At October Term, 1817, the death of John Armsworthy, the husband of the plaintiff Esther, was suggested, and the suit ordered to be carried on in her name.
This answer having been replied to by the plaintiff Esther, the parties proceeded to take their proofs. The most important deposition on the part of the plaintiff was that of Braxton Bryant. This witness's deposition was taken on 17 September, 1817. In it he stated that he had been applied to by the deceased to write his will, and was furnished the proper memoranda wherewith to prepare it. That after this will was written, the intestate consulted him on the propriety of giving away a portion of his property by deeds of gift, because his son-in-law, one of the plaintiffs, threatened to sue him on account of some moneys which were alleged to belong to the estate of a deceased son of the intestate. That the witness was requested to write four deeds of gift, one to the defendant Aquilla and one to each of the other original defendants, which deeds were to comprehend respectively the same property as was bequeathed to them in the will; that the defendant, who had also requested him to write the said deeds, prevailed on the witness to prepare also a fifth deed, which should contain four negroes in addition to the property intended for him by his grandfather, and (459) promised to reward the witness's services in this respect by a gift of $100 to the witness's daughter; that accordingly, besides the four which he was instructed to prepare by the intestate, he *Page 367 fabricated a fifth, conforming to this request of the defendant; that the old man had previously read the first four deeds, and that on the night the execution of them was about to take place, he (the witness), slipped the fifth and false one in the place of that which the intestate supposed he was to execute in favor of the defendant, and thus this deed was fraudulently executed, and, after being executed, was attested by the subscribing witnesses. He further declared that the four negroes included in this spurious deed were, by the old man's instructions, not to be inserted in any of the deeds, but to be permitted to go to his lawful children; that this imposition was practiced at the instance of the defendant, and that he believed at the time it was done he (the witness) slipped into the defendant's hands the paper which was to have been, but which was not, executed.
The subscribing witnesses were examined on the part of the defendant. David Sheets only stated that at the request of the defendant he went with Bryan, Hainline, and others to the house of the deceased, and was requested to witness some instruments of writing which he understood to be deeds for portions of the old man's property to the defendant and others, and that these deeds were either executed or the execution of them acknowledged in his presence; that he supposed from the manner in which the transaction was done that it had been well considered of and the old man aware of what he was doing, and that the witnesses were requested by him not to say anything respecting the transaction during his life, and he was unwilling to cause an altercation in his family.
The other witness, Hainline, was more circumstantial. He stated that he was twice requested by the defendant to attend at the house of the intestate to witness a deed of gift; that he failed to attend on the first invitation, but went upon the second; that he reached the house of the old gentleman in the night, about two hours after (460) dark; that some time after his arrival, at the request of the defendant, the intestate was left alone with Baxton Bryant; that when he and Sheets went again into the room (at whose call he did not state) the old man signed in his presence, and delivered to the defendant Aquilla, the several instruments of writing which were attested by himself and Sheets; that when the old man delivered the papers he used these words, "I deliver these for the purposes therein expressed," and all appeared to be done deliberately and of his free will; that it was one or two hours after the witness arrived at the house before the business was done; that when it was done, Bryant asked the old man if he wished to have the affair kept secret, and he replied that he did.
A vast number of other depositions were filed, of which it is not necessary to take a particular notice. From these examinations it appeared *Page 368 that the intestate was more than 80 years of age when he died; that he had been a man of ordinary education, able and accustomed to read and write; that at the time of the transaction in question his sense of hearing was much impaired; that he was yet able to read with the aid of glasses; that his understanding was weakened by age and infirmities, but he was yet competent for the rational disposition of his property. He had three legitimate children living, who were his next of kin, the plaintiff Esther, Elizabeth, married to Richard Williams, and Nelly, the wife of Benjamin B. Walker. The defendant Aquilla was the illegitimate son and Lethe Call the illegitimate daughter of Sarah, a deceased child. Julia Cheshire was the illegitimate child of Latty, another deceased daughter of the intestate, and Fanny Jarvis was the child of Ruth, a daughter of Elizabeth Williams, born out of wedlock. It did not appear whether any of these descendants, legitimate or illegitimate, lived in his family, except the defendant Aquilla, who had the active superintendence of his affairs, and was greatly trusted by him. Many of the depositions give the opinion of the witnesses as to the general character of Baxton Bryant for truth on oath, and are in this respect directly at points with each other. Some of the witnesses relate conversations with him apparently confidential, and soon after the transaction, concurring with the account which he afterwards gave on his examination, and others depose to conversations with the same witness in which his statements were at variance with that to which he afterwards testified. According to all of the witnesses, he appears to have been a man of talents and education, who once sustained a fair character, who afterwards became intemperate and indulged in excessive drinking, and finally fell a victim to that vice. At what step he stood in this descending scale when the transaction took place, or when his deposition was taken, it is not easy from the testimony of the witnesses to determine.
