Jackson v. Ashton (36 U.S. 229)

by John McLean

United States Supreme Court

36 U.S. 229

Jackson  v.  Ashton

A court of chancery will often refuse to enforce a contract, when it would also refuse to annul it; in such a case, the parties are left to their remedy at law.

No admissions in an answer to a bill in chancery can, under any circumstances, lay the foundation for relief, under any specific head of equity, unless it be substantially set forth in the bill.

APPEAL from the Circuit Court of Pennsylvania. The principal facts of the case, as stated in the opinion of the court, were as follows:

The appellants, who were the devisees of Maria Goodwin, brought their bill to set aside a bond and mortgage executed by Maria Goodwin, and her trustee, Kenneth Jewell, to the defendant, on the 5th of January 1829, to secure the payment of $3000. The bill represented, that the mortgage was given without consideration; that shortly after the decease of Thomas Goodwin, the husband of Mrs. Goodwin, which took place in February 1828, the defendant stated to her, that he had a demand against her husband, to whom she had been much attached, and who had treated him extremely ill; that he had it in his power to render his memory odious, by exposing his conduct; but that he would conceal the transaction, if she would execute a mortgage to him on her own property, to secure the debt; that she refused to execute the mortgage, or give any other security, by the advice of her counsel; and afterwards, avoided his visits, to get clear of his importunities; that shortly after this, Mrs. Goodwin was taken ill, and being executrix, her husband's affairs pressed much upon her, and she fell into a low nervous state of spirits, which impaired her memory and affected her mind; that whilst she was in this state, the defendant renewed his visits; and professing great kindness for her, took upon himself the management of her business; and having gained her confidence, prevailed upon her, in the absence of any friend and legal adviser, to execute the mortgage, and a corresponding bond, and to direct that her trustee should join in the execution; the defendant, as a clergyman, saying she ought to do so; that these representations had great influence on Mrs. Goodwin, who was a woman of devout religious feelings. The complainants further represented, that at the time the bond and mortgage were executed, Mrs. Goodwin was utterly incapable of understanding or comprehending their meaning and effect; that after the death of Mrs. Goodwin, the defendant stated to the complainants, that the mortgage was executed as collateral security for any sum that might be due to him from the estate of Thomas Goodwin, deceased.

In his answer, the defendant admitted the execution of the bond and mortgage, and stated, that in 1822, being about to receive a sum of money, he consulted Thomas Goodwin, who was then a broker in Philadelphia, in what way he could most advantageously invest it. That Goodwin advised him to leave the money in his hands, and that he would loan it out on good security. That the defendant, in pursuance of this advice, placed $3400 in his hands, and also loaned him $275; and took his notes by way of acknowledgment. That Goodwin received a bond and mortgage for $2600, in favor of defendant, from Samuel Jones, covering an estate which was under prior mortgages for $2500, which, with the money of the defendant, Goodwin was to satisfy; but that he paid but $1000 of the amount, and fraudulently withheld the balance. And to cover this fraud, that he obtained from the recorder of deeds, copies of the prior mortgages on the estate of Jones, and at the foot of the certificate of the recorder, wrote himself 'paid and satisfied;' and then exhibited the papers to Jones and the defendant, to show that he had discharged the mortgages. And as there also remained on the estate a prior lien of a judgment for $700, that Goodwin took a bond of indemnity from Jones against it. That defendant often solicited Goodwin to deliver up to him the mortgage, which, under various pretexts, he declined doing, but assured the defendant that he had discharged the prior mortgages; at length, the defendant becoming uneasy, he called at the recorder's office, and there found that the mortgage for $1500 had not been discharged; and that the indorsement upon it of 'paid and satisfied,' must have been made by Goodwin. On the same day that the defendant made this discovery, Goodwin informed him that he was about to stop payment; but he assured the defendant that he should not lose a cent.

