Mr, Justice WAYNE
delivered the opinion of the court.
The . complainant, besides other relief prayed for, asks the aid of this court to decree a deed made by him to Henry Nixon, and which is absolute on the face of it, to be a security for money advanced upon loan, and that he may be at liberty to redeem the premises conveyed^ by paying to Nixon, or by allowing to him, on account of the transactions between -them, the moneys loaned to him by Nixon and such'as he may have advanced on account of the real estate purchased by the complainant and the late General Jonathan. Williams from the Bank of North America
; for
the resale , and improvement of which, the defendants, Henry Nixon and Thomas Biddle, were the attorneys and agents of the purchasers.'
■ The surviving family, howéver, of General Williams, are in no way .interested in this suit. The controversy is between Thomas Morris and the representatives of Henry Nixon, whose death has occurred since the bill was filed.
The deed ffom complainant to Henry Nixon bears date 'the 28th May, 1822.
It recites., the purchase' made by Williams and Morris,* that certain portions of it had been sold and conveyed to other persons, and that parts had been let on ground-rents, so that the quantity remaining was about-seventy acres. That the sales and income of the property had nearly reimbursed the purchasers the first payment which
they
had made, of $20,000,* that there had been paid upon the purchase, out .of the income and proceeds of sale, from time to time, enough to-.reduce'the sum due by the
purchasers, to about $29,000, which was a charge- upon the premises, to be borne- by the owners thereof, in proportion to théir respective interests. ■ It then recites, that at the time of the execution of the indenture to Williams and' Morris, Henry Nixon .. was, and had continued to be interested with Morris, to -the' extent of three-eighth parts of the moiety, so as to entitle him to thb benefits and subject, him'to the obligations of the purchase in that proportion. The consideration of the deed is then recited ' to be, one-half part, “ or .thereabouts,” of a debt due -by the complainant to Thomas Biddlé and John Wharton, which was . originally $4000, for the security of which, the complainant had, with the assent of Henry Nixon, mortgaged a part-of the moiety of the original purchase; then a debt, claimed by Nixon to be due to him by the complainant of $1625; $1000 of which it is said the complainant received on account of Nixon’s agency for the móiéty .of the purchase belonging to Williams, and $625 'being the proportion justly chargeable to complainant for Nixon’s agency for the other moiety; There was a further consideration amounting to $4600; being the. amount of two notes which had been discounted, at the Bank of North America, for the accom- . modation of the complainant,"with Nixon’s endorsement.
- The .circiimstanoes attending the execution of the deed are disclosed in the pleadings -and by other proofs in the cause.
The complainant resided in New York, and Nixon Ijved in Philadelphia. The former, being in great pecuniary distress, and fearing greater within a few. days, unless he cóuld make a loan, sent his brother, Henry Morris, to Philadelphia, to obtain from • their'brother-in-law, Henry Nixon, an advance of $5000, offering, as security, his intérest in the property bought by himself and General Williams. Nixon says, in his answer, that his feelings being, wrought upon by the representation, made by Henry Morris, of the urgent nature of his brother’s wants, and the destructive consequences to be apprehended if he could -not. meet a demand there was upon him, he concluded to provide the money; thát, however, béfore he finally agreed to do so, he told Henry Morris that he must consult his counsel upon the subject.
