DISSENTING OPINION
Hon. T. F. King,Judge of the Southern Circuit, delivered the following dissenting opinion :
The objects sought by the bill in this cause are that Edward C. Bellamy, the Appellant, be declared the trustee of Samuel C. Bellamy, the Appellee, for certain property mortgaged to the Union Bank of Florida, the equity of redemption in which was conveyed by the Appellee to the Appellant on the 13th December, 1845, by a deed absolute on its face ; that the Appellant be made to account for the issues and profits of said property as well as other property held by him, as trustee of the Appellee, under a deed of the 19th November, 1844, and that he be removed from his said trust.
A number of other persons, creditors of the Appellee, are included in the bill as defendants, but none of them seem to have appeared so that this contest is confined to Samuel :C. and Edward C. Bellamy.
The facts as contained in the pleadings andevidénce having been fully set out in the opinion of the Court, 1 will pro•ceed to consider those points which I think material to the ■decision of the cause.
*120The first question that arises is as to the truth of the allegation in the bill that the property conveyed in the deed of 1845, was included in, and conveyed by, the trust deed of 1844. The deed of 1845 conveys to the Appellant, Samuel C. Bellamy’s equity of redemption in sixty-five negroes and twelve hundred acres of land mortgaged to the Union Bank. In the deed of 1844, there is no specification by name of these negroes nor description of this land, nor are they referred to as mortgaged to the Bank, though in the deed of 1845, the names of the negroes and the boundaries of the land are fully set out. The description of the property conveyed by the deed of 1844 is as follows: “Tony, Sally, Flora, Esop, Cinda; also his stock of horses, mules, cattle and hogs, of which he is now in possession and which cannot be more particularly described, together with his household and kitchen furniture, and all his personal effects of every name, nature and description, corn, wagons, carts, &c.; also, his crop of the' present year whether now in bales, in the gin house or in the field; also all his right and interest in and to the contract for constructing the bridge across the Chipóla river, near Marianna.”
It is insisted by the appellee in his bill and by his counsel in argument, that all his personal property whatever, passed under the general terms “ personal effects of every name, nature and description.” The authorities show however that all property of the nature of that referred to in general terms does not necessarily pass, particularly when the terms are followed by specifications as in this case. The meaning of such general words in a contract is tobe arrived at by measuring them with the rule of intention, and if necessary they will be narrowed and shortened so as to conform to the scope and design of the in*121strument, as on the other hand words of a signification more limited when standing hy themselves will be enlarged to meet the purpose as gathered from the other words of the contract.
Was it intended then by the deed of 1844 to convey in trust the lands and negroes contained in that of 1845 ? It will be observed that the appellee in his bill avers that the slaves only were included in the words, “ all his personal effects,” &c., and at the same time he alleges that both land and negroes and all the profits from them, were the subject of the trust, and prays that the Appellant shall render an account of his management of the whole. Why the land should not have been included in the deed as well as the slaves, if both were the subject of trust, is not explained.— The land was required for cultivation by the negroes, and the negroes were required for the land and they were both included in the same mortgage to the Union Bank. The land was as much liable to the grasp of creditors as the negroes, and why he should have desired to protect the one more than the other by covering it up in his trust deed, it is difficult to perceive.
But it was contended in the argument that to give effect to another provision in the trust deed, not only the negroes must have passed but the land also, and without such a construction the objects of the trust must have failed. This provision is that “ all the future cotton crops made on said plantation shall be appropriated by said Edward Bellamy, trustee, to the purposes and objects above set forth,” &c. The proposition of the Counsel is true that if the ends of the trust required it, the land and the negroes both passed to the trustee as well as the crops. Green vs. Biddle 8. Wheat. 1, Earl vs. Grim 1 John. Ch. R. 494 and cases there *122cited. Was it necessary then that the trustee should have them, as well as the crops*? I think not. The plain reading of the clause is that the Appellee should appropriate the crops to certain purposes, not make them. His trust was to apply them, when “made” and put into his hands, in the payment of certain debts, and when they were so applied all was done that he had promised. There was no obligation on his part to assume the care, trouble and responsibility of mana ging the plantation and making the crops as well as applying them.
