Wilson v. Watts

Eccleston, J.: Before looking into the evidence in this case, I will examine the principles, chiefly relied upon by the appellant, as grounds of objection to the correctness of the relief granted to the appellee by the decree appealed from. 1st. It is said the appellee cannot deny the title of the appellant to any portion of the estate purchased by him, under the sale ratified by the order or decree of the court, in the case of Hook against Watts, (the appellee,) because his petition, signed and filed in' that case, his written consent to the ratification of the sale, and the decree thereon, will estop him. And no parol or written evidence can have the effect of adding to, altering or varying that decree. 2nd. That a party voluntarily choosing to express himself in the language contained in a deed, or other written instrument, must be bound by it.

And the proof in this case shows, that the petition and consent above referred to were voluntarily signed by Watts with a knowledge of their contents. He therefore cannot be permitted to prove a different intent from that plainly declared in those instruments, 3rd. That the paper marked P, the consent to the ratification of the sale, and the decree upon it, merged all previous negotiations, including paper J. And therefore, neither agreement J or any prior transactions can have an injurious influence upon the appellant’s title under the sale by Taggart, the trustee. In the absence of fraud and mistake, these three positions contain sound legal principles ■, but no matter how closely the door may be shut and supposed to be securely locked for concealing fraudulent transactions, it may, nevertheless, be opened by the magic key of a court of equity, for the purpose of exposing to examination the illegal and inequitable instruments and acts intended to íiave been concealed, ⁴³³ Á judgment or decree, based upon fraud or imposition, is no less subject to the control of a court of equity than a deed or other contract.

In Hall & Wife, vs. Hall, et al. 1 Gill, 391 , Judge Dorsey says, “no principle is better settled, than that by no device or form of proceeding or solemnity of the instruments, or means used for its perpetration or concealment, can you deprive a court of equity of the power Of Unkennelling a fraud.’ ” See also page 387. In Pickett vs. Loggon, 14 Ves., 234, Lord Chancellor Eldon says; “As to the fine it has long been settled, that if a conveyance by lease and release, or bargain and sale, has been obtained by means which in this Court have the character of imposition, fraud, oppression, or undue advantage, a fine Constituting part of that assurance, which is so affected, whatever may be the effect at law, is no bar to relief in equity. The person deriving a title Under it is a trustee, and the Species of relief is by directing a reconveyance.” See also Bowles vs. Orr, 1 Young & Coll., 473, (Exchequer in Equity.) 1 Madd. Ch., 300, and 5 Gill, 277 , Tomlinson, et al., vs. McKaig, et al. The appellant’s counsel have relied, with much confidence, upon the second principle above stated, and seem to think it must entitle them to claim a reversal upon the authority of Wesley vs. Thomas, 6 H. & J., 24, and McElderry vs. Shipley, et al., 2 Md. Rep., 25 .

In each of those cases, however, When the court announce that a party is to be bound by the language in which he voluntarily chooses to express himself in a deed, they mean, of course, such voluntary choice as the law considers a sufficiently free exercise of will to Constitute the deed a valid instrument, in the absence of fraud; but they surely had no reference to a contract executed under an undue or fraudulent influence. An act done under an influence arising from misplaced confidence, Will not, in a court of equity, be considered a voluntary act resulting from choice. 1 Story’s Eq., secs. 221, 222. In the first case, at page 27, the court say: “It is most true that the eourt of chancery in the exercise of its moral jurisdic ⁴³⁴ tion, as it has been emphatically termed, will upon the proof of fraud, mistake, or surprise, raise an equity, by which the agreement of the parties shall be rectified.” The decision was made in 1823, and the complainant could have no relief on the ground of fraud, because the bill contained no allegation of fraud. In McElderry vs. Shipley, et al., the bill did not charge fraud previous to, or in the agreement; but that, since its execution, there was a fraudulent attempt to deprive the complainant of the benefit which it was the object of the agreement to secure.