The original deed to the defendant is not upon file, but a copy is produced, accompanied with an affidavit from the defendant that the original had been placed in the hands of his counsel, Mr. Henderson, and since the death of that gentleman he has not been able to procure it. From this copy it appears to have been executed on 4 August, 1815, and to have been exhibited for probate at May Term, 1816, the term succeeding that at which administration on the estate of the intestate was granted to the plaintiff. The will mentioned as having been prepared for him by the witness Bryant is not produced, nor any account given of it. If in existence, it would have been a very important paper to confirm or counteract Bryant's statements — and if in existence, it must be presumed, from the control which the defendant had over the affairs of the intestate, to be in his possession. *Page 369
After all the testimony had been taken, and these exhibits filed, the cause was set down for hearing and came on to be heard before the judge of the court of equity for the county of Rowan at April Term, 1825, of said court, when his Honor was pleased to direct an issue in the following words to be submitted to a jury: "Was the deed of gift mentioned in the plaintiff's bill from Burch Cheshire to Aquilla (462) Cheshire fairly or fraudulently obtained?" And a jury being charged with the trial of said issue, returned a verdict that the said deed was fraudulently obtained. A rule for a new trial was granted, which was held over until October Term, 1826, when it was made absolute. The cause was continued until October Term, 1828, when by consent of parties it was removed to the court of the adjoining county of Davidson. In that court at April Term, 1830, the same issue was again submitted to a jury, who also returned a verdict that the deed of gift mentioned in the plaintiff's bill, from Burch Cheshire to Aquilla Cheshire, was not fairly, but fraudulently, obtained. Thereupon the court ordered that the defendant should enter into a bond with good surety, payable to the plaintiff, in the sum of $500, for securing the payment of the hire of the negroes in contest; and that on his failing to do so, the sheriff should take the said negroes into his custody and hire them out until the next term, taking bond and surety for the forthcoming of the negroes. It does not appear that any motion was made for a new trial of the issue, or for any order of the court to set aside the verdict; but at the next term the same issue was again submitted to a jury, and they also found that the said deed of gift mentioned in the plaintiff's bill, from Burch Cheshire to Aquilla Cheshire, was not fairly, but fraudulently, obtained. Upon the trial of this issue it appears from the transcript that the judge instructed the jury that they were not at liberty to find the same against the defendant upon the testimony of a single witness, unsupported by circumstances furnished by the testimony of other witnesses; that the defendant, after the last mentioned verdict was rendered, moved to have it set aside, and to have a new trial awarded, because the said verdict was contrary to the weight of evidence; that this motion was overruled; that the defendant thereupon insisted that the plaintiff's bill ought to be dismissed because the testimony of the only witness relied upon to prove the fraud was not supported by circumstances furnished by the testimony of any other witness. (463) This objection was overruled, and thereupon the presiding judge did declare and decree that the deed made by Burch Cheshire to the defendant Aquilla, bearing date August, 1815, for the negro slaves Sam, Dennis, Rachael, and Rachael the younger, was obtained by fraud, and that the said defendant do surrender the same to the clerk of this court, to be canceled; that the defendant do deliver up to the plaintiff Dennis *Page 370 and Rachael, the only survivors of these slaves, and Baal, the offspring of the other, Rachael, on the plaintiff entering into bond and surety to have them and their issue forthcoming to answer the final decree of the court, and to pay their hires to the defendant in case the final decision of the court should be in his favor; that the clerk and master should ascertain and report the value of the hire of the slaves since they had been in the defendant's possession; whether any, and, if any, which have died; whether they have had increase, and, if so, the names and ages of such increase; whether the defendant is entitled to any credits, and, if so, the amount thereof; and that the cause be held over for further proceedings. And it was further ordered that the master take an account of the value of the other property contained in the said fraudulent deed. Several other interlocutory orders, which it is not necessary particularly to recite, were subsequently passed respecting the safe custody of the property. A petition was then filed to rehear the order made at April Term, 1825, directing an issue of fact to be submitted to the jury; also to rehear the decision of the judge on the motion for a new trial of the issue at October Term, 1830, and the declaration and decree of his Honor at the said term, pronouncing the deed to be fraudulent, as hereinbefore stated. This petition was granted, and a report having been also made by the clerk, and exceptions taken thereunto, the cause has been removed into this Court for a final adjudication.