It appears from the answer that the Appellant in 1845, made a crop with the 65 negroes, and on the Appellee’s plantation, which are the property conveyed in the deed of 1845, and that he paid the wages of the overseer and other current expenses of that year. It is contended thatthese acts serve as a guide to the intention of the parties and show the design to have been that the Appellant should take this property by virtue of the deed of 1844 as well as that specified in it.
On examination of books on evidence, I no where find so broad a doctrine laid down as that contracts may be construed by the subsequent acts of the parties. In the case of Cooke vs. Boothe 8, Cowp., the question was, whether in a lease with a covenant of renewal, its terms authorized a renewal in subsequent leases. The Court allowed evidence to show that there had been - several successive renewals, holding that the parties, by their practice, had placed their own construction on the covenant and were bound by it.— It will be observed that in this case the Court was construing an ancient deed. When the same question arose in the case of Iggulden vs. May, Lord Mansfield remarked of Cooke vs. Boothe, that he thought it was the first time that theacts of the parties to a deed were made useofinaCourt of *123of lawto assistinthe construction of that deed. Lord Eldon, when the case of Iggulden vs. May was before him in Chancery, 9 Ves. 325, over-ruled the doctrine in Cooke vs. Boothe, and none of the cases since, that I can find, conflict with his ruling.
In the cases cited in argument of Livingston vs. Ten Broeck 16, Johns. 22, Atty. Genl. vs. Parker, 3 Atk. 396. Atty. Genl. vs. Foster 10 Ves. 338, and Weld vs. Hornby 1 East. 199, the question was upon the construction of ancient deeds and charters in which by a well settled rule, usage may be proved to show that, which because of their antiquity cannot be otherwise understood. In the more recent case of French vs. Cochart 1 Comst. R. 96, but one of the eight judges who sat in the cause laid down the rule contended for, and he relied upon the four cases just referred to. The question before the Court did not require them to go so far and they held only, the contest being as to the purposes for which a stream of water was reserved, that evidence should be admitted to show that one of the parties knew at the execution of the deed, the fact of the existence of a mill and dam on the stream and of the manner the stream was affected by their use. In Bradley vs. Washington Steam Packet Co., also cited, the language of "the Court is “ that in giving effect to a written contract by applying it to its proper subject matter, extrinsic evidence may be admitted to prove the circumstances under which it was made, wherever without the aid of such evidence, such application could not be made in the particular case.’’' In none of these cases was evidence admitted of matters that transpired after the contract was completed to show its meaning.
After looking into the authorities I see no reason to de~ *124part from the opinion already expressed by this Court in the case of Fry vs. Hawley, 4 Fla. R. 258, that the evidence of the subsequent acts of the parties to a contract is not admissable to construe it. It would be a novel idea indeed if when a contract is entered into and the parties have proceeded under it for some time, they disagree and refer their dispute to the adjustment of .a Court, the judge should be told that it is already construed by the action of the parties, and though one or both may have mistaken their rights yet they have settled its meaning by what they have done.
We cannot, then, look at the acts of the parties after the execution of the deed of 1844, to ascertain whether they meant to include in it the lands and negroes conveyed by the deed of 1845. It must be read by the covenants on its face alone. If the defendant took possession of the plantation and negroes, made a crop and paid the expenses, it was not in virtue of the authority given him by any clause in the deed of 1844, but by a mistaken construction, a subsequent agreement or a wrongful assumption of power, neither of which is complained of or is before the Court.
If we consider moreover the design in making the trust as revealed by the bill and the deed, it will be seen that there was no necessity for including in it the plantation and negroes in order to reach the ends sought by the parties.— This property being mortgaged to the Bank, was already secure from the grasp of creditors. The fear was as. to the unencumbered estate, all of which is specified in the trust deed. The five negroes, the stock and materials of the plantation and the crop of 1844, already made could be seized at any moment by an execution. The proceeds of the bridge contract were subject to the same fate as soon as they were realized, and the future crops *125as soon as they were made. It was the “ forced sales of this unencumbered personalty, to use the words of the Appellee iu his bill, that would break up his planting operations and prevent him from saving his creditors and himself. This was all of his property in any danger and he covered it as he thought by a deed of trust.