After consulting counsel, he informed Henry. Morris, that he had determined to deal" with the complainant upon no other terms .than an absolute sale and conveyance of all his interest,
legal and'equitable, in the premises bought by him and Williams; and as there would be a full consideration without it, that the loan would create a new debt, for which he would take a separate,evidence or security; that .he, was advised by his. counsel to write out in-the deed at large the real consideration,, so that the truth of the'transaction might at all times appear.upon the 'papers, and to. take a bond .for the loan; so that if the' purchase should turn out well, he would not be-bound to enforce the bond, tíut, in case of misfortune to the complainant, ne would have evidence of his right as a creditor,'and, if he should think fit, might use it for the benefit o,f the complainant or his family. In connexion, however, with the foregoing statement, Nixon declares that in the course of) his conversation with his counsel, he was asked, whether the interest of the complainant in the property was worth the -encumbrances upon it, and what was already due by him to Nixon. To which he replied, as he truly believed^ that it would -not bring more; that nothing but the peculiarity of the circumstances would induce him to increase' his interest, or become a■ purchaser of it; and that he determined, as he had been ad vised.by his counsel, to. buy out the complainant’s.interest entirely and absolutely, without anv trust, direct or indirect, express or implied; nor any understanding whatever, that the com-, plainant of any other person was to have a claim or benefit therefrom, and thatshh' would deni with him on no other' terms.
■ Henry Morris arrived in Philadelphia on the 23d of May. His first conversation with Nixon concerning his errand was- on that day-; on the 24th, Nixon. consulted counsel, informed Henry Morris of the result, and on the same day, the same counsel made .a draft of the deed. On the same day, too, Nixon wrote to the Complainant the following letter: .
-.Dear Morris, — Henry arrived here, early yesterday morning. Having had a, conversation with him on the subject of a loan, I have only to say my best exertions will be to obtain this object, and . to enable mé to-do which, Henry will immediately call on you to advise the Only mode that he or I can suggest to achieve it.
' You, I am sure, will have confidence in me as to the mode proposed, which Henry will communicate; and be assured my sincere prayers will be, and;best exertions to promote this all-important poh.it. In haste, truly yours, H. Nixon.
• This letter was written after Nixon had consulted counsel; for he says in his' answer, after he had done so, he thereupon returned to Henry Morris, and informed.him of the determination he'had come to, of dealing upon no other terms than an absolute' conveyance, without any trust, ánd. taking a bond for the loan. And in the letter it is stated, that •“ Henry will immediately call on you to advise you of the only mode that hé or I can' suggest to achieve it.”-
The draft of the deed being made on the 24th May, it was afterwards engrossed by the witness Cash, and he was sent with it to New York. He arrived there on the 28th, the deed was signed by Morris .and his wife, Cash and Henry Morris being. witnessés. On the same day, Cash left New York'on his return to Philadelphia. On the following morning, the 29th May, as it appears by a. letter of that date from Nixon to the complainant, Henry Mofris arrived again in Philadelphia. He says in his answer, that he found Nixon resolved to do nothing in the business unless the convey anee, was absolute and
bona fide,
and he was therefore obliged to deliver the deed without any promises of trust. And Nixon declares that Henry Morris delivered to him the deed, and at the same time a bond, in the handwriting ' of the complainant, for $5000.
It is in proof, also, that when the deed was delivered, there were'unadjusted accounts- growing out of Nixon’s and Biddle’s-agency,for the propérty. That no..account, had been furnished to the complainant since 181-6, except an abstract of one Innes’s account of the excavation and sales of stone and gravel, sent-to him by the defendant, Henry J. Williams, in May, -1819.
The recital in the deed shows that the accounts were unascertained, for it. speaks of the $20,000 which was first paid' by Williams and Morris on their purchase as being nearly-reimbursed, and that there remained due on the purchase about $29,000.
Two years before the deed was executed, the complainant made an agreement with David Walker and Henry Morris, to convey to them iii. trust for his sister, Maria Nixon, a fourth part of hey moiety, upon the terms stated in the agreement; in pursuance, of his original intention when Williams and himself made the purchase..
It was urged in the argument, that the recitals in the deed re- • lating to the sum then due upon the purchase of Morris and Williams, that of Nixon’s interest in it, and the debt claimed by-Nixon to be due to him on account of his agency, Were incorrect. We shall not, however, consider these objections, dr those which were made against the validity of the deed on account of inadequacy of price, undue'influence, and surprise.
