EDWARD C. BELLAMY, APPELLANT,

v.

THE SHERIFF OF JACKSON COUNTY, EX OFFICIO ADMINISTRATOR OF SAMUEL C. BELLAMY, DECEASED, APPELLEE

Hon. W. A. FORWARD,

Judge of the Eastern Circuit,, (who with Hon. T. F. King, Judge of the Southern Circuit, sat at the hearing of this case, in place of Baltzell, C. J., and DuPont, J., who were disqualified by reason of having been of counsel in the Court below,) delivered the opinion of the Court.

Samuel C. Bellamy in his life time, filed his bill in equity against Edward C. Bellamy, the Union Bank of Florida, and seventeen others, creditors of the said complainant, and beneficiaries under the deeds hereinafter set forth, and alleged to be trust deeds. He charged, “ that before and on the 19th November, 1844, he was in possession of a plantation and slaves in the County of Jackson, well stocked with horses, mules, cattle, hogs, farming utensils, provisions, &c., for the successful cultivation thereof, and had on the premises the greater portion of the crop grown and X'aised thereon-in 1844 ; that at that time though not heavily in debt in proportion to the value of his property, apart from the Bank debt due the Union Bank of Florida, the principal of which, by payment of the annual interest, might have been deferred for many years, yet he was much harassed in mind by the existence of judgments and executions then recently rendered and obtained against him, and of suits progressing to judgment and execution, which, not having immediate cash resources to pay off and discharge; he feared would come down upon him before man ey could be realized from his crops and other resources, and by seizure of slaves, stock, farming tools and utens Us, utterly prevent him from paying his debts, bring loss and distress upon his securities and endorsers, and immediate ruin upon himself.

“ That being thus induced to believe he could not protect and do justice to those who, without pecuniary consideration, and as an act of friendship and kindness to himself, were implicated for him as sureties and endorsers, as well as all his creditors at large and prevent the sacrifice and destruction of their and his interests, which would be completely effected by breaking up his planting operations by a forced sale of his unincumbered personalty at a ruinous rate of depreciation, save by the execution of a trust deed, which while it preferred his endorsers and other sureties, would also protect the interests of all other persons to whom he was in any wise indebted, and secure the payment of their demand. That to effectuate this intention he executed to his brother, the defendant, Edward C. Bellamy, who was also one of his endorsers and sureties, a deed of conveyance in trust, which is made an exhibit to said bill, and is in the words and figures following, to wit:

Territory of Florida,

Jackson County.