Goodwin admitted to the defendant, that he had used the money for his own purposes, instead of paying off the mortgage, and that he had deceived both the defendant and Jones. And at the same time, Goodwin placed a mortgage in the hands of the defendant for $2575, to secure him against the mortgage on the property of Jones, which should have been discharged. That Goodwin assured him the property mortgaged was unincumbered, which was untrue; and the defendant reproached Goodwin with having again deceived him, and threatened him with an exposure, unless he should make payment or give security. Goodwin replied, 'what can you do? if you push me, I will take the benefit of the insolvent law;' the defendant rejoined, 'have you forgotten the certificate which you forged? My attorney informs me, that if Mr. Jones, or myself, shall come into court with that certificate, that you would be sentenced to hard labor.' Goodwin became alarmed, and stated, that he would sell the property, and make good the deficiency, if the defendant would not expose him. This conversation took place in the presence of Mrs. Goodwin, who, when the defendant was leaving the house, accompanied him to the door, appealed to his friendship for her, entreated him not to expose the transaction, declared that she would not have it known, especially in the church, and among the congregation at Blockley, for any consideration whatever. She added, that Mr. Goodwin would sell the property, and make provision for the payment, and that she would make up the deficiency out of her separate estate; and that neither the defendant nor his child, whose deceased mother she greatly esteemed, should lose anything.

A few days after this, Mrs. Goodwin saw the certificate, and acknowledged that it was in the handwriting of her husband; and she again entreated the defendant not to expose him, and said she would pay him, if her husband did not. This assurance was frequently repeated, on various occasions, up to the death of Goodwin, which took place suddenly, in February 1828. At the moment of his death, Mrs. Goodwin sent for the defendant, desired him to superintend the interment, and she threw herself upon his kindness for consolation. After the interment, the defendant spent the evening with Mrs. Goodwin, engaged in religious conversation; and being about to leave, she said, Mr. Ashton, I hope you will not forsake me. If you cannot come in the day-time, come in the evening, and pray with me. I will be pleased to see you, at any time, and as soon as I get a little over my trouble, I will fulfil my promise and settle with you. The defendant replied, that he hoped she would not let his concern trouble her at that time; that it gave him not a moment's uneasiness. This promise was repeated by Mrs. Goodwin again and again; and on one occasion, when the defendant was ill, she expressed uneasiness, lest he might die before the matter was arranged. On consulting counsel, she was advised to do nothing with her property for a year, and he refused to draw a deed. But she said, the advice was unjust, that she would pay the defendant, and felt herself bound to do so, as a Christian. And she delivered a covenant to the defendant, binding herself to make good the deficiency, should there be one, on the sale of her husband's estate. Up to this time, the defendant had not expressed a desire to Mrs. Goodwin, that she should pay any part of her husband's debt.

In December 1828, the defendant stated to Mrs. Goodwin, that she had acted voluntarily in the matter and not through his persuasion. That if he might be permitted, for the first time, to become active in the business, he would suggest, that as her property was held in trust, the covenant which she had executed to him was not valid. She expressed surprise, and a willingness to secure him; and the bond and mortgage in controversy were prepared and executed at the office of Thomas Mitchell, a scrivener. An agreement was executed by the defendant, declaring that the bond and mortgage were given as collateral security, &c.

With the exception of the execution of the bond and mortgage, the defendant denied all the material allegations of the bill. The other facts are stated in the opinion of the court; and by the counsel, in the argument.

The case was argued by Key, for the appellants; and by Ingersoll, for the appellee.

Key, for the appellants, contended:-1. There was no consideration for the bond or mortgage. 2. That they were executed by a weak woman, who, at the time, was incapable of making such a contract. 3. That they were extorted by a threat to prosecute her husband. 4. That the relation in which the defendant stood to Mrs. Goodwin, as her pastor and religious visiter, and as agent and adviser in her affairs, prohibited any contract with her; especially, when made in the absence of her counsel, and with his known disapprobation.

