CULPEPER CO. VA
COURT RECORDS Part 1
 

"Reports of cases decided in the Special Court of Appeals of Virginia, held at Richmond during the years 1856 and 1857" by John M. Patton, Jr., and Roscoe B. Heath (spine title: Virginia - Patton Jr. & Heath's Reports Vol.2); Vol.2, pgs.396 to 423 (California State Law Library, Sacramento, 1/2004; MAD's extract, case and statute citations omitted)
      ROBERTS' Adm'r v. KELLY; Supreme Court of Virginia; Special Court of Appeals; 2 Patton & H. 396; January, 1857, Decided.
      In the year 1846, Lawson Wheatley, the administrator de bonis non of Philagathus Roberts, exhibited his bill on the chancery side of the Circuit Superior Court of Law and Chancery for Culpeper county, against John P. Kelly, in which he set forth and charged the following facts:
      That some years before, Benjamin Roberts had obtained a judgment against Philagathus Roberts, upon which execution issued and was levied on certain property of Philagathus Roberts. The said Roberts gave a forthcoming bond with John P. Kelly as his surety. Judgment was afterwards entered and execution issued on the forfeited forthcoming bond, and was levied on a negro woman Emma, and her four children, Jerry, Aggy, Henry and Ben, the property of Philagathus Roberts. On the 14th day of May, 1840, there remained due on the said execution a balance of $371.70, and on that day the said negroes were sold by the sheriff at the house of Philagathus Roberts, under the said execution, and were purchased by John P. Kelly, for the sum of $371.70.
      That before and at the time of the sale, it was understood and agreed, by and between the said Philagathus Roberts and Kelly, that the latter should advance to the former the sum necessary to discharge the execution, and give him time to repay the same, and for that purpose, it was further agreed, that Kelly should buy the negroes at the sheriff's sale, and hold the legal title as an indemnity for his advance, but should permit them to remain in the possession of Roberts, until the money was repaid to Kelly, for which it was agreed, Roberts should have the period of five years.
      That Kelly accordingly bid the amount of the debt, to wit: $371.70, for the negroes at the sale, and they were cried out to him at that price. Kelly paid no money at the time, but gave to the agent of the plaintiff in the execution, Thomas C. Freeman, an order on a merchant for the amount of his bid.
      That afterwards, and before the company assembled dispersed, Joseph Roberts, a son of Philagathus, who had been sent out by his father to procure money to meet the execution, returned and brought the sum of $175, which his father immediately paid to the sheriff, in part of the execution, and took his receipt therefor, in the presence and with the knowledge and consent of Kelly. The receipt was in these words:
      "May 14th, 1840. Received of Captain Philagathus Roberts, one hundred and seventy-five dollars, in part of an execution, Benjamin Roberts, benefit of John M. Duncan vs. him. $175. John C. Major, D. S."
      That Kelly then withdrew the order he had given the agent of the plaintiff in the execution, and gave him another on the same merchant for the sum of $196.70, the balance due on the execution after deducting the payment aforesaid by Philagathus Roberts to the sheriff, and that the said sum of $196.70 was all that Kelly ever paid for Roberts on the said execution.
      That, after the sale, the negroes were carried to Kelly's house, where they remained a fortnight, and were then sent back by Kelly to Roberts, and remained in his possession until the 28th December, 1843, at which time Kelly caused them to be taken away from Roberts, without his knowledge or consent, fraudulently and clandestinely in the night time, and thereafter claimed them as his own absolute property, and refused to account for them.
      That upon a settlement of the accounts between Kelly and the administrator of Roberts, it would be proved that Roberts had repaid Kelly the sum of $196.70, and that Kelly was indebted to Roberts' estate.
      There was no one present at the sale of the negroes except the sheriff, Thomas C. Freeman, who was the agent of the plaintiff in the execution, John P. Kelly, Philagathus Roberts and his son Boanerges.
      That Kelly's lien on the negroes had been paid off and discharged, and they ought to be restored to Roberts' administrator.
      That the negroes were worth, at the time of the sale, $1,500, and were then worth much more, and if the transaction was intended as a sale, it was invalid, because of the great sacrifice it involved, and was fraudulent and void as against Roberts, and ought to be set aside and a re-sale ordered. That the acts of Kelly in the premises were fraudulent as against Roberts.
      The bill prayed that Kelly should be required to answer under oath; that he should be required to deliver up the said slaves to the complainant, or account for their full value; that an account should be taken to ascertain how much, if any, of the said sum of $196.70 remained unpaid, and if the same had been wholly paid, that then the said slaves should be delivered up to the complainant; or, if any balance remained unpaid, that then the negroes should be sold to pay the same, unless it should be otherwise paid to the said Kelly, and the balance of the proceeds of sale of the said slaves, after satisfying the said Kelly his said debt, should be paid to the complainant, and for general relief.
