tion for those winch swayed the mind
previously, and the question is not
whether the testator has been influ-
enced by the party in whose favor
the will is made, but whether he
has been influenced unduly; Miller
v. Miller, 3 Sergeant & Rawle, 267 ;
Lide v. Lide, 2 Brevard, 403 ; Farr
v. Thompson, Cheves, 37 ; Martin v.
Teague, 2 Spear, 260; Davis v. Cal-
vert, 5 Gill & J. 269, 302 ; Newhouse
v. Godwin, 17 Barbour, 236 ; Brown
v. Molluton, 3 Wharton, 129. Thus
in Miller v. Miller, Tilghman, C. J.,
said that procuring a ivill to be made,
unless by foul means, was nothing
against its validity, and that a man
had a right, by fair argument or per-
suasion, to induce another to make a
will or even to make it in his own
favor; and similar language was held
in Lide v. Lide, and Farr v. Thomp-
son. That the mind of the testator
has been swayed or biased by argu-
ment or kindness, and thus brought
to a point which it would not have
reached of its motion, will not, there-
fore, it has been said, establish a case
of undue influence, unless the force
brought to bear upon him, amounts
in effect, to a moral coercion, and sus-
pends the action of his will and judg-
ment under the pretext or appear-
ance of guiding them ; Browne v. Mol-
liston, 3 Wharton, 129; Zimmerman
v. Zimmerman, 11 Harris, 375
Moritz v. Bwugh, 16 S. & R. 403
Gilbert v. Gilbert, 22 Alabama, 529
Williams on Executors, 43. "When
a will," said Woodward, J., in Zim-
merman v. Zimmerman, " duly exe-
cuted is offered for probate, the Jaw
presumes competency in the testator,
and that the instrument expresses his
free and unconstrained wishes in re-
gard to the disposition of his property.
This presumption may be rebutted by
showing, to the satisfaction of a jury,
that the will was obtained by fraud
and imposition practised on the testa-
tor, or by duress, or by undue influ-
ence. What constitutes undue influ-
ence, is a question which must depend
very much on the circumstances of
each case. It is in its nature one of
those inquiries which cannot be refer-
red to any general rule. Yet many
principles have been settled by judi-
cial decision which, properly applied,
afford in most cases an adequate guide
to a right decision of the question.
Thus one has a* right by fair argument
and persuasion to induce a testator to
make a will in his favor; Miller v.
Miller, 3 S. & R. 367. And it is not
sufficient to set aside a will to show
declarations of the testator that he in-
tended to make a different one, but
that his wife had a high temper and
interfered; Moritz v. Brongh, 16 S.
& B. 403. If a wife by her virtues
has gained such an ascendency over
her husband, that her pleasure is the
law of his conduct, such influence is
no reason for impeaching a will made
in her favor, even to the exclusion of
the residue of her family; though if
that influence was specially exerted to
procure the will in question, it might
be sufficient to impeach it ; Small v.
Small, 4 Greenleaf, 220. Threats
and flattery, which induce and coerce
a testator to subscribe and execute the
will, furnish sufficient ground for set-
ting it aside ; Denslow v. Moore, 2
Day, 12. A degree of importunity
which deprives a testator of his free
150
UNDUE INFLUENCE.
agency, which he is too weak to re-
sist, and which renders the instru-
ment not his free and unconstrained
act, will invalidate a will; Davis v.
Calvert, 5 Gill & Johns. 269. But
the influence exercised must be such
as to destroy free agency. Unless the
jury are satisfied that such mental
force has been exercised as prevented
free agency, the influence exerted is
not to be considered improper; Browne
v. Molliston, 3 Wh. 138. To the
same effect is the rule as laid down in
Greenleaf, Ev. vol. 2, sec. 688, where
it is said that undue influence is
not that which is obtained by mod-
est persuasion, or by arguments ad-
dressed to the understanding, or by
mere appeals to the affections ; it must
be an influence obtained either by flat-
tery, excessive importunity, or threats,
or in some other mode by which a
dominion is acquired over the will
of the testator, destroying his free
agency, and constraining him to do,
against his free will, what he is un-
able to refuse." The view thus taken,
is fully sustained by the language held
in Small v. Small, and Browne v.
Molliston. And a court will hesitate
long, and weigh the matter maturely,
before setting aside a will on the
around that the influence of a wife over
her husband, has had a large share in
producing some of its provisions, un-
less they are so clearly marked with
wrong or injustice, as to show that the
influence was exerted with an ill pur-
pose ; Lide v. Lide ; Small v. Small;
Moritz v. Broxigh.