There is a provision in the trust deed that Samuel C. Bellamy “ should continue and remain in possession of the property.” The rule is that a deed shall be so construed that if possible every part of it shall stand. What sense or object would there have been in this clause if E. 0. Bellamy ivas to have the possession and control of the property ?
If the Appellant had sued Samuel 0. Bellamy under this deed for the possession of the plantation and negroes, he would have been met by thedecisive reply,“theplain reading of your covenant with me is, that I am to keep possession of all my property while you are to have and protect the legal title to all my unencumbered estate, and to take the proceeds of the whole as they come from my hands and use them in the manner we have designated.”
Reading this deed then by the letter of its.terms or by the surer guide, the scope and design of the parties, I do not see how we can say it includes the plantation and negroes, the far larger portion of the grantor’s property.
The determination of this question carries along with it the argument based on its affirmation, to wit: that the property in the deed of 1845 being embraced in the deed of 1844, the deed of 1845 is void, because the trustee could not buy of his cestui que trust, or at any rate voidable at the option of the cestui que trust. Admitting all the property to have been conveyed in the deed of 1844,1 hardly think that the proposition so broadly stated can be applied to the facts of this case.
*126It is true, as a general principle, that the trustee shall not buy of his cestui que trust, but it is equally true that there are exceptions to the rule, and such sales have in a number of instances been sustained by the Courts. Mr. Hill, in his -work on trustees, p. 535, says “ such sales have frequently been supportedin equity where it has been shown that the fiduciary relation of the purchaser had absolutely ceased previously to the purchase, or that the purchase was made with the full concurrence and consent of the persons beneficially interested, who in that case must of course have been competent to give their consent.” The authorities he cites are Downes vs. Grayebrook, 3 Mer. 208. Randall vs. Ewington 10 Ves. 428. In Coles vs. Trecothick 9 Ves. 246, Lord Eldon held, “ that a trustee may purchase from his cestui que trust, provided there is a distinct and clear contract, ascertained to be such after a j ealous and scrupulous examination of all the circumstances, that the cestui que trust intended the trustee should buy, and there is no fraud, no concealment, no advantage taken by the trustee of information acquired by him in the character of trustee.” To the same effect is thelanguage of the Court in the case of Morse vs. Royal 12 Vesey 373.
The danger guarded against by the rule . is that the trustee, from his relation to the property confided to him, will acquire such information of its value as will enable him to make a profit in purchasing from his cestui que trust, for if by such information, he take advantage of his cestui que trust, his conduct is inconsistent with the trust, for in assuming it, he promises to make the most of it for his beneficiary. The rule is wise and salutary and has, without doubt, often prevented fraud, but when the reason for the rule does not exist, it should not be applied. It ought not to be applied when parties by an express agree*127ment or virtually have laid aside the fiduciary relation and agreed to buy and sell. They then treat with each other at arms length. If after the trust has been created, the cestui que trust chooses to create a new relation and to stand towards him in the character of vendor, I see no reason why a sale between them should not be sustained as well as one from a trustee to a third person.
