1810.

Harvey

V.

Pecke

OCTOBER, it must be presumed to have been under the coercion of her husband, without direct evidence to the contrary. Indeed, it may be denied that she ever signed it at all; for the probute of a deed said to have been executed by a married woman, without privy examination, is entirely extrajudicial, and proves nothing against her; since, at common law, (independent of our act of Assembly directing the mode of taking her relinquishment,) every deed from a married woman is void.

From Jacob Peck himself, the deed passed nothing, because he was then an alien, as is proved by his subsequent bond to make a farther conveyance. An alien can purchase land, but cannot hold; and can acquire nothing by act of law.

The length of time is no objection to the claim of the appellees; being repelled by the coverture of Lydia Peck, under whom the present plaintiffs claim ab initio. Besides, the limitation is not pleaded; nor is staleness of the demand insisted on either by plea, or answer; which is indispensable, that the other party may have an opportunity of accounting for it by a replication: for this (a) Arras v. reason, it will not do to make the objection by demurrer;(a) much Pickerel, less by argument.

Atk. 225.

3

In reply, it was contended that, as to Jacob Peck, (though an alien,) the deed was not void, (even if the land did not pass by it,) but was binding, on his heirs, by his covenant to warrant the (6) 2 Bl. 302. title; and this whether they received real assets, or not.(b) The (c) 1 Rev. act of 1785, c. 67.(c) does not affect this case; being altogether Code, o. 13. prospective in its operation.

(d) Edit. of

But the act of 1766, c. 20.(d) confirmed the deed, and gave 1769, p. 479. it full effect as a conveyance. The charge of fraud is repelled by Peck's deliberately, on the 19th of May, 1747, confirming the contract made in 1745, by giving a title bond; and the penalty of that bond, being only seventy pounds, evinces that the price of the land, at thirty pounds, was not considered inadequate by either party.

2. As to the last deed, the evidence was contradictory with respect to the imbecility of the plaintiffs, and other circumstances. The Chancellor should therefore have directed an issue to ascertain the disputed facts.

The Counsel for the appellees observed, contra, that this was

1810.

Harvey

V.

Pecks

not necessary, where the weight of evidence clearly prepondera- OCTOBER, ted on one side, as it did here. The deed to Harvey was plainly obtained by fraud; 1st. From the gross inadequacy of price; the right of Jacob Peck to the land being at that time no more than equal to one year's purchase, in consequence of his extreme old age; and Mrs. Peck's title being almost a fee-simple in possession of a tract of land worth 2,500% or 3,000l.; which Harvey well knew; for the Court of Appeals in the case of Harvey and Wife v. Borden, 2 Wash. 156. had, in the fall term of the year 1795, decided the great question; and he was apprized that, when Jacob Peck died, he must give up the land. To this circumstance must be ascribed his sudden transition to pretended affection and kindness, after neglecting the old people, in the depth and bitterness of poverty, for so many years, his great anxiety, and urgent persuasions, and contrivances to induce them to conclude the bargain.

- In

25.

In support of this point, as to the effect of gross inadequacy of price, they cited Grotius, b. 2. c. 12. Puffendorf, b. 5. c. 3. s. 9. Codex Juris Civilis, lib. 4. tit. 1. Pothier on Obl. p. 34. s. 2 Bro. Ch. Cases, 177. note. Horne v. Meers. 7 Bro. Parl. Cases, 70. Filmer v. Gott. 2 Vesey, 549. Chesterfield v. Janssen. 1 Bro. Ch. Cases, 6—9. Gwynne v. Heaton. 2 Bro. Ch. Cases, 167. Heathcote v. Paignon. 10 Vesey, jun. 209. Underhill v. Horwood. 3 P. Wms. 315. Pusey v. Desbouvrie.

2dly. The weakness of intellect of Peck and wife, if not in itself, yet coupled with the inadequacy of consideration, was clearly sufficient to vitiate the deed.(a)

v. Small. 2 P. 203.

Hanway. 2

nett v. Vade. 1

(a) 2 Ch. Ca3dly. The previous preparation of the deed and commission to sex, 103 White take Mrs. Peck's relinquishment was another badge of fraud.(b) wms. It is not the usual course, where people deal upon equal terms, Clarkson V. to prepare the deed before the contract. This is therefore a strong Atk. 324 Bencircumstance shewing Harvey's settled determination to get it Bro. Ch. Cas. signed at all events; and a pregnant proof of his own impressions 560. Gartside as to the condition of the persons with whom he had to deal. 4thly. Scrupulous concealment of the negotiation from the only habitual counsellors of the old people, their sons; and,

5thly. The false recital in the preamble of the deed that Jacob and Lydia Peck had conveyed the land by the deed of 1745, and that the new contract proceeded from their discontent, (occasioned by the rise in the value of the land,) and from Harvey's gene

v. Isherwood. (b) 2 Ch. Ca

aes, 103. White v. Small.

OCTOBER, rosity; were additional evidences of fraud.

1810.

Harvey

This recital was a deception upon them, and shewed that through ignorance of law they were influenced by erroneous impressions concerning their rights; which circumstance, added to inadequacy of considera(a) 1 P. Wms. tion, was enough to set aside the contract. (a)

V.

