Peter v. Weight

6 Ind. 183

• Court: Indiana Supreme Court
• Decided: May 29, 1855
• Status: Published

Opinion

Stuart, J.

Bill in chancery by Matilda Peter against Wright, Brcmdt and others, to set aside certain conveyances as fraudulent. The Court denied the relief sought, and dismissed the bill at the costs of the complainant. She prosecutes this writ of error.

Both in the pleadings and the argument of counsel, it is to be regretted that such unwonted asperity has been indulged. There is nothing to distinguish this case from many others in which fraud is charged on the one side and denied on the other.

Divested of extraneous matter, the facts legitimately presented for our consideration are, as briefly as may be, these:

Joseph Peter was one of eleven heirs of William Peter, deceased, who died some time in 1837, intestate, leaving a large estate, consisting chiefly of lands. Shortly after his death, the heirs made an amicable partition. By this partition Joseph was allotted a larger share than the others, because on him was devolved the support of his mother, Julia Ann Peter. That share consisted of two hundred and fifty-four acres of land, including the homestead of the late William Peter. Under this partition, the heirs executed deeds, and took possession of their respective shares.

It appears that Julia Ann Peter released her dower to her son Joseph, and took from him a bond dated May 29, 1844, whereby he agreed to deliver to Julia Ann one-third of the products of the farm for six years, and afterwards to support her, &c.

In May, 1846, Joseph Peter died intestate, leaving the complainant Matilda his widow, and Irvin Peter his only child and heir at law.

At the time of the partition, some of the heirs were minors, others femes covert. To quiet title and confirm what had been done, a bill in chancery was filed, in which all the heirs were parties, either plaintiffs or defendants. The result of this amicable proceeding was a confirmation of the partition already made, and deeds ordered by the Court to the heirs respectively. Under this proceeding, the title of the father, Joseph P., was confirmed in the son Irvin, by commissioner’s deed.

This amicable suit was terminated in 1848. In March, 1849, Irvin Peter died intestate, leaving his mother Matilda, the complainant, his sole heir at law. She thus inherited the share of Joseph, her husband, subject to his obligation for the support of Julia Ann Peter.

Consisting, as that portion did, of the Peter homestead, and now in the hands of one connected with the family only by marriage, it seems to have become an object with the heirs, to place it, if possible, in the hands of some of the family. They, therefore, in April, soon after the death of Irvin, took measures to buy out Matilda, or, if that failed, to test her title by law. In this negotiation, Wright was employed as their agent, at a contingent fee of 500 dollars.

In May, 1849, Wright took with him Bwrkhalter, the husband of one of the heirs, and Snoddy, a friend of the family, and by their joint influence and persuasion, succeeded in purchasing, for the other heirs, from Matilda, for 1,500 dollars. At that time, the value of the land so purchased was variously estimated at from 4,000 to 5,000 dollars. Matilda gave the heirs a title-bond, to convey upon the payment of the money.

Three weeks after the date of the bond, Matilda filed her bill in chancery to set it aside, as having been obtained by fraud. Wright and the Peter heirs, obligees of the bond, were defendants.

In September, 1849, the case was compromised, and the suit dismissed at Matilda's costs. In pursuance of this compromise, she deeded to Wright for 2,375 dollars cash, and divers other alleged items of consideration, which will be noticed hereafter. The deed was delivered to Orth, as an escrow, to be delivered to Wright upon the payment of the money above named.

That very day Wright and the defendant Brandt were negotiating about the homestead, and the next day Brcmdt purchased a part of the land for 3,500 dollars. Without any order from Matilda, but on the assurance of Brandt simply, Orth took Brandt's note for 1,750 dollars, in lieu of cash; and the deed which he held as an escrow was delivered to Wright.

In January, 1850, Matilda filed her present bill to set aside the compromise, alleging that she was induced to make it by fraud. Wright and h'is vendee, Brandt, the Peter heirs, and two of her former solicitors, are made parties to the bill. The answers are required to be without oath.

The Peter heirs are defaulted. Wright, Brandt and the other defendants answer, denying the several charges in the bill, and denying all fraud, &c.