“This indenture made and entered into this nineteenth day of November, in the year of our Lord, one thousand eight hundred and forty-four, by and between Samuel C. Bellamy of the one part, and Edward C. Bellamy of the other part, both of said Territory and County, witnesseth, that the said Samuel C. Bellamy, deeming himself morally bound to protect, secure and indemnify those, who from affection or friendship are equally involved with him in cer tain contracts and obligations, and desirous of affording to such persons such guaranty as he may against any risk or liability which they have thus voluntarily and disinterestedly incurred ; and whereas, his brother, Edward Bellamy and others hereinafter specified, and the said Samuel C. Bellamy, being anxious to assure to them just claims in advance ; this indenture therefore witnesseth, that the said Samuel C. Bellamy, in consideration of the premises as well as the sum of one dollar received, hath granted, bargained, sold, aliened, conveyed and confirmed, and by these presents doth herein grant, bargain, sell, convey, assign, transfer and deliver unto the said Edward Bellamy, all the property and estate hereinafter described and specified, to wit: the following slaves, viz : Tony, Sally, Flora, Esop and 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 cotton 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. To have and to hold all and singular, the property above described, and every particle thereof, to the said Edward Bellamy, his heirs and assigns forever. “ Nevertheless, upon this especial trust and confidence herein and hereby created and declared, to wit: that the aforesaid Edward Bellamy shall have and hold the aforesaid property upon the following stated trust and for these interests, objects and purposes, hereinafter set forth, that is to say, that the said Samuel C. Bellamy shall continue and remain in possession of all this property and effects above specified, and shall proceed with his contract in relation to the bridge, that the said Edward C. Bellamy shall receive all the rents, profits, hire and income, derived from the same, to wit: the services and labor of said personal property, and the funds arising from said bridge contract, after paying necessary expenses, the said income, hire and funds to be held and applied by said Edward Bellamy for the following purposes, to wit ; to reimburse, secure and indemnify the said Edward Bellamy in and upon his liabilities as endorser or security for and with said Samuel C. Bellamy, to the Life and Trust Bank of Florida, amount about twenty-seven hundred dollars ; also for surety-ship of said Edward Bellamy on note to Miles Everett, of Washington County, Florida, one thousand dollars; for the indemnity of Doctor Etheldred Phillips, surety on note of about two hundred dollars ; Doctor Bradford, endorser on a bill of exchange of seven hundred dollars ; Mr. William Bellamy, of North Carolina, surety on a contract of seven or eight hundred dollars ; Isaac Widgeon, judgment of six hundred dollars ; Alexander Croom, on a draft now in suit about five hundred dollars ; lastly, for the payment of all just claims not now sued, and more particularly for the protection and indemnity of the sureties of said Samuel C. Bellamy on his bond for the bridge contract, and finally and especially, for the paying with all due promptness, the interest on the bank stock of said Samuel C. Bellamy, accruing to the Union Bank of Florida, and generally for the indemnity of all sureties of said Samuel C. Bellamy, Who, reposing in his integrity, have loaned him their name considering them as the others, as preferred creditors, for Whose security this deed is made. It is hereby provided, that said Samuel C. Bellamy shall at any future time execute any other instrument, necessary to effectuate the intents and purposes of this indenture, upon being thereto duly advised. And it is herein especially provided, that when the purposes and objects of this indenture shall have been accomplished and attained by the payment or satisfaction of the aforesaid debts, claims and liabilities, either from the income of the said property or from any other source, then and in that event, whenever it shall have been in any mode realized and consummated, the said Edward Bellamy shall upon the request of said Samuel C. Bellamy, release, reconvey and deliver all the property hereby conveyed, and all his interest and right therein, either in equity or at law, hereby vested.

“ And it is herein further provided, 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 and declared, especially the interest on the Union Bank stock, excepting part of said cotton crop as well as corn, also hereby conveyed, as shall be requisite for necessary expenditures and subsistence.

“And it is especially in conclusion provided, that one half of the nett proceeds of the bridge contract, after all' necessary disbursements therein, shall be applied by said Edward Bellamy to the payment of a claim due estate of William Sullivan, late of this County, deceased.

• “And it is herein especially provided, that a debt or claim or accommodation debt due Union Bank of Florida, and a debt due Mrs. Oveton, of Pensacola, are excluded from this trust, and the said Edward Bellamy, on his part, accepts this appointment of trustee conferred by this deed, assumes' the office and covenant for himself, his heirs and assigns, to observe the provisions of this indenture and perform the duties it creates, and preserve and maintain the confidence it reposes, according to its true meaning, interpretation, intents and designs; and said Edward Bellamy hereby acknowledges delivery of the property herein conveyed. In testimony of all and singular whereof, the parties have executed this indenture by signing, sealing and delivering the same, this nineteenth day of November, A. D., 1844, second page, eleventh line from the top, words “ one thousand dollars,” interlined before signing.”

Signed,

S. C. Bellamy, [L. S.l

E. C. Bellamy, [L. S.]

Executed in presence of A. L. Woodward.

Frederick R. Pittman, Clerk C. C., J. C.

He further charges that said Edward C. Bellamy, as such trustee, possessed himself of all the property mentioned and specified in the said deed of trust, and also of the crops of cotton, corn and other produce grown and raised on the said plantation in the years 1844 and 1845, and still holds the same, unaccounted for; and he also possessed himself of the crops of cotton and other produce grown and raised on the plantation, and with the slaves of said complainant, in the years 1846 and 1847, and was at the time of filing said bill, in possession and planting a crop for 1848, and that he had, also, on divers occasions, employed a portion of your orator’s slaves in labor for himself, the said Edward Bellamy, and others, off the said plantatation,of all which he had rendered no account to the said complainant.

He further charges, that notwithstanding he became so possessed, the said Edward C. Bellamy, though by such possession having sufficient means, resources and property to have arranged with and satisfied all the creditors then having executions, and others, as their suits matured into judgment and execution, began to harass the complainant with suggestions of apprehensions that the said deed of trust, would prove insufficient to protect and indemnify his sureties, and that it would be assailed and defeated, by reason of the preferences so given to his endorsers and sureties, on the complaint of other creditors, and therefore some other and additional indemnity should be provided for-them.

