Hunt v. Frazier.

he can, for the benefit of Lucinda Hunt and her children, and is at all times to furnish said Lucinda Hunt out of the proceeds of said land and negroes, if sufficient, a comfortable support and the balance, if any, to pay over to the said William Hunt, until the above named sum of one thousand dollars with the interest thereon, shall have been paid, and the said William Hunt, doth further retain to himself the right of tending such part of the plantation as may not be wanted for cultivation by the family, and after the said sum of one thousand dollars with the interest thereon shall have been paid, then the said privilege shall cease, then the said William Hunt doth hereby warrant and defend the said title of the said land and negroes and their increase to the said Moore in trust for the benefit of the said Lucinda Hunt and her children. In witness whereof, I have set my hand and seal, this date above written. WILLIAM HUNT, [Seal.]

In presence of

WILLIAM B. FRASIER,

DENNIS O'B. FRAZIER,

At the same time, William Hunt took from the trustee, Moore, the following bond:

"Know all men by these presents, that I, Portius Moore, of the county of Person, and State of North Carolina, (trustee for Lucinda Hunt,) am held and firmly bound unto William Hunt, of the county of Granville, and State aforesaid, in the sum of one thousand dollars, which payment, well and truly to be made, I bind myself, my heirs and assigns, in witness whereof, I have set my hand and seal, this 27th day of November, 1838.

The condition of the above obligation is such, that whereas, the above named William Hunt, hath this day conveyed to the above bound Portius Moore, a certain tract of land and three negroes, as named in the deed and bill of sale, (in trust for the benefit of Lucinda Hunt and her children,) the proceeds of which is to be applied to their use, so as to furnish them with a comfortable support, and the balanee, if any, to pay the said William Hunt, in each and every year, until the

Hunt v. Frazier.

sum of one thousand dollars, with the interest thereon shall have been paid, then the above obligation shall be void, otherwise to remain in full force and effect. Given under my hand and scal, the date above written.

PORTIUS MOORE, [Seal.]

The plaintiffs in this bill, are the heirs-at-law, children and grand-children of Lucinda Hunt, and the defendants are the heirs-at-law of Portius Moore and William Hunt, and the prayer of the bill is to have the deed from William Hunt to Moore, reformed by inserting words of inheritance which it alledges were omitted through the ignorance and want of skill in the draftsman. The plaintiffs have continued in the possession of the lands and slaves in question from the date of this deed down to the present time. Portius Moore died in the year 1849, and William Hunt in the year 1853, and there was no evidence that he ever claimed the land, after the death of Moore.

William Hunt and James Hunt, the husband of Lucinda Hunt, were brothers, and at the time the above recited deed. was made, William Hunt was unmarried, and about fifty years of age. The property conveyed in the deed had originally belonged to James Hunt, and had been conveyed to the said William, together with the slaves, as security for the said sum of one thousand dollars, and a witness who was present at the time the deed was executed, stated that the understanding was that Lucinda Hunt should execute to William Hunt a bond for $1000, and was to retain the land until the debt was paid.

The defendants, in their answer, resist the prayer of the bill upon the ground that there is no evidence that William Hunt meant to convey more than a life-estate to the trustee, Moore, and because, as they alledge, there was no consideration for this deed.

By an amendment to their answer, defendants set out that in the year some of the negroes in question were levied on under an execution against James Hunt, and sold, whereupon, the trustee, Moore, brought an action against the pur

Hunt v. Frazier.

chaser to recover them back; which action, Moore, after taking a bond of indemnity from William Hunt and Lucinda Hunt compromised by agreeing to pay $366.48, which money was paid by William Hunt. The defendant claimed to have this sum added to the $1000, and have the land declared a security for the whole sum in case the Court should decree a reformation of the deed. The cause being set for hearing upon the bill, answer, exhibits and proofs, was transferred to this Court by consent.

Fowle, for the plaintiff.

Moore and Reade, for the defendant.

