Juzan, et al. v. Toulmin. ference to the other plea, that in executing the note he assumed to act as the agent of any one. [Mott v. Hicks, 1 Cowen, 513; Gillespie v. Wesson, 7 Porter, 451; Lazarus v. Shearer, 2 Ala. 723.] Let ths judgment be affirmed. 9 662 113 486 9 662 138 215 JUZAN, ET AL. V. TOULMIN. 1. If one person makes a representation to another, who is about dealing with 3. Where there is a peculiar relation of a confidential and fiduciary charac- 4. A contract made by a man of fair understanding, would not be set aside merely because it was a rash, improvident or hard bargain; yet if made with a person of imbecile mind, the inference is, that it was obtained by circumlocution or undue influence, so as to throw upon the other party the onus of showing its fairness. Juzan, et al. v. Toulmin. 5. Mere inadequacy of price, or other inequality in the bargain, will not induce a court of equity to avoid it, unless it be such as to shock the conscience, and amount in itself to conclusive and decisive evidence of fraud. 6. Semble, where all the complainants are interested in the principal matter stated in the bill, but the bill states a distinct ground for the interference of equity, which concerns only one of the complainants, if there is no prayer for relief touching this latter matter, the bill is not multifarious. 7. The testimony of one whose name appears as a subscribing witness to a deed executed about twelve years previously, that ho had ne recollection of ever having seen and attested the deed, and believes he never did, is not sufficient to show the deed to be spurious, in opposition to one witness who testifies to its execution by the parties, and of others who state corroborating facts. 8. Parties and persons interested are competent witnesses in respect to the facts and circumstances necessary to lay a foundation for secondary evidence of a writing, as that a search has been made, and it cannot be found. 9. The proof necessary to establish the loss of a writing, so as to let in secondary evidence of its contents, must depend upon the nature of the transaction to which it relates, its apparent value, and other circumstances, If suspicion hangs over the instrument, or that it is designedly withheld, a rigid inquiry should be made into the reasons of its non-production; but if there is no such suspicion, all that ought to be required, is reasonable diligence to obtain the original-in respect to which the courts extend great liberality. 10. Semble; the staleness of the complainant's demand will sometimes induce a court of equity to deny relief, although the statute of limitations may not have completed a bar. 11. Although a contract is entered into under a mistake of law, or fact, yet if it was made in good faith-each party possessing equal information, or equal means of acquiring knowledge, neither having practised any unfairness or deception towards the other, a court of equity will not grant relief. Appeal from the Court of Chancery sitting at Mobile. THE plaintiffs in error, Peirre Juzan, John B. Juzan, and Gertrude C. the wife of the latter, exhibited their bill against the defendant; the allegations of which, so far as material to the understanding of the cause, may be thus condensed. In 1795, Daniel Juzan and Louisa Laurendine, the father and mother of the complainants, Peirre and John B. intermarried in the vicinity of Mobile, then part of the province of West Florida, and under the dominion of the King of Spain. Juzan, et al. v. Toulmin. About the time of this marriage, Baptiste Laurendine, the father of Louisa, conveyed to the father and mother of the the complainants, a tract of land, since known as the "St. Louis" tract, containing about two thousand acres. This land is particularly described in the bill, appears to lie on the west side of Mobile river, and within a short distance of the city. The conveyance was made according to the forms of the Spanish law, and provided that the land should be held by the grantees, during their joint lives, then by the survivor until his or her death; afterwards in fee simple to the children of the marriage. These children were the two male complainants, Louisa J., now the widow of Henry Gunnison, and Ament, the wife of the defendant. Soon after the conveyance was thus made, the grantees removed upon the land, and continued their residence there for thirty years, and more, and until their death, respectively. The Spanish civil law, independently of the terms of the deed, inhibited a conveyance by the husband and secured the inheritance to the children; yet Daniel Juzan fell into the common error, that after the possession of the country west of the Perdido, was taken by the United States, in 1813, that marital rights to property originating previously, though created by contract, were tacitly abrogated, and the husband became invested with an unincumbered title. In September, 1815, D. Juzan executed a deed by which he divided his property amongst his children; to Peirre, he conveyed one hundred and sixty acres, including the family