The prohibition by the general rule is that the trustee shall not buy from himself. He does not do so where there is a deliberate contract of sale between him and his cestui que trust. Nearly all the cases on this subject in the books, are where the trustee at public sale has bought property entrusted to him with directions for its sale, either to pay debts or to make distribution. Such was the purpose of the trust in Davon vs. Fanning 2 John Ch. R., decided by Chancellor Kent, and in all but one of the leading Eng„lish cases which he there reviews. In all of them with two exceptions, in one of which the sale was sustained, the purchase or other transaction of the trustee in regard to the trust property was not with the cestui que trust and when there was no understanding with him or previous consent given. It may be remarked here that in Davon vs. Fanning, Judge Kent does not lay down the rule that the trustee may not buy in any case. He only recognizes the general rule “ that a trustee to sell cannot himself purchase.’* In the case before us the relation of the Appellant to the property was rather that of a dry trustee, or one who merely holds the title, than that of one with power to sell. By the trust deed he had no power to dispose of the property. On the contrary, it was to be returned after a time to the Appellee. All the trustee’s power was to hold the legal title and receive the rents and profits and apply them. There *128is no question that one having the title only may buy. Hill on trusts 537. The leading eases in which sales have been made directly from the cestui que trust to the trustee,, are those of Fox vs. McReth, 2 Bro. Ch. R. 400, Davison vs. Gardner, Sug. Vend. 436. Coles vs. Trecothick 9 Ves. 233. Monroe vs. Allain 2 Caine’s Cas. in error 183. In Fox vs. McReth the sale was not sustained. It appeared that Mc-Reth had obtained information, to what extent was not precisely known, from an agent sent by him, at the expense of the cestui que trust, to value the estate. Soon after and while trustee, he bought it from Fox for £39,000 and shortly after sold it for £50,000. In Davison vs. Gardner, the sale was sustained by Lord Hardwick because it was fair and for full value. In Monroe vs. Allain, the executor with power to sell, purchased from the widow who was also devisee and executrix. Circumstances were relied on to show that neither she nor her friends were acquainted with the nature or extent of the rights she undertook to convey, and the sale was set aside. In Coles vs. Trecothick, Lord Eldon sustained the sale, though for several thousand pounds less than the value of the property, and he observed “ in this case you are not met by the danger that the trustee may buy with knowledge, acquired at the expense of the cestui que trust, that the value may be considerably more than he is aware of.” In that case it was apparent that the cestui que trust had fully as much information as his trustee. The difficulty in these cases was as to the question whether the trustee by being trustee, obtained information of the value of the property which gave him an advantage over his cestui que trust. When the Court was satisfied that he had no such advantage, the sale was held a'ood.
*129If we take it then as proved that the property in the deed of 1845 was held in trust under the deed of 1844, and was sold by S. 0. to E. 0. Bellamy while the trust relation existed, do the facts and circumstances in the record bring the sale within the rule or make it an exception? To detérmine this, we should look at the knowledge of each of the parties of the value of the property as derived from their position towards it previous to, and at the time of the sale, and from its nature and situation. It appears from the record, that for several years before the sale, S. 0. Bellamy had been in possession of the land, had cleared most of it and had made crops on it with the negroes,—that in 1841 he mortgaged both land and negroes to the Union Bank for 322 shares of stock, worth #32,200, and received a loan of two thirds of the amount of his stock, or #21,900, the interest on which, when the deed of 1845 was executed, was #5000. The Appellee had thus owned the plantation and negroes for years—had been with them, had made crops-with them and had encumbered them with mortgages, to do which, a valuation was necessary, who could have had better information ofthe value of hisproperty than he ? Who so familiar with the age, the health, the strength and capacity of each negro on his plantation as the owner ? Who knows-so well the quality of each acre of land ? It appears that the Appellant had made a crop with the negroes and land' the year the deed was made, and we know of no other source of information he had as to their value. It is hardly possible he could have been so well informed on the subject as the Appellee. It was said moreover in argument, that the consideration in the deed was so grossly inadequate as to be evidence of advantage taken by the trustee, that at the time of the sale the stock of the Bank was much *130below its nominal value, that the property could have been released from its encumbrances for much less than the amount of the mortgage and the money loaned on it, and that by keeping down the interest on the loan the property could easily have worked itself out of debt. We have no evidence to ascertain on what terms it may have been released from the Bank. It appears that the Bank was insolvent and consequently its stock and notes must have been below par, but I am aware of no rule by which Courts are bound to know of the rise and fall of depreciated Bank stock and paper, as they must know the date of a statute or on what day of the week a particular day of the month came on. The amount of stock due 20 years after was $32,000, of the loan, with the interest on it, $27,000, and the consideration of the deed $6000, making in all $65,000 as the amount to be paid off by the property taking the bank stock and loan at par. The value of the land and negroes at the time of the sale is uncertain from the record. Judge Baker, a witness, says land could not then be sold readily for cash at anything like its value, and negroes, though saleable, were low ; other witnesses differ as to their estimates of the land. Taking though, at what I consider a liberal valuation, six dollars an acre for the land and $300 each on an average for the negroes, and the whole would have been worth $26,-700. As to the argument that it was twenty years before the mortgage was due, and the payment of the loan could have been delayed by keeping down the interest, it must be remembered that suit was then brought for this loan which would soon become a judgment, and then the payment of the loan could no longer be stayed by paying the interest, but the Appellee would have been at the mercy of the bank with its execution of $27,000. The best evidence we *131have of the then value of this property is derived from Judge Carmack, a witness. He was the attorney of both parties in the transaction, was several days before the business was completed, consulting and advising with them, and his integrity and capacity are eulogized on both sides. His opinion was that six thousand dollars was a fair price for the land and negroes, taking in view the encumbrances on them. It should be observed that inadequacy is set up in the bill as one of the grounds of relief, and is denied by the answer, yet there seems to have been no effort to prove the fact. There could have been no great difficulty in finding out the value of these negroes and land in 1845, or what was the worth of the bank stock and paper. The inference is that the Appellee was satisfied the inadequacy could not be proved. Inadequacy of price however is not sufficient alone to set aside a sale. Hill on Trustees, 537 and cases therein cited, White vs. Walker 5 Fla. R. 487. It should be observed moreover with regard to this sale that, whether the deed of 1844 was void between the parties or not, after it was declared so as to creditors, the parties so considered it.
