TOBEY V. LEONARDS, 69 U. S. 423 (1864)

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U.S. Supreme Court

Tobey v. Leonards, 69 U.S. 2 Wall. 423 423 (1864)

Tobey v. Leonards

69 U.S. (2 Wall.) 423


1. Positive statements in an answer to a bill in equity -- the answer being responsive to the bill -- are not to be overcome except by more testimony than that of one witness, but by such superior testimony they may be overcome, and where, as was the fact here, seven witnesses asserted the contrary of what was averred in such answer, the answer will be disregarded.

Page 69 U. S. 424

2. A man may lawfully transfer all his interest in property which is about to become the subject of suit, U.S. for the purpose of making himself a witness in such suit, and while his testimony is to be carefully and perhaps suspiciously scrutinized when contradicting the positive statements made by a defendant in equity responsively to the complainant's bill, such testimony is still to be judged of by the ordinary rules which govern in the law of evidence, and to be credited or discredited accordingly.

3. The introduction of children as witnesses in an angry family quarrel rebuked by the Court.

This was a suit relating to certain transactions of a man of advanced years and of somewhat marked characteristics and temper named Jonathan Tobey, a farmer and old resident, as his father, whose name he bore, had been before him, of the neighborhood of New Bedford, in Massachusetts.

Mr. Tobey, it seemed, had, through a long life, been an active person in county affairs of the region round New Bedford, a road contractor for the county &c. As one consequence either of this fact or of a temper naturally inclined to controversies, he was not unfrequently in suits, and among other suits had a bitter one -- prolonged through twenty-five years -- with his county. [Footnote 1]

"It occasioned considerable feeling. There was a good deal of discussion about it. Tobey issued one or more pamphlets for distribution. He had some very warm personal supporters, and there were some who were opposed to him. He was a noted man."

The present controversy, although it had nothing to do with county concerns, seemed to have excited more interest in the neighborhood of its origin than, as a private controversy, properly belonged to it. One cause for this was perhaps that it had the element of a family quarrel. Tobey, Senior, or, as he is otherwise above styled, Jonathan Tobey, in order to be himself a witness in the cause, had sold all his interest in the subject of suit, once his own, to a son named Stephen Tobey, who was now suing his own brother-in-law, one

Page 69 U. S. 425

Horatio Leonard, and a certain Nehemiah Leonard, father of this brother-in-law Horatio. Numerous members of the family of Tobey -- William Tobey, Leonard Tobey, Joshua Tobey -- came to the support of their brother or kinsman; Mrs. Hannah Tobey, at the age of seventy, coming with them; while minors from the house of Leonard -- Master Horatio Herbert Leonard, Master Stephen Henry Leonard, and Miss Laura Anna Leonard -- the last at the age of eleven -- testifying to what had been said in "the nursery" -- were produced in support of theirs. Twenty witnesses were called to impeach Tobey, Senior's, character, including, as the counsel for the defendants noted in their brief,

"mayors, members of the legislature, councilors, justices of the peace and of the quorum, county commissioners, deputy sheriffs, city marshals, aldermen, assessors, city treasurers and collectors, trustees of the lunatic state hospitals, keepers of the jails, and overseers of the house of correction,"

while these were met by twenty, and seven added, not less worthy of belief, as Tobey's counsel seemed to signify, in the fact that their judgment and integrity had evidence quite as good as the preamble of a patent and that their posts of honor had been the private station. These all testified that Tobey Senior was entirely worthy of belief, and some descriptions which he gave of the boundaries of his generally described "homestead" hereinafter mentioned, and which descriptions of his it was attempted to attack, seemed to have been more accurately conceived by him and told than they were either conceived of or told by others who denied them.

The suit, therefore, was somewhat special in its circumstances, and in its questions of fact -- the form into which it was resolved by this Court -- presented conflict in the evidence.

The outline case on which the proceeding, one in equity, rested -- as derived from the record and from the statement of the learned Justice (Wayne), who presented the whole with great detail and clearness before giving the judgment of the court -- was essentially as follows:

In 1830, Tobey Senior owned certain real estate situated

Page 69 U. S. 426

in New Bedford and Fairhaven, part patrimonial, part acquired by purchase. For the two preceding years he had been engaged in building a county road, and had been obliged to obtain loans for that purpose. and, among others, one of $5,000 of Mr. William Rotch, Junior, a gentleman of fortune who had wanted him to make the county road by a special route, and who seems to have been kindly disposed to him. Finding in 1830 that he could not obtain payment of the county of what he claimed except by a long litigation, he made, without request, a mortgage to Mr. Rotch to secure this indebtedness. The mortgage conveys "my homestead farm, situate in the said New Bedford, being the same which I hold by virtue of the last will and testament of my father, Jonathan Tobey." After the making of this mortgage, he bought, in 1837, a wood lot of one Sweet, and, in 1839, obtained title to another tract of land from the commonwealth. In 1846 he conveyed all his real estate in New Bedford and Fairhaven to one of his sons named Stephen and another son, Leonard in mortgage to secure a debt which had been due for a long time to this son -- as it seemed, a dutiful one -- Leonard, in 1848, assigning all his interest in the mortgage to his brother Stephen. In 1849, Mr. Rotch made peaceable entry upon the premises mortgaged to him for the purpose of foreclosing his mortgage. From 1830 down to the filing of this bill, old Mr. Tobey remained in possession of all the property referred to in both mortgages, and used and occupied them as his own. He never paid any interest or any part of the principal of the Rotch mortgage, and never paid any rent for the premises, and during the lifetime of Mr. Rotch was never called upon so to do. In 1858, the administrators of Mr. Rotch, then lately deceased, brought an action of ejectment against him to remove him from the mortgaged premises. When this action was about to ripen into a judgment, efforts were made by Tobey, the father, and his son Stephen to raise money to buy the mortgage, it being known by them that it could be bought for considerably less than the amount of it. Among others, Tobey Senior applied to his son-in-law

