The fact material to the complainant’s title to relief is, that the defendant represented to her that the land was subject to two mortgages of $700 and $400, respectively, and that he paid $1100 less for the land, in consequence of these representations, than she would have otherwise required.
That $1700 was treated as the value of the land by both parties in this transaction, sufficiently appears by the evidence of the complainant, by the above admissions in the answer, and by the proof offered by one of the exhibits that the defendant’s brother Edward, who acted as his agent in this matter, and was his security on the note to her for the price, or perhaps was the agent of both parties, took from her, at the close of the transaction, a receipt upon a deed given to her husband by his father for this lot, acknowledging the payment of $1700 for the transfer of the title. It is not a document that binds the defendant, but it is important as a memorandum at the time, of a transaction of which Edward had knowledge by hearing the bargaining between the parties.
The complainant swears positively to the representations of the defendant, as to both encumbrances. The defendant’s answer admits that he insisted to her that the Stiles mortgage was an encumbrance on the land. Of the fact that he did so there can be no question. He justifies it in his answer and in his testimony, by a statement of the condition of .the estate of the testator in the hands of Jacob, as executor, alleging that Jacob, as executor, owed him $900, and that this debt absolved him in equity from his covenant to pay the Stiles mortgage, so that Jacob should have clear title to the sixteen acre lot. He says he apprised the complainant of these facts, and that he claimed that the mortgage was an encumbrance which she ought to discharge, on account of them. If this was so, it would be an answer to so much of the charges of the bill.
But these are facts set up by the defendant not in denial *224of the fact upon which the fraud is based — the representation that the tract was subject to the mortgage — but in avoidance and justification of it. He must, therefore, prove this defence. The complainant denies, on her oath, that he made this representation to her. He, in his testimony, swears that he did. No other witness is offered to this fact.
It is not pretended that any accounts or statements of the estate was shown to complainant, showing this defalcation of her husband. He was a clergyman — a profession in which character for honesty and fair dealing is of consequence, and always claimed. His wife would scarcely forget such a charge, and, in narrow circumstances, as she was, would hardly have admitted a claim of $900 from the price of her land, upon the mere say so of John, or pay that claim by deducting it from the price of her lot, without taking some voucher or release to discharge her and her child from its being revived. The deed and written agreement of sale bind him to pay the mortgages, which she did not owe, and which he was already bound to pay by two agreements, but nothing is provided to release her from a claim to which she was bound as executrix of her husband; and it is not probable, if this negotiation was conducted, and tho papers drawn under the direction of counsel of character, who had drawn one of the previous agreements, as is claimed by the defendant, that such counsel would have been satisfied with this superfluous agreement in the deed, and neglected the real matter settled. B.-yond all question he would not, if his attention had then been drawn, as defendant testifies, to the previous arrangements, and to the reason alleged by defendant for claiming this as an encumbrance against the complainant.
The fact that Jacob had wrongfully appropriated the personal estate of the testator, to the amount of $1800, rests solely upon the evidence of the defendant. His answer as to this is not responsive. It is very difficult, in face of the agreement of February 23d, 1854, to believe this. That agreement fixes the mortgages which each son is to pay. Oí a *225debt of about $4000, the defendant agrees to pay two mortgages that are designated, one of $1200, the other being the mortgage in question of $800, $100 interest being due. It would have been more than the share of the defendant to have assumed the mortgage of $1,200, and leave the $800 due on the Stiles mortgage to be paid by Jacob out of the $900 in his hands belonging to John, and, in the mean time, to let the lien of the mortgage rest on the lot of Jacob, who owed the debt.
The letters of John to Jacob, written in November and December, 1853, and in January, 1854, are entirely inconsistent with the fact of this indebtedness to him. He would not have apologized to Jacob for not being able to pay by driblets the overdue instalments for his purchase of the two lots, if he could have turned round to him and said, you owe me twice as much, from the assets in your hands.
It is impossible to believe from the evidence, that Jacob owed the defendant $900, or any such sum, as executor of his father. And if the proof was satisfactory that he insisted to the complainant that the Stiles mortgage was a lien as against her on that account, it would be no defence, as the fact represented is not proved to be true.
There is greater difficulty in the proof as to the mortgage to Mrs. Watkins; the only direct proof of the representation is the testimony of the complainant. The answer, in this respect responsive, fully denies it. It must, therefore, be overcome by stronger proof than the evidence of the complainant. The amount at which the property was valued shows that something besides the $700 mortgage to Stiles was deducted; that, with the $600 note, falls short of the price, $400, the sum complainant says was represented to her as the other encumbrance. It is the principal which would produce the annuity of $24. These are slight circumstances to support complainant’s evidence.
Tier strong confirmation is the agreement for sale and the deed given by her, both drawn by a lawyer of ability and integrity. By the agreement dated April 10th, 1856, she *226agrees to convey the lot, subject to the mortgages thereon, not to the mortgage, which surely would have been the language, if it had first been discussed and settled that there was only the Winans mortgage. By the deed in fulfillment of this contract, dated on the 15th of April, all the encumbrances and liens existing at the death of Jacob are to be assumed and paid by the defendant, and the land is conveyed subject to the said encumbrances, twice repeated. This cannot be explained by the dower of the mother of Jacob; that could not be assumed or paid. The inference from this language is inevitable, that it must have been represented to the complainant and the conveyancer that there was more than one pecuniary lien on the premises. It supports her positive testimony, so as to compel belief against the answer and evidence of the defendant.
That the complainant, while higgling with the defendant between $500 and $600 as the price of the lot, should offer to sell it to others for $600 is natural, after §he had been made to believe that there were encumbrances on it amounting to $1100.
The fact that her stepfather, who acted with her in the sale of this lot, was an attesting witness to her husband’s signature to the agreement of February 23d, 1853, raises no presumption that he knew or recollected its contents. The agreement was sent to Jacob, at Washington, and was signed by him aloné there. The formality of an attesting witness was required. Few subscribing witnesses ever hear the contents of the paper they attest; fewer still, notice or would recollect them at the end of a year.
As there is no proof of fraud in the purchase of this lot at the price of $1700, which was its value, and was fully understood by the complainant, the sale itself will not be set aside; but the fraud being in the non-payment of the price, on account of false representations, the defendant must be directed to account for and pay the part of the price so withheld. He must account for $1100, with lawful interest from April 15th, 1856.