. Our object is to dispose of this case for the present, by assigning to the deed its true character in equity, under all the circumstances .attending its execution.
The charge against Nixon is, substantially, a fraudulent attempt to convert that into an absolute sale which was originally meant, by himself and the complainant, to be a security for a loan. It is in this, view of the case that the evidence is admitted to ascertain the truth of the transaction, thorgh the .deed be absolute on its face. The transaction was begun by Morris, with the request of a loan from Nixon, for which he offered a security upon the property, for the management of which, Nixon was his agent. It ended by Morris giving to Nixon a deed for the property, absolute on its face, and also a bond for a loan of $5000. Unless, then, some proof has been given to show that they truly bargained upon another footing, and that the loan did not form the chief inducement for the execution of the deed, and had not-been treated by both partios as a substantial part of the consideration, though not expressed in the recital, equity will in terpret it to be a security for money loaned.
. Is there any such proof in this case ? None that we can see, even if the defendants are allowed to use as evidence, as they contend they have a right to'do, the answer of their co-defendant, -Henry Morris. His account of the transaction is, that in an interview with Nixon.succeeding that when he made the application for a loan, and when Nixon declined lending, stating that his own embarrassments required all the funds he could command ; that Nixon said, it was very doubtful if the “ Hills property” would more .than pay. the claims upon it, and he could not consent to make, the loan, unless Morris .would convey the property to him; and he added, if the property should eventually turn out ivell, he would account to Thomas Morris for it, and share it. with him. And in the third interview Nixon told him that his counsel had
. advised him upon no accpunt- to let the complainant have the money, unless an absolute and
bona ftde
conveyance of the: whole premises was made; that, upon receiving his answer, he returned to New York, and communicated the-determination of Nixon to his brother; and that, upon his return to Philadelphia, he was obliged to deliver the deed without any promises of trust, as he found Nixorr resolved to do nothing in the business,.unless the conveyance was absolute and
bona fide.
He says, however, he was satisfied in his own mind that, if the property turned out well, Nixon would give a handsome share of it to the complainant ; and that, in consequence of this .impression, heal ways wrote to him as if he was still interested in the successful result of the purchase. We are in no way, though, influenced by. the answer of Henry Morris in coming to our conclusion" as to the character, of the deed. .It has been introduced because it was strongly urged to be good evidence in behalf of the defendants, by their counsel; and with the view of showing, even though the facts stated had been proved, that they would not. take the case out of the principle, — that a deed absolute on the face of it, for property, offered to secute a loan in a case in which the parties originally met upon the footing of borrowing and lending, will be considered a deed in the nature of a mortgage, to secure a Iban, thotigh another consideration shall be in the recital of the deed than the loan, unless it. shall be proved that the parties afterwards bargained for the property independently of the loan; or if it shall appear that the chief inducement of the grantor in making the deed, was to procure the loan; or that the grantee, after the execution of the conveyance," treated the money which he had advanced as a substantial part of the consideration, and not as a loan. There is no proof in this ease thát the parties bargained without a reference to an advancé by Nixon of $5000, and it does appear that Morris was only induced to make the deed from the offer, of Nixon to make the advance of that sum, and that-Nixon treated it substantially as a part of the consideration to be given for the property, as he took a bond from Morris for the "amount, and says it was only to be contingently enforced, for the benefit of Morris ór his 'family, in the event of Morris falling into misfortune.
Courts of equity will not permit so uncertain a benefit as is
here expressed, to weigh at all in'their consideration of cases like this; for, if they.did, it might become a contrivance to give-plausible colouring to an originally meditated-fraud, or to one induced by the temptation of subsequent, gain.
But besides the transaction itself, as it appears in the pleadings, there were relations of interest and of agency, between Thomas Morris and Henry Nixon, in respect, to the property; and such as grew out of the embarrassments of the former, and ■also .out of his particular condition to the recitals of consideration in the deed, which combine to raise a violent presumption, of a secret trust, and that the deed was meant to secure Nixon’s advances, loans, and endorsements for Morris.