In the evidence is a receipt by Samuel 0. Bellamy to E. C. Bellamy for $1357 in part payment of the bridge contract. The proceeds of this contract were to have been applied under the trust deed in the payment of debts. Why should this money have been paid by E. C. Bellamy or received by his brother if they did not consider the relation between them under the deed as dissolved ? The receipt of it was a virtual recognition by S. 0. Bellamy that his brother was no longer bound to perform the covenants of the deed, but was obliged to return all he had obtained under it. They therefore considered themselves as standing *132in the same position to each other as before the trust was conferred and dealing at arms length.
Looking then at all the facts and circumstances appearing on the record, I am led to the conclusion that the defendant could not have derived any information from his relation to the property, had it in fact been held by him in trust, which could have given him any advantage in a pur’ chase from his cestui que trust, and that this sale would have come under an exception to the rule that the trustee shall not buy of his cestui que trust; that in the words of Lord Eldon, it is an instance where there was a clear and distinct contract that the cestui que trust intended the trustee should buy, and where there was no fraud, no concealment, no advantage taken by the trustee of information acquired by him as trustee.
Another ground assumed in the argument, of this cause, was that if the property conveyed in the deed of 1845 was not included in the deed of 1844, and was not bought by the appellant as trustee, still the record discloses the fact that a secret trust existed between the parties at the execution of the deed of 1845, and that therefore, E. 0. Bellamy should be held as trustee for that property and made to account for it.
Before considering the testimony on this point, I will advert to the character of the evidence which Courts require when an instrument of writing is sought to be impeached by parol proof. The English rule is to allow such proof, only in cases of fraud, mistake or accident, and if relief should be prayed against an absolute deed on the ground that it was intended as a mortgage or trust, some writing would be required before the charge in the bill could be sustained. A leading case is that of Leman vs. Whitty, *1334 Russ. 423. It was there clearly made out by parol evi. dence, that the deed absolute on its face, was in fact given without consideration, and solely for the purpose of enabling the grantee, who had better credit, to obtain money for the grantor. The bill prayed that the devisee of the grantee, who had, by will, the land conveyed in the deed, be declared a trustee for the grantor, but the Court refused the evidence because not in writing. In Cripps vs. Jee., 4 Bro., Ch. R., 472, relief was granted, but a writing was produced in which the defendant acknowledged himself to be a trustee. In Irnham vs. Child, 1 Bro. Ch. R., 92, a defeasance was left out of the deed, on the idea that it would make the transaction usurious. The Court refused parol evidence of an agreement that the property was to be redeemable. There is a diversity of opinion on the subject in the Courts of this country, but the larger number of them, including the Supreme Court of the United States, and the Circuit Court of the United States for the First Circuit, allow the fact to be proved by parol evidence, that a deed absolute on its face, was intended as a mortgage or trust, and they hold that the admission of such evidence does not violate the Statute of frauds. It is perhaps unfortunate that our Courts have departed from the English rule for the admisssion of such proofs where the design of the parties was not to make the instrument defeasible on its face; it is certainly in contravention of the policy of the Statute of frauds and the general rule of evidence as to writings, which regard the instrument as the depository of all the intentions of the parties concerning the transaction, and are designed to prevent a resort to the “ slippery memory of witnesses,” and to withhold temptation to fraud and perjury among those who would gain by destroying *134the deliberate work of their own hands. But the opinion seems to be in the Courts of this country, that justice would be more often attained by allowing parol proof of a reservation outside of the writing, and by that opinion, sustained as it is by such numerous and high authorities, I am willing to be governed. But while assenting to it, I think the evidence to establish a meaning different from the face of the paper should be of the strongest charac" ter. The design is virtually .to add another clause to the writing, the effect of which in many instances would be to strip the grantee of all the rights he has acquired when the paper is read without the proposed clause. The