PEARSON, C. J. It was the intention of the parties to vest in Moore a fee simple estate. This is clear, from all the circumstances of the case. The warranty is to Moore and "his heirs." The bond of Moore binds "his heirs" for the performauce of the trust, and, indeed, the purpose of the parties, and the trust, set out in the deed, made it necessary to give to the trustee the legal estate in fee. So the omission of the word, "heirs," in limiting the legal estate, was the effect of accident, or occurred through the ignorance or mistake of the draftsman.

Courts of equity do not assume jurisdiction to reform deeds, unless the transaction be based on a valuable or a meritorious consideration.

William Hunt did not stand in a relation to the wife and children of his brother, which imposed on him either a natural or a moral obligation to make provision for them, consequently, the suggestion of a meritorious consideration is out. of the question, and the case depends on the allegation of a valuable consideration.

We are satisfied from the pleadings and proofs, in connection with the deeds exhibited, that the transaction was of this nature: William Hunt, a man of good estate, and without family, had been induced to advance in aid of James Hunt, who was his brother, had a large family, and had become em

Hunt v. Frazier.

barrassed and much reduced in his estate, the sum of one thousand dollars, and as a security therefor, had taken from him a conveyance of the land on which he lived, and the negro woman and her two children, who assisted his wife in domestic matters. Whereupon, it was concluded between them, that William, instead of holding the title as a security for his money, should convey it to their friend, Moore, who was to hold it as a security for the debt, and at the same time manage it in such a way as to furnish the wife and children of James a home and the means of subsistence. The liberality of William, did not extend so far as to make a gift of the land and negroes to the wife and children of his brother, but only to postpone the collection of the money due to him, in order to let the wife and children have a comfortable support out of the profits of the property, retaining, however, his lien on the property as security for the payment of the amount of his debt, together with the interest thereon.

Viewed in this light, the wife and children of James are not simply volunteers, nor is the transaction one of mere bounty on the part of William Hunt, but the securing of his debt of one thousand dollars with interest, formed a valuable consideration, and the unusual circumstance, that the trustee was required to execute a penal bond, binding himself and his heirs to perform the trust, and hold the property as a security for the debt and interest, shows, beyond question, that the parties did not treat the conveyance as voluntary, and without consideration.

It follows that the plaintiffs are entitled, in equity, to have the deed reformed so as to vest the legal estate in the heirs of the trustee, but in urging their right to be relieved from, the effects of a mistake, they are met by another maxim of equity," he who asks equity must do equity," and inasmuch as William Hunt, for the purpose of saving a part of the property, was compelled to make a further advance of the sum of $356.45, it is right that this latter sum should be added to the original sum of $1000, and that the property should be held as a security for the whole sum with the interest thereon.

Biddle v. Carraway.

This meets the equity of the case, for the additional outlay is embraced by the spirit of the agreement, and had a necessity for it been foreseen, the deed would, assuredly, have made provision for it.

The time, at which the money and interest is to be paid, is not expressly fixed, either by the deed or the bond; it was evidently not the intention to require payment, so long as the proceeds of the property should be needed for the comfortable support of Mrs. Hunt, and we think, according to its proper construction, the deed gives to her the proceeds of the property during her life, and at her death, the money charged thereon, together with interest, is to be raised out of the property, and the residue is then to be conveyed to her children. PER CURIAM, Decree accordingly.

SAMUEL S. BIDDLE against WILLIAM W. CARRAWAY AND

OTHERS.

Where a testator directed a pecuniary legacy of $1500 to be paid to his wife by his executors "out of my estate," for a certain purpose, and by a codicil reduced the amount to $750, "to be paid by my executors," it was held that the terms of the codicil did not annul the force of the words "out of my estate," contained in the will.

Where a testator, after bequeathing certain property for the payment of his debts, gave the residue of his property in specific devises and bequests, and then bequeathed general pecuniary legacies with the direction "to be paid by my executors out of my estate," and the fund provided for the payment of debts, proved insufficient for the purpose, it was held, (PEARSON, C. J., dissentiente,) that the pecuniary legacies were a charge upon the specific ones, and that the latter must be exhausted before the former could be touched. But whether they were a charge on the land specifically devised. Quere? Personal property, which a testator has given away in his life-time, and which does not need the aid of his will to pass the title to it, does not abate for the payment of debts, where there is a deficiency of assets, although the testator confirms the gift in his will.