Nixon claimed an interest in the property, besides the one-fourth of the moiety which Morris had agreed to convey to Walker and Henry Morris, in trust for Mrs. Nixon; For the former, • Nixon had not such satisfactory evidence as he could rely upon. This appears from his correspondence. Morris was much embarrassed ; no onb knew his pecuniary difficulties better than Nixon did. He remembered, too, that Morris, without consulting him, had offered to -mortgage the property to the United- States, He feared, from the.' disclosures made by Henry Morris of the pressing necessity of-his brother, that he might mortgage the property to raise the sum he then stood in need of, to some other person if Nixon did not advance it; so that, at some other time, urged by want of money or the demands of creditors, he might • be induced to convey to others an interest in the concern. That new parties might interfere with, the management of it, to the injury of all who were -originally interested ; that the bank, by any change in the ownership, and the course which' might be 'pursued in respect to the property, might not. continue to be so indulgent as it had been, in' postponing the payment of the purchase-money still due. Besides, sales of this property to individuals and purchases from the city were then anticipated! the latter a slow, bút sure- speculation; almost at the price of the owners, from the contiguity of public works, which could not be abandoned; nor could they be carried on without more of the property than the city had already bought. Add, the embarrassed condition of Morris; the connexion and close intimacy between the parties; their excited expectations, extended by exaggerated
representations to the females of the- family, that all concerned would realize great pecuniary advantages from the property; the certain interest, also, of Mrs. Nixon in it, and the.certainty, that, by keeping it under their own control, it would be managed in their own way.; all these considerations were cogent inducements with Nixon to get a legal title from Morris, and the moment when Henry Morris presented himself to solicit a loan for his brother was the occasion upon which it could certainly be obtained.
But further, Morris’s, condition, in respect to the consideration recited in the deed, was not such as to induce him to wish to part with the property. Nor does Nixon’s assumption of the. particular debts of Morris, recited in it, bear the aspect of a genuine purchase. It was not a present payment of any thing; and, if genuine, was the purchase of Morris’s speculation, by an advance of @5000, which, according to the face of the transaction, was to be repaid. And may we not say, when‘in the same transaction we have it admitted that one of the documents was not meant by the parties to be what, it purports, that another of '.them by this fact is subjected to suspicion ?
But we have said, though Morris was embarrassed, that he wás not pressed by any of the particulars recited in the deed as a consideration,.
The purchase-money remaining due to the bank on the property, the .bank had permitted to remain unpaid, finding no doubt its advantage in the interest. Both principal and interest were ultimately .paid, not by Nixon', but by sales of the property.
The debt due to Biddle and Wharton was secured by a mortgage upon a part of the property,-given by Morris with Nixon’s consent. . The notes discounted at the bank for the aceommoda.tion" of Morris with Nixon’s endorsement, had been renewed, arid were running as an accommodation, to be renewed again and again, as they were.in fact, without any change of names to the paper, after the deed was.executed. Nixon could not press for the commissions claimed as agent of the property, of did not intend to do so; for we find him writing to Morris on the 21st May, two days before Henry Morris arrived in Philadelphia on his errand for-the loan, and seven before the deed was executed, to make himself easy as to commissions, as it had not been his' intention to ask for them; or acknowledging he had no right to
do so, until
“
the final closing of the accounts, agreeably to the' first agreement when the Hills were bought.”
Such was.the situation of Morris, in respect.to the debts named-in the deed as the consideration for which an absolute title was to pass. He was an embarrassed man, and' hard pressed at that moment for $5000, and though destructive consequences were to assail, him if-he could not get it, is it likely that Nixon then could have been insensible to the ties which had united them, and could have made his distress the means of coercing from him- an absolute conveyance, without a secret trust of all that he had left, upon which he could rest a hope to raise himself a little above his ruined fortune? We cannot think so. If we did, it would be our duty to give another aspect to this transaction, from which the defendants would derive no benefit.