      The defendant, John P. Kelly, demurred to the bill, and also in June, 1847, answered. In his answer he avers as follows:
      That the sale of the negroes took place under the execution upon a judgment on a forthcoming bond given by the complainant, in which he was surety; that the process under which they were sold was a venditioni exponas; that Philagathus Roberts was indebted to him in open account, and, being informed by the sheriff that the agent of the plaintiff in the execution would attend the sale to force it, and as the property to be sold was the last remnant of property belonging to Roberts, he attended the sale for his own protection, to secure a fair price for the property; that the slaves are a very unlikely set, the children very young, and there was danger that they might sell for less than the amount of the execution; that there was no sort of agreement between him and Roberts that he should or would advance any money or other valuable thing to enable Roberts to avoid a sale of the said slaves, or any of them, or that he should or would buy the said slaves, or any of them, at the sale about to be made and give Roberts any time or any opportunity whatever to redeem them; that the statement of the bill, taken as a representation of any agreement or mutual understanding between the said Roberts and the defendant, was "false in the aggregate and false in the details, false in the whole and false in all its parts;" that so far from its being true, the defendant became the purchaser of the said slaves at the sale made of them by the sheriff under the writ of venditioni exponas on his own (the defendant's) account and risk, and without any kind of previous or contemporary understanding or agreement between him and the said Philagathus Roberts, directly or indirectly, that the latter should ever have any right or even chance to redeem them, and therefore by the said sale and purchase the said slaves became the property, both legally and equitably, of the defendant; that it was true that he did compassionate the destitute condition of Roberts' wife, whose maiden property had been squandered by the said Roberts, and that in purchasing under execution the only remaining adult slave of the said Roberts and her children he had conceived the design of benefiting Mrs. Roberts, and it was his private intention, which he communicated to no one and as to which he made no sort of promise or agreement to or with any one whatsoever, to permit Mrs. Roberts to have the use of the said slaves for a moderate hire, to be paid to him so long as he could afford to be out of the money he had paid for them, and then to sell them and reimburse himself what he had paid for them and what Roberts was indebted to him upon other dealings, and if any surplus remained, unless he changed his mind, to settle it to the separate use of Mrs. Roberts, and that he had afterwards abandoned that design; that Roberts' wife was dead and the children who remained were his bitter persecutors; that in pursuance of this private design he had permitted the said slaves to remain in the possession of Roberts, with a single interruption, until December, 1843, at which time they left Roberts and came to his residence, in obedience to orders that he had given them, in consequence of rumors that he had heard that Roberts and his sons intended to run them off to Richmond and sell them; that it was not true that they were taken out of the possession of Roberts, fraudulently and clandestinely, or in any other manner, by the defendant, or by any other person at his instigation.
      That the said slaves were not, according to his recollection, taken into his possession shortly after the sale, but that about twenty months after the sale, at Christmas, in the year 1841, he had taken them to his house with their clothes and furniture, and intended to retain them; but he shortly afterwards relented out of compassion for the destitute condition of Roberts' wife, and sent them back to her. That shortly after the sale, the son of Philagathus Roberts arrived on the ground and handed to his father the sum of $175, which Roberts paid to the sheriff on the defendant's account at his request, the defendant promising to give him (Roberts) credit for that amount in the account already existing between them. That the defendant then withdrew the order he had previously given on his merchant, and gave a new order for the proper sum, and that he gave Roberts credit for the sum of $175 in his books, and that he had rendered his account taken from his books, in which the said sum of $175 was credited against a debt due him from the said Roberts long antecedent to the said sale, and the said Roberts had frequently approved the same. That since the said sale, several executions had come into the hands of the same sheriff who made the sale against the said Philagathus Roberts, and none of them had been levied on the said slaves; nor had any attempt been made to subject them to the payment of the said Roberts' debts. That he had given a fair and full price for the slaves, and there was no ground for the interference of a court of equity.
      The depositions of Freeman and the sheriff were read in the cause, which proved: That there were present at the sale, which took place at the house of Philagathus Roberts, the sheriff, Freeman the agent of the plaintiff in the execution, Kelly and Philagathus Roberts; that both Roberts and Kelly endeavored to persuade the sheriff to postpone the sale; that, after he refused to do so, Kelly and Roberts walked apart together, and had some private conversation; that when they returned, the negroes were put up for sale. Freeman bid $371.70, the exact balance due on the execution; Kelly bid five cents more, and the negroes were then cried out to him. Kelly gave the sheriff an order on his merchant for the amount of his bid. Shortly afterwards, Joseph Roberts, the son of Philagathus, arrived and handed his father $175 in money, which Roberts paid to the sheriff in the presence of Kelly, who remarked that he was "to give Capt. Roberts credit for it on his accounts." The sheriff gave Roberts the receipt for that sum, which was exhibited with the bill. That after this sale of the slaves, several executions against Philagathus Roberts had been in the hands of the sheriff, who made the sale, and he had returned them "no effects."
      The sheriff's return on the execution shewed that Kelly had paid the sum of $196.70, the exact balance due on the execution, after deducting the payment of $175 made by Roberts, and not the balance due on his bid. Several witnesses testified to the value of the slaves at the time of the sale, the lowest estimate was $600, and the highest $1200.