He further charges, that harassed by the ruin impending or which he in consequence of the representations of said Edward C. Bellamy, supposed to be impending and near at hand, and in which he would involve his sureties, combined with the result of an unfortunate habit of indulging in the use of intoxicating liquors, by which his mind was rendered utterly incompetent to know and appreciate his real situation, or to perform any of the duties incident to the ownership of property, and in fact being at times actually insane, and incapable of contracting and being contracted with, yielding himself to the direction, control and management of the said Edward C. Bellamy, and whilst in this situation, he executed the following deed of conveyance, which is also made a part of said bill, to wit:

“Whereas, Samuel C. Bellamy did heretofore, to wit, on the first day of March, 1841, execute to the Union Bank of Florida, two mortgages by which he conveyed among other things, the real estate and slaves hereinafter described, being the same slaves and their increase, except those Which have died, mentioned and conveyed in and by said mortgages. And whereas, said mortgages were made to secure to said Bank the payment of three hundred and twenty-two shares of the capital stock of said Bank, all of which will more fully appear by reference to said mortgages, which were duly recorded in the office of the Clerk of the County Court of Jackson County. And whereas, after the execution of said mortgages the said Samuel C. Bellamy did receive from said Bank a loan of two-thirds of the amount of his said stock, being about the sum of twenty-one thousand nine hundred and thirty-one dollars, and made and delivered to said Bank his note commonly called a stock note, therefor, which was renewed, and the interest paid thereon until about the day of . And whereas, there is now due to the said Bank from the said Samuel C. Bellamy, besides the said stock, about the sum of five thousand and sixteen dollars, being the interest which has accrued on the said stock note since the last renewal of the same.

“Now this indenture made and entered into this 13th day of December, in the year of our Lord, 1845, between the said Samuel C. Bellamy of the one part, and Edward C. Bellamy of the other part, both of the County of Jackson and State of Florida, witnesseth, that for and in consideration of the sum of six thousand dollars to him in hand paid by the said Edward C. Bellamy, the receipt whereof is hereby acknowledged, the said Samuel C. Bellamy hath granted, bargained, sold, aliened and conveyed, and by these presents doth grant, bargain, sell, alien and convey to the said Edward C. Bellamy, his heirs and assigns, the following described real estate and negro slaves, subject, however, to the rights of the said Union Bank, in and by said mortgages, stock note, and interest due thereon as a” bove mentioned, that is to say: “ The south-west quarter of section thirteen, township five, north, range eleven, west; the east half of the northeast quarter of section twenty-three, township five, north, range eleven, west; the east half of the south-east quarter of section fourteen, township five, north, range eleven, west; the north-east quarter of section fourteen, township five, north, range eleven, west; the west half of the north-east quarter of section fourteen, township five, north, range eleven, west; the west half of the north-west quarter of section thirteen, township five, north, range eleven, west; the west half of the south-west quarter of section twelve, township five, north, range eleven, west; the south-west quarter of section eleven, township five, north, range eleven, west; the north-east quarter of section eleven, township five, north, range eleven, west; containing in all about twelve hundred acres, be the same more or less. And the following described negro slaves, to wit:

