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Statement of the Case.

consideration of this agreement is that the property hereby agreed to be conveyed is much encumbered by judgments, decrees and deeds of trust, taxes and assessments for grading and paving to nearly, if not quite, its full value, as also shown in said schedule, and the only interest remaining to said Ferguson in the same is his equity of redemption. For this equity he is willing to take the sum of $10,000, and allow the purchaser to make the best use he can of the property in paying off said encumbrances and making what he can out of the surplus. The further consideration of this agreement is, therefore, that the said H. G. Dent will pay the said A. M. Ferguson the sum of $4000 in cash in hand and by the conveyance to be made to James E. Dillard, will secure the payment of the further sum of $6000 to said Ferguson, making an aggregate of $10,000 as agreed upon, and will dispose of the balance of said property to the best advantage, to discharge the liens thereon, or otherwise discharge the same, and will have no recourse on said Ferguson in law or equity for any encumbrance or defect of title whatsoever on any of said pieces or parcels of land, but take the same at his own risk; and inasmuch as the terms, conditions and considerations of this agreement cannot be properly expressed in the several conveyances desired and contemplated by the parties, this instrument and the schedule hereto annexed are made for a more thorough and complete explanation and exposition of the same.

“In testimony whereof the said A. M. Ferguson and H. G. Dent have hereunto set their hands the day and date first above written. “ Attest: W. L. VAN DYKE. A. M. FERGUSON. [Seal.] C. W. FRAZER.

H. G. DENT. [Seal.]”

The complainants averred in their bills that this instrument was drawn up and signed only as a plan proposed, but never adopted, was never understood by the parties to it to be of any force as between themselves, and was never in fact delivered to Dent, but was retained by Ferguson as his private property and placed with his other papers in the possession

Statement of the Case.

and custody of his attorney, one W. L. Van Dyke, where it remained until the death of the latter, when Dent, by fraudulent representations to a woman in charge of Van Dyke's room and effects, succeeded in abstracting it from the papers of Ferguson; and that Dent then, after Ferguson died, set up a claim to the ownership of the property under said pretended contract. They further averred that, even if said instrument was really delivered, it was void because of the fraudulent means and undue influence by which Dent imposed upon Ferguson to make a conveyance of his property at a grossly inadequate price, which was never paid. It was further alleged that Dent was, at the date of said agreement, and had been for many years prior thereto, the agent of Ferguson in the management of his property, and had so gained his confidence and bad acquired such an ascendancy over Ferguson's mind and will, especially during the latter part of his life, when he was in his dotage and incapacitated to attend to his interests, that all his financial transactions were subject to Dent's supervision and direction; that among these transactions was an indorsement by Ferguson on the 12th of April, 1867, of four notes of Dent of $12,500 each, aggregating in amount $50,000, which he (Dent) gave in part payment of a purchase by him of a stock of goods from Lockwood & Co. in Memphis; that this sale by Lockwood & Co. to Dent was soon afterwards attacked by the creditors of the former as fraudulent, and four successive attachments were sued out and levied upon the stock of goods; and that four replevin bonds were given by Dent and signed by Ferguson, one as surety and the other three as a principal, he having purchased from Dent one-half interest in the stock.

It was alleged that the amount of the judgment rendered on these bonds against Dent and Ferguson was about $65,000; and that of the Lockwood notes for $50,000, one was claimed to have been paid off and taken up by Dent, the other three having been compromised by Dent and Ferguson giving their notes for $18,000, secured by a deed of trust upon a large part of the Ferguson property in dispute and one lot belonging to Dent, executed to one Carmack, trustee for certain

Statement of the Case.

creditors into whose hands the notes had fallen. It was further alleged that Ferguson, harassed by this sudden and largely increased indebtedness, (already great,) desired and proposed to make an assignment for the benefit of his creditors, but was overruled in this purpose by the controlling influence of Dent, who, by imposition and fraud, prevailed upon him to sign the pretended contract of May 14, 1869, which the said Dent got up to serve his purpose of fraudulently possessing himself of Ferguson's estate.

The bill further set forth with great minuteness of detail the various subterfuges and contrivances to which, it was alleged, Dent resorted to cover up and conceal from the creditors the ownership of the property, and the trust deeds and judicial proceedings by which the baffled creditors were inveigled into compromises at enormous sacrifices; and that various persons, mostly Dent's attorneys and relations, or persons having an understanding with him, purchased all of the property under these trust deeds and at said judicial sales, (with money furnished by Dent, which he raised from the rents and profits of Ferguson's estate,) and held their titles in trust for said Dent.

It was then alleged that all the liabilities of Ferguson had been settled, and all the encumbrances upon his property removed, for the most part, out of the rents and profits of said property.

The prayer of the bill was that the contract of May 14, 1869, The declared void ; and that the defendants be declared trustees of the property for the complainants, and required to turn it over to their possession, and account for its rents and profits.