Mr. Key, in opening the case, represented the contract which gave rise to this controversy as having a remarkable origin, and followed by very singular circumstances. The origin, as exhibited by defendant in his answer, and the proofs, was this: he had been defrauded by Mr. Goodwin; the fraud, as defendant thought, was accompanied by forgery, and he goes to Goodwin, and finds him at his house, and in the presence of his wife, charges him with the fraud, and threatens him with a prosecution for forgery; he says he has taken counsel, and that he has a paper, which he is advised, proves the forgery, and would send Goodwin to hard labor. Goodwin is alarmed; begs him to keep the matter secret; and promises to pay or secure him. On leaving the room, Mrs. Goodwin follows him; the defendant was a clergyman, Mrs. Goodwin was a pious woman, of the same church, and had been a communicant in defendant's congregation. She begs the defendant 'not to expose the transaction,' saying, 'she would not have it known, especially in the church and among the congregation at Blockley, for any consideration whatever;' and she added, that Mr. Goodwin would sell the property and pay it, and 'she would make up the deficiency out of her separate estate.' After a few days, she called on defendant, and asked to see the certificate, which defendant had charged to be a forgery; it was shown to her, and she observed 'it was her husband's handwriting; and again entreated the defendant not to expose it, and said that the she would pay him, if her husband did not;' this was in 1824; Goodwin died suddenly, in February 1828. The answer says, 'the defendant continued to rest upon the assurance which had been so often given to him, by both the husband and wife; and especially upon the good faith of the latter, in which he placed great reliance, after the repeated solemn voluntary promises which she had made to him; which he believed she had both the inclination and ability to make good.'

At the death of her husband, Mrs. Goodwin 'sent for defendant,' 'asked his friendly assistance, and threw herself upon him for consolation; and the defendant passed the evening at her house, in religious conversation.' He continued to visit her, till he was taken sick. She then went to see him, and on her second visit, said, 'she came to fulfil her promise, by offering him further security; that she would deed him the house in Lombard street, to hold as collateral security, till Mr. Goodwin's property was sold:' the defendant expressed himself satisfied with whatever she thought right. Goodwin (it should be observed), in his lifetime, had given the defendant some property as security, and the defendant himself, as he himself stated, only thought himself unsecured to the amount of $500 or $600. The conversation ended by her assuring the defendant, that 'she would call on Mr. Ingraham, her attorney, to draw the deed, and bring it as soon as it was ready.' A few days afterwards, she called again, and said, 'she had called on Mr. Ingraham, agreeable to her promise, but he refused to draw the deed; stating it would be wrong for her to pay any of her husband's debts; and that she must do nothing with her property, any way, for a year.' She added, 'that the advice of Mr. Ingraham was very unjust, that it did not move her in the least from her intention to pay all Mr. Goodwin's friends to whom he was indebted, and that she felt bound in conscience, as a Christian, to do so.' She, therefore, delivered to the defendant a covenant, whereby she agreed to make good the deficiency, should there be one, after the sale of her husband's property, in the payment of the defendant's claim of $2575, with the interest due thereon. This covenant bears date July 17th, 1828.

