Dissenting Opinion of Chief Justice Hitchcock.

Now, was this arrangement advantageous or prejudicial to the complainants and other heirs of William Irwin? This must depend upon the value of the property received by Longworth, in satisfaction of his debt. As heretofore stated, the testimony as to its value in January, 1839, is somewhat conflicting; but taking the testimony altogether, I am satisfied that its value did not exceed fifteen thousand dollars, and do not believe that it could have been sold in the market for ten thousand. In fact, I very much doubt whether the entire property covered by the deed of trust, could have been sold for a sum sufficient to satisfy Longworth's debt. If I am right in this, it follows that this arrangement-even admitting it to have been assented to by complainants, under a mistaken view of their rights-was not prejudicial to them. On the contrary, it was advantageous to them. That is, it was advantageous 51] to them, if to pay a debt of twenty thousand dollars with property of less value than fifteen thousand, can be said to be advantageous to the debtor.

It is said by counsel for complainants that, by a decree against Longworth, no wrong is done to him, as he will, in that event, receive what is justly his due, in consequence of payments made by him on his indorsements. This is, in a certain sense, true; and it would, in the same sense, be true, that no wrong would be done to a vendee of land, by a decree against him to reconvey, upon the repayment of the purchase money and interest by the vendor. As the case now stands, Longworth must be treated as a purchaser, not as a mortgagee, and like any other purchaser, is entitled to the benefit of the increased value of the property, if there has been any such increased value. That there has been, is abundantly manifest from the whole case, and hence this litigation. Had the value of the property remained as in January, 1839, this court would never have been troubled by these complainants with a bill to redeem. It is the enhanced value of the property which alone. gives importance to the cases. But in deciding the cases, this court is bound to look upon the property according to its value in 1839, not in 1844 or 1852.

It is further urged by counsel for complainants, that, under the circumstances attending the conveyances from Carneal to Longworth and Archibald Irwin, the only legitimate effect of those conveyances was to transfer the legal estate to the grantees, subject to the same trusts which were attached to it in the hands of Carneal

Irwin v. Longworth et al.

himself; in other words, that there was a mere devolution of trust. At least, such is the claim so far as relates to the property conveyed to Longworth. As to that conveyed to Irwin, the complainants take no interest in it.

If this court abide by the principle, that the intention of parties in the transaction of business, so far as the same can be collected from their written or parol declarations, or by their actions, shall govern, here was certainly no devolution of trust. No such thing entered the minds of the parties. The complainants knew that the legal title to the hill-land and city lots was in Carneal. They knew that it was claimed by their brother *that Carneal held [52 the title in trust to his use, for a particular purpose. They knew that Longworth claimed that it was holden in trust for his indemnity. They knew that, upon this subject, there had been a controversy between the two of many years' standing. These things they certainly knew, whether they were actually acquainted with the merits of this controversy or not. And when the order or memorandum of January, 1839, was presented to them for their signature, they must have known or believed that this long existing controversy had been compromised between the parties, by an agreement to divide the land. Possessing this knowledge, they signed the order, thereby directing Carneal to convey the hill-land to Longworth, and the city lots to their brother. Was it their intention that Longworth and their brother should hold these lands merely as trustees, or that they should hold them as their own absolute property? There can be no doubt that the latter was the intention.

When we look to the conduct of the two grantees, we find that each one of them, upon the reception of his deed, discharged the estate of William Irwin from all claims which they had against the estate, and the claims thus discharged constituted the consideration by them paid for the land.

Under such circumstances, it seems to me, it will not do to say, here was a mere devolution of trust.

Upon the whole case, so far as the complainants in the original bill are concerned, I am not satisfied that they are entitled to any relief, but, on the contrary, am of opinion the bill should have been dismissed. And I am led to this conclusion by a variety of considerations. I am satisfied that in the conveyance of the property to Carneal, William Irwin designed to put it beyond the reach

Dissenting Opinion of Chief Justice Hitchcock.

of creditors, and to place it in a situation that Archibald could have the use of it, or appropriate it to pay off the debts of William Irwin & Son; that this was well understood by the trustee and by Longworth; but lest on this account the deed should be deemed fraudulent, the trust for the indemnity of Longworth was inserted, 53] but inserted with *the understanding that Longworth might or might not, at his election, insist upon its enforcement. There was, in substance, a trust for the benefit of Archibald Irwin, but it rested in parol, and therefore could not be enforced. The recital in the written order of January, 1839, that the property was conveyed to Carneal, in trust, "for the use of Archibald Irwin, to pay the debts," etc., instead of being false, as alleged in the bill and in the arguments of counsel, is substantially true. But if it was not true, and the complainants acted under a mistaken apprehension in supposing it to be true, the facts with which they were acquainted, and even the order itself, were sufficient to put them upon inquiry, and if they proceeded to act without making inquiry, they can not avoid this action upon the pretense that they acted in ignorance. If there was a mistake in the order as to the trust in favor of Archibald, there was no mistake so far as the trust in favor of Longworth is concerned. He had practiced no deception, no fraud upon these complainants; and if they have been deceived by their brother, Longworth ought not to suffer in consequence. Admitting a mistake, and admitting that in consequence of this mistake the complainants acted under a misapprehension, still they are not entitled to relief, because this action was not prejudicial to them; as the only effect of it was to pay a debt due from their father's estate, of nearly twenty thousand dollars, with property of less value than fifteen thousand.

It may be proper to say that a case is referred to by counsel, and is cited by the court in this case, to sustain its decision in 10 Howard's Reports. An examination of that case will show that the party against whom relief was sought, had been guilty of the most palpable fraud, and it was on this ground relief was granted. In this case there is no pretense of any fraud on the part of Longworth.

As it respects the complainants in the cross-bill, they stand in a different situation from the complainants in the original bill. They were infants at the time of the execution of the order before 54] referred to, and of the deeds to Longworth and *Archibald

Irwin v. Longworth et al.

Irwin. They never assented to that order, although it was signed by their father. I incline to the opinion that they are entitled to relief, unless precluded from present relief by the fact that their father had an interest in the land as tenant by the courtesy. If, as insisted by complainants' counsel, this deed to Carneal is to be considered as an ordinary mortgage; and an equity of redemption, technically speaking, remained in William Irwin, and descended to his heirs, then Lewis Whiteman had an interest. But I am not entirely satisfied of the soundness of the argument upon this subject. However, it will be of no use to enter into a particular examination of the matter; and I shall not do it.

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