at this term, delivered the opinion of the «court. In tins caso the appellees filed a bill in the court of chancery, stating that John Stocked, on the 28th day of •Tone 1816, executed an absolute deed, purporting to convey to Nicholas Watkins of Thomas, sundry parcels of land, and several negroes, cud charge's, that it was the intention of the parties that it should be only a mortgage, and that it was designed to secure the payment of a sum of money loaned by Watkins about that time to Stocked. That Stocked, notwithstanding the conveyance, remained in possession until the time of his death, and that the consideration was greatly less than it was really worth. The bill prays a reconveyance of the property to the complainant, who is the devisee and executrix oí'John Stocked, upon the repayment, with interest, of the sum actually intended to be secured by said deed; and the respondent is particularly interrogated and required to-answer what sum of money was loaned by him to John Stocked, at what times, and fer what purpose.
The answer of Watkins states, that on the day of the execution of the deed, he advanced and lent to Stocked the consideration expressed in the deed; that Stocked was in debt, to him -in other and large sums of money, for services rendered, and for monies advanced and paid, and also for the sum of 8500, lent to him on the IDth of February 1810, for which he held the respondent's note; and expressly slates, that the deed, at the time of its execution, was considered and declared to be by Stocked an absolute conveyance, and was executed, not only in consideration of the sum therein expressed, but in consideration of the services rendered, and the sums advanced, as above stated; and that it was understood between Stocked, and himself, that the land and negroes conveyed were to be possessed, used and enjoyed, by Stocked, during his Ufe, and that at his death they were to vest in the respondent in full property and possession.
15v the evidence in the cause, it appears that Stocked ami Watkins both applied to a conveyancer to draw a deed for the land; that instructions were given by one or botii, both *442being present, to draw an absolute deed; that Stockett, previous to the execution of the deed, had declared to several persons his determination that his relatives should enjoy no benefit from his property, havirig been illy treated by them; and that he meant to convey it to one of Watkins’s children; that he was a weak man, and itítémperate; that upon several occasions, when claims were presented to him for payment, he declared he had no property, that what he was in possession of, belonged to Watkins; That Watkins, at different times after the execution of the deed, declared td sevéral persons, among others to Mrs. Stockett, after the death of her husband, that he had an absolute conveyance for the land a 1 slaves, and that he spoke of claims which, he had against the estate of Stockett after his death. The property conveyed is proved to have been worth about §2700. The claims which Watkins had against Stockett are variously represented. He stated an Account against him which, even excluding the consideration money mentioned in the deed, amounted to up wilt'd s of §2700.
By the auditor’s report, clairhs were állowed to Watkins, which, with interest on them from their date to the day of the execution of the deed, would amount to about the sum of §1700. Some of" Watkins’s claim, consisting of items of a considerable amount, weré disallowed by the auditor as of a'doubtful character, the proof adduced in their support being deemed by that officer insufficient. The chancellor considered the deed to be á mortgage, and’ having ascertained the athount of Watkins’s claim against Stockett, decreed the land, conveyed by the deed, to be sol'd for the payment of the.claim. Frdm this decree the present appeal has been taken. '
It is an admitted principle that fraud maybe inferred from facts and circumstances, from the character of the contract, .or from the condition and circumstances of the parties. Chesterfield vs. Jansen, 1 Ves. 155. Newl. on Cont. 352.
The evidence upon which the fraud in this casé is attempted to be founded, arises from the inadequacy of the price, the state of mind Of the grantor in the deed, and from the circumstance of the grantor’s remaining in possession of the property after the execution of the deed, until his death. Mere inadequacy of price, unaccompanied with any circumstances, indicating that the grantof *443uid not understand bis bargain, or was so oppressed that be was glad to make it, knowing its inadequacy, may be a sufficient intention of fraud. Heathcoat vs. Pagnon, 2 Bro. Cha. Ca. 175. The ignorance of the grantor can be inferred neither from the inadequacy of the consideration, nor from any evidence in the cause, but on the contrary is expressly contradicted. The conveyancer was especially instructed, either by him or in his presence, to pass an absolute estate. No room is left for the inference of circumvention or fraud, lie transferred his estate with his eyes ackuowledgcdly open to the nature aud quality of the estate, which was transferred, aud was intended to be transferred, lie does not, it is true, appear to be a man possessing dexterity in the management of his affairs, on the contrary is said, in the language of one of the witnesses in the cause, to have been a weak man; but the nature and character of that mental imbecility is unknown to the court. It no where appears that he was incapable of transacting the ordinary affairs of life, or was peculiarly liable to imposition from the artful and designing, nor does it appear that any efforts were made to take advantage of tisis alleged imbecility. In the case of Clarkson vs. Hanway, 2 P. Wms. 213, a deed was set aside, where the inadequacy of price was of so glaring a character that it would be impossible to state it to a man of common sense, without au exclamation at its inequality, and when proqf was exhibited that the grantor was of weak mind, of great age, and easily imposed upon; but in this determination much stress was laid upon the absence of all evidence to. show, that the grantor had ever given any instructions to, the conveyancer to prepare the deed, and that they had in fact been given by the grantee; which circumstances were pointed at as strongly evincive of fraud. In Griffin vs. Deveville, 3 P. Wms. 103, (note) the Lord Chancellor remarks, that in almost every case upon tiiis subject, a principal ingredient is a degree of weakness little short of legal incapacity. The party must be more liable to imposition than the generality of mankind. It was observed by a distinguished jurist, Sir Joseph Jekyll, that where a weals, 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 men*444tis. Nor will a court of equity measure the size of men’s understanding and capacity, there being po such thing as an equitable incapacity where there is a legal capacity. This is undoubtedly the safest doctrine, where there is a, total absence of al.l fraud and imposition..