After this, the answer stated, about the 31st of December 1828, the defendant informed her this covenant did not bind her property, as it was held by trustees. She expressed her surprise, and said, she had executed a mortgage to the bank, and 'and would execute a similar one in favor of the defendant.' A mortgage was accordingly prepared and executed by herself and Kenneth Jewell, her trustee, with a bond conditioned to pay $3000 to defendant, and a warrant of attorney to confess judgment; all dated on the 5th of January 1829. A defeasance was drawn, at the same time, to be signed by defendant; showing the true consideration of the mortgage was not the bond, but to pay the deficiency of defendant's debt from Thomas Goodwin, after applying the proceeds of Goodwin's property to that object. This defeasance was never, in point of fact, delivered to Mrs. Goodwin or her trustee. The scrivener did not know when it was executed. Defendant was to come back and execute it; it was then to be sent to Kenneth Jewell by the scrivener. This never was done; and there was never any other delivery of it than leaving it with the scrivener, when it was signed. Nor was it ever afterwards produced, till after this suit was brought, when it was produced by defendant, who was said to have borrowed it. It appears, by the evidence of B. G. Mitchell, that neither he, nor his father, nor the defendant, about a year before the suit was brought, knew where it was; and that it was then said defendant had borrowed it. The mortgage is not only for the house in Lombard street, but for two others; and so far as the case shows, for all her property. This is the bond and mortgage, which the defendant now asserts the right to establish, in opposition to the bill filed in the court below, by the representatives of Mrs. Goodwin, to set them aside, as made without consideration, as being obtained from a weak woman 'utterly incapable, at the time of execution, from her state of health and mind, of understanding or comprehending the meaning of the same;' and in favor of a person 'who having gained her confidence, prevailed upon her, in the absence of any friend or legal adviser, to execute to him the said bond and mortgage, and to direct her trustee to join in the execution, representing to her, as a clergyman, that she ought to do so; which said representation, she being of a devout disposition and religious inclination of mind, had, in her then state of health and mind, great influence upon her.' He contended, that from the bill, answer and proof, it appeared—

1. That there was no consideration, or an illegal consideration, for this bond and mortgage. The answer represented the covenant of July as the consideration for the bond and mortgage; and the previous parol promise of Mrs. Goodwin, in the life of her husband, as the consideration for the covenant. But if that previous parol promise was without consideration (as it clearly was), then the giving the covenant, and, subsequently, the mortgage, under the influence of the previous promise, and the impression that it was obligatory, is no confirmation. Under this head, he cited, 3 Bos. & Pul. 249; 7 Cow. 57; 2 Bro. C. C. 400; 3 Ibid. 117; 2 Vern. 121.

He further contended, under this proposition, that an illegal consideration appeared, and was, of itself, alone, conclusive against the validity of the contract; the original consideration, which tainted all the subsequent contracts, was the suppression of a prosecution. This is shown by the answer, and by the testimony of Dodge, who states, that the defendant told him, 'the consideration related to unfair conduct-the forging of a certificate from the recorder's office; and he was to let the matter rest, and not to prosecute, if she would pay. In the defendant's proof, a similar statement is shown to have been made by Mrs. Goodwin. That such a consideration vitiated the contract, he cited, Marbury v. Brooks, 7 Wheat. 575; 3 P. Wms. 279; Powell on Contracts, 354-6.

It is said, there was here no forgery in fact; and that, therefore, there could be no prosecution. Powell on Contracts 356, shows that if there was any color for the charge, it is enough; that it is not necessary the crime should appear to have been committed. And if, again, it is said, that complainants are not entitled to relief, if compounding the felony was the consideration, being in pari delicto; he answered, that that principle, and all the cases cited in support of it, only applied, where the party himself who had assented to the contract, came to a court of equity for relief; the representatives of such a party were not in pari delicto, and not liable to the objection; this distinction was taken, and relief allowed to the representatives in Matthew v. Hanbury, 2 Vern. 187; and the same case also answers the objection, that the bill does not change the illegal consideration or the fraud. 9 Pick. 212; 3 Cow. 538. If, then, there was nothing more in the case, this illegal consideration being fully proved by the defendant himself, in his own evidence, and admitted by his own statement of the consideration to Mr. Dodge; vitiates these securities.

