Prevost v. Gratz. Gratz r. Prevost. 6 W.

ments in which * Col. Croghan appears to have been [* 494 ] involved, as well as from his extensive land speculations.

And, in point of fact, some portions of his property were conveyed to one or both of the Messrs. Gratz, upon express and open trusts.

Still, however, the burden of proof to establish the trust in controversy, lies on the plaintiff. The circumstances on which he relies are, in our judgment, exceedingly strong in his favor, and sufficient to repel any presumption against the trust drawn from the absolute terms of the deed. In an account which was settled at Pittsburg, in May, 1775, between Bernard and Michael Gratz, and Col. Croghan, is the following item of credit:

"August, 1774. By cash received of Howard, for 9,000 acres of land at Tenederah, sold him for £850 15s. New York currency, is here,

Interest on £797 12s. 6d., from August, 1774, to May, 1775, is eight months, at 6 per cent.

£797 12 6

31 18 1

£829 10 7

There is no question of the identity of the land here stated to be sold to Howard, with the tract conveyed to Michael Gratz by the deed, in 1770. If the conveyance to Michael Gratz had been originally made for a valuable consideration then paid, it seems utterly impossible to account for the allowance of this credit upon any sale at a subsequent period. It seems to us, there- [* 495] fore, that the only rational explanation of this transaction is, that the conveyance to Michael Gratz, though absolute in form, was, in reality, a trust for the benefit of Col. Croghan. What the exact nature of this trust was, it is, perhaps, not very easy now to ascertain with perfect certainty. It might have been a trust to sell the lands for the benefit of Col. Croghan, and to apply the proceeds in part payment of the debts due from him to Bernard and Michael Gratz; or, it might have been a sale of the lands directly to Michael Gratz, in part payment of the same debt, at a price thereafter to be agreed upon, and fixed by the parties; and in the mean time there would arise a resulting trust, in favor of Col. Croghan, by operation of law.

Time, which buries in obscurity all human transactions, has achieved its accustomed effects upon this. The antiquity of the transaction, the death of all the original parties, and the unavoidable difficulties as to evidence, attending all cases where there are secret trusts and implicit confidences between the parties, render it, perhaps,

Prevost v. Gratz. Gratz v. Prevost. 6 W.

impossible to assert, with perfect satisfaction, which of the two conclusions above suggested, presents the real state of the case. Taking the time of the credit only, it would certainly seem to indicate that the trust was, unequivocally, a trust to sell the land. But there are some other circumstances which afford considerable support to the other conclusion. Upon the back of an account between B. and M. Gratz, and Col. Croghan, which appears to have been rendered to the latter, in December, 1769, there is a memorandum in * 496 ] *the handwriting of Col. Croghan, in which he enumerated the debts then due by him to B. and M. Gratz, amounting to £1,220 1s. 2d. and then adds the following words: "paid of the above £144 York currency, besides the deed for the land, on the Tenederah River, 9,000 acres patented." This memorandum must have been made after the conveyance of the land to M. Gratz, and demonstrates that the parties intended it to be a part payment of the debt due to B. and M. Gratz, and not a trust for any other purpose. The circumstance, too, that the word "paid" is used, strongly points to a real sale to M. Gratz, rather than a conveyance for sale to any third person. And if the sale was to be to M. Gratz, at a price thereafter to be fixed between the parties, the transaction could not be inconsistent with the terms of the credit, in the account of 1775. It will be recollected that M. Gratz resided at Philadelphia, and the conveyance was executed by Col. Croghan, at Albany. There is no evidence that the consideration stated in the deed, of £1,800, or any other consideration, was ever agreed upon between the parties; and the circumstance that no sum is expressed in the memorandum of Col. Croghan, shows that at the period when it was made, no fixed price for the land had been ascertained between the parties. If, then, it remained to be fixed by the parties, whenever that value was agreed upon, and settled in account, the resulting trust in Col. Croghan would be completely extinguished. It is quite possible, and certainly

consistent with the circumstances in proof, that B. and M. [*497] Gratz might not have been acquainted with the real value

of the land, or might be unwilling to take it at any other value than what, upon a sale, they might find could be realized. From the situation of Col. Croghan, his knowledge of the lands, and his extensive engagements in land speculations, ignorance of its value can scarcely be imputed to him. If, therefore, M. Gratz afterwards sold it to Howard, and Col. Croghan was satisfied with the price, there is nothing unnatural in stating the credit in the manner in which it stands in the account in 1775. It would agree with such facts, and would by no means repel the presumption that the land was not originally intended to be sold to M. Gratz. It would evidence no

Prevost v. Gratz. Gratz v. Prevost. 6 W.

more than that the parties were willing that the sale so made should be considered the standard of the value; and that M. Gratz should, upon his original purchase, be charged with the same price for which he sold. Upon this view of the case, the resulting trust would be extinguished by the consent of the parties, and no want of good faith could be fairly imputed to either.

But it is said that there is no proof that any such purchase was ever made by Howard; and the trust being once established the burden of proof is shifted upon the other party, to show its extinguishment; and if this be not shown, the trust travels along with the property and its proceeds down to the present time.