The whole controversy, therefore, resolves itself into a question of fact, on the weight of evidence.

The Peter heirs are charged as confederates. It has been seen that they had severally received their full share of the paternal estate. They had no further claim on the homestead—no shadow of right to Joseph's share, as inherited by Matilda. Their position, therefore, in employing Wright to procure for them Matilda's inheritance, either by compromise at an inadequate price, or by law, was aggressive ; and in that aggression they were united. They directed Wright to use “whatever means he might deem proper and fitting;” to compromise for 1,500 dollars, if he could, if not, to involve her in litigation. He was to have 500 dollars if he succeeded; if he failed, nothing, and to pay all costs. If this is not champerty, it has some such similitude.

The contract to this effect is appended in a note for further reference.

(1)

On the other hand, Matilda was on the defensive. She was endeavoring to hold what the law had given her. Alone against a number, with even less than the ordinary capacity and shrewdness of her sex in business matters, she is artfully led from one blunder to another, till her property is gone for a very inadequate consideration. Thus situated, she appeals to the Courts to relieve her from contracts into which she alleges she has been induced to enter by fraud.

All the parties to the bill in chancery to set aside the title-bond, are also parties to this bill to set aside the deed to Wright. The material parts of the former bill are embraced in this; and the special prayer is for relief against the bond as well as against the deed. The bond and deed are treated as parts of a whole, and the evidence addressed to both accordingly.

To determine accurately the respective rights of the parties, it will be necessary to examine—

1. The validity of the title-bond to the Peter heirs.

2. The validity of the deed to Wright.

Incidental to these, there are several other questions which will be noticed as they arise.

First, then, the title-bond executed by Matilda Peter to the Peter heirs in May, 1849.

It has been seen that Irvin Peter died in March, 1849. The very next month, April, 1849, Wright was employed. He immediately took with him Burkhalter and Snoddy, to second his overtures of purchase with Matilda. This part of the transaction is best told by the witness; premising, as it appears in evidence, that Wright, Snoddy and Matilda were all members of the same communion, and that she, therefore, placed the most implicit confidence in these advisers, who had generously come, as they said, to prevent a family difficulty. Snoddy, in substance, says: “ Dr. Wright and Henry Burkhalter called on me and wished me to go with them to Mrs. Peter’s. We talked about her title. I became convinced that Matilda’s title was that of Joseph Peter; but I always supposed his title defective. I told Matilda, in the presence of Wright and Bwrkhalter, that I thought her title was not good, and that she had better take the 1,500 dollars, and escape the litigation threatened her by the Peter heirs. I was in utter ignorance, then, that there had been judicial proceedings to supply the deficiency of Joseph’s deed. Neither Wright nor Bwrkhalter informed me that I was in error, though Wright had then papers which I afterwards understood to be copies of the records.

“ Had I known of the proceedings in Court, I should not have advised her to take 1,500 dollars.”

There was policy, at least, in the selection of Snoddy, who, ignorant of the facts, was eager to enact the peacemaker ; and in whose integrity and friendship Matilda had the most undoubting confidence. Advice from such a man might well have misled a stronger mind. He was backed by Wright, another brother in the church, and Bwrkhalter, her brother-in-law. Thus beset, and with such advisers, Matilda signed the bond in controversy. Having thus sold her property for one-third its value, to avert threatened litigation, the object of the confederacy was accomplished.

In what light the law views such transactions, remains to be seen. In Smith v. Richards, 13 Peters 26, it is, says Judge Barbowr, an ancient and well-established principle, that whenever stippressio veri occurs, it is sufficient to set aside a conveyance. Judge Story expresses the same thing thus : “ Where a party designedly produces a false impression in order to mislead, entrap, or obtain undue advantage over another—in every such case there is fraud;—an evil act with an evil intent.” 1 Story Eq. Jurisp. 201. Thus, what Snoddy ignorantly stated as to the defect of Matilda’s title, was knowingly and wrongfully adopted by Wright, and, as the evidence shows, artfully urged upon her as an inducement to accept the 1,500 dollars. She placed a known trust and confidence in her advisers, in a mixed question of law and fact, and they misled her. 1 Story Eq. ss. 130, 131, 133.—Shaeffer v. Sleade, 7 Blackf. 178.— The State v. Holloway, 8 Blackf. 45. Nor is this such a family settlement as the books say will be held sacred. Such settlements, to be so upheld, must be made in good faith. Fraud or circumvention is fatal to them.