“Fife, about seventy years old; George, about thirty years old; Sam, about twenty-eight years old; Levi, about thirty years old; Jim, about sixty years old ; Yirgil, about forty-five years old ; Amos, about fifty years old ; Willie, about forty-five years old; Cassar, about sixty years old ; Peter, about thirty years old ; Daniel, about twenty-five years old; Dick, about twenty-one years old; Isaac, about twenty-two years old ; Quincy, a boy, about twenty years old ; Holertie, about sixteen years old ; Warren-ton about eighteen years old ; Jim, jr., about fifteen years old; Marcus, about twenty years old; Silas, about fifteen yeas old; Sally, about forty years old ; Ghany, about forty-five years old ; Nancy, about fifty years old ; Jennet, about thirty-two years old ; Laney, a woman, about thirty years old ; Haley, about thirty years old; Esther, about twenty-five years old; Hagar, about twenty-four years old; Delia, about twenty-two years old ; Hannah, about twenty years old ; Venus, about twenty years old ; Rose, about eighteen years old ; Amy, about thirteen years old ; Julia, about twenty years old ; Fanny, about twenty years old ; Matilda, about eighteen years old ; Lucy, about fourteen years old; Jane, about twelve years old ; Charity, about twelve years old ; Solomon, about eight years old ; Daphne, a girl, about ten years old ; Emily, about thirteen years old ; Elias, about nine years old; Alfred,, about eight years old ; Sarah, about eight years old ; Bill, about ten years old ; Delphi, about five years old; Delilah, about three years old ; Chance, a boy, about ten years old; Henry, about twelve years old ; Calvin, a boy, about ten years old ; Agga, about twenty-three years old; and the following named children, all under the age of five years, to wit: Tom, Marcus, Eliza, Joshua, Bob, Jefferson, John, Frank, Venus, jr., Abby,- Margaret, Rany and Teny. To have and to hold the above described real estate and negro slaves with the equity of redemption, and all the rights which the said Samuel C. Bellamy has in and to the same, to the only proper use and benefit and behoof of him, the said Edward C. Bellamy, his heirs, executors, administrators and assigns forever. And the said Samuel C. Bellamy doth covenant and agree to and with the said Edward 0. Bellamy his heirs, executors and assigns in manner following, to wit: First, that there is no other lien or encumbrance on the said real estate, and slaves herein conveyed except that above mentioned. And second, that the said Samuel C. Bellamy has full power, right and authority to sell and convey the same subject only to the rights of the said Unipn Bank in and by said mortgages, stock note and interest due thereon and none other. “In witness whereof I, the said Samuel C. Bellamy, hath set my hand and seal the day and year above written.”

Signed, Samuel C. Bellamy, [L. S.J

Signed, sealed and delivered in presence of

E. Phillips,

S. W. Carmaek.

Which said slaves he avers, were conveyed in and by the general terms, “ all Ms personal effects of every name and description ” contained in said trust deed of November 19 th, 1844.

On page 13 m, of the printed record, it appears that the respondent (E. C. Bellamy,) read in evidence the following paper, to wit:

“ In consideration of a deed of conveyance this day executed by Samuel C. Bellamy, conveying to me his estate, consisting of an equity of redemption in the land and negroes mentioned therein, I hereby covenant and agree to and with the said Samuel C. Bellamy to pay for the same the sum of six thousand dollars in manner following, to wit: a judgment in the name of S. C. Robbins for about twenty-seven hundred dollars besides interest, rendered against said S. C. Bellamy in the Court of Appeals, at the January term, 1845. A note due to Miles Everett for about thirteen hundred dollars including interest. A note due to the executors or administrators of H. Johnson, deceased, of North Carolina, for which William Bellamy is bound as security of said Samuel C. Bellamy, for about the sum of one thousand dollars with interest. A judgment in favor of William Baker against said Samuel C. Bellamy, for which Doctor E. Phillips is liable as his seeu rity, for about two hundred and eighty dollars, and the balance of said six thousand dollars, if any there be after deducting the above payment, and the payment of about six hundred dollars, already made by me to Ely Moore, the overseer of said Samuel C. Bellamy, and for negro shoes, and rope and bagging for the present year’s crop, is to be paid to such of the creditors of said Samuel C. Bellamy, as he may direct. Witness my hand and seal, this 13th day of December, 1845”

E. C. Bellamy, [L. S.]

Test:

E. Phillips,

S. W. Carmack.

Which is admitted to be the agreement entered into between them, at the time of executing said last mentioned deed.

He further avers and says, that although he cannot say positively, that he executed said last deed, in accordance with the provision in the trust deed, his uniform impression and belief has been, that it was then urged and impressed upon him by the said Edward C. Bellamy and his counsel that the said last mentioned deed was in furtherance of the objects and purposes of said trust deed, and notin anywise inconsistent therewith.

He further says, that as for the sum of #6000, the consideration in said deed expressed to have been paid by the said Edward C. Bellamy, the same is so grossly inadequate as to be a fraud, if there was no trust; yet the same or any part thereof, was never paid to him by the said Edward 0. Bellamy at the time of the execution of the said deed or at any time since.

He further charges, that if said Edward C. Bellamy has-. paid any money for the use of the complainant as the consideration of said deed, it was made from the trust property or funds of said complainant already in his hands, or while he had sufficient amount of the said trust funds in his possession -and control, applicable to the discharge of such debts.