2. He next contended, that these instruments were obtained from a weak women, incapable at the time of making such a contract; and artfully extorted from her by exciting her fears for her husband. He compared the testimony of complainants and defendant as to her state of mind and body, when these contracts were made, and contended, that the weight of evidence was against her competency; the contracts she did make at that time, were all made with the approbation of her legal advisers; and three of these witnesses say, they would not have made a contract with her otherwise. Further, the complainants' witnesses are her intimate acquaintances, and on most familiar and confidential terms of intimacy; and those of the defendant had but a slight acquaintance with her. The defendant, on the contrary, is shown by all these transactions to have been a shrewd man. He gets security for $3000, to save him from a probable loss of $500 or $600; is to give a defeasance, which she never gets; which he borrows, and nobody knows where it is, till its production is necessary for him. She offers one house, he gets three; and apparently, all the property she had. He does not move in the business, during her husband's life, because he feared he would not have suffered his wife to be so imposed on. When she complains of a transaction, he quiets her, by promising to wait for his money, till after her death. And above all, by his art in making his threat of prosecution in her presence, knowing her affection for her husband would prompt her by securing him, to prevent the prosecution. Such a contract, he contended, could not be sustained between any persons; but here—

3. The relation subsisting between the parties, the defendant being her pastor and religious visitor; on whom, as he himself states, 'she had thrown herself for consolation;' and being, further, her agent and adviser, in attending to her property and managing her affairs, as the proof shows; gives to the contract a character which a court of equity, on principles of public policy, must condemn. The relation being proved, the presumption of the undue and irresistible influence of such a relation is enough for the complainants. Under this head, he cited, 12 Ves. 371, in which the Lord Chancellor says, 'without any consideration of fraud, or looking beyond the relation of the parties, the contract is void.' Also 2 Jac. & Walk. 413, where the absence of the legal adviser in a bargain made between such parties, is considered an objection. Here, there was not only the absence of the legal adviser, but his decided advice against the contract, and his refusal to assist in it; and that advice and refusal known to the defendant. Cited, 3 Sch. & Lef. 31; 3 P. Wms. 130; 1 My. & K. 271; 14 Ves. 273; Griffith v. Robins, 3 Madd. 191; 1 Ves. 503; 1 Cox 112; 1 Hovend. 146; 8 Price 161; 16 Ves. 107; 2 Eden 290; 5 Pothier 572, 432; 1 Johns. Ch. 350. plainants could not prove that he used the influence this relation gave him in gaining his object. But these cases show that the complainants need not prove it; the whole burden of proof is on him. He must show, that it was a fair and reasonable contract for a woman in distressed circumstances to make; that she made it with full knowledge, and freely, and with the advice of competent friends or counsel. He has shown nothing of this. It was most unreasonable to strip herself of her property, for no benefit. She was most cruelly tortured; and her fears, not her free-will, gave the promise; and she had the approbation of no friends, for she did not consult her trustee, who disapproved of it; and if consulted either by her or the defendant, would have prevented it; and her counsel had refused to draw the instrument, and the defendant knew of his refusal. It is to be hoped, that the high sanction of this court will never be given to such a contract; which is a temptation thrown in the way of the ministers of religion, which they may not always be able to resist. This most important and solemn relation that can subsist between individuals, ought, above all others to be guarded, even from the possibility of abuse, and hallowed by the most exalted purity.

Ingersoll, for the defendant.-The case of the appellee, as it stands without dispute or contrariety of testimony, exhibits strong claims for the consideration of a court of equity. A gentleman was defrauded of a considerable sum of money, in the course of arrangements for a mere investment, from which he could not possibly have gained a farthing; and could not, in the ordinary and even cautious estimate results, have anticipated a loss. The broker in whose hands he regularly places his funds in mere and necessary deposit, fails to procure the promised security; and the funds are dishonestly withdrawn from the use of their lawful owner. This state of things continues unchanged, during the joint lives of the parties to the transaction. One of them is a perfectly fair and honest sufferer; without being subject to the slightest imputation of misconduct or even indiscretion. The other is a gainer, precisely to the extent of the impropriety of his conduct; and lives and dies in the enjoyment of his illgotten gains. After the death of the fraudulent party, his wife executes an instrument, calculated merely to indemnify the party wronged. In doing so, she interferes with no just demand upon herself or her buried husband; she deprives no creditor of his claim. She does not even take from child or relative, a portion needed for education or support. She does an act which comes as near to the performance of an absolute duty, and a compliance with the exactions of positive right, as can be conceived; without a positive provision for it in the municipal code. It is an act which, in effect, some systems of legislation have enjoined; which in the code of morals, comes within a cardinal regulation; and which, in practice, is an honorable and not an unfrequent exhibition. Montesquieu highly commends a law of Geneva, which denies to the children of an insolvent parent the enjoyment of office, until they have paid his debts. Mrs. Goodwin herself did the like with other creditors of her husband, without any complaint on the part of her devisees.