      The agent of the execution creditor was authorized to buy the property on account of the creditor for the purpose of speculation, but testified that he bid no more than the debt, because he did not consider that there was sufficient margin for speculation in the price at which they sold. There was no proof of any indebtedness of Roberts to Kelly, existing prior to the sale, nor was there any evidence of the manner in which Kelly got possession of the slaves.
      The sheriff's return on the execution was in these words: "I sold one negro woman named Emma, and five children, named Jerry, Aggy, Henry and Ben, to John P. Kelly, on the 14th day of May, 1840, for $371.75; and about one hour afterwards Philagathus Roberts paid me $175, which left $196.70, which was paid by John P. Kelly towards this writ, and satisfied to the plaintiff's attorney. See his receipts herein written." And there was endorsed the attorney's receipts for $167.18 cash, and John P. Kelly's note for $196.70.
      The cause was heard on the 17th of November, 1849, when the court decreed, that the bill be dismissed, upon the merits of the cause, with costs against the estate of the complainant's intestate.
      From this decree, Roberts' administrator appealed. Decree reversed.
      (counsel) Wellford, for the appellant: It is alleged in the bill, that the transaction between Roberts and Kelly was an advance of money by Kelly, secured by a mortgage of Roberts' slaves. This agreement was made between the two in the absence of witnesses. If the agreement is fully denied by the answer, what is the effect to be given to the answer? It has been often held, that there must be two witnesses, or one witness and corroborating circumstances, to overcome the denial of the answer. But this means no more, than that one witness is not enough to countervail an answer responsive to the bill. The purpose of the rule was to give the answer of a defendant in chancery the full effect and weight of a competent witness, and no more. It is every day practice, that the evidence of a witness is overcome by circumstances. And it is now well settled, that an answer responsive to the bill may be overcome by the evidence of circumstances.
      A defendant may destroy the weight of his answer by its inconsistency, disclosing perjury.
      The fact of this case, in reference to the understanding and agreement between Roberts and Kelly, rested within the knowledge of the parties to it, one of whom is dead and the courts do not require better evidence than the nature of the case admits of. The circumstances of this case are conclusive to show, that there was an understanding that Roberts should have the right to redeem the slaves purchased by Kelly.
      Kelly's interest, on his own theory that the property should bring a good price, his acting at the sale as the friend of Roberts, his urging the sheriff to postpone the sale, his bid of only five cents above the amount of the debt, his settlement with the sheriff for the precise amount of the debt, and not of his bid, the slaves remaining in the possession of Roberts, and the fact of Roberts' entire satisfaction with the sale, that he made no complaint of the grossly inadequate price, if it was a sale, are all circumstances inconsistent with any other hypothesis, than that there was an agreement conferring upon Roberts the right to redeem.
      Kelly, in his answer, betrays his consciousness of the dark color of the transaction, by disclosing what were his private intentions in regard to the property. It is a fair inference that he communicated his intentions to Roberts. It would have been a fraud upon Roberts for Kelly to become a purchaser under the circumstances attending the sale. He was the ostensible friend of Roberts, and thus appealing to the sympathy of those present, prevented competition. Gross inadequacy of price was another badge of fraud.
      It will be said that the effect of this agreement was to cover the property from the claims of creditors, and that the maxim in pari delicto melior est conditio defendentis, forbids the interference of a court of equity. But the parties were not in pari delicto. Roberts was a persecuted debtor, the last remnant of his property in the hands of the sheriff, and he had not the free exercise of his will. But, if they stood in pari delicto, yet this is a suit by an administrator, who stands in a better position than his intestate would have done, as, if he recovers, it must be for the benefit of creditors.
      And moreover, Kelly is not entitled to the benefit of his position of defendant here, because he obtained possession of the negroes by force and fraud. He should not be allowed to take advantage of his own wrong. The case should be decided, as if Roberts had remained in possession.
      Green, for the appellee:
      The bill alleges, as a distinct and substantial ground of relief, that the price for which the slaves had been sold was inadequate. But inadequacy, no matter how gross, does not constitute by itself a case of constructive fraud or implied trust, that would induce or authorize a court of equity to interpose. And, without one or the other of these elements, (fraud or trust,) although mere inadequacy were a sufficient ground for setting aside a sale made under execution, such a court would not have jurisdiction to relieve in a case like this; the bill, which was demurred to, not stating any sort of excuse for the plaintiff and his intestate not having applied to the court of law from which the execution emanated, to quash the proceedings under it. In truth, however, such an application could not have been properly sustained, even if the sale had been made at a very gross undervalue. There is a reported case in which, on that ground alone, a sale under an ordinary fi. fa. was set aside, upon motion, by the Irish court of exchequer. ... In more recent times, an opinion appears to have grown up, that if, under a writ, the sheriff should sell at a price greatly below the value, he would be responsible to the party thereby damnified, and that therefore, in such a case, he ought, for his own safety, to return that the goods remain in his hands for want of buyers. But, whenever that return is made, the plaintiff in the execution is entitled to a writ of venditioni exponas, under which the sheriff is necessitated to sell, if he can find a buyer at all, and therefore his duty, when so commanded, is strictly performed, with safety to himself, and by necessary consequence with safety to the purchaser from him, if he sells "for the best price he can get, however inadequate it may be." Here the sale was made under a venditioni exponas, and at a price not nearly so inadequate as sales, which nevertheless the courts have refused (in cases before cited) to set aside, though made under an ordinary fi. fa. Courts of equity themselves have repeatedly confirmed, in spite of objections, sales made under their own decrees for prices far more inadequate.
