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1821.

Prevost

v. Gratz.

Col. Croghan appears to have been involved, as well as from his extensive land speculations. And, in point of fact, some portions of his property were conveyed to one or both of the Messrs. Gratz, upon express and open trusts.

Still, however, the burthen of proof to establish
the trust in controversy, lies on the plaintiff. The
circumstances on which he relies are, in our judg.
ment, exceedingly strong in his favour ; and suffi-
cient to repel any presumption against the trust
drawn from the absolute terms of the deed. In an
account which was settled at Pittsburg, in May,
1775, between Bernard and Michael Gratz, and Col.
Croghan, is the following item of credit :
August, 1774. By cash received

of Howard, for 9,000 acres of
land at Tenederah, sold him for
£850 15s. New-York currency,

£797 12 6 Interest on £797 12s. 6d. from Au

gust, 1774, to May, 1775, is eight
months, at 6
per cent.

31 18 1

is here,

£829 10 7

There is no question of the identity of the land here stated to be sold to Howard, with the tract conveyed to Michael Gratz by the deed, in 1770. If the conveyance to Michael Gratz had been originally made for a valuable consideration then paid, it seems utterly impossible to account for the allowance of this credit

upon any sale at a subsequent period. It seems

1821.

Prevost

Gratz.

to us, therefore, that the only rational explanation of this transaction is, that the conveyance to Michael Gratz, though absolute in form, was, in reality, a trust for the benefit of Col. Croghan. What the exact nature of this trust was, it is, perhaps, not very easy now to ascertain with perfect certainty. It might have been a trust to sell the lands for the benefit of Col. Croghan, and to apply the proceeds in part payment of the debts due from him to Bernard and Michael Gratz; or, it might have been a sale of the lands directly to Michael Gratz, in part payment of the same debt, at a price thereafter to be agreed upon, and fixed by the parties; and, in the mean time, there would arise a resulting trust, in favour of Col. Croghan, by operation of law.

Time, which buries in obscurity all human transactions, has achieved its accustomed effects upon this. The antiquity of the transaction—the death of all the original parties, and the unavoidable difficulties as to evidence, attending all cases where there are secret trusts and implicit confidences between the parties, render it, perhaps, impossible to assert, with perfect satisfaction, which of the two conclusions above suggested, presents the real state of the case. Taking the time of the credit only, it would certainly seem to indicate that the trust was, unequivocally, a trust to sell the land. But there are some other circumstances which afford considerable support to the other conclusion. Upon the back of an account between B. & M. Gratz, and Col. Croghan, which appears to have been rendered to the latter, in December, 1769, there is a memoran

1821.

Prevost.

v. Gratz.

dum in the hand-writing of Col. Croghan, in which he enumerated the debts then due by him to B. & M. Gratz, amounting to £1,220 Is. 2d. and then adds the following words: "paid of the above £144 York currency, besides the deed for the land, on the Tenederah River, 9,000 acres patented.” This memorandum must have been made after the conveyance of the land to M. Gratz, and demonstrates that the parties intended it to be a part payment of the debt due to B. & M. Gratz, and not a trust for any other purpose. The circumstance too, that the word "paid” is used, strongly points to a real sale to M. Gratz, rather than a conveyance for sale to any third person. And if the sale was to be to M. Gratz, at a price thereafter to be fixed between the parties, the transaction could not be inconsistent with the terms of the credit, in the account of 1775. It will be recollected that M. Gratz resided at Philadelphia, and the conveyance was executed by Col. Croghan at Albany. There is no evidence that the consideration stated in the deed of £1,800, or any other consideration, was ever agreed upon between the parties; and the circumstance that no sum is expressed in the memorandum of Col. Croghan, shows, that at the period when it was made, no fixed price for the land had been ascertained between the parties. If, then, it remained to be fixed by the parties, whenever that value was agreed upon, and settled in account, the resulting trust in Col. Croghan would be completely extinguished. It is quite possible, and certainly consistent with the circumstances in proof, that B. & .M. Gratz might not have been acquainted with the

1821.

Prevost

Gratz.

real value of the land, or might be unwilling to take it at any other value than what, upon a sale, they might find could be realized. From the situation of Col. Croghan, his knowledge of the lands, and his extensive engagements in land speculations, ignorance of its value can scarcely be imputed to him. If, therefore, M. Gratz afterwards sold it to Howard, and Col. Croghan was satisfied with the price, there is nothing unnatural in stating the credit in the manner in which it stands in the account in 1775. It would agree with such facts, and would by no means repel the presumption, that the land was not originally intended to be sold to M. Gratz. It would evidence no more than that the parties were willing that the sale so made, should be considered the standard of the value ; and that M. Gratz should, upon his original purchase, be charged with the same price for which he sold. Upon this view of the case, the resulting trust would be extinguished by the consent of the parties, and no want of good faith could be fairly imputed to either.

But it is said that there is no proof that purchase was ever made by Howard ; and the trust being once established, the burthen of proof is shifted upon the other party, to show its extinguishment; and if this be not shown, the trust travels along with the property and its proceeds down to the present time.

It is certainly true, that length of time is no bar to In what cases a trust clearly established ; and in a case where fraud time will bar is imputed and proved, length of time ought not, ,

Vol. VI.

any such

a trust.

63

1821.

Prevost

v. Gratz.

upon principles of eternal justice, to be admitted to repel relief. On the contrary, it would seen that the length of time, during which the fraud has been successfully concealed and practised, is rather an ag. gravation of the offence, and calls more loudly upon a Court of equity to grant ample and decisive relief, But length of time necessarily obscures all human evidence; and as it thus removes from the parties all the immediate means to verify the nature of the original transactions, it operates by way of presumption, in favour of innocence, and against imputation of fraud. It would be unreasonable, after a great length of time, to require exact proof of all the minute circumstances of any transaction, or to expect a satisfactory explanation of every difficulty, real or apparent, with which it may be incumbered. The most that can fairly be expected in such cases, if the parties are living, from the frailty of memory, and human infirmity, is, that the material facts can be given with certainty to a common intent; and, if the parties are dead, and the cases rest in confidence, and in parol agreements, the most that we can hope is to arrive at probable conjectures, and to substitute general presumptions of law, for exact knowledge. Fraud, or breach of trust, ought not lightly to be imputed to the living ; for, the legal presumption is the other way; and as to the dead, who are not here to answer for themselves, it would be the height of injustice and cruelty to disturb their ashes, and violate the sanctity of the grave, unless the evidence of fraud be clear, beyond a reasonable doubt.

Now, disguise the present case as much as we may,

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