins in the sale. These and other transfers of remainders, may depend on very different principles from the case before the Court.

The two first grounds, governing the decision of the circuit court, will be treated together; disregarding for the present the relation of father and daughter.

In the language of Sir William Grant, in Gowland v. De Faria, 17 Vesey, 23, it will be laid down, that 'this is the case of a person who, in this court, is considered as an expectant heir;' and 'that it is incumbent upon those who have dealt with an expectant heir, relative to his reversionary interest, to make good the bargain: that is, to be able to show that a full and adequate consideration was paid. In all such cases, the issue is upon the adequacy of price; no proof of fraud is necessary; and the relief is given upon general principles of mischief to the public, without requiring particular evidence of actual imposition.' 2 Atk. 28; Jeremy's Eq. 398; 1 Story's Eq. 330, sect. 338; 1 Fonblanque's Eq. B. 1, C. 2, sect. 12; 1 Mad. Ch. 118, state the result of the adjudications.

As some doubts are suggested by Mr. Justice Story, and by Mr. Jeremy, in the passages cited of their treatises, whether the strictness of the doctrine applies to cases of dealings for remainders; it is deemed necessary to go into a slight review of the leading adjudged cases, to see if any conveyance resembling the present has been permitted to stand. It is but justice, however, to say, that I do not suppose either of those highly respectable authors intended to question the doctrine in a case like the present; where the estate in reversion descended upon an infant heir, encumbered with a life interest, and the expectancy was given to the tenant for life, within eighteen months after the heir came of age. That such purchase is a constructive fraud, and the purchaser, if a stranger, compelled to account, and give up his bargain, if found to be advantageous; has not, for a century, been an open question. The conveyance is treated as a mortgage, and the grantor relieved on payment of the principal advanced and interest; without inquiry whether there was fraud or imposition.

The doctrine, during the seventeenth contury, met with some opposition, especially in the reigns of Car. II. and Jac. II.; but in Nott v. Hill, 1 Vern. 169; 1 P. W. 310; Newland on Contracts, 436; and Bemey v. Pitt, 2 Vern. 14, it received the most conclusive confirmation short of the judgment of the house of lords. In the former case, Lord Ch. Nottingham decreed redemption (in his own phrase): on rehearing, Lord Keeper North reversed this decree, and refused relief: but this last decree was again reheard before Lord Ch. Jeffries, 2 Vern. 27, and reversed, and that of Lord Nottingham confirmed. So in Bemey v. Pitt, (the report of which is found in 2 Vern. 14; 1 P. W. 311; Newland Con. 347,) Lord Nottingham denied relief; but Lord Ch. Jeffries, 2 Jac. 2, on rehearing, reversed the decree, and let in the grantor to redeem on the usual terms of paying the money advanced, with interest.

In the case of Twisleton v. Griffith, (1716,) the exception was again invoked, that there was no fraud in fact; it was urged, that at this rate the heir of the remainder could not sell, as no one would buy; to which Lord Cowper replied: 'This might force an heir to go home, and submit to his father, or bite on the bridle, and endure some hardships; and in the meantime he might grow wiser, and be reclaimed,' 1 P. W. 313.

In Peacock v. Evans, 16 Ves. 514, the master of the rolls says: (when speaking of an heir selling the expectancy of a remainder during his father's life,) 'To that class of persons, this court seems to have extended a degree of protection approaching nearly to an incapacity to bind themselves by contract;' and he cites with approbation the expressions of Lord Ch. Eldon, in Coles v. Trecotheck, 9 Ves. 234; that, 'The cases of reversions and interests of that sort go upon a very different principle: in some, the whole duty of making good the bargain, upon the principles of this court, is upon the vendee, as in the instance of heirs expectant.' And Sir William Grant added: 'The tendency of this doctrine to render all bargains with such persons very insecure, if not altogether impracticable, seems not to have been considered as operating to prevent its adoption and establishment; but, on the contrary, some of the judges have avowed that probable consequence, as being to them the recommendation of the doctrine.'

In the case referred to, it was admitted there was nothing approaching to fraud or imposition; yet the conveyance was set aside, because a full price had not been paid. All that could be said of it was, that Mr. Peacock had obtained a very advantageous bargain.