The answer, after a general denial of all the allegations of the bill, especially denied those relating to the undue influence charged to have been exercised by Dent over Ferguson, those relating to Dent's agency, and those relating to Ferguson's dotage, weakness of mind and incapacity for business. It admitted that Dent's heirs had in their possession a deed or contract properly executed, attested and delivered, dated May 14, 1869, but unregistered, under which they claimed title to the property referred to in the bill, and averred the fairness and justice of the contract, its delivery to Dent by Ferguson, and

Citations for Appellants.

also the delivery into his actual possession of all the property conveyed by it. It also set forth the hopeless condition of Ferguson's affairs; that Dent had extinguished the debts and removed from the property all the encumbrances and paid the $10,000, or its equivalent, which was the consideration mentioned in the deed ; and that $10,000 and the discharge of the debts, quite as great in amount as that of the value of the property conveyed, constituted a full and sufficient price therefor. It set up as a defence the acquiescence of Ferguson, as long as he lived, (a period of eleven years,) in the contract, and in Dent's acts under it, and also the fact that Ferguson had filed his petition in bankruptcy, stating under oath that he did not own any real estate, which proceeding it relied on as an estoppel and as proof of an outstanding title.

The defendants Frazer, Trezevant and the De Soto Building and Loan Association each filed a separate answer, in which they each stated that the titles held by them respectively to the property with which the bill had connected their names were held by them as trustees for Dent, or as a security for fees, advances and loans to him. Dillard, in his deposition, answered, alleging that the titles held by him to any of the property claimed by complainants were held for the benefit of Dent. Hooper and wife answered, denying the averments of the bill that Susan R. HIooper purchased the Selby claim which she was prosecuting against the estate of Ferguson, as the agent of Dent, but averring that such purchase by her was bona fide and for her own use and benefit, and that said claim was then her own property.

The answers of the other defendants averred that before the filing of the bill they had parted with whatever right or title they ever had to any of the property in controversy.

Proofs were taken and a hearing was had before the circuit justice, the district judge sitting with him, and a decree was rendered in accordance with the prayer of the bill. 24 Fed. Rep. 412.

Mr. D. H. Poston and Mr. T. B. Turley, for appellants, cited : Battle v. Street, 85 Tennessee, 282 ; Taylor v. llarwell,

Citations for Appellee.

5 Humphreys, 331; Searcy v. Carter, 4 Sneed, 271; Magniac v. Thompson, 7 Pet. 348; Walker v. McConnico, 10 Yerger, 228; Jenkins v. Pye, 12 Pet. 241; Heyward v. Eliot Nat'l Bank, 96 U. S. 611, 617, 619; Graham v. Boston, Hartford &c. Railroad, 118 U. S. 161; New Albany v. Burke, 11 Wall. 96; Preston v. Preston, 95 U. S. 200; Bolton v. Dickens, 4 Lea, 569; Burke v. Smith, 16 Wall. 390, 401; Snell v. Atlantic Ins. Co., 98 U. S. 85; Grymes v. Sanders, 93 U. S. 55; Sullivan v. Portland & Kennebec Railroad, 94 U. S. 806; Brown v. Buena Vista County, 95 U.S. 157; Hamilton v. Zimmerman, 5 Sneed, 39, 48 ; Cooley v. Steele, 2 Head, 605; Stephenson v. Walker, 8 Baxter, 289; Bank v. Sherman, 101 U. S. 403; Conner v. Long, 104 U. S. 228; Glenny v. Langdon, 98 U. S. 20; Redmand v. Gould, 7 Blackford, 361; Griswold v. McMil

; lan, 11 Illinois, 590; Berry v. Gillis, 17 New Hampshire, 9; S. C. 43 Am. Dec. 584; Lea v. Talfer, 1 Car. & P. 147; Mims v. Swartz, 37 Texas, 13; Swepson v. Rouse, 65 N. C. 34; Crayton v. Hamilton, 37 Texas, 269; Fay v. Reager, 2 Sneed, 203; Killibrew v. Murphy, 3 Ileisk. 546; Johnson v. Geisriter, 26 Arkansas, 44; Barron v. Newberry, 1 Bissell, 149; Perley v. Dole, 38 Maine, 558; Oakey v. Corry, 10 La. Ann. 502.

Mr. T. B. Edgington, for appellee, cited : Jackson v. Leek, 12 Wend. 105; Fay v. Richardson, 7 Pick. 91; Hampton v. Rouse, 22 Wall. 263; Sutherland v. Davis, 42 Indiana, 26; Hamilton v. Zimmerman, 5 Sneed, 39; Helm v. Wright, 2 Humphreys, 72, and Cooper's notes; Decherd v. Blanton, 3 Sneed, 373; Smith v. Fowler, 12 Lea, 163, 174 ; Lincoln v. Purcell, 2 Head, 143, 145; S. C. 73 Am. Dec. 196; Faucher v. De Montegre, 1 Head, 40, 41; Hurd v. French, 2 Tenn. Ch. 355; Meriwether v. Vaulx, 5 Sneed, 300; Kirk v. Smith, 9 Wheat. 241, 256 ; De Arusmont v. De Lagerty, 9 Lea, 199; Armstrong v. Campbell, 3 Yerg. 201; S. C. 24 Am. Dec. 556; Bovey v. Smith, 1 Vern. 60; Johnson v. Waters, 111 U. S. 640; United States v. Throckmorton, 98 U. S. 61, 65, 66; Brooks v. Cauhgran, 3 Head, 464; Williamson v. Godwyn, 9 Grattan, 503 ; Pettus v. Smith, 4 Rich. S. C. Eq. 197; Wiley v. Knight, 7 Alabama, 336.

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