      The other substantial ground of relief put forward in the bill, is that there was an actual agreement between Roberts and Kelly, prior to the sale, and relating thereto, which it seeks to enforce. This allegation is wholly denied in the answer; and the first question which arises upon it is, whether it is made out by proof. We rely upon the rule of evidence in courts of equity, that, where the defendant's answer, in express terms, negatives an allegation of the bill respecting a matter within the personal knowledge of the defendant, such answer is absolutely conclusive in his favor, unless disproved by "two positive witnesses, or one positive witness and strong corroborating circumstances." Here there is no "positive" witness against the answer; and it is contended that circumstances alone may be sufficient to overthrow it. No decided case is produced in support of that doctrine; for in Clark's ex'ors v. Van Reimsdyk, 9 Cranch, 153, the fact in dispute was one which, in the nature of things, could not be within the personal knowledge of the defendant, and that consideration was pointed out and enlarged upon in the opinion of the court. And the dictum in that case, relied upon against us, was certainly not understood by Judge Story as at all establishing the proposition now sought to be supported by it. If, however, the rule be such as to admit of the answer being overthrown, without any direct or "positive" witness against it, by mere circumstances, surely those circumstances must be established by two witnesses at the least, and moreover be such as are absolutely irreconcilable, with the denial in the answer, in all cases, but more especially in cases like this, where fraud is imputed to the defendant; for wherever that imputation is made, even against one who does not enjoy the benefit of the rule of equity evidence we are considering, there is another rule, both of law and of equity, which requires that it shall be established by plain proof, which, whether direct or circumstantial, shall leave no doubt whatever upon the mind. And in a reported case, of Barton v. Rushton, 4 Dessaus. 373, these two rules have been considered as rendering stronger the defence to which they applied, as in this case they do, unitedly. Now the circumstances here, on which any stress can be laid for satisfying both these rules, fell far short of satisfying either; for, at the utmost they can only raise some suspicion. One is, that Roberts made a payment after the sale, to the sheriff, who applied it to the execution; but this is explained both in the answer and in the deposition of the sheriff. The other (and there is but one other,) is, that Kelly did not pay the full amount of his bid by five cents, if indeed there was any such failure. In itself, this would be a matter of no moment; for where the appraised value of land set off (in Connecticut) upon an execution, was fourteen cents more than the amount of the execution and officers' fees, it was held that the case was within the maxim de minimis, and that the levy was not therefore void. It can be relied upon only as an indication of some other thing more important; but, in truth, it indicates only a mistake or oversight on the part of the sheriff. Even at the time of making his return, the latter thought that Kelly had paid the whole; for therein he says, that the slaves were sold to John P. Kelly for $371.75, and about an hour afterwards Philagathus Roberts paid $175, "which left $196.70, which was paid by John P. Kelly."
      To weaken the force of the answer, it has been argued that Kelly had, by improper means, got possession of the slaves, and thus forced the appellant to give him the position of defendant in equity. Kelly's conduct in getting possession of the slaves in the manner he did, was perfectly justifiable for the reasons set forth in his answer; but if it had not been, and if Kelly could not in any other manner have driven his adversary to sue him in equity, the consequence contended for would not follow; for, in a vast majority of instances, the plaintiff in equity complains that the defendant has, by some gross wrong, driven him to ask the aid of the court. In truth, however, the right asserted by the appellant could never have come into litigation in any other manner than it has. Had Kelly sued for the slaves in detinue, could Roberts have made any defence at law? Assuredly not, for the legal title was vested in Kelly; if it was not, then, for that cause the present bill should have been dismissed, upon the demurrer which was filed to it, for on that hypothesis the appellant's remedy was, upon his legal title, in an action at law. It is argued, that Kelly could not have recovered at law, because he must have exhibited the sheriff's return as his muniment of title, and that would have disclosed, on its face, a combination between Kelly and Roberts to defraud the creditors of the latter. That return explained by the sheriff's evidence, which is before the court in this case, would have disclosed no such thing; but suppose the contrary, still Kelly could have maintained his action upon the authority of Starke's ex'or v. Littlepage, 4 Rand. 368, which case had been repeatedly cited since, and always with approbation. On the other hand, (and which is a question vital to the cause,) if the transaction was such as the appellant insists that it was, can he be relieved in equity upon it?