At page 35, the court say, “that parol evidence is inadmissible in a case like the present, to contradict, add to, or vary the terms of a written instrument; and although a court of chancery will, upon proof of fraud, mistake or surprise, raise an equity by which the agreement will be rectified according to the intent of the parties, it will not interfere where the instrument is such as the parties themselves designed it to be. For if they voluntarily choose to express themselves in the language of the deed, they must be bound by it.” In support of which Wesley vs. Thomas, and other cases, are referred to. An effort was made in Watkins vs. Stockett, 6 H. & J., 435 , to convert a deed, absolute on its face, into a mortgage. It appeared that, either by the grantor himself, or, in his presence, the conveyancer was particularly instructed to pass an absolute estate, and the court remark: “No room is left for the inference of circumvention or fraud.

He transferred his estate with his eyes acknowledgedly open to the nature and quality of the estate which was transferred, and was intended to be transferred.” Again, on page 445, it is said: “Indeed where fraud is charged, and the evidence establishes it, it has been remarked, that the statute of frauds may very properly be put out of the way, since the object of such evidence is not properly to contradict the instrument, but to raise an equity de hors the instrument, in contradiction of an intent which no law or statute will be suffered to assist or protect.” There no fraud was alleged, and consequently none could be proved, according to the determination in Wesley vs. Thomas. ⁴³⁵ It must be evident, that in the cases which have been noticed, when speaking of the binding effect of language in which a party “voluntarily chooses to express himself,” in a deed, the courts had no intention to deny, or even to restrain in any degree, the well established authority of a court of equity to grant relief against a deed or other instrument obtained by fraud or circumvention. The doctrine of merger, relied upon as the appellant’s third ground of objection to the appellee’s claim for relief, cannot be sustained, if paper P, the consent to the ratification of the sale, and the decree based upon it, can be shown to have been obtained by fraud or imposition. Any other theory would exclude, in many cases, the best evidence of fraud. The last written agreement made between parties, will, in the' absence of fraud, mistake or surprise, merge all prior negotiations, so that by them its terms cannot be contradicted, added to or varied.

But such prior negotiations will be admitted as evidence of fraud, mistake or surprise, when they tend to sustain an allegation of either. In Davis vs. Calvert, et al., 5 G. & J., 303 , upon issues sent from the orphans court, Ch. J. Buchanan said: “Fraud vitiates every thing with which it is connected. A will or testament therefore, which is obtained by fraud, is void; and though fraud is never to be presumed, yet it is not necessary to prove it by positive and direct testimony.

But being usually wrapt up in mystery, if well concerted, it is generally by circumstances only, by inductions of particulars, some of them often apparently trivial, that it can be brought to light and defeated. And in a question of fraud, any fact, no matter how slight, bearing at all on the point at issue, and not wholly irrelevant, may be admitted.” See also 1 Knapp., 81. In Jones vs. Hardesty, et al., 10 G. & J., 416 , the appellant objected to oral evidence of an agreement, because there was a written contract, and the court say: “If the oral contract referred to had been reduced to writing by the parties, or if it was intended that the assignment should be such written contract of the parties, then might it be contended, in the absence of all proof of fraud, surprise or mistake, that the oral ⁴³⁶ evidence offered by the appellee was inadmissible.” The appellant’s objection was not sustained, because the court did not consider that the parties had reduced their agreement to writing. And it is a necessary inference, from the language just quoted, that even if the agreement had been reduced to. writing, the parol evidence would not have been excluded, if it tended to prove an allegation of fraud, surprise or mistake.