What has been said may serve to
render it plain, that the question is
relative rather than absolute in its
character, and turns not merely on
what has been done by others, but on
how far the testator had the power
and was free to think and act for him-
self. Influences which would be dis-
regarded by sound and well men, may
be too much for the powers of resist-
ance of one whose mind has been
weakened by age and disease, or to *
whom the disposition of his estate has
become a matter of little moment, as
compared with the alleviation of his
own sufferings. The health, the force
of resolve, and the strength of intel-
lect of the testator, should, therefore,
all be carefully considered in deter-
mining, whether the will which he exe-
cuted was his own, or that of those
who surrounded him ; Martin v.
Teague, 2 Spear, 260 ; Floyd v. Floyd,
3 Strobhart, 44. And some doubt has
been expressed, whether the existence
and exercise of undue influence, does
not, necessarily, presuppose weakness
of mind or body, and whether the acts
of one, who was in all respects sound,
can ever be set aside on the ground
that he was influenced unduly, in the
absence of proof of fraud or imposi-
tion. It should, however, be remem-
bered, that few men deserve the praise
of being equally safe on all sides, and
that wrong, and the passions which
lead to wrong, are also weakness. We
shall therefore, perhaps, sacrifice little?
and shut no case out from relief which
requires it, by conceding that a sound
and well balanced mind, in a sound
body, cannot be influenced unduly by
anything short of fraud or actual co-
ercion. For every man who is swayed
by illicit desires, unreasoning and un-
reasonable prejudices, or violent pas-
sions, is more or less incapable of
governing himself, and capable of
being played upon by others, and
therefore within the scope of the prin-
HUGUENIN V. BASELEY.
151
ciples on which equity proceeds, where
there is reason to apprehend the exer-
cise of undue influence.
It is thoroughly well settled, that
when undue influence has been used,
or a fraud actually committed, equity
will not stop short with the guilty
party, but will grant relief against
every one who attempts to sustain the
wrong, or profit by it, however inno-
cent he may have been in the first
instance ; Irwin v. Keen, 3 Wharton,
347 ; Harris v. Delamar, 3 Iredell,
Eq. 219; Whelan v. Whelan, 3 Cowen,
537 ; Davis v. Calvert, 5 Gill & J.
269, 302. And in Florey v. Florey,
21 Alabama, 211, the rule was said
to be, that when the whole instru-
ment has its origin in wrong, the
whole must be set aside, notwithstand-
ing the innocence of some of those
who claim under it ; but that when the
fraud or undue influence has been
confined to a particular legacy or pro-
vision, the infected part may be ex-
punged, and effect given to the resi-
due. "When, however, those provi-
sions of a deed or will, which are
vitiated by fraud, or by undue influ-
ence, can be set aside without affect-
ing the residue, which is just and
proper, it will be allowed to stand, and
the redress confined to the actual
wrong and injury; Greenfield's Estate,
2 Harris, 489, 508. And when the
evidence falls short of actual fraud,
although establishing a case of undue
influence or advantage, equity will
treat the conveyance as a mortgage,
and direct it to stand as a security for
the amount actually paid or advanced ;
Dunn v. Chambers, 4 Barbour, 376;
Harding v. Handy, 11 Wheaton, 103 ;
Cleavinger v. Reimar, 3 W. & S.
486; M i Donald v. Neilson, 6 John-
son, Ch. 201; 2 Cowen, 139. But
this ceases to be true, when the title
to land or other property has been
procured by direct falsehood, or by
any contrivance which is so far con-
trary to public policy and private faith,
as to be actually fraudulent, and the
guilty party will, under tbese circum-
stances, be compelled to surrender his
ill-gotten acquisition, without reim-
bursement for the amount spent in
obtaining it in the first instance, or
improving it subsequently ; Sands v.
Codwise, 4 Johns. 536, 598 ; J/< Cas-
hey v. Graff, 11 Harris, 321. " In the
case of a purchase," said Black, C.
J., in delivering the opinion of the
court, " honest in itself but forbidden
by a rule of policy, the legal fraud
cannot be taken advantage of with-
out a tender of the purchase-money.