residence on the "St. Louis" tract, and known as the "White House." The donee was then but fifteen years of age, though older than his brother and sisters-knew nothing of this deed until a short time previous to the commencement of this suit-refers to it as recorded in the Mobile County Court, and exhibits a copy. On the 22d April, 1816, Daniel Juzan conveyed the entire tract to David Files, in consideration of $3,900, and took from him a mortgage, bearing the same date, to secure the payment of the purchase money. By a written agreement between Files and his vendor, the latter was to retain the possession of his residence and the contiguous lands until he Juzan, et al. v. Toulmin. was fully paid. The deed and mortgage are both exhibited. Files, after having paid about $2100 to Juzan, died, in the year 1820, and administration of his estate was committed to Jeremiah Austill, by the County Court of Monroe, who reported the estate insolvent, and prayed an order for the sale of the lands of the intestate, including the tract in question. A decree was accordingly rendered, directing the sale of the "St. Louis" tract, and commissioners appointed to execute it; at that sale, the defendant became the purchaser, at the sum of eight hundred dollars, and received a deed, which is exhibited. Although their sisters were educated by an aunt, after the death of their mother, the complainants were brought up in ignorance-Pirre can with difficulty read plain print, and write his name mechanically; John B. can neither read or write. Defendant was well educated, and when he grew to man- • hood took high rank in society for intelligence and gentlemanly bearing. When he married their sister, complainants confided in him to an unlimited extent, and looked up to him for counsel and advice. D. Juzan was dead several years before the sale above stated, under the decree of the Orphans' Court; and it was agreed between the defendant and Austill, that the former should pay the children of the mortgagee what was due on the mortgage, for principal and interest. After the purchase by the defendant, he came to see the complainants, remarking that he had a complete title to the land, and that they were entitled to a part of the mortgage money-offered to give them in lieu of their interest $100 and twelve acres of land, each, so as to include the old homestead of their father. Complainants were attached to the place, and confiding in the justice of the defendant, accepted his offer. John B. sold the land assigned to him to G. W. Owen, and a deed was made by the defendant to his vendee. No deed has ever been made to Peirre for the part allotted to him ; defendant has put him.off from time to time, saying it was inconvenient, &c.; but when informed that this suit was about to be brought, expressed his readiness to make a title. Juzan, et al. v. Toulmin. Up to September, 1831, defendant' sold parts of the land to different purchasers for large sums of money; about that time, or a little previous, he discovered for the first time, the marriage settlement above recited, written in the Spanish language, and caused it to be translated into English. The original cannot be found, unless it is in the defendant's possession, and thereupon he is called upon to exhibit it. There is registered in the county court of Mobile a deed purporting to have been executed by the complainants, and Henry Gunnison and Louisa his wife, on the 24th September, 1831, by which the grantors convey to the defendant the "St. Louis" tract of land, in consideration of $1500 paid to them. Now, although this deed is attested by two wit-. nesses, acknowledged and recorded in due form, the complainants have no recollection of ever having executed it, or any other conveyance for the lands embraced by it, and therefore deny that it is genuine. Complainants intended, about the time referred to, to have executed a quit claim deed in favor of Philip McLoskey, and if the deed thus recorded was ever executed by them, they affirm that it was under the impression, induced by the defendant's representation, that it was another instrument, which they were willing to sign. Complainants deny that they ever contracted with the defendant for land, except the two twelve acre lots which they agreed to receive in payment of the amount due them on the mortgage from Files. Further; they never acknowledged the deed of September, 1831, and call for the production of the original. The bill concludes with a prayer, that the deed last referred to, may be delivered up by the defendant and cancelled; that the defendant may be required to present a full account of all sales he has made of parts of the land; that he may be required to pay over to complainants their share of all the monies received, or to be received on account of such sales, and execute to them good and sufficient titles to one half of so much of the "St. Louis" tract as remains unsold. Also, that such further relief may be granted as may be equitable and proper. The defendant answered the bill at length, admitting the |