This principle is mqst explicitly announced in Henderson vs. Mayhew, et al., 2 Gill, 409 . “Parol evidence,” it is there said, “is inadmissible to change or contradict the terms of a written instrument. Strangers to the instrument, when authorized to impeach or contradict it, may offer parol testimony for that purpose; and so a grantor may, in a controversy with the grantee, if he charges the same to have been obtained by fraud or mistake.” Here isa statement of the general rule which forbids the use of parol evidence for the purpose of contradicting or changing a written contract, but exceptions to the rule are also stated, one of which admits even a party to the instrument to impeach it by parol proof where fraud or mistake is alleged by him. When there is a written contract in relation to land, and some of the terrqs or provisions in the verbal agreement of the parties are not included in the writing, but omitted by design, even on the express understanding that such provisions should be carried into effect in the same manner as if they had constituted part of the written instrument, if there is no fraud, undue influence, surprise or mistake, either in the making of such contract or in reducing it to writing, parol evidence, alone, will not be admitted to enforce the omitted provisions, or for the purpose of contradicting, adding to or varying the written instrument; although subsequently to its execution one of the parties has fraudulently refused to comply with the omitted provisions, and in open violation of good faith and fair dealing, insists upon his right, under the statute of frauds, to have the contract, as written, carried into effect. Such I understand to be the law of Maryland.

But I have seen no case, in which it has been held that a court of equity will refuse relief (o a party of weak mind — even ⁴³⁷ though the weakness is not very great — harrassed with debt, having good reason to apprehend that nearly, if not quite, all the property he has, is about to be sold under a mortgage, without any means of his own to liquidate the debt, and who, thus situated, placing confidence in the ability, willingness and intention of a person offering his friendly assistance to prevent the property from being sacrificed, is, after placing such confidence in these professions of friendly aid, and through the influence of the person making them, induced to enter into a written contract or conveyance, which, in terms, professes to convey or transfer an absolute title to the whole property, for a sum far less than its actual value; when it appears by written and parol evidence combined, that notwithstanding the absolute character of the written contract, the vendor was led to believe he was nevertheless to be entitled to a part of the property, or to some interest therein; and yet subsequently to the written instrument the vendee fraudulently claims the whole title absolutely. In my opinion a court of equity is bound to grant relief to a confiding and deceived party, even against an absolute conveyance, when his grounds for relief are sustained by written and parol evidence combined, against the unrighteous demands of one, who, for the sake of gain, has abused the confidence produced by his professions of friendship towards a man in distress. Whenever parties stand in a confidential relation towards each other, and any advantage is taken of that confidence, relief in equity will be administered with as much promptness as upon any other ground whatever. In Billing vs. Southee, 10 Eng.

Law & Eq. Rep., 39, 40, the Vice Chancellor says: "There is no part of the jurisdiction of this court more useful or more well founded than that which assumes the control over all transactions between persons occupying confidential relations towards each other. This jurisdiction ought to be exercised, whatever be the circumstances and position of the parties between whom the confidential relation exists, whether attorney and client, guardian and ward, or surgeon and patient.” The latter relation was the one then under consideration. Other cases recognize the rule as applicable to. ⁴³⁸ other instances than those here enumerated — such as trustee and cestui que trust, principal and agent, a clergyman and one of his flock.

The instances mentioned by the Yice Chancellor, were therefore intended only as examples in illustration of the rule, and not as restricting the general proposition previously stated by him, to the enumerated cases. And why should not the rule apply to all, as well as to particular cases of confidential relations, which afford a favorable opportunity, of obtaining an unfair advantage, or of exercising an improper influence? And it may be correctly said, there are few of such relations, which will enable a party more easily, or more effectually to obtain an advantage, or to exert an undue influence than when he has created a confident belief that he is acting the part of a friend, for the purpose of relieving a man of weak mind in distress, expecting to be deprived of his property by a pressing creditor, and that property constituting nearly, if not quite all the means which he has for the support of himself and family. Speaking of the extent of the rule, in Gibson vs. Jeyes, 6 Ves., 276, where a contract had been made between a client and his attorney, Lord Eldon uses the following language, in regard to the emus of proving the correctness of the transaction: “It is necessary to say broadly, that those who meddle with such transactions, take upon themselves the whole proof, that the thing is righteous.” And on page 278, he says: “It is asked, where is that rule to be found?