Thus, an attorney who buys a title on
which he has been consulted, without
the consent of his client, may hold it
until he is reimbursed what he paid
for it ; (3 W. & S. 486.) The same
rule applies to all sales which are un-
objectionable, except for the fiduciary
relation borne by the purchaser to the
other claimant. It is also true, that
where a party goes into chancery to
be relieved against a hard bargain
which has been extorted from his
folly, his weakness, or his necessities,
but which he made with his eyes open
and without being influenced by any
positive deception of the other party,
the relief will not be given until he
who seeks it surrenders all the advan-
tage he has devived from the agree-
ment. He must do equity before he
can ask it. Thus, one in remainder
sold an estate which was to fall in upon
the death of a tenant in tail, turned
of fifty and not likely to marry, for a
152
UNDUE INFLUENCE.
sum not greater than a single year's
purchase. Lord Hardwicke declared
it a catching bargain against a neces-
sitous and improvident heir, and set
it aside, but decreed the plaintiff to
pay back the sum he had received ;
(2 Atk. 133.) Where £1000 had
been assigned to an attorney for fees,
by a weak and intemperate woman,
there being no proof of deception the
attorney was allowed his just claim
and no more ; (2 Atk. 296.) A de-
fendant in an execution, driven to the
•wall by the oppressive rigor of his
creditor, and seeing his property about
to be sold at an enormous sacrifice,
consented to give a bond and mort-
gage for his own debt and that of his
insolvent son besides. It was decreed
that the bond and mortgage should
stand for the amount of the execution
only; (2 Cowen, 138.) The assign-
ment of a sailor's share of prize-mo-
ney at a great under value, was set
aside upon paying the sum actually
received by the assignor; (2 Vesey,
Sr. 516.) A deed was ordered to be
cancelled on account of the grantor's
mental imbecility; but the master was
directed to take an account between
the parties, and allow certain advances
made by the grantee; (11 Wheaton,
103.) In none of these cases was
there any actual fraud. They were
all hard bargains — hard not because
they were procured by deception, but
on account of the gross disparity be-
tween the thing given and the price
paid. The last mentioned might seem
at first blush to lie outside of the rule;
but the weakness of the grantor does
not seem to have been imposed upon ;
and though the court speaks of the
grantee's conduct as improper, it is
not pronounced to be fraudulent. The
contracts were all sound in law. It
required the intervention of a chan-
cellor to dissolve them, and he could
do it only upon terms which would
place all parties in their original con-
dition.
" But we thought it was settled in
Pennsylvania, if not in every other
civilized state, that a title procured by
means of an actual fraud, or a plain
and positive deception, was tainted
through and through, destitute of all
validity, and utterly void in law as
well as in equity. Certainly it has
been so decided very often here and
elsewhere; and though we have ex-
amined all the cases cited on the argu-
ment, from books within our reach,
we have found none in which the pro-
position is denied by any court. Gil-
bert v. Hoffman, 2 Watts, 66, ruled
the very point now before us in a case
precisely like this; Jackson v. Sum-
merviUe, 1 Harris, 359, decides the
principle with equal clearness. In
Riddle v. Murphy, 7 S. & R. 230,
the court, speaking of one who had
purchased at a sheriff's sale, under a
fraudulent judgment to which he was
himself a party, said, ' in his charac-
ter of purchaser he could not claim to
be reimbursed, for if the sale was
fraudulent it was a nullity.'
"To say that avoid title can stand
as security for purchase-money, ad-
vances, or anything else, is a contra-
diction in terms. It falls like an
empty sack, because it has nothing to
support it, and cannot support itself.
The proposition that one who is de-
tected in a cheat by which he has
acquired no title, shall, nevertheless,
be placed on the footing of one who
has a good title, unless the money he
expended in the perpetration of the
HUGUENIN V. BASELEY.
153
fraud be paid to hiin by tbe injured
party, shocks our sense of right as
much as it violates the analogies of
the law."
In general, equity refuses to interfere
between those who have been engaged
in a fraudulent or illegal act or con-
veyance, for the purpose of prevent-
ing one from abusing the confidence
reposed in him by the other, and ap-
propriating the whole benefit of the
transaction to himself, to the exclu-
sion of his confederate ; Murphy v.
Hubert, 4 Harris, 50 ; 1 Smith,
Leading Cases, 507, 5th Am. ed. ;
Jones v. Gorman, 7 Iredell, Equity,
21 j Jackson v. Dutton, 3 Harring-
ton, 98. Such cases fall within the
well settled maxim, in pari delicto,
potior est conditio defendentis, and
the parties will be left where their
own wrong has placed them; Smith
v. Elliott, 1 Patton & Heath, 307 ;
Creath v. Sims, 5 Howard, 192;
Jones v. Gorman, 7 Iredell, Equity,
21 ; Mosey v. Forsyth, 1 Walker, Ch.