      It is argued, that though Roberts might not have been able to maintain himself upon such a case in a court of equity, yet his administrator is in a condition so far different that he can. But in this respect there is no distinction between them, either at law or in equity. The case of Shield v. Anderson, 3 Leigh, 729, is not an authority to the contrary; for there the plaintiff sued only as a creditor to recover the amount of his own demand, and recovered no more; and the case proves only, that his being administrator of the fraudulent debtor would not preclude him from obtaining relief to that extent. The machinery of an execution which existed in this case, would not enable Roberts or his administrator to set up a claim against Kelly if the transaction were really infected with fraud against Roberts' general creditors, any more than if he had himself conveyed the slaves to Kelly by bill of sale. And that in such a case he would not be relieved is proved by cases almost innumerable, of which I shall mention only the latest: 1 Patt. & H. 307, Smith v. Elliott's adm'r.
      I will not say, that such an arrangement as that alleged in the bill would have been fraudulent, if it had been publicly made or publicly divulged; but kept secret, as it was, (if ever made at all,) and with the effect of protecting the property against Roberts' creditors for years, during which executions against him were returned unproductive, it would, even if established by circumstantial evidence, or by Kelly's admission, be obnoxious to the objection which existed in the cases of the class just now mentioned. The truth, however, as we must take it upon this record, is, that no such arrangement was ever made; and that, at the utmost, the case cannot be carried further than that of Abernathy v. Hope, 2 Ired. Eq. Rep. 157, in which the bill was dismissed with costs.
      Patton, on the same side, referred to Mr. Green's argument for the questions of law arising in the case, and confined his argument chiefly to the facts disclosed by the record. That no agreement between Roberts and Kelly, that Roberts might redeem, was proved. That if proved, it could not be enforced, as it was in fraud of Roberts' general creditors, and had in fact, if there was such an agreement, covered and protected the property from the execution of Roberts' creditors. The claim of the administrator is the claim of the party to the agreement, and he can make no claim, which his intestate could not have made. The evidence of the value of the property was not reliable. The sacrifice was not greater than is usual in such sales.
      Such a contract, as is alleged in the bill, would be void, for want of consideration. Roberts had no control over the sale, no authority to influence it in any manner, nor ability to assist Kelly in the purchase. The only possible consideration for such a contract would be its tendency to prevent competition, but that is negatived by the evidence. Turner v. King, 2 Iredell's Eq. R. 132. Shepherd v. Ellis, an unreported case in the Supreme Court of Appeals. The appellee is entitled to the full benefit of the rule of evidence in courts of equity, that his answer responsive to the bill as to a matter within his knowledge, shall be taken to be true, unless overcome by the evidence of two witnesses, or one witness and corroborating circumstances. This rule has been recently confirmed by the Court of Appeals in Wise v. Lamb, 9 Grat. 294; Smith's adm'r v. Betty et als., 11 Grat. 752.
      Morson, for the appellant, in reply:
      There are few or no doubtful questions of law in this case. It turns upon a question of fact. The appellant insists, that the transaction between Roberts and Kelly was an equitable mortgage, that Kelly was to retain the legal title to the negroes only as a security for his advance at the sheriff's sale. This agreement was for the benefit of Roberts' creditors; its effect was to prevent a sacrifice of the property and preserve Roberts' interest for his creditors.
      It was not a nudum pactum. For there was an advance of money to be repaid with interest. The case of Turner v. King, 2 Iredell's Eq. R. condemns the doctrine for which it was cited by Mr. Patton.
      In a court of equity it is always allowed to inquire into the real character of a transaction, and to ascertain whether a sale or a mortgage was intended by the parties. And this too in the case of a most solemn instrument evidencing the transaction. 2 Rob. Prac. 51, (1st edit.;) 1 Halstead's Digest of Law of Evidence, 218. The absence of a bill of sale from the sheriff to Kelly, or other muniment of his title, is strong negative evidence, that a mortgage was intended. The return of the sheriff of part payment by Roberts, his receipt to Roberts, his failure to collect the five cents bid by Kelly more than the debt; the payment of the exact balance of the debt by Kelly, the sum bid by Kelly, the gross inadequacy of price paid for the negroes, the possession of the slaves remaining with Roberts, are strong positive evidence that the transaction was an equitable mortgage. Whatever may have induced Kelly to change his mind, he did not intend at the time of the sale to claim the absolute property in these slaves. There was no proof of any account between Kelly and Roberts, prior to the sheriff's sale. Can all these circumstances be overcome by the simple denial contained in Kelly's answer? Do they not outweigh the answer? The rule of evidence in regard to the weight of an answer, established by the authorities, construed secundum subjectam materiam, is, that, when there is a distinct fact alleged in the bill and denied in the answer, if there be only a single positive witness to the fact against the answer, there is an equipoise of evidence, and the answer must prevail. The court, whose interposition is sought, will not act. It is a universal rule, that there must be some preponderance of evidence. But there is no rule, that there must be a positive witness to the fact, to overcome the effect of the answer. Suppose a web of circumstances, which would satisfy any mind in the world, but that of a court of equity, controlled by such a rule -- could such evidence be rejected? Such a rule would render a court of equity a sanctuary for unscrupulous defendants. But no positive witness to the fact is required, when circumstances are established by competent evidence sufficient to produce conviction against the answer.