Neither fraud nor an original intention to execute a mortgage, could be inferred from the grantor’s remaining-in possession. As against creditors, that ciicumstance might furnish, in connexion with other testimony, evidence of an original fraudulent intent.. But it is difficult to conceive how the grantor’s remaining in possession, with the toleration and by the permission of the grantee, and from mere forbearance towards him, will enable his clevi,see, or legal representatives, to set up fraud from this circumstance., Fraud cannot be. intended or presumed, (per Lord Ch. J. Treby, in Bath vs. Montague, 3 Cha. Ca. 106.) To set aside the deed, or give it a different efficacy from that which it naturally and legally imports, so far as. the grantee, or his legal representatives, are concerned, would, against the defendant’s answer, require not only the allegation, but the most unequivocal,evidences of fraud on the part of the grantee.
Where fraud exists equity will interpose, and make the , contract conformable to the intention of the parties. It bus been decided, that where a plaintiff* filed a bill to redeem an. annuity, and it became a question whether parol evidence could be admitted to show the intention of the par- .• ties that the annuity should be redeemable, but no clause to that effect had been' inserted in the deed, that if the clause had been omitted, or varied by fraud, the evidence Would he admissible. 1 Bro. Ch. Ca. 91. Parol evidence is inadmissible to vary or contradict the clear, certain, and unequivocal import of a written instrument/ and the rule of evidence is the same at law as in equity, except where fraud is charged, or ixi cases of trusts where, in order to. get at the real intention of a trust, or use declared under deeds for the sake of justice and equity, an inquiry will be permitted into the real merits of the case. 2 Atkins, 229. It would indeed lead to infinite mischief if writings,, which show clearly the agreement of parties, were permitted to be contradicted, and new stipulations interpolated. There would be no security ip property, and no faith. *445reposed in fue most solemn conventions. 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 da hors the instrument, in contradiction of an intent which no law or statute will be suffered to assist or protect; and so, where mistakes are proved to exist, a court of equity will reform the contract. The cases under this head are digested in Sugden, and the power of the court to interfere seems to be indisputable.
The decree of the court of chancery seems to be bottomed on the answer of the defendant, as containing an admission of the original intent of the parties that the instrument should have been a mortgage. It is inconceivable upon what ground ibis deduction could have been made. The respondent is specially interrogated by the bill as to the amount of the monies loaned. The answer states the amount loaned, at the time of the execution of the deed, as previous theiclo, and it explicitly declines, that thesq sums, and other debts at the time existing, constituted, unitedly, the consideration, and that an absolute deed w^a expressly agreed to be made.
it must be remarked, that fraud is not alleged as a ground for the interposition of a court of equity in this case; and without this allegation, proof of fraud would be inadmissible, according to the dotcnmns.no:i of ¡his court in the case of Westly vs. Thomas. And if we infer the allegation of a mistake frost the general chai.'/' of the bill, the evidence conclusively shows the original avoirs' to have been to execute an absolute come vanee. The answer denies the existence of a mistake, and in such cuses there should be the strongest possible proof, Lord Therthow, in Irnham vs. Child, 1 Bro. Ch. Ca. 92, said, that the proof ol a mistake should be established as much to the satisfaction of the court as if it were admitted, and that the diCfieulty of doing this is so great, that there is no instance of its prevailing against a party insisting there, is no mis~ take.
ÍHiCREE ItEVES.SE»,i