So in Gowland v. De Faria, 17 Vesey, 23, where a reversionary interest had been sold, in which the plaintiff's mother had a life estate, all fraud was denied; and no proof introduced, save that the consideration was not full: and in reply to the argument of manifest fairness, the master of the rolls replied: 'In all these cases the issue is on the inadequacy of price. This is the case of a person who, in this court, is considered an expectant heir. He has charged his reversionary interest; and the question is, whether he has received an adequate consideration. Upon that question the evidence 'is all one way:' and the conveyance was treated as a mortgage, vide Davis v. Duke of Marlborough, 2 Swanston, 147.

To cite other authorities to sustain the position assumed would justly be deemed an incumbrance; and I will only ask, had Eleanor Jenkins conveyed to a stranger instead of her father, could a court of chancery have refused her heirs relief, had they come in time?

And by way of introducting the next proposition, it will be submitted, whether her father stood upon higher ground than a stranger?

To a proper understanding of this question, a slight reference must be had to the facts, reported by the commissioner, as they appeared on the final decree in October, 1837. My brethern have given them some consideration, nor will I pass them by; although the pleadings it is apprehended exclude them, they will be taken in connection with the answers and admissions. George Jenkins, in 1813, and at his death, was a man of large wealth. He had two sets of children; one child by a first wife, and two by a second. The answer avers he procured the conveyance to do justice in his family. The account shows, that Eleanor's and George Jenkins's joint interests were worth when the deed was made in March, 1813, eight thousand nine hundred and ninety-two dollars and ninety-seven cents; and that about six months after the execution of the deed, George Jenkins caused to be vested in his daughter, Eleanor, two thousand dollars' worth of bank stock; which was sold by Mr. Pye shortly after he married Eleanor. Further than this, nothing was advanced to the daughter. George Jenkins died intestate, as regarded his lands; whether by accident or design, matters nothing to the infant children who are plaintiffs. The answer avers, that the complainants by the intestacy are entitled to two-elevenths by their grandfather's estate; whereas were they to obtain the lands conveyed by the deed of 1813, and come in as joint heirs of the residue, they would take more than one-half. What advances were made by their father to the two children of George Jenkins, who are defendants, does not appear; but that they take nine-elevenths of the whole estate, by the intestacy, conclusively proves, if George Jenkins obtained the deed, 'best to enable him to do equat justice to all his family,' that he did no such equal justice to his daughter Eleanor in her lifetime, or to her children at his death. He was a man of large wealth, and was bound to do equal justice, if the answer be true; and the defendants aver they personally know the fact to be so: and that this was the consideration of the conveyance. If it was obtained for one purpose, and the property applied to another; for instance, to advance the fortunes of the second set of children; it is well settled the deed should be set aside. To prove it, I need only cite the case of Young v. Peachy, 2 Atkyn's, 254, whose authority has never been questioned since Lord Hardwicke's time.

Again: Two thousand dollars in bank stock was a poor advance for a man of large wealth, having only three children, on the intermarriage of one of them; and we will take it that Eleanor was not intended to be turned off destitute.

The facts thus introduced from the commissioner's report, to control the effect of the first decree, (could they be heard for such purpose,) are therefore of no value, and cannot help the conveyance. How then did the father stand?

The jealousy with which courts of chancery watch contracts made by parents with children, is laid down with terseness and much accuracy by Mr. Justice Story in his lecture on constructive frauds. 1 Story's Ch. 306. He says: 'The natural and just influence which a parent has over a child, renders it peculiarly important for courts of justice to watch over and protect the interests of the latter; and therefore all contracts and conveyances, whereby benefits are secured by children to their parents, are objects of jealousy; and if they are not reasonable under the circumstances, they will be set aside.'

Mr. Newland in his treatise on contracts, chapter 30, page 445, gives the result of the authorities with great clearness and force; and the accuracy of which is fully borne out by the cases. 'It is a natural prosumption,' says he, 'that a parent possesses influence over the mind of his child. Equity therefore regards with a jealous eye contracts between them; and very properly considers this relation to give additional weight and suspicion to circumstances of fraudulent aspect, which the case may involve.' And Lord Hardwicke said in Young v. Peacy, 2 Atk. 258, where the transaction in its leading features much resembled this; the father having obtained a voluntary conveyance from a daughter: 'But the case is greatly strengthened when it comes to be considered that this was a recovery obtained by a father from his child; and when this is the case, it affords another strong circumstance in order to relieve the plaintiffs.'