He further charges, that if said last mentioned deed is claimed as an absolute conveyance, it is wholly without consideration and void.

He further charges, that the said Edward 0. Bellamy should in a court of Equity, be decreed to be a trustee for the said property and for the due management of the same, and for the rents, issues and profits thereof made, and which under due and proper care and management, ought to have been made, so far as the same conveys property not conveyed in the trust deed of November, 19th, 1844.

Lastly, he charges violation and dereliction of his duty as trustee, to the great detriment and destruction of the funds, and to the great injury of the complainant and his creditors.

The prayer of the bill was, that he, the said Edward C. Bellamy, be declared a trustee of and concerning the property mentioned and specified in the deed of 1845 ; and that he render a full, true and perfect account in detail, of all and singular the trust property and funds committed to his charge, and the rents, issues, profits and proceeds of every description issuing out of the same, or accruing therefrom, which he or any person for him, or by his consent or procurement, received therefrom, or which he might, could and ought, by proper management, diligence and care, to have received therefrom ; and that the said E. G. Bellamy be removed from his said trust, and ousted of his said trust estate, and be enjoined from all further interference with, or any control over, and management of the said trust property.

That the creditors specified be made defendants, and required to answer and set forth respectively the situation of their claims, &c. And that a receiver be appointed, to act as trustee, to receive and take possession of said plantation, slaves, &c., to provide for, keep up, maintain, manage and control the same, &c., and pay the clear residue after paying expenses, &c., to the creditors of complainant; and also to arrange with the Union Bank, so as to reinstate the said stock loan and continue the same, according to the charter of said Bank. And finally, after the purposes of said trust shall be accomplished, by the discharge of the debts, to deliver to him said property, real and personal, &c., and general prayer for other and further relief, &c. It does not appear in the record whether any of the defendants excepting Doctor E. C. Bellamy, were ever served with subpoena, or made any appearance or answer ; there is no decree pro confesso. The defendant Doctor E. C. Bellamy’s answer, so far as we think necessary to extract from it, is in substance as follows :

“ That he was an endorser, at the request and for the accommodation of said complainant, on a note payable to the Life and Trust Bank, and also a note payable to said Miles Everett. That some time in the fall of 1844, the said complainant came to the house of this defendant, and informed him that he was so much involved that he could not go on with his business, and that unless he made a deed of trust for the benefit of his endorsers that this defendant as well as other endorsers, would lose money by him. That this defendant being anxious to secure himself against losses on account of his endorsements, upon being informed of the embarrassments of the complainant, readily agreed to accept the security and indemnity proposed by him. That complainant procured the deed, exhibit A B, and brought it to this defendant to sign, telling this defendant that it was a deed of trust for his (this defendant’s) security, and for the security of other preferred creditors therein named; and this defendant presuming that it. would secure the objects avowed,. executed and accepted it.

“ That at that time there were executions of the existence of which he avers, he, this defendant, was ignorant? for a large amount, say from $6000 to $8000, in the hands of the Maphal against the said complainant ; and to the great surprise and.astonishment of this defendant, the a-. mount of $4000 or more of said executions was soon after levied upon all the mules, horses, and what the Marshal estimated to be about 75' bales of cotton, then in the field, it being a part of the property in said deed of trust. That after said levy, being urged by the complainant and fearing he might make himself liable to the other cestuis que trust, in said deed, by neglect of duty as trustee, he interposed his claim in that character, to the property levied upon, and gave bond and security as is directed by law in such cases, determining in this manner to submit the said 'deed of trust to judicial investigation and construction.

“ That things remained in this position until the fall of 1845, in which year “ this defendant went on to make the crop, paying the overseer and. other expenses for negro clothing, bagging and rope, eral allowance to him for his permanent improvements.

Again, it does not appear that the property bid off by the said E. C. Bellamy was purchased at its full value ; on the contrary, the witnesses all agree that the goods at the Sheriff’s sales sold below their value, and the supposition that said E. C. Bellamy was purchasing for the benefit of Samuel induced the people not to bid.

Neither are we satisfied that the consideration of the purchase in the deed of 1$45 was adequate.