Thus it is held by judge Story that compromises fairly entered into are binding, whether the uncertainty arises upon matters of fact or of law. But if the parties are not mutually ignorant, the case admits of a very different consideration, whether the ignorance relate to the facts or the law. Thus a Court of Equity will not sustain a family settlement where, from a mixture of mistake of title, personal ignorance or liability to imposition, agreements or acts unadvised, or improvident, or^ made without due deliberation, are entered into. Nor will compromises be sustained when it is apparent that the parties did not understand their rights or the nature of the transaction; as if the heir surrender an unimpeachable title without consideration. In all such cases, Courts of Equity will hold the settlement invalid, upon the common equitable principle of protecting those who are unable to protect themselves, and of whom an undue advantage is taken. 1 Story Eq. Jur., supra.

The confederacy of the Peter heirs with Wright to take advantage of an ignorant woman, and the means resorted to, to consummate the purposes of the confederacy, bring the case before us clearly within the rule laid down by Story.

We can therefore have no hesitation in saying that the injurious contract with the Peter heirs into which Mrs. Peter was drawn, was fraudulent and void.

2. We come, then, to the second question, involving the validity of the deed to Wright, and the compromise.

This compromise, which had been advised by counsel, is not altogether an independent transaction. It is a continuation of the confederacy, and tainted in some degree with the fraud which resulted in the execution of the bond. On the part of Wright, it was but a revision and adoption of that fraud on his own particular account; for, in the meantime, he had bought out the other defendants. On the 24th of September, 1849, Julia Arm and the Peter heirs had joined in a quit-claim deed to Wright for the whole property pending in chancery. Concurrently therewith he gave his bond to secure Julia Ann the benefit of her maintenance bond; or whatever he (Wright) should consider equivalent thereto; and to pay all costs, &c.

Two days after, September 26th, 1849, Orth, in his answer, says, Wright called on him, and, on behalf of himself and the other defendants, renewed the proposition of compromise made and postponed in July on account of the cholera. The next day, Orth and Wright repaired to Matilda's.

It would seem, from the evidence, that both Matilda and Orth were kept in ignorance of the purchase from the Peter heirs. Perhaps, in itself, this piece of secrecy would not be entitled to much weight. It might have inclined Matilda to compromise, or it might have had the opposite effect, had she known all the facts. But it assumes importance as a link in the chain of that furtive and faithless policy which marked the negotiations of Wright, and gives point to the frauds charged.

Closely connected with the secrecy, is the urgency of Wright to complete his contracts. When the bond was obtained, the subject was broached, and the fraud accomplished, at a single sitting. So here. Though the proposition to compromise had been made in July, Matilda hears it for the first time on the 27th of September, 1849, and is then allowed thirty or forty minutes to reflect on it and give her answer. It is worthy of note, too, that a blank deed was brought along; and that Wright, without getting out of the buggy, but landing Orth at Matilda's, hastened directly to Bwrhhalter's for the money, as though it were understood. It was all done in an hour or two, and Matilda taken from a sick bed, in a buggy, over the Clinton county line, to the nearest magistrate, to acknowledge the deed.

