#### WILLIAM S. HARRIS & AL. vs. WILLIAM T. DELAMAR & AL.

Interests, gained by one person by the fraud of another, cannot be held by them; otherwise fraud would always place itself beyond the reach of the Court.

An instrument, obtained by fraud or imposition on the part of the father in behalf of his infant children, must be set aside in Equity.

When a bill is filed by a father, as the next friend of his children still infants, to carry such an instrument into effect, the Court will dismiss the bill at his own costs.

This cause was transmitted from Craven Court of Equity, at the Spring Term, 1844, by consent of parties, to the Supreme Court.

The following are the facts, appearing from the pleadings and proofs :

The plaintiffs are the four infant children of Gatsey Harris, deceased, and sue by their father, Lovick Harris, as their next friend.

The bill states, that some time after the marriage of Lovick Harris and his wife Gatsey, her father, Smith Delamar, wishing to make a provision for his daughter and her husband, and such children as they might have, made a deed of gift for a negro woman named Bridget, and her child Sitty, whereby he gave them to the said Gatsey, during her natural life, with remainder after her death to such child or children as she might have by the said Lovick. The bill states, that the deed was written by one Carraway, in accordance with, instructions given to him by the said Smith, who vol*220untarily executed the same, and caused it to be attested by solb William S. Delamar, and then delivered it to Lovick Harris for the benefit of his wife and children; and also put ^ slaves into his possession. The hill then charges, that a short time before his death, (which happened in 1842,) the father, from some unknown cause, became incensed with his son-in-law and daughter, and wished to retract his gift, and, with the view of so doing, that in his absence he went to the house of said Lovick, and by threats and force extorted from his daughter the deed, and destroyed it before it was registered, or suppressed if, so as to deprive the plaintiffs of the benefit thereof.

Mrs. Harris then died, leaving the four infant plaintiffs, her children, and also her father, surviving her. The negroes continued in the possession of Lovick Harris, until the death of both Mrs. Harris and her father, when they were taken by Stephen Delamar, as the executor of the will of his father, the said Smith.

The hill is filed against Stephen Delamar, and William S. Delamar, who were appointed by their father his executors, hut of whom only the former proved the will. The prayer is, that the defendant shall surrender the slaves and their increase to the plaintiffs and execute to them a proper conveyance, to supply the place of that destroyed by the testator.

The answers admit, that it was the intention of Smith Delamar to make a provision for his daughter, Gatsey, and such children as she might have, by a gift of the two negroes mentioned. The defendants state, that their father, in the presence of one of them, William S., so informed his son-in-law, Lovick Harris, and directed him, in the year 1836, to have a deed prepared, by which the said negroes should be limited to his daughter Gatsey during her natural life, and after her death, in remainder to such children of the said Gatsey, as she might leave surviving her: That in a few days the said Lovick produced to the father a deed in the hand-writing of one Carraway, who is now deceased, and *221.that the father executed it, at once, without reading it, and called upon his son William S., to subscribe it as a witness, which he did. The answers further state, that the son then read the deed, but to himself, and not aloud; and that he perceived, that the limitation over, as he understood it, was not to all the children of his sister, who might survive her, but “ such child or children as she might have by the said Lovick Harris.” The son said nothing of this to the father at the time, and the latter gave the deed immediately to Harris, who carried it away. Within a few days afterwards, however, he asked his father if he did not intend that all the children his sister might have, either by her present or any subsequent marriage, should take in remainder after her death, as he, the son, understood him; or whether he intended only to include her children by Harris 7 To this the father replied, that he meant the former, and so expressly had told Harris; and upon the son’s informing him of the contents the deed as he had read it, the father expressed great dissatisfaction, and said, that it was not as he had directed Harris to have it done, and thought it was done, and that he would get that back and have one written according to his wishes, so as to include all the children of his daughter, surviving her, whether by Harris or any other husband. The answers then state, that the father went to Harris’ house and returned in a short time with a paper in his hand; and they deny that, in the belief of the defendants, their father obtained from Mrs. Harris, or that he obtained it from Lovick Harris by force or threats, and state that they believe that it was surrendered by Harris, because it had been improperly drawn and contrary to the instructions given for it. Which belief they founded on the character and general conduct of their father, his purposes at the time, and his allowing Harris still to have the use of the negroes during the life of the father, and, particularly, on the disposition of the negroes in their grand-father’s will, executed after the death of their mother, in favor of the plaintiffs. In the will, Mr. Delamar gives Bridget and her four children then born to the present plain.» *222tiffs, and directs that they shall be hired out until Joseph N. Harris, the youngest child of his daughter, should arrive to 21 years, and the hires applied to the • education of the said and ]1;s sister Ann, and then to be equally divided between the four children, with a contingent limitation, that, if either of the children should die before the division, his or her part shall go to the survivors.

The defendants further say, that no complaint was ever made by the mother or the father of the plaintiffs, that they had been improperly deprived of the deed, or induced to give it up; for they well knew, that it was the father’s intention, by another deed or by a will, to make the provision as he had first intended it. And, they say, he did so, substantially in his will, as before set forth. The defendants admit, that after the death of the testator they found the deed, of the tenor set forth in the bill and before admitted in the answer, among his papers, but in a cancelled state, having the name of the maker and witness both torn off; and they say, that, having then no knowledge or belief that any claim ivould be set up to the negroes unless under the will, they took no care of the paper in question, but threw it away or lost it as mere waste paper.