I answer in that great rule of the court, that he who bargains in matter of advantage with a person placing confidence in him, is bound to show, that a reasonable use has been made of that confidence; a rule applying to trustee, attorneys, or any one else.” When used in such connection, “any one else,” of course includes any party standing in a confidential relation, where the propriety of his contract is called in question. In Brooke, et al., vs. Berry, 2 Gill, 102, the court say: “It can hardly be insisted that the appellee has not, in a contract with his principal, obtained a conveyance of his lands at a price greatly below their value, which of itself would induce a court of equity, (apart from the mental incapacity of the ⁴³⁹ principal,) to set aside the contract, unless it were shown, by competent testimony, that the contract was entered into in a way and under circumstances, which made it apparent that there had been no abuse of confidence, no undue influence, no imposition or material concealments practiced by the agent upon the principal, which could cast a shade of doubt as to the fairness and honesty of the transaction.” Here, because of the relation of principal and agent, inadequacy of price alone was deemed suflicient to require satisfactory proof from the latter that the contract was fairly and honestly made. In addition to the authorities I have referred to, see also those cited by the judge below, in regard to fraud arising from undue influence in cases of confidential relations between the parties. In view of the authorities,' 1 think there can be no doubt that when fraud is charged, parol evidence, especially when aided by written proof on the subject, may be admitted for the purpose of impeaching a written contract, whenever such evidence tends to show the existence of a confidential relation between the parties, that the contract is very disadvantageous to the vendor, who is a man of weak mind and much embarrassed in his affairs; and such evidence has a tendency to establish facts from which the inference may be drawn, that there has been improper influence exercised, or imposition practiced upon the vendor by the vendee, for the purpose of securing to himself an unfair advantage in the contract.

A conveyance cannot be successfully impeached for imbecility or feebleness of intellect alone, unless it be such as would justify the jury, under a commission of lunacy, in putting his property and person under the care of the Chancellor. But weakness, far short of that in degree, if coupled with other circumstances showing that such lesser weakness has been taken advantage of, will be sufficient to set aside a deed. 1 Knapp., 78. 1 Story's Eq., sec. 237. The weakness of mind in the present case is not such as, of itself, could justify setting aside a conveyance. G. W. McConkey, in testifying with regard to Watts’ intellect, says: “If you include business of importance, Watts is ⁴⁴⁰ not a man of business habits.

If there is any financiering In the business, Watts is not a man calculated to transact business ojf that kind.” He acted as a justice of the peace for several years. He was reappointed, but the witness does not know whether he swore in or not; Edward Riley says: “ He really thinks Watts is úot a man of business and of business habits;” He does not think “ Watts is a man of ordinary understanding, competent to make contracts, and would not trust him to make a contract for him.” He thinks “Watts is in his usual mental faculties 5” does not know that “he ever Was deprived of his mental faculties.” The witness does not know much of Watts’ transactions. His buying and selling has been in a very limited way since he has been in the deponent’s neighborhood. He is a man who is compos mentis, but his business habits are very limited.

The witness does not know, but should judge that Watts conducted his business himself; R. Hook says: “He should not judge that Watts was a man of business and of business habits.” This witness was a judge of the magistrates’ court, and for a short time Watts was also one of the judges, and sat in the court two or three times, but took no active part in the business of the court. He believes Watts does transact his own business, and should judge he was a man of common sense. The witness never had much business with him. This testimony is not very strong proof of imbecility, but, connecting it with the circumstances of the transaction, I regard him so far below mediocrity as to allow his weakness of mind to be treated as worthy of consideration in the inquiry, whether he has been overreached through the instrumentality of abused confidence.