It is certainly true that length of time is no bar to a trust clearly) established; and in a case where fraud is imputed and proved, length of time ought not, * upon principles of eter- [*498 ] nal justice, to be admitted to repel relief. On the contrary,

it would seem that the length of time during which the fraud has been successfully concealed and practised, is rather an aggravation of the offence, and calls more loudly upon a court of equity to grant ample and decisive relief. But length of time necessarily obscures all human evidence; and as it thus removes from the parties all the immediate means to verify the nature of the original transactions, it operates by way of presumption, in favor of innocence, and against imputation of fraud. It would be unreasonable, after a great length of time, to require exact proof of all the minute circumstances of any transaction, or to expect a satisfactory explanation of every difficulty, real or apparent, with which it may be incumbered. The most that can fairly be expected in such cases, if the parties are living, from the frailty of memory, and human infirmity, is, that the material facts can be given with certainty to a common intent; and, if the parties are dead, and the cases rest in confidence, and in parol agreements, the most that we can hope is to arrive at probable conjectures, and to substitute general presumptions of law for exact knowledge. Fraud, or breach of trust, ought not lightly to be imputed to the living; for the legal presumption is the other way; and as to the dead, who are not here to answer for themselves, it would be the height of injustice and cruelty to disturb their ashes, and violate the sanctity of the grave, unless the evidence of fraud be clear, beyond a reasonable doubt.

Now, disguise the present case as much as we may, * and [ * 499 ] soften the harshness of the imputation as much as we please,

it cannot escape our attention that if the plaintiff's case be made out, there was a meditated breach of trust, and a deliberate fraud practised by M. Gratz, or Bernard Gratz, with the assent of M. Gratz,

Prevost v. Gratz. Gratz v. Prevost. 6 W.

upon Col. Croghan. If the sale to Howard was merely fictitious, it was an imposition upon Col. Croghan, designed to injure his interest and violate his confidence. If the fraud were clearly made out, there would certainly be an end to all inquiry as to the motives which could lead to so dishonorable a deed between such intimate friends. But the fraud is not clearly made out; it is inferred from circumstances in themselves equivocal, and from the absence of proofs which it is supposed must exist if the sale were real, and could now be produced.

In the view which the court is disposed to take of this case, it must consider that Howard was a real and not a fictitious person. It is then asked, why are not the facts proved, who Howard was, where he lived, and the execution of the deed to him. It is to be recollected that this proof is called for about forty years after the original transaction; when all the parties, and all who were intimately acquainted with the facts, are dead. It is called for, too, from persons, some of whom were unborn, and some very young at the period to which they refer. They cannot be supposed to know, and they absolutely deny, all knowledge of the facts. What reason

is there to suppose that Col. Croghan did not know who [*500] Howard was? He had a deep interest in *the value of the property, and could not be presumed to be indifferent to such inquiries as every considerate man would be likely to make in such a case. And after this lapse of time it is fair to presume that he did know the purchaser, and was satisfied with the purchase. But it is said that no deed is produced. Now, it does not necessarily follow that if a sale was made to Howard, that the contract was consummated by an actual conveyance of the land. If M. Gratz was the bona fide owner of the land, he might sell it to Howard by an executory contract, and take a bond or other security for the purchase-money, and from a failure to comply with the contract, M. Gratz might afterwards have refused to give a deed to Howard. And in this case, if in the intermediate time the settlement was made with Col. Croghan, the credit must have been allowed in that account as it stands, and having been once allowed, M. Gratz could not, on a rescission of the sale, have been entitled to countermand that credit. He would have been bound to take the land at the sum which he had elected to allow for it, and for which he had sold it. On the other hand, supposing a deed actually to have passed to Howard, the latter may have become dissatisfied with his bargain, or have failed to pay the consideration-money, and have yielded it back to Gratz, and dissolved the purchase. But this circumstance could not have varied the situation of Gratz in respect to the settlement with Col. Croghan. All that was important, or useful, or necessary, as between them,

Prevost v. Gratz. Gratz v. Prevost. 6 W.

upon the supposition that the trust was merely a resulting trust, until the price was fixed, was, that the price should [501 } have been satisfactorily ascertained and agreed to between

them. In this view of the transaction, there could be no ground to impute fraud to M. Gratz; nor could his conduct involve a violation of trust. In the absence of all contrary evidence, is it not just, is it not reasonable, to presume such to have been the reality of the case? That there is no evidence to the contrary, may be safely affirmed.

In addition to this, it may be asked whether M. Gratz had any adequate motive for practising a deception in this case. Men do not usually act under circumstances such as are imputed to M. Gratz, unless from some strong inducement of interest. It cannot be presumed that any man of fair character, such as M. Gratz is proved to have been, could perpetrate a fraud or deception without some motive that should overbalance all the ordinary influence of prudence and honor. If there be any thing beyond all doubt established in this case, it is, that the value of the land, as fixed in the account of 1775, was its full value. It is proved by public sales of adjoining tracts, at the very period when Howard is asserted to have purchased the land; and so far from there being any chance of an immediate rise in value, the state of the country, on the very eve of the revolutionary war, forbade the indulgence of every such hope, and must have dissolved every dream of speculation. As far then as we can investigate motives, by referring to the general principles of human action, there does not seem to have been any motive for disguise or concealment on the part of Michael Gratz towards [* 502 ] Col. Croghan. The reasonable conclusion, therefore, would certainly be that no such disguise or concealment was practised.

There is one circumstance also which has been thought to have thrown some cloud over this part of the case that, upon the opinion already indicated, would admit of a favorable exposition. It is this: In the possession of M. Gratz, a counterpart of the account of 1775 is found, in which the word Howard is crossed out with a pen, but so that it is perfectly legible, and the name of Michael Gratz is, in his own handwriting, written over it. The writing seems to be of great antiquity, and supposing that there was a real sale to Howard, which was afterwards abandoned, it is not unnatural that M. Gratz should, after the event, have communicated the fact to Col. Croghan, and with his consent altered the account, so as to conform to it. Or the interlineation might have been made in the account after the failure of the contract with Howard, in order to show against which of the firm of B. and M. Gratz this sum ought