The case thus presented, is one of those correct and even laudable transactions to which popular sentiment does homage, as to a useful example; and to which courts of justice will lend their aid, as directly within the just promotion of the purposes of all law, the good conduct and the happiness of those who live under it. The complainants must go far out of the case, in order to succeed. They must show something stronger than a contract, to destroy such an arrangement as is stated to exist. It is within the limits of legal possibility to do so. A contract, however clearly made, is liable to be overturned, if it be found wanting in the necessary legal ingredients which must contribute to sustain it. The complainants assume this burden of disproof. Fraud will vitiate any contract, unless it be mutual fraud. The pleadings neither allege the existence of fraud, nor the existence of the relation of pastor and member of a flock, from which it is argued that influence was fraudulently exercised. Such allegation is required, according to the best authorities. Flint v. Field, 2 Anst. 543; Gordon v. Gordon, 3 Swanst. 492; Gouverneur v. Elmendorf, 5 Johns. Ch. 79; E. I. Company v. Henchman, 1 Ves. jr. 289; Harding v. Handy, 11 Wheat. 103 This want of allegation is relied upon no further than to the extent of its preventing a suitable denial in the answer; and thus exposing the case to the uncertainties which arise from conflicting assertions in argument. Every allegation in the bill, which is material, is denied; and not one is sustained by testimony, to the disproof of the assertions in the answer. The bill relies upon the following positions; all of which are denied. 1. That the complainant, Jackson, in the summer of 1819, discovered the mortgage recorded, and called on the defendant to know how the debt was contracted, &c. 2. That the defendant urged Mrs. Goodwin, shortly after her husband's death, to execute a mortgage. 3. That she refused to do so; and that such refusal was by the advice of counsel. 4. That to avoid his importunities, she refused to receive his visits, or to see him. 5. That in December 1828 (before the mortgage was executed), she was taken ill. 6. That after her being taken ill, in December, defendant renewed his visits; took upon himself the management of her affairs; and having gained her confidence, and represented to her, as a clergyman, that she ought to execute the mortgage, prevailed on her to do so, in the absence of any friend or legal adviser. 7. That she was utterly incapable of 'understanding or comprehending' the meaning of the mortgage. These assertions are made by one who does not pretend to know the truth of them, or to assert anything of his own knowledge. He is irresponsible, because he is uninformed. They are unfounded in proof. They are all contradicted by the answer, in terms which are unmeasured and unequivocal. They are all as far as negative proofs can go, contradicted by other testimony. They remain, therefore, assertions only-ineffective words.

We deny that any relationship subsisted, which justifies the imputation of undue influence. Mr. Ashton was a clergyman, and Mrs. Goodwin was a religious woman; that is all that existed, and it is all that is alleged. There are relations which induce a high degree of confidence on the one side, and influence upon the other. They are stated in 1 Story's Equity, 306, &c. Wherever they exist, all arrangements between the parties are narrowly observed. It is equally true, as to quasi guardians or confidential advisers. But neither these, nor the positive relations between trustee and cestui que trust, vitiate necessarily a contract. A man cannot buy of, or sell to, himself, if he stands in the double capacity; but a trustee may, and often does purchase of his cestui que trust. Coles v. Trecothick, 9 Ves. 246. Cited, Mackreth v. Fox, 2 Bro. C. C. 400; Morse v. Royal, 12 Ves. 355; Whichcote v. Lawrence, 3 Ibid. 740; Lessee of Lazarus v. Bryson, 3 Binn. 63; Wormley v. Wormley, 8 Wheat. 421. The doctrine of the complainants would vitiate every contract between a pastor and the members of his congregation. He would become civiliter mortuus, and perhaps starve. No gift can be accepted, no purchase made from those who are about him; and the consequence would be, a condition of absolute seclusion and non-intercourse with his fellow-men.

