Owens v. Simpson 5 Rich. Eq. 405, 26 S.C. Eq. 405

Martha F. Owens and others vs. E. G. Simpson and others.

A. B., who was old and infirm, requested C. D., her friond and connection, to take up an execution, for about $800, which was pressing her: — he did so, and she gave him a confession of judgment for $1,000. Ho afterwards, at her request, took up another oxeeution against her, for about $180, and she gave him another confession, for $600. A. B. afterwards made her will, bequeathing to C. D. $1,200, and directing payment of her debts out of the residue of her estate : — Held, upon tho evidence, that C. X). was not entitled to hold, as creditor of A. B, the two judgments he had taken up, and the two confessions also — that ho could claim only the two confessions: — Held, further, that the legacy was not given as satisfaction of the two confessions.

Parol evidence was inadmissible, to show that the legacy was intended as satisfaction.

That tho legacy is less than tho debt, and that the testator makes provision for tho payment of debts, is sufficient to destroy the prosumption that tho legacy was intended as satisfaction.

Before Dunkin, Cii., at Abbeville, June, 1852.

Dunkin, Ch. Sarah Cunningham departed this life on the 28th April, 1851. She was, at the time of her death, seventy-*406two years of age; had been, for many years, infirm, and was, latterly, in many respects, of weak mind. Her will bears date the 16th January, 1851. By the first clause, after certain specific bequests, and a direction of sale, she bequeaths twelve hundred dollars to the defendant, Dr. Edward Simpson, and then directs that the balance of her estate, after payment of her debts, be divided between the children of Elizabeth Owens, who are two infants of tender years, the complainants in these proceedings, (a) The defendant and Thomas Payne were appointed executors, the latter of whom never qualified. Immediately after the death of the testatrix, the defendant caused the real and personal estate of the testatrix to be levied on by the sheriff, under executions in his office, owned by the defendant, and, within a week after her decease — to wit, May 5th, 1851 — the property was sold, and purchased by the defendant, for the sum of $3,879. On the 15th May, 1851, defendant proved the will and qualified as executor, and on 30th of same month, a sale was made by him of the residue of the personalty, for $334 46, at which sale, it is alleged, the defendant was the principal purchaser; but the sale bill was not put in evidence. On the 21st January, 1852, (less than nine months after the death of the testatrix,) the defendant says he had a regular account and settlement with the Ordinary, “ by which it will appear that, after the payment of the executions. aforesaid, the assets were not sufficient to pay the legacy to the defendant, by near two hundred dollars, which legacy, under the will, was to be first paid. The defendant, therefore, insists that the complainants, who are merely residuary legatees under the will, have no available interest in the estate of the said Sarah Cun-*407liingham, and that there is no necessity for a new accounting in this Court, in relation to the said estate.” It appeared, by the testimony of Allen Vance, that at the sale of Sarah Cunningham’s property, the defendant said to witness that the negroes would be sold, and asked witness not to bid against him; that he would take it as a favor if he would not bid against him; that he wished to buy the negroes himself; the witness did not consent, however, not to bid against defendant, as defendant declined the terms proposed by witness. The negroes brought a fine price. Under these circumstances, it is not remarkable that the friends of the complainants should desire an inquiry into the regularity of the transactions by which the bountiful intentions of the testatrix towards them have become illusory.

The testatrix was a resident of Abbeville district, being possessed of a plantation and a few slaves, who, from indulgence, were of very little value to her. Being indebted to Joel Smith, she confessed a judgment to him, on the 4th May, 1847, for eight hundred dollars, fifteen cents, with interest from 1st Jan. previous, on which execution was lodged in Abbeville district. On the 28th March, 1848, the testatrix confessed a judgment to defendant for one thousand dollars, with interest from the day of the confession. On the following day, an execution was lodged in the office of the sheriff of Laurens district, but was not lodged with the sheriff of Abbeville until after the death of the testatrix. On the day last mentioned, Joel Smith’s judgment was assigned to the defendant, who claims the amount of both judgments from the estate of the testatrix.