Page 69 U. S. 427

Horatio Leonard, to obtain through him assistance of his father, Nehemiah Leonard. The Leonards ascertained that the mortgage could be bought for $2,500, and that they then could have a year to pay it in. They then informed old Mr. Tobey, as was alleged by them, the Tobeys, that if they, the Tobeys (father and son Stephen), could provide for the payment of this amount before it would fall due, and would give as security all Tobey Senior's real estate and would transfer Stephen's interest under his mortgage, they would help them by purchasing the Rotch mortgage. The Leonards, it was certain, did purchase for themselves or for somebody else the mortgage of Mr. Rotch.

At the time of the negotiation it was proposed, according to the statement of the Tobeys, that Tobey Senior and his son Stephen should cut $1,000 of wood off the place towards the debt. Tobey Senior was at this time sick, and Horatio Leonard got the deeds from the Tobeys to him drawn up. It had been agreed, as was said by the Tobeys, that a writing should be also drawn up, stating the terms upon which the property should be reconveyed. No such writing was ever made. Leonard, according to the account given by the Tobeys, insisted on having absolute deeds and quitclaims, with a release of dower by the wife of Jonathan Tobey, an aged woman, of Tobey's other property as well as of the homestead in order, as he said, that the title might be clear on its face, and that he might borrow money if he wanted to do so, and such deeds were made. After the deeds passed, on the same day, Horatio Leonard applied to his father-in-law, old Mr. Tobey, for a bill of sale of all the stock and farming utensils on the farm, which was given him.

After this, Stephen Tobey began to cut wood, and cut about one hundred cords. Horatio Leonard also sold to one Hawes standing wood to the amount of $840. In June, Horatio Leonard became embarrassed in business, and his father, Nehemiah, undertook to aid him. To secure himself in so doing, he took the Tobey estate from his son and sold it. Old Tobey and his son Stephen then made application

Page 69 U. S. 428

for a reconveyance to them of this property, in accordance with what they called or deemed their right, offering to pay; as they said that it had been agreed they should have a right to do.

Upon this application, Leonard, the father, refused to convey to the Tobeys, except on payment of $5,000; and, upon their refusal to take the land upon these terms, he sold it to the defendants, R. & J. Ashley, for that sum; they agreeing to convey to one Spooner a portion of the estate.

Stephen Tobey, who, by his father's transfer to him, was sole party in interest, now filed his bill in the Circuit Court of the United States for the Massachusetts District, against all these parties; that is to say, against Leonard, father and son, Ashley, Spooner, for a reconveyance, as above said; for compensation in waste and damage in cutting and removing the wood and grass -- the complainant offering to perform what he called his part of the agreement, by paying such sums of money and doing such other acts as the court should deem equitable and just.

The Leonards, father and son, filed separate answers responsive to the bill, and denying positively and specifically its allegations. But the testimony of seven unimpeached witnesses, Messrs. Jones Robinson Edward Chase, George Barney, Sampson Reynolds, Alden Lawrence, Leonard Tobey, and William Tobey, tended to show or did show admissions by the Leonards that the transaction was a mortgage only, or in the nature of one.

On the other hand, the testimony of T. M. Stetson, Esq., a young professional gentleman of good character in New Bedford, who had been counsel of the elder Tobey and was more or less familiar with the case and with the understanding of both Tobey and Leonard as expressed to him at certain times and places and under circumstances not, perhaps, the best to educe the fullest ideas of the parties, went to a different conclusion. It appeared, however, as a fact, that after Leonard the son had got a conveyance from the Tobeys, he wished his father-in-law, Tobey Senior, to devise the property to him in his will, a draft of which he

Page 69 U. S. 429

caused to be prepared to this effect without Mr. Tobey's knowledge.

The other defendants in the case, the Ashleys, Spooner, and Hawes, also filed answers, denying the allegations, but leaving it reasonably plain that they were not purchasers from the elder Leonard, without notice of the claim of Tobey.

Some defense was made, too, in supplemental answers setting up a conditional conveyance by Tobey Senior to one Clap, and some similar conveyance to the Wareham Bank.

The Massachusetts statute of frauds thus enacts:

"No trust concerning lands, except such as may arise or result by implication of law, shall be created or declared, unless by an instrument in writing, signed by the party creating or declaring the same, or by his attorney."

The court below dismissed the bill, the presiding judge giving an opinion at length. On appeal, the case was ably argued here by Messrs. Sydney Bartlett and Thaxter, for the appellant, Tobey, and by Messrs. Olney and Thomas, contra, the argument turning, in part, on the point how far the case was affected by the Massachusetts statute of frauds; a matter thought by this Court unnecessary to be considered by it.

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