355; Wilson v. Watts, 9 Maryland,
461; Freeman v. Sedgwick, 6 Gill,
28. But this rule ceases to be appli-
cable, when the acts of one party have
their origin in the arts or influence of
the other, because the wrong then rests
chiefly, if not solely, on the person by
whom it was contrived; and his con-
federate will be regarded as a mere
tool or instrument for accomplishing
an end, which was really not his own
Long v. Long, 9 Maryland, 348
Cook v. Cohjer, 2 B. Monroe, 71
Ford v. Harrington, 16 New York,
285. The law was so held in Long
v. Long, and one brother compelled
to surrender property which had been
conveyed to him by another, for the
purpose of defeating the creditors of
the latter ; the relationship of the
parties, and the imbecility of the
grantor, warranting the belief that
the grant had been procured by un-
due influence. A fraudulent deed to
an attorney, from a client, was set
aside in like manner, in Ford v. Har-
rington, 16 New York, R. 285, on the
ground that the position of trust and
confidence held by respondent, threw
the chief responsibility of the trans-
action upon him, and rendered it both
just and expedient to compel him to
surrender an advantage obtained by a
violation of his duty, as an officer of
the court, as well as of that which he
had assumed by acting as the legal ad-
viser of the complainant. The dis-
tinction is obvious, but requires to be
applied with some nicety, in order to
prevent the exception from eating out
the rule ; Wilson v. Watts, 9 Mary-
land, 461 ; and in Smith v. Elliott, 1
Patton & Heath, 307, the court held
it inapplicable to a deed executed by
a grantor, whose mind had been im-
paired by habitual intoxication, but
who was sober at the time when the
deed was executed, and of sufficient
capacity to know what he was about,
and distinguish right from wrong;
although Tyler, J., dissented, on the
ground that the complainant acted
under the influence, and was a mere
tool or dupe of the respondent.
154 INJUNCTIONS AGAINST PROCEEDING AT LAW.
INJUNCTIONS AGAINST PROCEEDING AT LAW.
[*501] *EARL OF OXFORD'S CASE.
13 JAC. 1.
Reported 1 ch. rep. 1.
Jurisdiction op Equity as to Proceedings at Law.] — Principles on
which equity restrains proceedings under a judgment obtained at law.
Magdalen College, 39 Hen. 8, seised in fee of the Rectory of Christ's
Church, and the Covent Garden, without Aldgate, London, containing seven
acres, demised them for seventy-two years, rendering £40 per annum for the
rectory, and £9 for the Garden. And 17 Eliz. (fifty years of the said lease
being expired,) the Queen, at the suit of the said College, licensed them to
alien, which they did, and then received for the rectory £25 per annum, and
£15 for the garden. It being her Majesty's intent that the College should
be advanced greatly in profit, by having the Rectory to them and their suc-
cessors, discharged of the lease for years, which in present was worth to them
but £50 per annum, the utmost rent ; the same was accordingly performed by
a conveyance to her Majesty, and from her Majesty to Spinola and the Rectory,
from Spinola to the College ; after which, Spinola and the Earl of Oxford, his
assignee, and his under tenants, have built upon the Garden one hundred and
thirty houses, and therein bestowed £10,000, which assignee and his under
tenants have bonds and security given for the enjoyment thereof, to the sum
of £20,000.
Note. — The College is hereby advanced £1700 more than they should have
been if the former lease had continued, which is not yet expired.
This conveyance having been in peace forty years, and thus advanced by
the purchasers from a thing of little value to a great and considerable one ;
r*"n*n anc * ^ ^ e i Q g a *general case wherein persons of all degrees and call-
*- J ings have made purchases, they resting secure on its passing through
the Crown, the greatest protection.
The present Master of the College having by undue means obtained the
possession of one of the one hundred and thirty houses, whereof one Castillion
was lessee, who, being secure of his title, both in law and equity, sealed a lease
thereof for three years to one Warren, who thereupon brought an ejectment
against one John Smith, for trial of the title in B. R. Wherein a special
verdict was had ; and while that depended in argument the lease ended, and
so no possession could be awarded for the plaintiff, nor fruit had of his suit.
