[White v. Turk et al.]

against all the defendants; upon a motion, and without notice to them. of the motion. For reasons stated in the petition, they prayed for and obtained a supersedeas.

At the October term, 1836, of said court, "on a motion being made to set aside the judgment, for the reasons assigned in the petition; and on the ground that the statutes of the state of Tennessee, referred to in the petition, and under which the bond was taken, and the judgment on it rendered, on a part of the insolvent laws of the state, and cannot apply to proceedings on an execution issued from the federal court; and on a full consideration of the subject, the opinions of the judges were opposed on the following points."

"First, whether the omission to name in the bond the sum called for in the execution, and the naming, of a different sum does not vitiate it? Secondly, whether the omission to state in the bond the court before which the defendant is to appear, take the oath of insolvency, or surrender his property, does not vitiate it? Thirdly, whether the omission to set out in the bond, the writ of execution, or refer to it, does not vitiate it? Fourthly, whether the proceedings authorized by the statutes of the state of Tennessee, passed in 1824, chap. 17; and in 1825, chap. 57, can apply to the federal courts? Fifthly, whether, on account of the above defects, the bond is not void; and the proceedings on it, under the above statutes, consequently, a nullity?"

The intention of congress, in passing the act under which this proceeding has taken place was that a division of the judges of the circuit court, upon a single and material point, in the progress of the cause, should be certified to this Court, for its opinion; and not the whole cause. The certificate of the judges, in this case, leaves no doubt that the whole cause was submitted to the circuit court, by the motion to set aside the judgment on the bond. And, had the court agreed in opinion, and rendered a judgment upon the points submitted; it would have been conclusive of the whole matter in controversy between the parties. This certificate, therefore, brings the whole cause before this Court; and, if we were to decide the questions presented, it would, in effect, be the exercise of original, rather than appellate jurisdiction. United States v. Bailey, 9 Peters' Rep. 267; Adams, Cunningham and Company v. Jones, decided at the present term of this Court.

[White v. Turk et al.]

For these reasons, the cause is remanded to the circuit court, this Court not having jurisdiction of the questions, as stated.

Mr. Justice BALDWIN dissented

This cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of East Tennessee, and was argued by counsel. On consideration whereof, it is the opinion of this Court, that the whole case has been certified' to this Court; and as it has been repeatedly decided by this Court, that the whole case cannot be adjourned on a division of the judges, the Court cannot decide this case in its present form. Whereupon, it it is now here ordered and adjudged by this Court, that this cause be, and the same is hereby remanded to the said circuit court, for further proceedings to be had therein, according to law and justice; this Court not having jurisdiction over the case, as stated.

JOHN J. JENKINS AND OTHERS, APPELLANTS V. SARAH M. Pye and EDWARD ARELL PYE, INFANTS, BY JAMES B. PYE, THEIR FATHER AND NEXT FRIEND, APPELLEES.

The complainants in their bill allege, that a conveyance of her real estate was made by a daughter to her father, for a nominal consideration. The answer denied the matter stated in the bill; and the defendants gave evidence of the transfer of stock, to the value of two thousand dollars, on the day the conveyance was made, claiming that this was also the consideration in the deed. Held, that this evidence was admissible, without an amendment of the answer. It rebutted the allegation in the bill, that the deed was made wholly without consideration. The complainants, as the ground to invalidate a deed, made by a daughter, of twentythree years of age, to her father, by which she conveyed the estate of her deceased mother, to her father; he having a life estate, as tenant by the curtesy, in the same; asserted that such a deed ought, upon considerations of public policy, growing out of the relations of the parties, be deemed void. The Court said: We do not deem it necessary to travel over all the English authorities which have been cited; we have looked into the leading cases, and cannot discover any thing to warrant the broad and unqualified doctrine asserted. All the cases are accompanied with some ingredient, showing undue influence exercised by the parent, operating on the fears or hopes of the child; and sufficient to show reasonable grounds to presume, that the act was not perfectly free and voluntary, on the part of the child; and in some cases, although there may be circumstances tending, in some small degree, to show undue influence; yet if the agreement appears reasonable, it has been considered enough to outweigh slight circumstances, so as not to affect the validity of the deed. It becomes less necessary for the Court to go into a critical examination of the English chancery doctrine on this subject; for, should the cases be found to countenance it, we should not be disposed to adopt or sanction the broad principle, that the deed of a child to a parent, is to be deemed, prima facie, void. To consider a parent disqualified to take a voluntary deed from his child, without consideration, on account of their relationship, is opening a principle at war with all filial, as well as parental duty and affection; and acting on the presumption that a parent, instead of wishing to promote the interest and welfare, would be seeking to overreach and defraud his child. Whereas, the presumption ought to be, in the absence of all proof tending to a contrary conclusion, that the advancement of the interest of the child was the object in view; and to presume the existence of circumstances conducing to that result. Such a presumption harmonizes with the moral obligations of a parent to provide for his child; and is founded upon the same benign principle that governs cases of purchases made by parents, in the name of a child. The natural and reasonable presumption in all transactions of this kind is, that a benefit was intended the child, because in the discharge of a moral and parental duty.