      The appellant does not seek to set aside the sale, but to enforce it according to its real character. But the rule in regard to inadequacy of price is not as laid down by Mr. Green. Gross inadequacy of price may be itself sufficient evidence of fraud to vacate a sale. It must be gross, palpable and shocking to the conscience. ...
      Morson. It is true. But the same principle applies to judicial sales. The law, of which it has been said that "its seat is the bosom of God," will not permit its process to be the instrument of fraud and injustice.
      Some of the cases cited by Mr. Green on this subject are beacons to warn rather than invite approach. He has cited no such decision from the Virginia Reports. Nor is it true that, in England, a sheriff must sell at any price, under a venditioni exponas.
      (opinion) NASH, J. The appellant, who was the plaintiff in the suit below, exhibited his bill as the administrator of Philagathus Roberts against the defendant to recover five slaves, viz: a negro woman by the name of Emma, and her four children, Jerry, Aggy, Henry and Ben, which he claimed the right to redeem for the benefit of his intestate's estate, by virtue of an agreement made between the defendant and the said Philagathus Roberts in his lifetime.
      The bill charges, that a judgment had been obtained against the said Roberts and the defendant John P. Kelly, at the suit of Benjamin Roberts for the benefit of John M. Duncan upon a forthcoming bond, executed by the said Philagathus Roberts and the said Kelly as his security, upon which an execution of fieri facias issued, and was levied upon the said slaves and other property; that on the 14th day of May, 1840, (the day of sale,) there was due upon the execution the sum of $371.70, and on that day the said slaves were sold by the deputy sheriff at the house of the said Roberts, and the said Kelly became the purchaser at the price of $371.70; that before and at the time of the said sale it was agreed between the said Roberts and the said Kelly, that the latter should advance to the former the sum necessary to discharge the said execution, and give him time to repay the same, and for that purpose it was further agreed that the said Kelly should buy the said negroes at the sheriff's sale, by which he would acquire the legal title and control over them, and would hold them as an indemnity for his advance, but should permit them to remain in the possession of the said Roberts until the payment of the said sum of money to the said Kelly; for which purpose the said Roberts was to have five years. This is the contract between the parties, as stated by the plaintiff's bill. The defendant Kelly, in his answer, explicitly denies this contract, and claims to hold the said slaves as his absolute property, under the purchase made at the said sale, and the plaintiff being unable to call any witness who can give positive and direct evidence of the agreement, relies upon a state of facts and circumstances, made out by documentary evidence and the testimony of witnesses, which he alleges is of a character so conclusive and convincing as to outweigh the defendant's answer, and to establish the agreement. This being the state of the pleadings, and the character and description of the evidence relied on by the plaintiff, it becomes important for the court to consider the question, whether any degree of proof consisting of facts and circumstances only, however convincing or clearly made out, will be sufficient to outweigh the answer of a defendant, who, speaking from his own knowledge, denies explicitly the allegations of the plaintiff's bill. This is an important question; and I consider it the only one of real difficulty in the cause.
      The general rule in chancery practice which requires two witnesses, or one witness and corroborating circumstances, to outweigh the answer of a defendant, who speaks from his own knowledge, and plainly denies the allegations of the bill, is readily admitted. But whether this rule is so inflexible as to exclude all other proof, except the testimony of two witnesses, or one witness and corroborating circumstances, to outweigh the defendant's answer, may be well questioned. Let us inquire, what is the legal effect and import of the answer of a defendant in chancery. Does the plaintiff by calling upon the defendant to answer, do more than make him a competent witness, whose testimony is liable to be contradicted and outweighed, as any other witness upon the stand? That this is the true light in which the answer of a defendant in chancery is to be regarded, is manifest from the fact, that his testimony may be outweighed by two witnesses, or one witness and corroborating circumstances. Nay more, the plaintiff may prove by two credible witnesses that the defendant has perjured himself. The reason of the rule is, that the answer of the defendant being equal to one competent witness, it requires something more than a single witness to break the equipoise, and to turn the scale against the weight of the answer. But is this the only way in which the answer may be outweighed? Let us suppose a single competent witness upon the stand, who swears to a fact, upon his own knowledge, and material to the issue; and the opposite party is unable to call any living witness to disprove his statement, but introduces documentary evidence and proof of facts and circumstances of so cogent and conclusive a character, as to show, beyond all reasonable doubt, that the witness was either mistaken or had perjured himself: Would it not be most unreasonable to say, that such testimony was not sufficient to discredit the witness' evidence, and to turn the scale against the party calling him? If this be so, what reason is there that the answer of a defendant in chancery ought not to be outweighed by like testimony? Is there any peculiar sanctity which is thrown around the statement of a defendant in chancery, that it may not be contradicted by the same convincing proof that would outweigh the testimony of a competent witness upon the stand? Circumstantial evidence, where all the circumstances are connected and consistent, is often the most convincing testimony that can be offered. Even human life has often been taken upon the credit given to it. And in cases of fraud it is almost the only kind of testimony that can be called; for men who design to perpetrate a fraud, generally avoid the presence of a witness. But it may be said, that the rule which I am considering, is a rule of the chancery court -- the law of that forum. I admit the rule, and the wisdom and justice of it; and in a competition between the answer of a defendant and the testimony of a single witness, it ought always to prevail. The object of the present inquiry is to mark out and define the limits of the rule, and not to overthrow it.