Yet he proceeded to have the opinion of the judges to know the law, (which
was a voluntary act of his,) to the intent, if the law were with him, he might
1 S. C, Toth. 126, (edit. 1823,) nom. Comes, Oxon v. Neeth.
EARL OF OXFORD'S CASE. 155
begin a new suit at law, and spare to proceed in equity, and if the law were
against him, that then he might proceed in Chancery. And the judges of
that Court having delivered their opinions against his title, before any judg-
ment entered upon the roll, the Earl and Mr. Wood, for themselves and their
lessees, preferred their bill in Chancery; and then judgment was entered,
quod querens nil capiat per billam. 1
To which bill in Chancery the defendant put in a plea and demurrer,
alleging the conveyance to be void by the statute of 13 Eliz., and that they
evicted one house, parcel of the premises, by judgment at law ; which plea
and demurrer were referred by order to Sir John Tindal and Mr. Woolbridge,
who reported that they thought it fit the cause should proceed to hearing,
notwithstanding the plea and demurrer; and afterwards, in default of an
answer, an attachment was awarded against the defendants, whereupon they
were attached, and a cepi corpus returned, and by order of the 22nd of
October, 13 Jac. 1, they were committed to the Fleet for their contempts in
refusing to answer; and do now stand bound over to answer their contempts,
they still refusing to answer.
And now this term it was argued, that the defendants *thus stand- r*Kf)p-i
ing in contempt, &c, may be sequestrated until answer.
Lord Chancellor Ellesmere. — 1. The law of God speaks for the plain-
tiff, Deut. xxviii.
2. And equity and good conscience speaks wholly for him.
3. Nor does the law of the land speak against him. But that and equity
ought to join hand in hand in moderating and restraining all extremities and
hardships.
By the law of God, he that builds a house ought to dwell in it ; and he that
plants a vineyard ought to gather the grapes thereof; and it was a curse upon
the wicked, that they should build houses and not dwell in them, and plant
vineyards, and not gather the grapes thereof. Deut. xxviii. 30.
And yet here in this case, such is the conscience of the doctor, the defen-
dant, that he would have the houses, gardens, and orchards, which he neither
built nor planted ; but the Chancellors have always corrected such corrupt
consciences, and caused them to render quid pro quo ; for the common law
itself will admit no contract to be good without quid pro quo, or land to pass
without a valuable consideration ; and therefore equity must see that a pro-
portionable satisfaction be made in this case.
As in the case of Peterson v. Hickman, the husband made a lease of the
wife's land, and the lessee being ignorant of the defeasible title, built upon
the land, and was at great charge therein ; the husband died, and the wife
avoided the lease at law, but was compelled in equity to yield a recompense
for the building and bettering of the land. For it was so much the more worth
unto her : and wheresoever one hath a benefit, the law will compel him to
1 See Magdalen College Case, 11 Co. 66, 4.
156 INJUNCTIONS AGAINST PROCEEDING AT LAW.
give a recompense, as if cestui que use sell the land to one that hath no notice
of the use, and dieth ; hy reason that he had the benefit of the sale, his execu-
tors were ordered to answer the value of the land out of his estate, as appeareth
by a judgment roll of 34 Hen. 6.
And his Lordship, the plaintiff" in this case, only desires *to be
t 'J satisfied of the true value of the new building and planting since the
conveyance, and convenient allowance for the purchase.
And equity speaks as the law of God speaks ; but you would silence equity.
First. Because you have a judgment at law.
Secondly. Because that judgment is upon a statute law.
To which I answer, —
First. As a right of law cannot die, no more can equity in Chancery die ;
and, therefore, nullus recedat a Cancellaria sine remedio, 4 E. 4, 11 a. There-
fore, the Chancery is always open ; and although the term be adjourned, the
Chancery is not ; for conscience and equity is always ready to render to every
one their due, and 9 E. 4, 11 a. The Chancery is only removable at the will
of the King and Chancellor ; and by 27 E. 3, 15, the Chancellor must give
account to none, but only to the King and Parliament.
The cause why there is a Chancery is, for that men's actions are so divers
and infinite, that it is impossible to make any general law which may aptly
meet with every particular act, and not fail in some circumstances.
The office of the Chancellor is to correct men's consciences for frauds,
breach of trusts, wrongs and oppressions, of what nature soever they be, and to
soften and mollify the extremity of the law, which is called summum jus.
And for the judgment, &c, law and equity are distinct, both in their
courts, their judges, and the rules of justice; and yet they both aim at one
and the same end, which is to do right) as Justice and Mercy differ in their
effects and operations, yet both join in the manifestation of God's glory.
But in this case, upon the matter there is no judgment, but only a discon-
tinuance of the suit, which gives no possession ; and although to prosecute
law and equity together be a vexation, yet voluntarily to attempt the law in a
doubtful case, and after to resort to equity, is neither strange nor unreasonable.
*But take it as a judgment to all intents, then I answer, that in this
L J case there is no opposition to the judgment, neither will the truth or
justice of the judgment be examined in this Court, nor any circumstance de-
pending thereupon, but the same is justified and approved ; and therefore a