The British adjudications, uniformly and firmly supporting the doctrine, are cited by the writers above referred to. 1 Story's Eq. 306, Newl. 445, Madd. Chancy. 310; and with which I will rest content: adding, however, that the case before us, is as bare of alleviating circumstances, tending to exempt it from the general rule, as any I have found reported, or known in my experience in life. Had the conveyance been made to a stranger, it could not have been tolerated for a moment; and having been made to the father, in the language of Mr. Newland: 'The relation gives additional weight and suspicion to the circumstances which the case involves.' Its decision rests not on discretion, but on settled rules of property; which, it is supposed by me, should not be disturbed.

But first, more than twenty years elapsed from the execution of the conveyance to the time of filing the bill; and second, it was not filed until after George Jenkings's death. The daughter and her heirs having been at all times since 1813 free to sue; and having had the means, and being under no undue restraint, the presumption is, that time has destroyed the evidence going to prove the fairness of the transaction; or that if the suit had been brought in the grantee's lifetime, he could have adduced it. I confess, however, it is with some difficulty the presumption can be maintained, under the circumstances of this cause, by the British adjudications; yet, our migratory habits, and the consequent loss of evidence are such, that presumptions founded on time must in this country, be firmly supported, without letting in doubtful exceptions to destroy their force: especially when those in whose knowledge the facts rested, which might have explained the transaction, are dead: as in Brown v. Carter, 5 Ves. 875, where the bill was brought to set aside a settlement under an agreement between father and son, made in 1769. The conveyance was voluntary, as in the instance before the Court. The father died in 1793: up to which time no complaint had been made; and very soon after the bill was filed. The Court held, that, 'though transactions of this kind will be looked at with jealousy, that the father should not take an improper advantage of his authority; the complaint must always be made in time; not after the father is dead,' &c.

The same doctrine was held by Lord Eskine in Morse v. Royal, 12 Ves. 376; and relief refused because of the lapse of time and the death of witnesses.

The British case, however, which has most laboured this question, is that of Chalmers v. Bradley, 1 Jac. & Walk. 58; in which the authorities are referred to, where the claims of expectant heirs to have decrees for accounts, and the rescission of contracts, were rejected, because of the lapse of time intervening between the date of the contract and the filing of the bill.

The general doctrine, that full force will be given to presumptions founded on time, and that stale demands will not be enforced to compel parties to account, nor to disturb contracts or possessions, is established on a very firm footing as the doctrine of this Court, in Ricard v. Williams, 7 Wheat.; Hughes v. Edwards, 9 Wheat.; Willison v. Watkins, 3 Peters; Miller v. M'Intyre, 6 Peters; Piatt v. Vattier, 9 Peters; and other decisions. But the difficulty in such cases as the one before the Court is, that the expectant heir is usually destitute, ignorant of his rights, and not on an equal footing with his vendee: and the courts of chancery presume that he contracted in subserviance to circumstances, either of helpless poverty or ignorance; or at least superior knowledge of facts on part of him with whom he contracted. When the facts proved are in accordance with the presumption, and establish that the same condition continued to the date when suit was brought, time has not been strictly regarded in England; and chancery has frequently proceeded to afford relief, disregarding the length of time, upon evidence of a continuing oppression and poverty, or concealment. This cause has certainly in it circumstances to raise difficulties. Eleanor Pye married within two years, and died within five after the conveyance was made; and the complainants were at her death, (and so continued until they sued,) infants. Yet I think no account should have been ordered, nor the conveyance impeached, after the lapse of twenty years, and after George Jenkins's death; and concur that the bill be dismissed.

This cause came on to be heard on the transcript of the record from the circuit court of the United States for the District of Columbia, holden in and for the county of Alexandria; and was argued by counsel. On consideration whereof, it is decreed and ordered by this Court, that the decree of the said circuit court in this cause be, and the same is hereby reversed; and that this cause be, and the same is hereby remanded to the said circuit court, with directions to dismiss the complainants' bill.