evidence should be as conclusive as that required to reform writings, on the ground of fraud, accident or mistake, for the end and effect in both cases is the same, that is, to break down entirely or impair the force of that which the law declares tobe the best test of the deliberate and last intention of the parties in a transaction. Lord Hardwicke said that there must be the strongest proof possible. Lord Thurlow, that it must be strong, irrefragable proof, and that the difficulty of the proof was so great that there was no instance of its prevailing against a party insisting that there was no mistake. In Townshend vs. Stangroom, 6 Ves. 328, Lord Eldon observed that those producing evidence of mistake or surprise, either to rectify a deed or calling upon the Court to refuse a specific performance, undertook a work of great difficulty. In Gilespie vs. Moore, 1 John. Ch. R., 597, Chancellor Kent says, the' cases concur in the strictness and difficulty of the proof, and in Lyman vs. United Ins. Co., 1 John. Ch. R., 364, where the bill prayed that a policy of insurance be apiended, “no amendment was ever made without an *135absolute conviction of the truth and precision of the real agreement.” Judge Story says, “ if the mistake is clearly made out by proofs entirely satisfactory, equity will reform the contract so as to make it conformable to the precise intent of the parties. But if the proofs are doubtful and unsatisfactory, and the mistake is not made entirely plain,equity will withhold relief upon the ground that the written paper ought to be taken as a full and correct expression of the intent, until the contrary is established beyond reasonable controversy.”
There are certainly admissions and facts developed in the record which give rise to a very serious doubt whether it was the intention of the parties to stand towards each other in the relation of vendor and vendee. Samuel C. Bellamy was in the situation of most persons, who convey a. way their property by an instrument, which is intended on its face to create the impression with the world, that it is irrevocable, when there is a secret understanding, that it shall afterwards be annulled. He was deeply in debt and greatly harassed in mind. He had already made an effort to secure his unencumbered estate which had failed. Executions against him, greater than he could pay, were already in the hands of the Sheriff, and others to a large amount were hastening on. Unless some cover was found his future crops, as they were matured, would be seized and even his equity of redemption in the lands and negroes were in danger from these executions, for it was supposed that a bill then before the Legislature would be passed subjecting such equities to a sale at common law. Experience tells us, that it is the common recourse of men so embarrassed to devise secret trusts, that something may be saved from their ruined fortunes, and they naturally look to a brother or other near relative to aid them in their *136trouble. In this dilemma, it appeal’s he desired to make another deed of trust for an object similar to the first, and he proposed it to his brother. These circumstances certainly indicate his intention to save the property for himself. In connexion with them, may be taken the remark of E. C. Bellamy to Judge Baker after the trust deed was decided to be void, that he wanted something the lawyers could not break, and his further testimony that the object for which E. 0. Bellamy and his brother were consulting with Judge Carmack, was avowed to be the security of E. C. Bellamy on his liabilities for Samuel. Also, E. C. Bellamy remarks to Stephens and Myrick, after the deed of 1845 was made, that he was doing the business for Sam’s good—that he was aiding his brother Avho was not calculated to attend to his own business, and that the five negroes mentioned in the trust deed were bought by him at the sale in 1846 for his brother. These things go to show that he did not look on himself as the owner of the properij’. The admissions however, should be taken with much allowance, for they are, at best, a weak kind of evidence, and in most cases, can be explained only by him who makes them. If they had been stated in the bill as required by English practice, the Appellant may have given them a version entirely inconsistent with the idea that he considered the property his brother’s. To support the presumption of a trust are also the offers of the Appellant to annul the deed on being indemnified for his payments and liabilities on account of his brother. All his statements though should be taken together. He says, in his answer, that the offers were made after S. C. Bellamy had threatened to do eAmrything to injure him in purse and reputation, and even by taking *137his life, and his object in extending them was peace, avowing however, at the same time, his full title to the property.