On the 27th of April 1846, Watts filed in Baltimore county court a petition in relation to the claim under the mortgage given by him to Hook. The petition states, that S. H. Taggart, as trustee under the mortgage, had, during the same month, advertised the mortgaged property for sale, but postponed the sale. That Watts had contracted to sell the property to Wilson for the sum of two thousand one hundred ⁴⁴¹ dollars, being more than sufficient to pay the debt, including interest and costs. That the petitioner had notified the trustee of said sale, and had requested him to report it, but he refused to do so, and intended again to advertise the property.

The object in filing the petition was; to obtain from the court an order directing the trustee to report the said sale. Watts signed the petition, and annexed to it is the following admission : “ I admit the facts above stated, so far as I am concerned: —G. B. Wilson.” This is written evidence of an agreement for a sale of thé entire mortgaged property, the title to which should be passed under the mortgage; through this instrumentality of a sale to be reported by the trustee. The trustee and Isaac Tyson, Jr.,' (who had become assignee of the mortgage,) filed answers to the petition, objecting to A report being made as prayed for. But, on the 17th of November 1849, the objections of Tyson were withdrawn, and the cause submitted, without argument, by a solicitor for Watts and Wilson, and by Mr. Taggart, as trustee and solicitor for Hook: — whereupon the court passed an order, directing “thé trustee to report the sale proposed by the parties, and set forth in the said petition.

On the 20th of November 1849, the trustee, in obedience to the court’s order, reported “the salé of the mortgaged premises in the proceedings mentioned unto the said Greenbury B. Wilson, for the sum of twenty-one hundred dollars; cash, to be paid on the ratification of the sale, with interest from the 27th April 1846, the day of sale:” The same day on which the report was made Wilson and Watts filed their written • consent to the immediate ratification of the sale as reported,, and on that day the Court passed an order of final ratification. The same day the trusted executed a deed to Wilson for the mortgaged premises; and two days after it was put upon record. The proof shows; beyond dispute, that in April 1846, Watts was poor,- and had good reason to fear he was about to lose his real estate on which he lived; and on which he relied for support. A letter, dated the 9th of April 1846, to Watts from Wilson, ⁴⁴² shows that he had been engaged in endeavoring to effect such an arrangement with the mortgagee and his trustee, or attorney, (Mr. Taggart,) as would stop the sale under the mortgage.

After proposing that Watts, and Hook the mortgagee, should call on Saturday following, the letter concludes: “ I can- satisfy him about your security, and will go with him and you to Taggart’s and save you from sacrifice.” The witness, Davis, says, that about April 1846, Wilson represented himself as the friend of Watts; and that Wilson said he felt a disposition to befriend Watts, to prevent him from being cheated or defrauded by Isaac Tyson, Jr. Davis also says, he and Wilson had frequent conversations, and the latter said that Tyson was endeavoring to wrong Watts and to get the mines for less than their value, calling Tyson sometimes rather opprobrious names. J. Hook, tlie original mortgagee, being examined as a witness, testifies, that he believes he saw Wilson in 1846, and took him .to be a friend of Watts; that Wilson wished to take up the claim against Watts’ property, and, of course, the witness took him to be a friend of Watts. ■ And from what he saw he thought Watts placed confidence in Wilson. Mr. Taggart says, as well as he can recollect, either after the first or second advertisement of the farm for sale, by him, as trustee, according to his understanding of the matter, Wilson, as the friend of Watts, called at the office of the witness, and stated that he had not the money, but offered his notes for the whole mortgage debt, which the witness declined taking. Tyson testifies, that, as well as his recollection serves him, Watts and Wilson, together, called at his counting-room, and Wilson appeared to be the friend and counsellor of Watts.

The witness so considered him at the time. They offered him the Bare Hill mines, and wanted to know what he would give for them. The property offered was that part of the farm which had been leased to Samuel Davis, being sixteen acres. L. T. Watts, the daughter of the appellee, says, Wilson was at her father’s house two or three times a week, and every Sunday; that her father placed confidence in Wilson, at the time, as his friend. ⁴⁴³ D. Stewart, Esq., speaks of a conversation between himself and Wilson, either in 1846 or 1847.