The substance of the advice, on this occasion, is thus given by the witness. “The reasons urged by Orth to Matilda were about these: That if it were not compromised, it -would make a long and tedious law-suit; that the testimony of Mrs. Peter’s case depended chiefly on the evidence of Mr. Bnoddy and her brother; that one or both might die before the case was settled, and that she would then stand a poor chance of gaining it. Orth said to Matilda that she knew her health was bad, and she might not live to get any good of it or to see it settled. The first Orth said about the compromise was, that we met together last night, and consulted Matilda’s case some three or four hours, and we came to the conclusion the best she could do would be to compromise. When Orth said that they had concluded that was about the best thing she could do, Matilda replied, ‘If you can’t see any better way, I can’t.’ ”

Now, it is to be observed of this advice, that it came clothed with the authority, not of Orth alone, but of his associate counsel. “ We consulted some three or four horns;” “we concluded,” &c. The most favorable interpretation of who is meant by “we” is, that it was her solicitors. In point of fact, this does not seem to be strictly correct. For in his answer to the charge of such concurrence, made by way of cross bill, Gregory positively denies that he had ever been consulted as to the terms of the compromise, and insists that it was settled without his advice. There is no evidence tending to establish the facts thus denied. Further to evince his utter repudiation of it, Gregory returned his part of the fee into Court, and actually engaged as associate counsel to set the deed to Wright aside for fraud.

It is further to be observed of this advice, that one of the reasons urged why she should compromise, viz., the danger of her witnesses dying before the suit was terminated, though well calculated to impress a woman’s inexperienced mind, was very evidently unsound and illusive. For under the practice in chancery in 1849, the evidence was wholly by deposition. The bill was filed in May, 1849, and the depositions might have been taken at any time after the subpoenas had been served thirty days, &c. E. S. 1843, p. 842. The diligence of counsel might have placed all contingencies out of the question, by taking the depositions of Snoddg, &c., long before the advice was given. Besides, such advice, for such reasons, was equally applicable before suit was brought, and before expenses were incurred.

One useful corollary, however, flows from this advice, that if Snoddy and her brother lived to testify, Matilda had a clear case against Wright and the Peter heirs, in relation to the fraudulent title-bond.

That advice was well calculated to produce, and did produce, a wrong impression. It induced her to accede to a compromise, however, injurious to her interests. Hence the bewildered woman’s reply—“if you can’t see any better way, I can’t.”

It is no part of our purpose, nor does it lie in our way, to inquire why this advice was given. From whatever motive, it is clear that her mind was thereby bewildered and misled. It is the erroneous impression produced, and the results that flowed from it, with which alone we hag.e-to deal. Adopting the language of this Court on a siimlar occasion, only changing the names—“Even admitting that Orth produced the false impression innocently, by mistake—a supposition which his fair general character, perhaps, renders no more than just to him—this consideration does not prevent the application of the principle.” McCormick v. Malin, 5 Blackf. 509. Much more if misrepresentations were knowingly made and injury resulted, will the law imply a fraucjulent intent. Foster v. Charles, 6 Bing. 396.

It is urged that this part of the case depends chiefly on Neyhart’s evidence. Hence an elaborate effort is made to break its force and discredit it. But the basis assumed, viz., the contradictory matter to be found in the answers of Wright and Brandt, is novel and unauthorized. If they could discredit this witness, they should have done so by some of the known modes of impeachment. His general character for truth was not questioned. No attempt was made to show that he had given a different version at any other time. Nor did the most rigid and skilful cross-examination by numerous counsel in succession elicit any contradiction. The slight discrepancies between his evidence and that of other witnesses, are no more than may be found wherever men of different capacity and different powers of observation and habits of thought undertake to narrate the same events. Such discrepancies tend as often to confirm as to impair the credibility of a witness. To justify the rejection of evidence, it must be either contradicted, or improbable in itself, or obnoxious according to some established legal mode of testing truth. Thus regarded, Neyhart’s evidence will bear favorable comparison with other witnesses.

In this connection, it is proper to notice the rule of evidence applicable to the case. The answers of Wright and Brandt are put in under oath. But this does not change their legal effect or require any higher evidence. For the prayer of the bill is that they answer without oath. Hence in this as in other civil cases at law, a preponderance of evidence is sufficient.

It appears that concurrently with the deed, Wright executed to Matilda and delivered to Orth, as an escrow, a bond of indemnity, the terms of which may throw some light on the good faith of Wright. After reciting that whereas the personal property of Joseph Peter, deceased, is insufficient to pay the debts, which are thus a lien on the real estate; 2. That Julia Ann's bond for maintenance is also a lien; 3. That Matilda owes a note of 65 dollars to the administrator of her husband; 4. That Matilda's deed to Wright warrants against all incumbrances: therefore, Wright and his heirs release Matilda and her hens from’ those covenants, to the extent embraced in the recitals, and agree to save her harmless.