Further, it does not appear consonant with the ownership of the property that all the security debts in the obligation accompanying'the deed, were contained in the trust deed of 1844, and that some of the debts paid after the deed of 1845 was made, were included in the trust deed and not in the obligation, also that after the execution of the deed of 1845, the Appellant should have gone on and paid other claims than those for which he had rendered himself liable in the obligation and paid them to an amount greater than the consideration of the deed. The reason for all this is by no means clear. It may have been that he was acting under an arrangement with his brother subsequent to the execution of the deed, or that under the fear of an attack on the deed from the creditors of his brother, and apprehensive for it, of a fate similar to that of the trust deed, of which he had had such recent and unpleasant experience, he judged it safest to buy up the claims against his brother.—■ But there is surely great room to presume that his aim was to carry out the design of the deed of 1844, which provided for the payment of all the debts.
Again, it may be asked why did S. 0. Bellamy thus convey from himself every vestige of his property ? What profit was there in stripping himself of every thing ?—• Ordinarily in cases of this kind, the expectation is to save something in the end, and if there is no hope of this, the owner is indifferent upon what shore the wreck of his estate may be cast, or who will profit by its fragments. It may be considered in this instance as a motive for an absolute sale, additional to that usually prevailing in such misfortunes, that the appellant, a brother, was liable as *138well as others, who he says without pecuniary consideration, and as an act of friendship and kindness to himself, were implicated for him as securities and endorsers ; that he had nothing left but this equity of redemption, and this might also be levied on and sold. Under these circumstances it may be, urged by a generous impulse to save those for whom he felt a deep gratitude in preference to all others, his brother refusing to have anything more to do with trusts he resolved to make a sale, and save his friends, if he could not save himself. It may have been also without a word said on the subject, that he had a secret hope and belief, bis brother, if be succeeded with his property, would restore it to him.
Taking all these circumstances together, there is certainly much to induce the suspicion that an understanding existed between the parties, that the ownership of the property should still be in S. C. Bellamy. It must be remembered though, that in opposition to this suspicion are the absolute deed and the sworn answer of the appellant. He positively denies that there was any connection between the two deeds, and avers that the last was a bona fide, absolute conveyance, free from any secret trust, and Judge Carmack testifies that there was no connection between the deeds, that both parties protested there should be no secret agreement or understanding, and that the deed was undoubtedly intended by them as an absolute and unqualified conveyance. It should be noticed that in all appellant’s conversations, he never says that he was the trustee, or mortgagor, or agent of his brother. He avows that his object in the purchase was to secure himself, and that he afterwards offered to annul the deed if fully indemnified-; but he nowhere admits that he did not have *139the full title to the property and avers the contrary. There is not a word of direct proof in the record, either of a written or verbal understanding of the parties, that there should be a condition to the deed. If it did exist, we can find it out alone by the circumstances that transpired after the deed was made, and which have just been referred to. The cases of Morris vs. Nixon, 1 How. R., 118, and Jenkins vs. Eldridge, 3 Story R., 181, were cited to show a similarity between the evidence on which relief was granted in those cases, and the facts in this. In Morris vs. Nixon, the plaintiff applied to the defendant for a loan.— The design of a loan was established beyond doubt by a letter of the defendant and by the testimony of witnesses who assisted in the negotiation as to matters which occurred before the affair was completed. The mode adopted to secure the loan was by an absolute deed of the land, and a bond for the repayment of the money borrowed. The proofs that the deed was intended as a security for the loan were perfectly satisfactory. In Jenkins vs. Eldridge, it was alleged in the bill that there was a distinct understanding before the deed was made, that the land should be reconveyed, after indemnification to Eldridge for his payment, in behalf of Jenkins and a suitable compensation for his services about the property. This allegation was fully sustained by the evidence of the Counsel of Jenkins in the transaction, and other witnesses. One of them testified that it was agreed no bond should be given by Eldridge, but that he should make a declaration or memorandum of trust, which he was to keep among his papers, and afterwards on being questioned, Eldridge replied, that he had no objection to making such declaration and would do so immediately. Another witness stated that Eldridge *140had often said to him that he held the estate in trust for the benefit of Jenkins, that he had often spoken of it in terms as Jenkins’ property, and that he was merely acting as an agent and meant to be well paid for his services. In the case before us there is no evidence whatever of a previous agreement to hold the property in trust.