      Many cases have been referred to in the argument to prove the existence of the rule, but I am not aware that this precise question has been decided by any of them. Most of these cases, I apprehend, have been decided upon a competition between the right due to the defendant's answer and the testimony of witnesses. The only case in which the subject has been considered, that I have seen, is the case of Clark's ex'ors v. Van Riemsdyk, 9th Cranch's Reports, page 160. That case, although not exactly in point, because the answer in that case was the answer of executors, who could not be supposed to speak upon their own knowledge, afforded to Judge Marshall an occasion for speaking upon the effect of an answer in chancery as a piece of testimony. The language of the Chief Justice is as follows:
      "This testimony is opposed by the answer of Clark's ex'ors, and the rule that an answer must prevail unless contradicted by one witness, as well as by circumstances, is said to be so inflexible, that the strongest circumstances will not themselves be sufficient to outweigh an answer.
      "The general rule, that either two witnesses, or one witness with probable circumstances, will be required to outweigh an answer asserting a fact responsive to a bill, is admitted. The reason upon which the rule stands is this: The plaintiff calls upon the defendant to answer an allegation he makes, and thereby admits the answer to be evidence. If it is testimony, it is equal to the testimony of any other witness, and the plaintiff cannot prevail if the balance of proof be not in his favor. He must have circumstances, in addition to his single witness, in order to turn the balance. But certainly there may be evidence arising from circumstances stronger than the testimony of any single witness."
      This extract from the opinion of the judge is not relied upon as an authority deciding this question, but only to show the light in which that eminent jurist regarded the subject.
      If the weight which is to be given to the answer of a defendant in chancery is such as I have considered it, let us enquire whether the facts and circumstances in this case are such as to outweigh the defendant's answer and to support the plaintiff's claim. And, in order to understand this case, it is proper that we should consider the relations these parties stood in to each other at the time of the transaction, and the place and circumstances under which it took place. Kelly had become the security of Roberts upon the delivery bond, and was a defendant in the execution. He attended the sale, no doubt, for the double purpose of protecting his own interest and of befriending Roberts if he could. The execution had been levied upon all of Roberts' negroes, and perhaps most of his perishable property, and the sale was to be made under a venditioni exponas, and at Roberts' own house, where only the deputy sheriff, the agent of the creditor, and Roberts and Kelly attended. It is proven that Roberts was urgent in his request for the postponement of the sale, and that Kelly united with him in the request, showing that Kelly was then acting as the friend of Roberts, and did not then meditate the purchase of the slaves on his own account. But, the agent of the creditor having refused to postpone the sale, Kelly and Roberts are seen to walk aside and engage in private conversation. The negro woman and her four children are then put up together, and the agent of the creditor bids the sum of $371.70, the exact balance due upon the execution, and Kelly bids five cents more, and the five slaves, proved to be worth from $700 to $1,200, are struck out to Kelly's bid, and he then makes an order for the amount of his bid on his merchant. But in about an hour after the sale had taken place, and when all the parties were still present, Roberts' son, who had been sent out to raise the money to pay off the balance due upon the execution, arrived with $175, which was handed to Roberts, who asked what he should do with it. Kelly replied, pay it to the sheriff. Thereupon the sheriff, Roberts and Kelly went into the house, when the sheriff executes a receipt to Roberts in the following words: "Received of Capt. Philagathus Roberts one hundred and seventy five dollars, in part of an execution Benj. Roberts, benefit of Jno. M. Duncan against him;" and for the balance of the execution, amounting only to $196.70, Kelly gave a new order upon the same merchant upon whom he had previously drawn an order for the amount of his bid.
