This cause has been argued with ability, and we are brought to the consideration of it with every advantage, in any way applicable to the rights of the parties in a court of equity, by the written opinion of our brother who tried it, and gave the decree in the Circuit Court.
The allegation is that the purchase made by the Leonards of the Rotch heirs was in behalf and for the benefit of the Tobeys, and that the conveyances by the Tobeys were made as security for the payment by them of the notes for twenty-five hundred dollars, given to the Rotch heirs. This is the issue between the parties, and the question is which of them is sustained by the proofs.
'Denials in answer to a bill in equity to the extent of their relation to facts within the knowledge of the respondent, when they are responsive to the allegations of the bill of complaint, must be received as evidence. Courts of equity cannot decree against such denials in the answer of the respondent on the testimony of a single witness. On the contrary, the rule is universal, under such circumstances, that the complainant must have two witnesses, or one witness and corroborative circumstances, or he is not entitled to relief. The rule stands upon the reason, that when a complainant calls upon the respondent to answer allegations, he admits the answer to be evidence; and if it is testimony in the case, it is equal to the testimony of any other witnesses, and the complainant cannot prevail if the balance of proof is not in his favor; he must have circumstances in addition to his single witness in order to turn the balance.'
This, no doubt, is the general rule of chancery; but it is one which does not, in the present case, apply, for here seven unimpeached witnesses state that in business interviews either with Horatio or Nehemiah Leonard, in relation to their purchase of the homestead farm, or to matters in some way connected with it, the defendants, one or the other of them, said, in language which could not be mistaken, that the purchase of the Rotch mortgage had been made to assist Jonathan Tobey to pay the debt due upon it. We proceed to state this testimony, and the impressions made upon us by it.
Horatio Leonard said to the witness Jones Robinson, that he himself and his father had given a note for it payable in a year for $2500, and that the complainant and his father must get the wood off to meet it, and that he only wanted them to pay the note and to pay himself for his trouble; and added it was to be paid for from the wood, and if there was not enough, that he should sell some of the real estate.
Another witness, Edward Chase, swears that Horatio Leonard said to him, after relating the circumstances of the purchase of the Rotch mortgage, in connection with the impoverished condition of the Tobeys, that he had taken hold to help them.
George Barney, a third witness, says that he had a conversation with Horation Leonard; that he mentioned that he had purchased the farm formerly owned by Jonathan Tobey, &c., with an intention to sell back to the owner; that he had done so to prevent it from going into the hands of strangers, and to keep a home for the old people, and that he was to be repaid the money spent in purchasing the farm.
Sampson Reynolds, a fourth witness, swears, that Nehemiah Leonard said to him that his son had married Jonathan Tobey's daughter, and that he had a notion to take up the Rotch mortgage, cutting and selling wood enough to pay off the debt, and letting the old man have a home there as long as he lived.
Alden Lawrence, a fifth, testifies that Nehemiah Leonard said to him, that he had taken the property for the accommodation of the old gentleman, as he was liable to be turned out of house and home at any time; took it to preserve a home for the old folks; and the witness understood him to say 'that he calculated to take the wood, and would then turn the property back.'
Leonard Tobey, the brother of the complainant, and a sixth witness, deposes that he called upon Nehemiah Leonard, who, after expressing his regret that there should be a misunderstanding between his son Horatio and Jonathan Tobey, said, in substance, that he would use his influence to get Horatio to convey the mortgage to his father and brother, and that he was willing to give up the place if the money was refunded. He also said that Jonathan Tobey came to him as a last resort; that the arrangement was that Horatio should see that wood enough was cut to meet the notes at maturity.