Pecks.

v. Broderick.

315. Broderick 6thly. The fraudulent artifices used by Harvey to make the Vesey, jun. plaintiffs drunk, and take advantage of their intoxication, were for

v.

348. Griffin v cibly urged.

Nanson.

Moseley, 364.

Lansdown v.

han, and the

ted.

Lansdown. 2 In reply, it was contended, that Harvey, having married a lady, Atk. 33 Simpson v. Vang whose ancestor and herself had been in possession of the land cases there ci- more than half a century, by virtue of a deed, and a subsequent bond confirming that deed, was not to blame for wishing to save his wife's inheritance.* The first deed not having been fraudulent, the consideration for the second was not inadequate; for Mrs. Peek having executed the first deed, and knowing that her husband had received the money, was bound in honour and honesty to sign the second. Concerning the pretended imbecility of intellect, the testimony is contradictory. The previous preparation of the deed and commission is a very common circumstance, and well accounted for by the answer.

A conclusive circumstance, against the charge of fraud and intoxication, is, that the Pecks afterwards ratified the contract, by giving up the bonds to Harvey, and taking new ones.

Thursday, November 29. The Judges ROANE and FLEMING (Judge TUCKER not sitting in the cause) pronounced their opi

nions.

Judge ROANE, upon the whole case, was for affirming the Chancellor's decree.

Judge FLEMING. The only material question in this case is, whether the deed from Jacob Peck and wife to the appellant Robert Harvey was, or was not, fraudulently obtained? In proof of which there are several strong badges and circumstances spread upon the record.

1. The appellant's going to the house of Peter Holm, where

*Note. The second deed was to Harvey himself, and his heirs: not to his wife.

2

1810.

Peck and his wife were on a visit to their daughter, with a deed OCTOBER, ready prepared, with a commission to take the relinquishment of her right to the land in question; and two magistrates to take her privy examination, before any contract was made, or perhaps treated for.

. The manifest inadequacy of the price of 4001. for the land, stated by the depositions to be worth from 2,500 to 3,000 pounds.

3. The extreme old age, weakness and imbecility of Peck and his wife; of whom the land was purchased for the above-mentioned trifling sum of 400%.; and,

4. The plying the old people (accustomed to intoxication) with ardent spirits, procured from the neighbourhood, by Harvey himself; before the business was completed; or, perhaps, before the negotiation had commenced.

An attempt has been made, however, to invalidate the testimony of Peter Holm and his wife, by whom the latter circumstance was proved: but their testimony respecting that matter is corroborated by two of the appellant's most respectable witnesses, the magistrates who took the acknowledgment of Lydia Peck. Mr. Walker, in answer to a question put by the appellant, whether he saw one, or both of them drink freely, said, "I think they drank twice, but I did not discover that they drank deeply;" but they might have drank twice more, or oftener, without his observing them; as I do not suppose he was a spy upon their actions, nor so particular as to notice whether they drank deeply or not; nor do I think it material, as the crime and mischieflay in Harvey's having procured the liquor, from the free use of which, it may be fairly presumed, they were under no restraint: and the circumstance of the liquor being sweetened would naturally produce a double effect; first, in disguising its strength; and, secondly, would induce a more free and liberal use of it: and it is in evidence that they were put to bed, on account of intoxication, soon after the business was finished. The evidence of Peter Holm and his wife is strongly supported by that of Walker and Anderson, in another important part of it, which is, that Lydia Peck refused her assent to the contract, "or to sign the deed, unless Harvey would enter into an article to cancel the bargain, in case an instrument of writing she had executed to her son Jacob Peck some time ago was sufficient authority to vest the title of

Harvey

V.

Pecks.

1810.

OCTOBER, said land in him; which the said Harvey did, and then she signed the deed." Those are the express words in Walker's deposition; and that of Anderson is much to the same effect.

Harvey

V.

Pecks.

I see nothing to lessen the credit of. Peter Holm's evidence. His deposition consists chiefly in answers to a variety of interrogatories, put to him by the parties, which he seems to have answered with frankness and candour: several of them (had they been answered in the affirmative, would have been much in favour of the appellees) he professed to know nothing about. And when the question following was asked him, "do you remember of hearing the defendant insisting on your mother-inlaw, Lydia Peck, to drink, and how often?" he answered, "I heard him ask her ONCE."

These circumstances in the testimony of Peter Holm and his wife, corroborated, in some of its material parts, by that of Walker and Anderson, two of the appellants' principal witnesses, perfectly establishes its credibility with me. And I have no hesitation in saying that I think the decree a very just one, and therefore concur in the opinion that it be affirmed.

With respect to the decree of September, 1745, from Jacob Peck and wife to Benjamin Borden, it may be observed,

1. That the wife of Peck, in right of whom he claimed an interest in the said land, never relinquished her right to the same. 2. Neither Peck nor his wife (the latter of whom claimed a right to the 1,000 acres of land, on the waters of James River, under the will of Benjamin Borden, her father, the locality or identity of which had never been ascertained) were ever seised, or in possession thereof, and therefore could not convey the same to Benjamin Borden.

Decree AFFIRMED.