He is rather doubtful .which, but is disposed to think it was the latter year. Wilson represented that he had called at the request of Watts, and in consequence of the witness having written to Watts, the object of the proposed interview with whom Wilson wished to know. Mr. Stewart told him that he was a friend of Watts, and desired, if he could, to promote some satisfactory arrangement between Isaac Tyson and Watts in regard to the mineral lands of Bare Hill. Wilson said that no such arrangement could be made with Tyson; that Tyson wanted to take the advantage of Watts, and that he intended to protect Watts, so far as he could, from imposition.

Wilson spoke of the said mineral land as being very valuable, and said they were important to Watts as his main dependence, and that Watts should not sacrifice them; that there was no chance of his arranging with Tyson for them at anything like a fair value. Robert Wilson says, that Wilson, the appellant, stated to the witness, in the presence of Watts, “that he was the friend of Watts, and that he merely would undertake this thing to get him out of the clutches of Isaac Tyson, Jr., and Mr. Davis. He said that they were both trying to rob him (Watts) out of his house and home.” This conversation occurred in 1846 or 1847. The witness had similar conversations with the appellant at his office, at the farm, and at the mine.

The appellant also said to this witness, in the presence and hearing of Watts, “that the mine was invaluable, and there was no telling the amount of money it was worth, and that he would not take any amount of money for it if he was Mr. Watts; that it would turn out to be a fortune for him. He also said, that if he was Mr. Watts he would not let Isaac Tyson, Jr., have it for any consideration.’’ The same witness says: “ Wilson told him that when Watts gained the law-suit between him (Watts) and Isaac Tyson, Jr., that it was his (Wilson’s) intention to put it,” (of course meaning the mine,) “into a stock company — putting the stock up to about one hundred thousand dollars — and that they, (Mr. Watts and himself, Wilson,) would retain either fifteen or twenty-five ⁴⁴⁴ thousand dollars apiece, so as to have the greater portion of the controlling power of the working of the mines, or words to that effect.” R. Hook, referring to a conversation between him and Wilson, in 1849, says, the substance of it was, that Wilson was acting as the friend of Watts. The witness “cannot tell the conversation, but it was on the subject of the Bare Hill mines. ” On a subsequent examination this witness says, he understood Wilson to say that he was. the friend of Watts, and intended working the mine jointly with him when they got lid of the difficulties then hanging over their heads. T. -Mitchell states, that to the best of his recollection, in June 1849, he conversed with Wilson in the presence and hearing of Watts, when Wilson proposed that the witness should go and take charge of the Bare Hill copper mine under-Watts and himself, Wilson saying “they intended to work it systematically, and they intended to make captain of deponent.” In regard to the value of the property Samuel Davis says, that, in his opinion, tire copper mines were worth $60.00 in April 1846. “He does not know what other people would have thought about the price they would bring at public auction at that time, but he thinks they would have brought six thousand dollars.” This witness professes to be familiar with the character and value of copper mines generally, and he had a lease for five years on those mines, commencing in 1845.

At the close of his lease, however, he was not able to pay his debts, as appears by his apswer to the fifth cross-interrogatory. J. Hook, (the mortgagee,) supposes the farm in April 1846 “was worth a good deal more than the amount of the mortgage debt. He does not know what it was worth, but he Would have been willing to give moje for it than his mortgage d,ebt.” T. Mitchell thinks it hard to tell what the mines were worth in the summer and fall of 1849, but that if they had been for sale at public auction, they would have brought “ten thousand dollars at the least calculation.” He worked in those mines in 1849, and never did anything in his life, as a business, but work at copper mines. ⁴⁴⁵ According to the testimony of James Farquharson, he, either as agent for Davis and Tyson, or for Tyson alone, made Watts an offer of four thousand dollars for the property, Watts reserving to himself one-fifteenth of the ore, also the dwelling-house and a few acres of'land attached; which offer was rejected. This occurred, the witness thinks, in the spring or summer of 1846; and Tyson was exceedingly anxious to get the property.