On this subject, the answer of the defendant states, among other things, that the testatrix was an old widowed lady of seventy-two or three years of age; that she owned a small tract of land and five slaves, to wit: one man and four women ; that she was much attached to her negroes, and very indulgent to them, and, for some time prior to 1848, had not made a support ; that her nearest relations were Dr. Robert Campbell, of Laurens district, a brother, whose daughter witness had mar*408ried, some other nephews, and the complainants, who are the great-grandchildren of the testatrix’s deceased brother, Angus Campbell; that “ the testatrix was greatly troubled and excited, when, on the 5th January, 1848, the sheriff of Abbeville district, under the execution of Joel Smith, made a levy upon her land and negro woman, Lucinda.” “ Upon that occasion, when she saw the property was about to be sold, and her cherished object, of keeping her negroes together until her death, defeated, testatrix went to Laurens district, to the house of her brother, the said Dr. Robert Campbell, to see this defendant, who was there living with his falher-in-law, the said Dr. Campbell.” She stated to him her condition and distresses — “ that her property was about to be sold, under an execution which Joel Smith had obtained against her ; that she was very desirous to have a home while she lived,” &c. “ Testatrix proposed to defendant, that if he would assist her to keep her property together — if he would procure an assignment to himself of the Smith judgment, and wait for the payment of it until her death, she would give him a thousand dollars, to be paid at her death, and she proposed to secure him the thousand dollars by any writing which would accomplish the purpose.” “ Defendant thanked her for her kindness,” &c. He “ then immediately went to Stoney Point, in Abbeville district, to see Joel Smith, and induce him, if possible, to stay his execution for a time, and, upon defendant’s representing to him that the money should be paid in the Spring, he consented to wait until sales’ day in April then next.” Defendant borrowed the money, by giving his own note, with security. About the same time, he mentioned the matter to a relative acquainted with legal forms, stated the proposition of the testatrix, and asked his advice “ as to what paper ought to be prepared and signed, to carry out the agreement.” “ He advised a confession of judgment, which could be stayed until her death.” “ He accordingly procured a blank confession from a legal friend, who also concurred in the advice, and, on the 28th March, 1848, accompanied by Dr. Campbell, he went over to Abbeville, to the house of testatrix. *409The agreement was rehearsed, and she signed the note and confession of judgment in his presence. Dr. Campbell suggested, at the time, that the note would bear interest, and that, as the money was only to be paid at her death, some understanding ought to be had upon that subject. Testatrix was unwilling that interest should run, and the defendant gave her an instrument in writing, that he would not exact the interest.” On the same day he went to Joel Smith’s, paid him the amount due on the execution, and took his receipt. The assignment was executed afterwards, but dated as of that date.

From this statement, it would appear that the moving cause of the testatrix’s distress, when she applied to the defendant in January, 1848, was her apprehension of being broken up by Joel Smith, who then held the only execution against her property. “ She was greatly troubled and excited,” says the defendant, “ when, on the 5th January, 1848, the sheriff of Abbe-ville, under this execution, levied upon her land and her negro woman Lucinda.” She went to defendant, told him her property was about to be sold under this execution, and thereupon made the proposal stated. The defendant “ went immediately to Stoney Point, to see Joel Smith, and induce him, if possible, to stay his execution for a time.” Now, Joel Smith was examined as a witness before the Commissioner. On his cross-examination, he says the testatrix was “old and childish. She was desirous of keeping her property together; is convinced that the influence of her negroes prevented her from selling them; that she always appealed to witness for indulgence; that he was certain his debt was sure. Dr. Campbell and witness concluded that the best thing that could be done for her was that the property should be sold, and thereupon a levy was ordered. Payne (nephew of testatrix) may also have spoken to witness as to the propriety of ordering a levy. In having the levy made, witness was, to some extent, influenced by the representations of her friends. His object was not to injure, but to benefit her, by the course he took. He thinks he would *410have sold the property twelve months earlier, had it not been for her friends.”

Dr. Campbell’s evidence accompanies this decree. He states his presence when the $1,000 note was signed. It was drawn either by witness or the defendant. He said he had no particular conversation with the testatrix upon the subject. She was at witness’s house. She was uneasy about Smith’s judgment, and wanted it satisfied, (this was probably at the first meeting.) He says, that when the confession was given, defendant brought the papers ready. She wished the Smith judgment paid off; it was paid off, but it was kept as a lion upon the property. “Witness told her that she might certainly be easy for a year; that defendant would be easy with her. The $1,000 had nothing to do with the Smith judgment. The $1,000.was given to defendant in consideration of what he had done, was to do, and his connection in the family. It was a gratuity for services and connection in the family.” He says afterwards, “The $1,000 was a free gift.” Witness says “he never liked the confession, and preferred it should be a deed of gift, and he (witness) proposed to draw it; but the defendant had consulted some of his friends. Testatrix did not object to the form of a gift, as it would be the same.”

