8 U.S. 177

ERROR to the district court of Kentucky, in a suit in chancery brought originally by Montgomery against W. M. Viers and Patsy his wife, late Patsy Henly, to compel the latter to convey to the former the legal estate in certain lands in Kentucky, which one Ebenezer Brooks, since deceased, conveyed, by deeds dated the 10th of November, 1791, to the defendant's wife, while a widow, and which Brooks by his last will devised to the complainant Montgomery. The bill charged that the only consideration of the deeds from Brooks to Patsy Henly was, that she should 'take him as her husband,' which she refused to do, but intermarried with the defendant, W. M. Viers. It did not aver that the complainant was of kin to the deceased, or that he had any equitable claim other than as a devisee. Nor did it charge the defendant Patsy with any promise of marriage, or any breach of such a promise, nor with fraud in obtaining the deeds. The will of Brooks, referred to in the bill, calls the complainant his friend and cousin. The deeds were of bargain and sale in fee, and purported to be in consideration of 1,100l. Virginia currency, and contained a warranty against Brooks, and all claiming under him.

The answer of the defendants denied that the consideration of the deeds was as stated in the bill, and avers that the defendant Patsy, although solicited, always refused to make any promise of marriage to the deceased; that he often pressed her to accept his land, which she for some time declined; that he declared he did not expect any consideration, but wished her to receive it as a gift, and that he did not expect she would marry him.

It alleged that Brooks had boarded in her house some months, where he had been kindly and hospitably treated, without any charge being made against him, and suggested that this, together with the affection which he entertained for her, but which she always discountenanced, were his motives for giving her the land. That she at last, by the advice of her friends, accepted it, and that when he had executed the deeds he voluntarily declared himself to be fully satisfied, in the presence of the subscribing witnesses.

The facts found by the jury were, that the defendant Patsy, by her conduct to the deceased, induced him to suppose that she would marry him, and that this encouragement or inducement was the only consideration she gave for the land, except his boarding; but that she never made him any promise of marriage. That he had urged her to accept the land before she agreed to take it, and had declared to her that he did not expect to receive any consideration from her, but wished her to accept it as a gift; and that at the time he executed the deeds, he declared he did not expect that she would marry him. That she was advised by her friends to take the land before she agreed to accept it; and that, after the execution of the deeds, she offered to return to him the land, but he would not receive it. That Brooks boarded in her house, and never paid her any thing therefor, except the land. The jury also found the will of the deceased, and the devise to the complainant.

The decree of the court below, upon argument, was, that the defendants should convey the land to the complainant, and that the complainant should pay the defendants the amount of Brooks' board, and the taxes which had been paid by the defendants, with interest.