This bond, though not noticed by counsel on either side, seems very suggestive. Is it, for instance, a paper entitled to record? How far would it be notice to subsequent purchasers of the modifications of the covenants contained in the deed ? Could Wright's assigns, as distinguished from his heirs, (Williams on Real Property, 53,) sue Matilda for a breach of those covenants ? And what security does it afford her that Wright will save her harmless? If it was intended to secure her, why were not those recitals either embodied in the deed itself and expressly excepted from the operation of the covenants, or their performance secured by mortgage? Matilda would then have had some security; as it is, she has none. Nor is it to be supposed that this woman knew or understood a tenth part of the complex bond.

These may seem little things, but they have a meaning. They all favor or tend to favor Wright. Thus his release to the Peter heirs is without seal. For her maintenance bond, he gives Julia Awn whatever he shall deem equivalent thereto. Matilda is entrapped with the illusive bond we have been considering. On Wright’s part, every paper accruing to him is drawn with the utmost exactitude. Even Brmdt’s 1,000 dollar note is secured by mortgage, and the interest payable annually. Such uniformity of advantage on the part of Wright, can not be easily accounted for, consistently with good faith.

In cases like this, of numerous and complicated facts, the fraud which should vitiate is generally sought in vain in any one phase of the case. It lurks almost intangibly in the whole transaction. It may be deduced, says Kent, not only from deceptive or false representations, but from facts, incidents and circumstances, which may be trivial in themselves, but decisive evidence in the given case of a fraudulent design. 2 Kent 484. Hence the significance of all the little advantages so uniformly in favor of Wright, at the expense of those with whom he is dealing.

In this light, the details of the compromise give further color to unfavorable inferences. It is insisted that what she was to receive under the compromise was the full value of the land. That sum is made up thus:

Brmdt’s note,................................$1,750

Her solicitor’s fee,............................ 525

Indemnity against the bond to Julia Ann,........ 1,500

Assumption of the debts of her husband’s estate,.. 500

Her own note to the administrator,.............. 65

$4,340

This estimate is taken chiefly from the proposition submitted by Orth to Matilda, as given in evidence, and from Wright’s bond. It is, in substance, this: Orth said he had got them up to 2,300 dollars. We concluded to throw off 50 dollars of our fee, which would leave Matilda 1,750 dollars. He then said they were to pay her note of 65 dollars, given to the administrator. The personal estate of Joseph would not be sufficient to pay the debts by perhaps 500 dollars. Elsewhere in the evidence, the maintenance bond to Julia Ann is estimated at 150 dollars a year, and the probabilities of life at ten years, making 1,500 dollars— in all, 4,340 dollars.

The answers of Wright and Orth admit that the 2,375 dollars was to be cash. A tender of Brandt’s note for part of that sum was no discharge of Wright’s contract. Such a proposition needs no authority.

It is said that Matilda had so agreed with Brandt. But it is not proved. William Brandt, the son, testifies that Neyhart told him so, but that is no evidence against Matilda. Ashby has it that Matilda agreed to wait with Brandt till he got ready. Ohr that she had sold to Brandt; that Wright’s name was not mentioned. The honesty of all these witnesses may be admitted; but it is clear that their attention and memory are not to be trusted. It is not pretended that there was any memorandum in' writing, or any consideration for the alleged promise of Matilda. If, therefore, such an understanding were proved, it would be but a rmdum pactum.

The surrender of the deed to Wright has been already alluded to in another connection. Knowing, as he did, that the deed was delivered to Orth as an escrow, Wright’s possession of it, under the circumstances in which it was obtained, imports no delivery. In legal contemplation, it was never delivered. The estate still remains in Matilda. Jackson v. Catlin, 2 Johns. R. 248. Admitting that the acts of Wright and Brandt imposed upon Orth, that does not repair the wrong, nor any the less import fraud, upon Matilda. McCullock v. Malin, supra.