If a doubt remained upon our minds in respect to the character which should be given to the deed, the letter from Nixon to Morris, of the 24th May, would remove.it.
It may be considered; either as having been intended by the writer to put Morris at ease in respect to the conveyance and bond which were required, or as a letter calculated to mislead Morris in- respect to the use which Nixon would make of the conveyance. The letter might be, either the artifice of the writer to accomplish an unjust intent, or the language of the letter and manner of using-it might innocently mislead. In either event, if the letter is such'as is. likely to mislead, and from which it can be fáirly implied, that it induced a confidence that the receiver of it would have any benefit from or interest in the property, he was required to convey contrary to the terms of the deed, it would be fatal to it as an absolute deed.
Nixon and Morris were brothers-in-law. There seems to have been between them fraternal intimacy and confidence. It appears to have been unlimited in all the relations of social life and of business-. The confidence of Morris was unwavering, and dependent, from the superior; business ability of Nixon. Nor can it be denied that it was met by him in Morris’s difficulties by acts of timely assistance and .kindness. Nixon had been his agent in the management of the property from 1812. He claimed an equitable interest in it, besides the proportion of Mrs. Ñixon.. There were unascertained accounts of Nixon’s agency when the
deed was made. Morris had received no account since 1816, except an abstract of sales of some stone and gravel, furnished to him by one of the defendants in 1819. He did not know par-, ticularly what>had been the proceeds of the sales and income of the property, or how they had bden applied. No examination.or. estimate of the value of-the residue of the property, as it' then stood, was made. No communication had been given by the. agent of the effect of public and private improvements-upon it, in respeet. to its then, or .prospective value. Nothing was said between Morris and Nixon as to the price that the taker was t,o give. In this situation, being greatly embarrassed, Morris asked a loan from, his agent. The agent says,
'■
I am\ aware of your embarrassment. There are certain claims upon ■ this property which you will have to pay, and other respons bilities of yours for which-I am also answerable. I will provide the money of which you stand in need, will take a bond from, you for it, which I am not to enforce against you, unless you should fall into misfortune, and then only, should I see fit to do so, for the benefit of yourself or your family, if you will give me an absolute conveyance of the property/ The conveyance is given, the bond is taken^ and now it is Said the • transaction was intended to be an absolüte sale^ghd not a. security for a loam We do not think that the connexion between the-bond, and the deed can.be dismembered. ' Nor can we- reconcile it with what we believe would have been the ordinary conduct of meii in like circumstances, to suppose, that an agent so situated to a principal and friend in distress, could have intended, by asking for an absolute conveyance, to Use it for any other purpose than to secure himself in the sum he was about- to advance and his other responsibilities for his principal. Morris was al ruined man. NixOn knew it, and treated with him in this instance as if the crisis had come when creditors would no longer be satisfied with postponed promises. It was natural for Nixon, nor was it wrong in;the then state of real property, and .as he was about to advance to his brother-in-law $5000, to take the most efficient way to secure: himself from loss, and to put it out of the power of Morris to interfere with his security, by subsequently giving to others an interest in the property. We find upon a preceding occasion when Morris was pressed,'and had offered to mortgage this pro
perty, that Nixon suggested that it should be put into his hands, with the trust .expressed of what was intended. His object then was, that the original intention of the purchase might be carried out for the benefit of all.concerned. Nixon’s inducement to do so was greater than it had been at that time. Mrs. Nixon’s interest of one-fourth in the moiety of the property had been in in the mean time secured to her by her brother.
We will now turn to the letter of the 24th May from .Nixon to Morris, to confirm the view we have of this transaction. It begins,
“ Dear Morris, — Henry arrived here early yesterday morning. Having had a conversation with him on the subject of.á loan, I have only to say, my best exertions will be to obtain this object, and to enable me. to do which, Henry will immediately call upon you to adyise you of the.only mode that he or I can suggest to -achieve it.”