It seems that, some time after this transaction, to wit: on the 23d October, 1848, one Thomas Stewart obtained a judgment against testatrix for one hundred dollars, with interest from 8th February, 1844, and lodged execution thereon in the office of the sheriff of Abbeville. On the 27th February, 1849, the testatrix confessed a judgment to the defendant for the sum of five hundred dollars, with interest from that day, on which judgment execution was lodged on the 1st March, 1849, in the office of the sheriff of Laurens district. It is charged that the defendant had agreed to pay off and satisfy the Stewart execution, and that the latter judgment was only intended as an indemnity or security to him. The defendant’s answer is very much at length, and it is proposed only to state the substance *411of it, which is, that Stewart had levied on the land of testatrix, and she again applied to defendant for advice and assistance. Proposed, if he would get an assignment of the Stewart judgment, and wait for the payment till her death, and would take charge of herself, and her property, &c., “ she would give him a confession of judgment for five hundred dollars, which was to be staid until her death, but which was to bear interest.” That on 26th February, 1849, defendant having already paid a part of the Stewart execution, paid Stewart the remainder, and took his receipt in full for the money paid, which appears attached to the execution. That on the day after the last payment defendant went with Dr. John P. Watts to the house of testatrix, and he witnessed the confession of judgment.

Dr. Walts was examined before me, and testified, that he drew the note for $500. Testatrix seemed grateful for defendant’s kindness. Testatrix said “she had given defendant the five hundred dollars for what he had done, and what he had promised to do for her. She spoke of the Stewart case and of the Smith judgment. These were the two cases spoken of, and which seemed to prey on her mind. Witness thought the $500 was to be in addition to what defendant had paid. Testatrix seemed to think the Smith and Stewart judgments were satisfied, and she was satisfied. Her gratitude to defendant seemed to be in consequenca of his having settled those claims. He was to take care of her and her property until her death,” &c. “ Witness heard nothing of the compliment to be made to defendant, until he went to the house of testatrix. Defendant was to hold these matters — the Smith and Stewart judgments— as it were on a stay, and was to receive the five hundred dollars for having settled them.” This last statement the witness repeated twice over, with positiveness and distinctness.

So far as the Court can gather from the defendant’s answer, the proposition, in January, 1848, was that the defendant should “ aid testatrix in keeping her property together till her death, should pay off the Smith judgment,” and then, at her death? the defendant should be paid one thousand dollars. The de*412fendant agreed to gratify her wishes, as far as in his power, and she gave him a note and confessed judgment for one thousand dollars. But, within less than eleven months after this agreement, testatrix’s land was levied on, and about to be sold, under an execution for one hundred dollars, or thereabouts. There was no other lien upon her property, nor does it appear that any other debt of any consequence existed. Yet the defendant does not appear to have thought himself bound to aid her in keeping her property together until her death, by interfering in this case. But he says she applied to him, and “ repeated what she had previously said to the defendant, upon the occasion of the levy under Joel Smith’s judgment,” &c., and said that, “ if he would assist her to keep her property together during her life — if he would procure an assignment to himself of the Stewart judgment, as he had previously done the Smith judgment, and wait for the payment of it until her death, and take a general charge,” &c. — “ sho would give him a confession, &c., for $>500, which was to be staid until her death, but which was to bear interest.” Whatever may have been the impressions of the defendant, it was manifestly the settled conviction of the witness to whom his answer specially refers, Dr. John P. Watts, that the five hundred dollars was all that the defendant was to receive in the way of gratuity. “ Mrs. Cunningham,” (testatrix,) says Dr. Watts, “seemed very grateful for his (defendant’s) kindness. She said she had given him the five hundred dollars for what he had done, and what he had promised to do for her. She spoke of the Stewart case and the Smith judgment — these were the cases spoken of,” «fee. — and he concludes his evidence by twice repeating “that the defendant was to hold the Smith and Stewart judgments, as it were, on a stay, and was to receive the $500 for having settled them.”

Another witness, W. B. Merriwether, testified that he lived within half a mile of testatrix, and knew something of her affairs; heard her repeatedly say what she owed; that she owed a judgment to Joel Smith for $800 or $900, and a judgment to Thomas Stewart, for about $130; she said she had *413Joel Smith’s judgment settled; “ that defendant had taken it up; that she had given the defendant a confession for $ 1,000 for that purpose.” “ One morning testatrix sent for witness ; he went; she said Stewart was pushing his judgment, and she wished witness to go and see Stewart, and get him to wait,’; &c. In a few days after, this witness saw her, “ when she said that she had paid the Stewart judgment, through defendant, by giving him a confession for $500, to pay him for the Stewart judgment and all her other debts. • There were some debts then against her not in judgment. She owed Red a debt of some seven or eight dollars, which defendant afterwards paid.” “ In her conversation about the Smith judgment, she said that to the confession for that debt, and also to the confession for $500, Dr. Campbell and Dr. Watts were witnesses; that she owed nobody but the defendant.” This witness further said, that “ he was at defendant’s house when the old lady (testatrix) died. The morning after her death he had a conversation with defendant, as to what the estate of testatrix owed him, and defendant said it owed him either eighteen hundred or two thous- and dollars. This conversation was brought about by the defendant’s asking witness how to proceed: whether he could sell the property under his execution, &c. Defendant said he had judgments against the estate to that amount; did not say in whose names they were.”