In the year 1813, a daughter, twenty-three years old, conveyed all her remainder in the real estate which had belonged to her mother, to her father, for a nominal consideration. She married two years afterwards, and died in 1818. No complaint of the transaction was made in the lifetime of the daughter, nor during the lifeVOL. XII.-2 H

[Jenkins et al. v. Pye et al.]

time of the father, who died in 1831. Lapse of time, and the death of the parties to a deed, have always been considered, in a court of chancery, entitled to great weight; and almost controlling circumstances in cases of this kind.

ON appeal from the circuit court of the United States of the District of Columbia, for the county of Alexandria.

In the circuit court, the appellees filed their bill against John J. Jenkins, and Mary, the wife of Robert Morrow, children of George Jenkins by a second wife; the said George Jenkins having died on the 8th day of April, 1831; to set aside a certain deed executed by Eleanor Jenkins, who was the daughter of George Jenkins and the mother of the complainants, and who died in 1818. George Jenkins had first intermarried with Mary Arell, who, as one of the heirs of Richard Arell, was entitled to considerable real estate; of which partition was made in 1797. She died, leaving but one child, the mother of the complainants; and her estate descended to her daughter, subject to a life estate in George Jenkins, as tenant by the curtesy. George Jenkins, after her decease, married and had children by his second wife, one of whom is one of the appellants in the case. The deed was duly executed by the mother of the complainants, on the 15th of March, 1813, and recorded on the 3d of November, in the same year; and conveyed in fee simple to George Jenkins, for a nominal consideration, all the real estate and ground rents to which she was entitled as the heir of her mother. The bill also sought to recover the value of certain real estate, part of that conveyed to George Jenkins, which was afterwards sold by him to different persons; and also the rents of part of the real estate left unsold at the death of George Jenkins, and received by the executor, after his decease. The complainants charge in their bill, that the deed executed by their mother, being made wholly without consideration, operated to create a resulting trust in favour of Eleanor Jenkins and her heirs: and they claim, if this cannot be sustained, that the deed was obtained by the undue influence of paternal authority; and was therefore void against the grantor and her heirs, in equity: and ask that it be vacated as to all the property conveyed by it, which was unsold at the decease of George Jenkins.

The answer of the defendants denies that any undue influence was exercised by George Jenkins over his daughter; who, when she executed the deed, was twenty-three years of age, and was at the time

[Jenkins et al. v. Pye et al.]

-well acquainted with her rights, and with the value of the property. On the trial it was admitted, that no undue influence was exercised by the father; and it was in evidence, that when the deed was recorded, George Jenkins gave to his daughter two thousand dollars in bank stock. This, and the further consideration that the daughter was to receive a proportionate part of her father's estate, who, in addition to the property conveyed by the deed, was wealthy; and the estate conveyed being such as required large expenses for its preservation and improvement; were asserted to be a valuable consideration for the deed.

The circuit court decreed the deed to be null and void; because the same was made without any consideration," and because the same was obtained "soon after the minority of said Eleanor, and while she "yet remained under his power and control, and uninformed of the nature and extent of her rights;" and having decreed also, that one of the appellants, John J. Jenkins, as administrator aforesaid, should pay three thousand six hundred and seventy-seven dollars and one cent, being a balance due, after deducting two thousand dollars, paid on the 3d of November, 1813, with interest from 8th of April, 1831, on account of money received for sales of part of said property; and also, the sum of one thousand one hundred and sixty-seven dollars and five cents, amount of rents alleged to have been received since the death of the said George Jenkins; and also, the sum of eighteen dollars and twenty-five cents, with interest from said 8th of April, 1831, which had been received by George Jenkins on the partition of the estate, for owelty of partition, awarded in 1797.

The defendants appealed to this Court. The case was argued by Mr. Robert I: Brent and Mr. Jones for the appellants, and by Mr. Simmes, and Coxe for the appellees.

Mr. Brent contended,

1st. That there can be 'no resulting trust as charged in the bill; because that doctrine is confined to cases where the trust results to a purchaser taking a conveyance in the name of a third person, or similar cases; 2 Atkyn's Rep. 256; 2 Mad. Chan. Prac. 113; 4 Kent's Com. (ed. 1832,) 305.

2d. The bill takes the alternative ground, in case the resulting trust fails; that the deed of March, 1813, executed by Eleanor Jenkins (the daughter) to George Jenkins, (the father,) was obtained by the undue influence of paternal authority.