G. W. White, the defendant’s only witness, says, when he first became acquainted with the mines, about the 4th of May 1850, they were not worth five dollars. They were partly filled with water, to remove which would probably cost from four to five thousand dollars, and take at least seven months to do the work. He likewise says: “ Before the monthly yield of the mines in ore was sufficient to meet the monthly expenses of working them, said Wilson must have been out of pocket at least ten thousand dollars, for moneys paid in cleaning the water out, for machinery, and other incidental and necessary expenses in working them, and for digging and breaking ground, and clearing it out, and in sinking shafts and driving cross-cuts through ground in which there was little or no ore found or obtained.” From estimates differing so widely, were it necessary to do so, it might not be a very easy task to ascertain the true value of the property; but no such necessity exists. From Wilson’s own declarations, it appears that, in 1846 and afterwards, he considered the mines to be of great value; certainly, valuable enough to render a sale of them for the amount of the mortgage claim a sacrifice; which claim, it seems from the auditor’s report of the 27th November 1849, with interest and costs added, the interest being calculated to the 27th April 1846, amounted to only $15.66 less than $210Q, Still Wilson insists that for $2100 he purchased the whole estate, absolutely, in April 1846.

And this he does, although his own declarations, viewed in connection with the other proof in regard to value, must warrant the conclusion, that from 1846 to the fall of 1849, at least, the property was worth $4000, if not considerably more. Wilson says to Watts, in a letter dated the 22nd of October ⁴⁴⁶ 1846, “as respects the weighing of the ore, I suggested to Davis the propriety of getting you to see it weighed, as you were inter ested.” And again, “if any one of those hands who are experienced in mining would call and see me, I might propose something to induce him or them to search out another spot where ore could be found, either on your place or ours, by promising a fee.” In a letter, dated the 8th of April 1847, Watts is informed of the abundant supply of copper ore upon the premises, and of its very rich quality, as ascertained by analyzing a portion of it. And then, in reference to the suit pending between Tyson and Watts under a lease to Petherick, it is said, “Tyson’s lawyer says he expects they will appeal, but he has not done it yet; whether he does or does not, is of but little consequence to us. I think matters look bright now, but you must be cautious how you talk and who you talk to; plenty of money ahead — - only have patience. ” The 20th of May 1847, is the date of a letter which contains the following language, “ Well, the more mines that are found and worked the better for us; and if the ore is found on Buchanan it must still run back on your ground, so let them go ahead.......Only keep cool and look sharp, the money will come, sooner or later, in no small sums. ’ ’ The italics in the quotations from these letters are my own.

If, as Wilson now contends, he had purchased the entire estate in April 1846, how was Watts so interested in the ore as to make it proper in October following, that he should see it weighed? Or why say, “either on your place or ours,'’’’ speaking of searching for another spot where ore might be found; when it was known that Watts had not owned any other real estate except the mortgaged premises? And if the whole property had been sold for the sum of $2100, why, in the following year, should Watts be informed of the quantity and richness of the ore? Why told, “plenty of money a-head, only have patience?” having reference to finding ore on “Buchanan,” — which adjoins the property in dispute: — why say to Watts “it must still run back on your ground?” And why tell him, “only keep cool and look sharp, the money will ⁴⁴⁷ come, soomr or later, in no small sums 9” If he had sold the entire estate for a specified sum he could not be entitled to any thing more, and therefore, so far as he was concerned, it was a matter of no importance whether there was “plenty of money a-head” or not — whether he had patience or not— whether he did or did not keep cool and look sharp — or whether or not “the money would come, sooner or later, in no small sums.” Although the petition of 1846, and the proceedings consequent upon it, would, of themselves, seem to indicate,,that for the consideration of $2100 Wilson should have a title to the whole property, yet his acts, his declarations, and his letters, must have been designed, or, at all events, were amply