— Judge Carmack tells us that both parties declared there should be no such agreement, and the defendant avers in his answer, that he bought the property absolutely. There is no evidence of acknowledgement in terms, in conversations between the parties or between the appellee and others of such an understanding, or that E. C. Bellamy ever admitted he was acting as a trustee or agent. There may have been a hope or expectation in the breast of S. C. Bellamy, that his brother would restore the property, but that hope or expectation alone was not sufficient to make this a trust deed. There must have been not only the intention on his part to make it a trust, but such must have been the design and understanding of E. C. Bellamy.— Where is the clear and satisfactory evidence to convince the mind that there was such an understanding by him ? I must confess I have not been able to find it on the record. There is reason for conjecture and suspicion, a strong suspicion, I admit, but it is not fully proved. If we take it as proved that S. C. Bellamy designed a trust, but it is not clear that E. C. Bellamy designed it, how could a Court give relief against the face of this deed which it is the policy of the law to regard as the best test of the deliberate and last intentions of the parties ? If a Court were to order a reform of the deed to meet the intention at the time of its execution, what would be the defeasance according to the proofs in this record? If a mortgage, *141should 1 hen a provision for a foreclosure and sale, and if for a sale, after what time should it be made and for what amount should it be a security ? If a trust, for what purpose ? Should the appellant be compelled to pay the debts mentioned in the obligation or all the debts of his brother as provided for by the trust deed ? In Morris vs. Nixion and Jenkins vs. Eldridge, there was no difficulty from the evidence had a reform of the deeds been prayed to have changed the one to a mortgage and the other to a trust. It is not the province of a Court to make writings for parties such as they probably designed, hut to aid them in carrying out their intent where there is no doubt as to what they meant. If the proofs are doubtful, then in the words of Judge Story, "equity should withhold relief upon the ground that the written paper is to be taken as a full and correct expression of the intent, until the contrary is established beyond reasonable controversy.”
It may be that in holding this deed to be absolute, the design of the parties would not be effected, and right and justice might not be administered according to the true state of the facts, existing at the time the deed was made; but if so, however, much we might regret it, this would be but one among a multitude of instances where justice could not be done by a Court, because of the insufficiency of the proofs. Courts of equity are governed by the same rules of evidence as Courts of law, and though they have power beyond Courts of law, to meet and relieve the hardships of particular cases, yet it is not one of their greater remedial powers to relax the rules of evidence, and before they can extend a remedy, the truth must be proved by the same stern and exacting rules as required by a Court of law.
*142Those rules were created from considerations of high public policy; a strict, inflexible adherence to them will more often achieve and susta in the right than secure injustice in its unlawful gains. It is better to suffer the wrong to triumph in one instance, than by breaking through these safeguards of truth, afford a precedent that will hazard the rights of many in subsequent suits of a like nature by opening an avenue to fraud and perjury.
Upon the whole, I am not satisfied that there was an understanding of the parties that the property should be held in trust. I think that to grant the prayer of this bill, would be to infringe the statute of frauds, and the general rule prohibiting parol evidence, when a contract is in writing, and would be affording relief in a case where in the language of Judge Kent, “ an amendment would be made without an absolute conviction of the truth and precision of the real agreement.” Entertaining these views, I am of opinion that the bill ought to be dismissed, except for the purpose of taking an account of the property specified in the trust deed of 1844, and its profits and issues.