      The negroes are permitted to remain in the possession of Roberts, and so continued for nearly four years, Roberts owning and enjoying them as his own. The sheriff's return upon the execution is in the following words: "I sold one negro woman, named Emma, and four children, named Jerry, Aggy, Henry and Ben to John P. Kelly on the 14th day of May, 1840, for $371.75, and in about one hour afterwards Philagathus Roberts paid me $175, which left $196.70, which was paid by Jno. P. Kelly towards this writ, and satisfied to the plaintiff's attorney. See his receipt hereon written." It is proper to state, that major, the sheriff, in his deposition, says, that at the time Roberts paid him the $175, Kelly remarked that he was to give Roberts credit on his account for it; but this statement is made in his deposition, taken four years after the transaction, and is in conflict with the receipt executed at the time to Roberts, and is at most an equivocal expression, if correctly remembered by him, and may as well refer to the account which Kelly had against Roberts for the balance of the execution which he had undertaken to pay as to other transactions. And Kelly, moreover, has not exhibited proof of any claim which he then held against Roberts to which the payment was applied. Upon this state of facts and circumstances, and looking to the gross inadequacy of the price which Kelly actually paid, being only $196.70, which was the precise balance due upon the execution, and not the price bid by Kelly, it seems to me impossible to avoid the conclusion, that Kelly, on that day, acted as the friend of Roberts, and bought in the slaves for his benefit, with an understanding between them that he was to hold the legal title until the money actually paid by him could be refunded by Roberts with the interest. The documentary evidence, to wit: the receipt for the $175 and the sheriff's return upon the execution, is strongly corroborative of this view of the transaction. It is worthy of remark, too, that Kelly took no bill of sale from the sheriff, or other muniment of title, and in his settlement with the sheriff settled the exact amount of the execution, and not according to his own bid.
      In the argument of this case, one of the counsel for the appellee contended, that the plaintiff ought not to recover, because the case as set out in the bill, even if proved, showed a combination between Roberts and Kelly to defraud the other creditors of Roberts, and upon the well known principles of a court of equity, neither Roberts himself nor his administrator could invoke the aid of this court for relief. The answer to that objection is, that the court has not been able to see any evidence of such a purpose. The transaction was a perfectly natural and reasonable one. Roberts' property was about to be sold, and only Kelly and the agent of his creditor present as bidders. It was manifest that he was at their mercy, and without some arrangement with Kelly to raise the money, his property would be sacrificed. Nothing was, therefore, more natural than he should seek to make an arrangement with a man who had been his friend to buy the negroes for him, and to hold the legal title until he could redeem them. The effect of the arrangement was only to make Kelly an incumbrancer, leaving the equitable title in Roberts, which was as much subject to the claims of his other creditors as the property of any debtor whose property is incumbered in good faith and for a valuable consideration. It was also objected, that the agreement, as set out in the bill, was only a nude pact, and, if proved, could not support an action. This objection I consider as untenable as the other. For the case set out in the bill, and which I think has been substantially proved, is not a naked promise on the part of Kelly to Roberts that he might redeem the negroes, but essentially a contract, made at the time between the parties, founded upon the advance of money by Kelly for Roberts, in which the legal title to the property was to be vested in Kelly for the re-payment thereof with interest. The consideration for the right to redeem was the re-payment of the money and interest.
      Upon this view of the case, I consider it unnecessary to express an opinion how far the bare inadequacy of price for which property may be sold at a sheriff's sale under a venditioni exponas will authorize the setting the sale aside, or whether the court of law from which the process emanated, or a court of equity, is the proper forum to grant relief.
       For the reasons above stated, I am of opinion that the decree of the circuit court ought to be reversed.
      (opinion) THOMPSON, J. The court is of opinion, that the circuit court erred in dismissing the appellant's bill, whereby it negatived his right to redeem in virtue of the contract for redemption alleged in the bill and affirmed the title of the appellee as absolute and indefeasible purchaser, as alleged in the answer. Instead of dismissing the bill, the court should have entered up an interlocutory decree, affirming the right of the appellant to redeem upon payment of the balance due the appellee upon the settlement of the account between the parties, in which settlement the appellee should be charged with the hires and profits of the slaves and any payments or other proper charges the appellant could establish against him, whether prior or subsequent to the sale by the sheriff, provided those of a prior date were not barred by the statute of limitations, and credited by the purchase money advanced by him, with interest, with a reasonable and proper allowance for raising the young slaves whilst chargeable and before they were worth hire or their own support, and with all just demands and items of account he could establish against the appellant's intestate, as well before as since the purchase at sheriff's sale, provided those of a prior date were not barred by the statute of limitations at the date of sale; and to ascertain that balance, if any be due, or the true state of accounts between the parties, should have referred the cause to a master commissioner in chancery to state, settle and report the same, in order to such further and final decree in the premises as the result of the account should have rendered proper. That is to say, a decree for the redemption and surrender of the slaves, if nothing were found due the appellee, or of foreclosure and sale if a balance were found in his favor; and upon such final decree, as the appellant's right to redeem was controverted by the appellee, the court should decree costs in favor of the appellant against the appellee up to the date of entering the order of account in the court below directed by this decree, and all costs subsequently accruing in favor of the appellee.
      It is therefore decreed and ordered, that the decree aforesaid be reversed and annulled, and that the appellee do pay unto the appellant his costs by him expended in the prosecution of his appeal aforesaid here. And the cause is remanded to the Circuit Court of Culpeper for further proceedings to be had therein, in conformity with the foregoing opinion and decree of this court, with instruction to that court to enter up the proper order of account indicated by this decree, and to proceed to a final hearing and decree upon the report of the commissioner, according to the principles of this decree and the principles and practice of a court of equity in suits to redeem or foreclose a mortgage.
      CLOPTON, J., dissented.
      Decree reversed.
 

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