It -must be remembered that the letter was written on the day that Nixon-consulted his counsel, after the consultation had been had. The answer of Nixon shows this. He says, that he had concluded to provide the money, but that'he must
con.salt
counsel before he finally agreed. And then that-he thereupon returned to Henry Morris, and informed him of the determination he had conde to of dealing upon no other terms than an absolute sale and conveyance, and taking a bond for the-loan. When, then, Nixon says in the letter, “Henry will immediately call upon you to advise you of the. only mode that he or I can suggest to achieve it,” it is manifest that the mode hád been a subject of conversation between them; and as he mentions in the letter, the loan in connexion with the mode, which Henry was to communicate to his brother, this contemporary letter must be called on to ascertain what Nixon intended by the mode; and more especially so, as it seems the contents of the letter had not been "told to Henry Morris;
The mode wás an absolute conveyance of the property and a bond. But there is, m connection with the mode, the declaration of an intention, coupled with an ability, in consequence of the mode, to achieve a loan. It would' then be a very strained inference, from the words of the letter, to say, that Nixon did not meafa that Morris, to whom he was writing, should understand
that he meant a loan, to be secured by a conveyance of the property, as well as by a bond; or that he meant, that the loan which he could achieve by the mode was to depend upon Morris making to him an absolute sale of the property for the considerations expressed in the deed. If such had been his meaning, it could have been plainly said. But we think there* can be no doubt concerning what the writer of this letter meant, or the construction which, in a court of equity, should be put upon it, when we find him saying:
“
You, I am surq, will have confidence in me as to the mode proposed, which Henry will communicate; and be assured my sincere prayers will be and best exertions to promote this all-important point.” This language indicates a sincere desire in Nixon at that time to relieve the distress of his brother-in-law. That'he intended to solicit his confidence as to the mode proposed, to secure himself from loss, without depriving Morris of a participation in the prospective advan-. tages which they had mutually indulged for ten years in respect, to the property, and which, it cannot be denied, had in a great degree been excited by the representations of Nixon. In Morris’s situation it was a great point gained for the benefit of all concerned in the property, that the legal control of it should be taken from-him and vested in Nixon.
This letter we think a part of the entire transaction, and stamps its character in a court of equity. It could only have been intended to put Morris at ease in respect to .the absolute conveyance which Nixon required ; or it was designed mislead and deceive Morris, by expressions of sympathy which were not felt, and a solicitation of confidence not deserved. If the latter, - we should feel bound to pronounce the transaction a meditated, fraud, successfully accomplished. We adopt the first as most probable, and in that view of the case decree the conveyance of the 24th May, 1822, to be a deed, with , a secret trust, for the securitymf moneys loaned-and.advanced by Nixon to the grantor. This conclusion makes it unnecessary for us to consider the
effect
of time upon the rights in controversy.
We order the decree of the Circuit' Court to be reversed, and ' that the cause be remanded, with instructions to the court to have an account taken, and that the complainant be állowed his-
proportion at the rate of an interest of five-eighths in a moiety of the original purchase of Morris and Williams, &nd that the court shall take such other proceedings in the cause as equity may require.
order.
• This .cause came on to be heard on the.transcript of the record from the Circuit Court of the United States for the eastern district of Pennsylvania, and was argued by counsel. On consideration whereof, it is now here considered, ordered, and decreed by this court, that the decree of the said Circuit Court in this cause be and the same is hereby reversed, with costs, and that this cause be and the same is hereby remanded to the said Circuit Court, with instructions to that court to have an account taken; and that the complainant be allowed his proportion at the rate of an interest of five-eighths in a moiety of the original purchase of' Morris-and Williams, and that the said court shall take such other proceedings in the cause as equity may require.