The charge of imbecility of mind, is positively denied. It is denied in all its stages and degrees; it is repelled throughout. Mrs. Goodwin was not only not a woman 'utterly incapable of understanding and comprehending what she did;' but she was a woman of strong, active, vigorous and acute intellect. The idea of insanity is more than absurd; although it is suggested by one, at least, of the witnesses for the complainants. The act itself, conducted with infinite prudence and care in all its stages, proves her strength of mind and firmness of purpose. It was a fortnight or three weeks in progress; it was conducted with great correctness and propriety; with no undue haste, and no sort of surprise or irregularity. Much importance is always attached to the manner of conducting the very thing which is sought to be avoided by reason of alleged imbecility of mind. Cartwright v. Cartwright, 1 Eng. Eccl. 51. During her lifetime, not a suggestion was made of the invalidity of the act, or her incapacity to perform it. The complainant himself, her agent in business, as well as her successor in interest, and guardian by affinity, knew of the mortgage, and of the determination of the defendant to pursue it; of his refusal to compromise; and of his stern demand of the uttermost farthing, as a clear right. Yet he permits it to pass; so does she. She does more; she confirms it, in the belief which has been verified, that it would not be enforced during her life. All this omission to object in due and proper season, was the result of a conviction, that the presence of Mrs. Goodwin would have put down, at once, an attempt to avoid the mortgage. She never denied or doubted it; her whole life was its confirmation; and she would have revolted indignantly at the thought of an inconsistent attempt to disaffirm it. There is no difficulty about stultifying oneself, if there be the slighest imposition. See 12 Petersd. 277-8. Witnesses are called to prove an illness, at a period subsequent to that alleged, and subsequent also to the date of the mortgage. Such evidence is not available, being counter to the party's own allegation in pleading. East India Co. v. Keighly, 4 Madd. 16; Pilling v. Armitage, 12 Ves. 78; Willis v. Evans, 2 Ball & Beat. 228; Underhill v. Van Cortland, 2 Johns. Ch. 339; James v. McKernon, 6 Johns. 543, 559; Linker v. Smith, 4 W. C. C. 224. The cases of influence reported in the books, show direct misrepresentation, and wilful fraud. Slocum v. Marshall, 2 W. C. C. 597; Whelan v. Whelan, 3 Cow. 537; Huguenin v. Baseley, 14 Ves. 273; Norton v. Relly, 2 Eden 286; Pursell v. McNamara, 14 Ves. 91.

It has been argued by counsel, although not suggested in the pleadings, that the mortgage is void, because in furtherance of an attempt to compound a prosecution for a crime. We deny that any such arrangement was at any time made. The cases which have been decided on the subject of agreements, contrary to the policy of the law, do not apply to this. Leading ones are to be found, 2 Wils. 341; 1 Leon. 180; 3 P. Wms. 279; 1 Hopk. 11, &c. But the rule is, that if an arrangement may be lawful, no principle directs that it shall be construed otherwise. Harris v. Busk, 5 Taunt. 54; Shenk v. Mingle, 13 Serg. & Rawle 29; Wallace v. Hardacre, 1 Camp. 45; Brett v. Close, 16 East 298. No forgery in fact had been committed. There was a gross fraud; and Mrs. Goodwin anxiously desired that it should not be made public. That end was gained by the forbearance to sue during her husband's life. After his death, the fears of a prosecution were over. There was none to be dreaded, and none to be stifled. All that she did was purely voluntary. If she made any engagements before (she being a married woman), they were legally nonentities. 1 Sid. 120; 7 Mass. 14.