Next in order is the conditional fee of counsel. The substantial parts of this contract, as applicable to the subsequent facts, are given:

“ May 16, 1849. $600. For value received, I promise to pay Gregory, Orth and Brackett six hundred dollars, and interest from date, without any relief, &c. The consideration for the above is the employment by me of said G., O. and B., as attorneys at law, to prosecute a suit in chancery on a certain title-bond executed by me about the 1st of May, 1849, of the farm on which I now reside, and which fell to me as the heir of Irvin Peter, deceased. If the said G., O. and B. succeed in getting the bond set aside, upon suit for that purpose brought, then I am, upon termination of such suit, to pay the above note and interest ; and in case they do not succeed, I am to pay them nothing. Matilda Peter.”

It is not our purpose to allude to this contract further than it seems to bear on the questions involved. It is not champerty, simply because it is not payable out of the thing to be recovered. But it falls so clearly within the reason of the law on that subject, that the Courts might perhaps declare it void as against public policy. It is said that Courts of Equity will give no countenance to contracts which savor of maintenance or champerty, though they may not be within the strict legal limits assigned to these offences. Prosser v. Edmonds, 1 Younge and Col. 481. See, also, 4 Kent 449, note a.—1 Hawk. P. C. 84.— Scobey v. Ross, 5 Ind. 445.

But whatever the law may be touching such contracts, it is very clear, for other reasons, that the payment of this conditional fee by Wright, cannot be regarded as a part payment to Matilda on the land. For the cash payment of 2,300 dollars, though composed of two items, viz., 1,750 dollars to Matilda, the residue to her attorneys, was yet an entirety. The payment of the latter was not sufficient. To have entitled Wright to a delivery of the deed, both sums should have been paid. That was essential before the payment of any part to Orth could be regarded as a payment to Matilda. The one payment, without the other, was not only no payment to her, but in connection with Wright’s possession of the deed, was in direct derogation of her instructions and interests.

Even if the validity of the conditional fee be admitted, the 525 dollars being a prominent element in a compromise tainted with fraud, its payment, being made in fraud of Matilda's rights, could not be supported in equity. Chesterfield v. Janssen, 2 Vesey 125.

So that the claim of Orth Sy Co. must be determined by the original contract. That instrument, it will be seen, is very explicit. It is only on the successful termination of a suit brought to set aside the bond that they are entitled to 600 dollars and interest. Unless successful, and in that way, she is to pay them nothing. The bill had been filed; but the chief labor of the case, the depositions and argument, aside from the contingency of success, was yet to come, so far as appears here.

In no sense, therefore, could they claim anything under the contract. They could only come in under the doctrine of Lomax v. Bailey, and sue Matilda for the value of what they had done.

The next item is the 65 dollar note, which Wright was to pay. Daniel Peter, the administrator, and one of the defendants, is examined as a witness. He testifies that he called on Matilda and urged the payment, some months after the compromise, and that she paid the note accordingly.

The next item is the maintenance-bond of Julia Ann Peter. That was estimated at 1,500 dollars. But this is clearly extravagant. In the first place, Bwrkhalter, her son-in-law, testifies that she is sixty-five or seventy years old— nearer seventy. Now it may be doubted whether the probabilities of life for a woman of that age, in this climate, are not nearer five than ten years.

La the next place, Wright himself has fixed the annual value of the bond. His contract with Julia Ann was to secure her rights, under that bond, or what he should consider equivalent thereto. That equivalent we find in his co-defendant, Burlehalter's, deposition, was the interest on Brandt's 1,000 dollar note. Here, then, Wright himself has fixed the annual value of the bond at 60 dollars. He can not complain if the same value is put upon it in the purchase from Matilda which he puts upon it in his dealings with Julia Ann. As to him, at least, it is an eminently equitable criterion. Taking 60 dollars for ten years, what was counted to Matilda in the compromise at 1,500 dollars, was, Wright himself being judge, worth 600 dollars.