On behalf of the defendant it has been insisted, on the rehearing, that the interlocutory order for submitting an issue to a jury was (464) contrary to the established rules of a court of equity. It is urged that, according to these rules, wherever the defendant's answer positively denies the allegations in the plaintiff's bill, and these allegations are supported only by the testimony of a single witness, the court will neither make a decree against the defendant, nor send the case to be tried at law; that in this case there was nothing more than the positive assertion of one witness and a positive denial by the defendant, and that the witness whose assertion is the sole foundation of the plaintiff's cause shows himself by his own statement wholly destitute of that integrity which should give him a claim to credit. Of the first part of this proposition we entertain no doubt. Where the denial of a defendant responsive to the plaintiff's charge is clear, precise, and positive, and it is met by the assertion of one witness only, equally clear, precise, and positive, the court will not make a decree for the plaintiff unless circumstances appear showing, not, indeed, absolutely that the truth is with the witness, but that there is a strong moral probability that his statement is true. With regard to the next part of this proposition, we find much contradiction in the books, and some difficulty in extracting from them a *Page 371 distinct rule for regulating the discretion of a court in awarding an issue. On the other hand, it seems to us that the rule not to decree against the answer upon the unsupported testimony of a single witness would be broken down if whenever such a conflict existed it could be left to a jury to decide whether greater credit should be given to the witness or to the party. But, on the other hand, to order an issue only where the circumstances attaching credit to the assertion of the witness clearly overbalance the credit due to the denial of the party is calling on a jury where the chancellor needs not its assistance, but has sufficient matter whereon to found a decree. Perhaps it is impossible to lay down a rule in precise terms, and some latitude must be allowed for the exercise of a sound discretion. It may be enough to say that there ought to be some circumstances giving a preponderance to the testimony of the (465) witness, independently of the suspicion against the answer arising from the interest of the party, before an issue should be awarded; but it is not necessary that these circumstances should be sufficient to produce a clear conviction on the mind of the chancellor against the answer. If his inclination upon these circumstances be in favor of the witness, but his conscience is still in doubt, he may with propriety order an issue, or tender one to the defendant, who may accept or decline at his peril. In this case there were circumstances tending strongly to confirm the testimony of the witness, fully sufficient, nay, demanding a decision in conformity to that testimony, but for the admitted participation of the witness in the base fraud charged. I shall name but a few that seem to us natural. The others, though also much insisted on in argument, were not regarded as of much weight. The hour at which the transaction took place is calculated to give support to the narrative of the witness. According to the testimony of Hainline, it must have been between 11 and 12 o'clock at night, long after the period at which it is customary for the plain farmers of our country to retire to repose, and long after old age and infirmity are wont to seek in sleep relief from weariness and care. The parties did not arrive at the house until two hours after dark, and from one to two hours elapsed afterwards before the witness were called in to see the execution of the instruments. The time was peculiarly fitted for playing off the infamous trick stated by Bryant upon a man of 80 years of age, of weak sight and infirm health, and no reason is given, if the purpose was an honest one, for selecting an hour so unusual for the transaction of business. This circumstance derives more weight from its being in direct contradiction to the defendant's answer, who, aware of the suspicion it ought to excite, untruly states that the deeds were executed before early bedtime. But the other circumstances stated by Hainline are far more strong. This witness and Sheets, *Page 372 (466) according to the defendant's answer, were the very persons selected by the old gentleman to be the witness of this transaction Yet after their arrival at the house, the defendant himself, who had brought them thither, in pursuance of the intestate's request, and for the very purpose of attesting what should take place, asks them out of the room in order that the old man might be left alone with Bryant, and they do not return for an hour or two, nor until they are wanted for the purpose of seeing or hearing acknowledged the formal execution of the papers. If Bryant's statement be true, we see at once an adequate motive for these witness being out of the way, while he shuffled off one of the papers and substituted another in its place. If his statement be not true, and the transaction was fair, the proceeding is wholly unaccounted for and unaccountable. There is no proof that there was any other individual in the house except the old man, Bryant, the defendant, and these two witnesses; all, according to the defendant's account, intended to be fully cognizant of what should take place, and relied upon to keep it a secret so long as he should live, in order to prevent an interruption among his children. The difficulty, therefore, in ascertaining the truth of the controverted matter of fact did not arise from the want of circumstances to support the positive evidence of Bryant, but solely in deciding what degree of credit was due to the witness himself. As an acknowledged accomplice in the criminal act, he was of course obnoxious to strong suspicions. Yet he was a competent witness, and his tale rendered highly probable by corroborating facts, testified to by witnesses above suspicion. We think that the court acted right in leaving it to a jury, knowing the witness, and knowing the defendant whose answer was relied on, to pass upon the credit of which, under all circumstances, was due to the testimony of the one and the denial of the other.
We are by no means satisfied with the general terms in which this issue was expressed. When a judge wishes his conscience informed upon any matter of fact, the issue should be so framed as to present that fact precisely to the jury. Whether a deed has been fairly or (467) fraudulently obtained is a general and indefinite issue, which might involve matter of law as well as of fact. But on looking into the instructions given by the judge to the jury on the last trial of the issue, and into the motion to dismiss the bill, we cannot but see that, however vague may have been the terms of the issue, it was treated by all as one specific in its nature and embracing the naked fact in dispute.
The Court, therefore, does not reverse, but, on the contrary, affirms the interlocutory order for the issue; nor does it see any reason to disapprove of the decision of the judge refusing a new trial. Three verdicts had been rendered all one way, and all founded upon sufficient proof, if Bryant was entitled to credit, and after thirty-six disinterested *Page 373 freeholders, selected by the parties, had on their oath declared that they believed him, it could not have been permitted to the judge to ask more for the satisfaction of his conscience in this respect.
As to the interlocutory order which was made at October Term, 1830, so far as the same declared the deed obtained by the defendant to have been obtained by fraud, and decreed the delivery of the negroes, and directed the master to take an account, the Court doth approve thereof. (His Honor then proceeded to correct some miscalculations in the report which it is unnecessary to state.)
PER CURIAM. Affirmed.