Another witness, M. G. Overby, testified that “he had a conversation with defendant the night of testatrix’s death, before her death. Defendant said he had paid oif the Smith judgment and the Stewart debt also, and that he had secured himself by confessions, and, in the arrangement, had got one hundred dollars advantage, as a gift or donation for his services in paying oif the Smith judgment,” &e. “ He also said he had paid off the Stewart case, and the old lady had given him $500 for paying it off.” From the report of this witness’s evidence, he seems to have been closely cross-examined, but it is not perceived that his testimony materially varies. He said also, that testatrix was his aunt by marriage, and that the impression *414made upon his mind, in conversations with her, was that she owed about twelve hundred dollars. There is much other evidence, which appears in the report. In the view which the Court will hereafter present, it seems most important to ascertain what were the impressions of the testatrix in relation to these transactions, when she made her will in January, 1851. By that instrument, she bequeathed to the defendant the sum of twelve hundred dollars. A witness, Thomas B.. Puckett, who was present when the instructions were given and the will drawn, testified, among other things, that the instrument was drawn by Gen. Gillam, who had been sent for, for that purpose. When he asked for the outlines, “ the first item was, she wanted defendant to have $1,200, to pay him for his trouble.” She afterwards repeated that “she desired that (the $1,200) for defendant for all his trouble.”

Without dissecting the testimony, or commenting further upon the answers, it is evident from all, that whatever the defendant was to receive, over and above the amount which he paid on the judgments of Joel Smith and Thomas Stewart, was intended and accepted as a gratuity. This is substantially the result of all the testimony. Any other acts of the defendant were, perhaps, not more than Dr. Campbell had rendered, and other relatives were willing to render. In comparing the evidence, it is not very easy to determine what the defendant supposed was the extent of this gratuity. He certainly paid Joel Smith about nine hundred dollars, and the testatrix gave him a confession for one thousand dollars. Overby says defendant told him he had paid the Smith judgment by a confession, and, in the arrangement, had obtained a gratuity of one hundred dollars. Dr. Watts, who is defendant’s witness, says, that when he and defendant went to the house of testatrix, to get the confession of $500, in February, 1849, she stated that this $500 was a gift to defendant for what he had done, and had promised to do; that he was to receive this in addition to what he had paid, in taking up the judgments of Smith and Stewart; he was to receive the $500 for having settled them. On the other *415hand, Dr. Campbell certainly regarded the $1,000 as a gift over and above the Smith judgment. He testifies nothing, of course, about the $500 confession ; but, as has been intimated, whatever may have been the impressions of the defendant, it can scarcely be doubted, after the evidence of Dr. Watts, what were the views of the testatrix, when she gave the confession of $500 for having settled the Smith and Stewart judgments — she did not understand that she had already given the defendant one thousand dollars for having settled the Smith judgment. The Court, is well satisfied, from the evidence, that when the testatrix made her will, in January, 1851, she felt under great obligations to the defendant for his kindness and his trouble, and was not unmindful of their family connections. She had promised that, at her death, he should be remunerated. Whether she had in mind, or memory, any consciousness of any particular sum or amount, which she had promised, it is impossible to determine. But she bequeathed to the defendant the sum of twelve hundred dollars, which, she declared to the draftsman, was to the defendant for all his trouble.