The last item is the debts of Joseph Peter's estate. In the overtures to Matilda, they were estimated at 500 dollars, which were to be paid by Wright as part consideration on the purchase. But the administrator, Daniel Peter, having acted as such four years, and spealdng with a full knowledge of the condition of the estate, testifies that the personal property will nearly, if not quite, pay all the debts.

Such are a few of the indicia of fraud and circumvention which the case made in the bill, answers and depositions presents. We are, therefore, equally clear on the second point, viz., that the deed to Wright is fraudulent and void.

Brandt's position is well defined. He was a purchaser with full notice. Pie went to see Matilda before he purchased, and both by her and others he was warned of what was coming; that she intended to contest the deed as soon as she was able to go to town. Brmdt said, “ he did not think he would buy the place, for he did not wish to buy trouble.” Pie purchased the homestead the next day for 3,500 dollars, leaving in Wright's hands still eighty acres, worth 1,000 dollars.

Being thus a purchaser with notice, Brandt is not entitled to any consideration in a Court of Equity.

Per Curiam.

The decree of the Court of Common Pleas is therefore reversed, and the cause remanded to the Tippecanoe Circuit Court, with instructions to that Court to enter a decree in this cause in favor of the complainant, Matilda Peter, to the following effect, viz.:

1. That her said bond to Daniel Peter and others, and her said deed to Wright, are found to be fraudulent, and therefore declared void; and that they be given up to be cancelled, within thirty days.

JD. Mace and W. C. Wilson, for the plaintiffs. J. Pettit, S. A. Huff, Z. Baird, G. S. Orth, and E. H. Brackett, for the defendants.

2. That the title to the said several parcels of land in the bond and deed described, and also described in the bill, [here they were described,] and every part thereof, be vested in the said Matilda, as fully as though said instruments had not been executed.

3. That the said defendants, Wright, Brandt and the Peter heirs, [here their names were inserted,] be each of them perpetually enjoined from claiming or setting up any right or title whatever by virtue of said deed and bond, or either of them.

4. And that the costs in the cause be adjudged against the said defendants, Wright and the heirs of William Peter, deceased, above named.

The following is the agreement referred to in the text:

“This article of agreement made and entered into this 28th day of April, 1849, between,” &c., naming all the Peter heirs except Matilda Peter, “of the first part, and Isaac H. Wright, of the second part, witnesseth, that the said parties of the first part jointly and severally appoint I. H. Wright as their agent and attorney, for them and in their behalf and stead, to use whatever means he may deem proper and fitting to hare set aside a certain decree in chancery,” setting out the substance of the decree of partition among the Peter heirs. “Should a suit at law or equity be necessary to finally settle the matter, said Wright is to procure such legal counsel and aid as he shall think proper, and to pay all costs and expenses in the case that may properly fall on the party above named,” viz., the Peter heirs. “The said parties shall each and every one give to said Wright such papers and instructions as he may demand, and that may be in then- possession and reach. But if said Wright shall be able, either with or without suit, to effect a compromise with Matilda Peter, widow of Joseph Peter, deceased, to such effect as that she will assign all her right, title, claim and demand, both equitable and legal, of, in and to the estate of Joseph Peter, deceased, both real and personal, to them, the above-named parties of the first part, jointly to their heirs and assigns, then the said Wright is authorized to stipulate with the said Matilda to pay her, upon the execution of the deed, the sum of 1,500 dollars, to be paid in joint and equal shares by each of the above parties, each the sum of 150 dollars, making in all the sum of 1,500 dollars. In consideration of the above services by Wright, each of the above-named parties do this day execute to Wright their note for 50 dollars, due three months after date; and in case Wright performs the services above panned, and either sets aside the decree or effects the compromise with Matilda, then said notes will be duo and payable on the date named, or whenever the decree shall finally set aside. But in case said dedree'can not be set aside or said compromise made, then said notes shall be null and void; and all the costs and trouble in the case shall be at the expense of said Wright, without recourse on either of the parties of the first part.” Then follow, after some repetition, the names of all the Peter heirs, except Matilda, and Wright’s name also—all under seal.

In a memorandum at the bottom, five of the heirs unite in authorizing Wright to give Matilda 2,000 dollars, by way of compromise.