Were it otherwise, the case of the complainant would not be aided. A mutual agreement to violate the law, will not justify the application of either party to a court of justice for relief. This is not our attempt to enforce the mortgage. It is the attempt of the complainants to have it delivered up to be cancelled. If their views are correct as to the nature of the contract, neither party can succeed. The distinction between an application for specific performance, and a bill like this, is well understood. Smyth v. Smyth, 2 Madd. 87; Martin v. Mitchell, 2 Jac. & Walk. 419. The law, however administered in point of form, does not lend its aid to those who allege that they have endeavored to violate it. Hawes v. Loader, Yelverton 196; Osborne v. Moss, 7 Johns. 161; Simon's Lessee v. Gibson, 1 Yeates 291; Reinchart v. Castator, 5 Binn. 109; Numan v. Capp, Ibid. 76; 5 Co. 60; 2 Vern. 133.

We know nothing of the source from which the trust estate of Mrs. Goodwin was derived. If from her husband, it is a fund peculiarly appropriate for the payment of this debt; and it is fraud to withhold it. Inducements stronger even than those of honest pride and affection, may have led her to provide this security. Under the consciousness, if it existed, that she held property which belonged to her husband; it was the simple dictate of moral honesty, to yield it to so sacred a claim as that of the defendant. With or without the motive, she was sensible that the money of which the defendant had been spoiled, belonged to the child of a deceased friend; and she, therefore, anxiously and naturally sought to secure its restoration.

March has been said of the extent of pecuniary effort which Mrs. Goodwin's estate must make, to meet this engagement. It is supposed, that all her property was pledged for the purpose; and more than once, she is declared to have stripped and beggared herself, to meet the object. It is easy to show how erroneous is this presumption; and hence to defeat the argument drawn from the supposed unreasonable character of the sacrifice, and the appeal which it involves to our feelings of kinkness for her descendants.

1. The mortgage contains only three small lots in the city of Philadelphia; and it is in evidence, that she had property in the country; especially, the seat where she was visited by Dr. Beatty, during one of her attacks of indisposition.

2. The bill states, that Mrs. Goodwin's will devises, among other things, the mortgaged premises. The general character of the will does not enable us to judge of the comparative value of the property mortgaged, and that which was left free from liability.

It is obvious, that the mortgage affords inadequate security to the defendant. .The money loaned, and perhaps lost, is $

The security given by Mrs. Goodwin, yielding beyond other

liens, $61 a year, would afford a capital of about

---

$

Mr. Ashton saved by the purchase of premises mortgaged by

Goodwin, an levied on, and sold by virtue of

an earlier mortgage,.................... 496

Leaving a principal sum, unsecured, .......$2178

Something has been said with regard to the possession of the defeasance by the defendant. It wanted explanation, in proof, before the circuit court. But it is now fully explained by the testimony of Daniel R. Ashton; who states, that it was borrowed of the scrivener for the purpose of preparing the answer. It had remained in the hands of the scrivener, in consequence of the inadvertent omission of Mrs. Goodwin's trustee to call and receive it. Besides, there is nothing in the bill in relation to it; if there had been, it would have enabled the defendant himself fully to account for whatever there is supposed to be of mystery. It was executed in prefect good faith and form. It was left with the scrivener, according to agreement, and it was so left for the proper party (the trustee), and it remained subject to his call. A failure of memory in the scrivener, who did not chance to recollect how it passed out of his hands; or a little neglect in the trustee to call for it in season; cannot surely involve a case in jeopardy, or a party in so grave a charge as that of withholding a document necessary for the protection of the complainants against absolute liability. The defendant never alleged, that the mortgage was other than collateral.

McLEAN, Justice, delivered the opinion of the court.

Notes