The Bill charges that the Bank funds might have been purchased at a very great discount, and this is not denied in the answer. The proofs are very defective respecting the whole of the consideration of this purchase. As to the land and negroes, Mr. Russ is conclusive, that they were valuable ; he fixes no price to slaves—“ thinks the negroes were first rate negroes, as good as any in the county.” The witness Carlton also confirms this. A plantation and negroes that produce from 250 to 300 bales of - cotton per year, must be considered valuable. It is very clear it would not take long to work out $6000, on such a plantation.

The complainant in his bill, charges, “ that he was not consulted or bargained with in relation to the consideration expressed in said deed.” This is not denied in the answer. The debts contracted to be paid by E. C. Bellamy were not to be paid in any specific time. It is evident then, that were time secured by this arrangement, the property would soon pay the $6000 debts. This is a fact considered “plausible, ” against the consideration as stated in Barrow vs. Bailey, Fla. Reps. The weight of testimony goes to show that the amount Of consideration was fixed upon between Judge Carmack and E. C. Bellamy. The defendant in his answer, says, that Samuel Bellamy was intoxicated the day before, and then signed a similar deed, but that he respondent, would not “ accept the delivery thereof, on account of its being signed and sealed by the complainant in the situation in which he then was.” “The complainant then came back on the following morning in a sober and rational situation, and executed a newly drawn deed, the same in substance as the one he had signed the day before.” It is true E. C. Bellamy says, that both deeds were drafted at the request and under the direction of the said Samuel, but the proof is that Judge Carmack was acting for both parties. Judge Baker is positive that the agreement contained the Southall debt, and gives very conclusive reasons why he should testify on that point, yet when we look at the agreement it does not contain that debt. Judge Car-mack says the “plan ” was agreed upon between them} buthe does not say what the amount of the consideration was. There is no evidence to show that Samuel Bellamy was consulted as to the amount of consideration. Judge Carmack says, it was executed in great haste, they were afraid of a Bill before the Legislature, &c. Besides Dr. E. C. Bellamy in his answer, says : he had been to Tallahassee procuring an execution to be issued against Samuel C. Bellamy, &c. Now how could S. C. Bellamy’s object to keep his property together be obtained by conveying away the whole title to it ? Taking these faets together, the remark of Judge Carmack, that it was executed in “ great haste,” appears evident.

The case presents many extenuating circumstances, but they do not in our judgment wholly overcome the inequitable features of the transaction.

The conclusion is irresistible, that the deed was hastily entered into, arising perhaps, out of a mutual reliance and the judgment and advice of their mutual friend and adviser, and without any intention of taking any advantage.

We are of the opinion, that the said purchases should be set aside and vacated upon the following conditions, viz: That the said Edward C. Bellamy shall be reimbursed any monies, with interest, advanced by him in consequence of said trust or purchases, such as the payment of debts, expenses or otherwise, and that all and every the security debts, mentioned in said deed of trust, shall be satisfied and paid, so that said E. 0. Bellamy shall be discharged therefrom, also any reasonable costs or expenditures including reasonable fees, of two counsel in and about this suit, and upon payment of a liberal allowance for his trouble in managing said estate, upon settlement of his trust accounts of all said property, so that he may be fully indemnified, and lose nothing excepting wherein his wilful neglect should make him chargeable.

That upon these conditions being complied with, the said Edward C. Bellamy, shall execute a quit claim deed, of the said property thus purchased by him, to such person as he may be directed by the Court.

That if upon taking an account of any of the property thus purchased, it should appear that some of it has been disposed of by said E. C. Bellamy, he should only be debited with the price for ,&hich it was purchased, unless it is ascertained that he sold said property at a profit; if so, then at the price for which it was sold, but if the price of the original purchase cannot be ascertained, then at the value at the time of the purchase. The Master should be directed to proceed in his duties under said decree, and the Receiver required to file accounts, and directed to pay costs and to pay over monies to said Edward C. Bellamy, or otherwise as directed from time to time. As this is hut an appeal from an interlocutory decree, authorized by Statute, the cause must be remanded back to the Circuit Court for futher action, and the decree appealed from must be modified and altered in said Court, so as to conform to the views expressed in this opinion. And the costs of this appeal must come out of the trust estate.

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. The 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 strument, 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 cited. 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 of 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~ part 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 as 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. It 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 ment 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 is 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. If 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 below 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 have 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 in 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, 4 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 the 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 absolute 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 trouble. 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 his 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 well 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 the 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 had 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, should 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. Those 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.