“ Satisfaction,” says Mr. Justice Story, (Story Eq. § 1099,) “ may be defined in Equity to be the donation of a thing, with the intention, expressed or implied, that it is to be an extin-guishment of some existing right or claim of the donee. It usually arises, as a matter of presumption, where a man, being under an obligation to do an act, (as to pay money,) does that by will, which is capable of being considered as a performance or satisfaction of it, the thing performed being ejusdem generis with that which he had engaged to perform. Under such circumstances, and in the absence of all countervailing circumstances, the ordinary presumption in Courts of Equity is, that the testator has done the act in satisfaction of his obligation.” Again, (§ 1100,) “ The donation is held to be a satisfaction, unless that conclusion is repelled by the nature of the gift, the terms of the will, or the attendant circumstances.” A distinction is noticed between satisfaction, properly so called, and cases of the performance of agreements or covenants. In the former *416case, the donation is intended as a substitute or equivalent for the contract; in the latter as a fulfilment of it. The Court is strongly inclined to the conviction, that both the transactions— viz., the confession of $1,000 and the confession of $500— could, at most, be regarded as mere voluntary agreements or promises, on the part of testatrix, to pay at her death. Indeed, this is substantially admitted, and that the form adopted was merely a security for the performance of the agreement. It is quite manifest that they were so regarded by the testatrix. The Court is also satisfied, from the testimony, that, when the testatrix gave the confession for $500, it was not intended by her that this sum, given for defendant’s services, in taking up the Smith and Stewart judgments, was to be in addition to a sum of one thousand dollars ; or, in other words, that when the testatrix signed the confession for $500, in presence of Dr. Watts, she did not understand that the defendant was to receive the amount paid to Smith, with interest, the amount paid to Stewart, with interest, the five hundred dollars, with interest, and, in addition, a gratuity of one thousand dollars. According to the positive statement of Dr. Watts, it was rehearsed that the confession of $500 was for his services in taking up both judgments. The defendant cannot, therefore, claim the amount of both confessions as a gratuity for his services. If he be regarded as a creditor, the legacy of twelve hundred dollars is a larger amount than was due, was declared to be for the same consideration, and must be regarded as a satisfaction. On the other hand, the legacy may be regarded as at once an ample and generous fulfilment of a voluntary agreement or promise to the defendant, and a gratification of her feelings for his kindness. Although the testatrix was grateful to the defendant, and attached to his family, yet it is evident, both from the will and the evidence, that she had other objects of attachment, and whom she intended to be recipients of her bounty. It was said, too, at the hearing, that the mother of the complainants had resided with the testatrix from the age of fourteen years, till her marriage with complainants’ father. After the legacy to *417the defendant, and the payment of her just debts, she directs the balance of her estate to be equally divided between the complainants. The claims of the defendant would not only exhaust the proceeds of the estate, (which was sold at a fair price,) but they would be insufficient to satisfy them. On the other hand, to regard the defendant as entitled to the sums paid to Smith and to Stewart, with interest, as well as the legacy of twelve hundred dollars, is in conformity with the views or declarations of the testatrix, as to the amount of her indebtedness at the time of her death, and a fulfilment of her intentions of bounty, both in regard to the defendant and the complainants.

It is ordered and decreed, that an account be taken by the Commissioner of the defendant’s transactions as executor; that, in taking the account, he be allowed credit for the amount paid on the executions of Joel Smith and of Thomas Stewart, with interest; that he also be allowed credit for the twelve hundred dollars; and that the Commissioner report the result. And it is further ordered and decreed, that the defendant enter satisfaction, or cause the same to be done, on the several judgments against the testatrix described in the pleadings.

The defendant appealed upon the grounds :

1. It is respectfully submitted, his Honor erred in admitting in evidence loose declarations of Mrs. Sarah Cunningham, the testatrix, made after the judgments confessed to the defendant Simpson, to impeach said judgments.

2. It is respectfully submitted, his Honor erred in admitting parol testimony, to explain the will of Mrs. Sarah Cunningham, in relation to the legacy to the said defendant, Simpson.

B. Because a voluntary promise to pay money, secured by a judgment confessed or obtained, is a good executed lien or title, and such muniment is good against all persons claiming as volunteers. The fact that levy and sale, under the executions, are postponed until the death of the donor, cannot, upon principle, alter the case in any respect.

4. Because the judgments confessed in this case to the de*418fendant, Simpson, were not voluntary, but based upon considerations both good and valuable — relationship, kindness, and services actually rendered. They were fairly obtained, and not only freely and cheerfully given, but placed in an executed and irrevocable condition by the donor herself; and the defendant insists that nothing could afterwards diminish or alter his vested rights.

5. Because his Honor erred in holding that Mrs. Cunningham did not intend to give the defendant, Simpson, both the judgment for one thousand dollars and the judgment for five hundred dollars. The defendant insists, with the utmost confidence, that the whole evidence, taken together, affords conclusive proof that Mrs. Cunningham intended to give him both judgments, as distinct and separate liens, over and above the amount of money advanced.

6. Because the defendant, Simpson, was a creditor of Mrs. Cunningham’s, to the extent of all the judgments held by him, and he is entitled to be paid all his judgments, at least, even if the doctrine of satisfaction applies, and he elects to claim his demands, hut not to receive the legacy at all.

7. Because the doctrine of satisfaction is not applicable to the case, and the defendant is entitled to receive the amount of his judgments as creditor, and also the bequest in the will, as legatee.

Me Goto an, for appellant.

Marshall, contra.