J. W. Bryan Iredell for the plaintiffs.

J. II. Bryan for the defendants.

Ruffin, C. J.

There could hardly be a more useless litigation than the present, since, by the deed, as the bill would set it up, and by the will, the plaintiffs get nearly the same thing: the only difference being, that the profits for a period are devoted to the education of the two younger of them, and then the negroes and their increase to be equally divided between those then living. There is no intimation, that there ■is a deficiency of other assets of the grand-father to answer his debts. It seems, therefore, essentially, to be the bill of the father, and to be brought for the mere purpose of getting .the property from the management of the grand-lather’s ex *223ecutor into his own hands. This is mentioned rather with a view to the costs, than to the merits. For the merits depend on different considerations; and upon them our opinion is against the bill.

There is no evidence, that the father obtained the deed by-force, fraud, or undue influence. Nor, indeed, do the plaintiffs give any evidence, that the deed ever existed, except the admissions of the answers, and the deposition of the defendant, William S. Delamar, who was examined under an order for that purpose. His deposition is to the same purport with the answers, and fully sustains them. According to that statement, the allegations of the bill as to the preparation of the deed, under instructions given to the writer by the donor himself, that the limitation was to the daughter’s children by her husband Harris only, and that knowing this, Mr. Delamar freely executed the deed, are, in every essential particular, falsified. The father intended to provide for all the children of his daughter by any marriage, and gave instructions to that effect, not to the writer of the deed, but to his son-in-law, Harris, who was to have the deed prepared accordingly. That he did not do : but on the other hand had a deed drawn which restricted the provision to his own children only; brought it to the old gentleman, as one prepared according to the instructions, and, consequently, as containing a limitation to all the daughter’s children, and, in a blind confidence of his son-in-law’s integrity, the father was induced by those representations to execute it. If it be said, it was the party's own fault, that he did not read the instrument, as he was able to do, and, therefore, that he must be presumed to have known the contents :' the answer is, that the presumption only stands until proof of the fact is produced, and that, here, the actual imposition is established by proof of the instructions,, the variance of the instrument from them, when it was represented to accord with them, and that the father did not, in fact, read the deed, but, believing the false representations made to him, executed it as containing one provision, when it contained another, mate*224rially different. Thus put, it was a case of plain imposition 011 donor, and he would have been entitled, by the help of this court, to have the deed called in and cancelled. Clear- ^ wouj,j pe g0 entitled, as against the author of the fraud himself, as to any interest derived by him from the deed. So, too, interests gained by one person by the fraud of another, cannot be held by them; else fraud would always place itself beyond the reach of the court. Bridgeman v Green, 2 Ves. 627. Huguenin v Bosely, 14 Ves. 273. The father had a right, therefore, peaceably to redress himself by obtaining the instrument from the person who had improperly procured it, and who Would have been compelled by a Court of Equity to surrender it to be canelled. Nor can the present plaintiffs, although not consenting to the surrender, nor capable of consenting, insist upon the deed now being set up, if it sufficiently appear against them, that upon the bill of the supposed donor there should have been a decree to deliver up the deed. Such, we have shewn, would have been the case upon the evidence of the plaintiff’s uncle, the subscribing witness to the deed. And that evidence is strongly fortified both by what otherwise appears in the cause, and by what does not appear. In the first place, every thing that was done by Mr. Dolamar, after he got back the deed, is consistent with the account his son gives. He did not take back the instrument with the intent to deprive his daughter’s family of the use or ultimate properly of the neg2’oes. On the contrary, as long as he lived, he let them remain with Harris, and by his will he gave them to his children. It is true, that, as events turned out, the remainder goes to the same persons who would have had it under the deed ; for Mrs. Harris had but one set of children, having died before her first husband. But the provision by the will is in accordance with the avowed reason for destroying the deed, and proves that it was destroyed with an honest purpose, because it was not the instrument the party thought it was. Again, if this representation by the subscribing witness, who heard the instructions given to Harris, the father of the *225plaintiffs, who was present when he brought the deed, and heard him state, that it was written according to the instructions, and knows that his father signed it without reading it, and was astonished and indignant when he was afterwards informed of its contents: if, we say, this could be disputed, it must be upon the knowledge and by the testimony of Lovick Harris himself, who was a party to the transaction throughout. Then, his putting himself forward as the proehein ami of the plaintiffs, and thereby keeping himself back as a witness, is strong to induce the belief that this evidence as to his conduct could not be contradicted by him, but that he would be obliged to confirm it. Nor is there any evidence as to the mode in which Mr. Delamar got the deed again, except what he said to his son, when he returned with it, which was, that Harris had given it up. That too, is confirmed by the fact, that no complaint was made, or any thing said to the contraiy by Harris, as long as Delamar lived, which was six years afterwards.

Our opinion therefore is, that the deed was obtained from the defendant’s testator by mistake on his part and surprise, and by the imposition of the plaintiff’s father, Lovick Harris, and that it ought to have been given up to be cancelled, as it was, and ought not to be set up; and, therefore, that the plaintiff’s bill stand dismissed, and, under the circumstances, with costs, to be paid, by Lovick Harris, who has so improperly and unnecessarily instituted the suit in the name of his children.

Per Curiam. Decree accordingly.