Joseph Story

“ But it is said that there is no proof that any such purchase was ever made by Howard; and the trust being once established, the burthen of proof is shifted upon the other party, to show its extinguishment; and if this be not shown, the trust travels along with the property and its proceeds down to the present time.
It is certainly true, that length of time is no bar to a trust clearly established; and in a case where fraud is imputed and proved, length of time ought not, upon principles of eternal justice, to be admitted to repel relief. ”

“ Croghan did not know who Howard was? He had a deep interest in the value of the property, and could not be presumed to be indifferent to such inquiries, as every considerate man would be likely to make, in such a case. And after this lapse of time, it is fair to presume, that he did know the purchaser, and was satisfied with the purchase. But it is said that no deed is produced. Now, it does not necessarily follow, that if a sale was made to Howard, that the contract was consummated by an actual conveyance of the land. ”

“ It cannot be presumed that any man of fair character, such as M. Gratz is proved to have been, could perpetrate a fraud or deception without some motive that should overbalance all the ordinary influence of prudence and honour. If there be any thing beyond all doubt established in this case, it is, that the value of the land, as fixed in the account of 1775, was its full value. It is proved by public sales of adjoining tracts, at the very period when Howard is asserted to have purchased the land ”

“ It might have been a trust to sell the lands for the benefit of Col. Croghan, and to apply the proceeds in part payment of the debts due from him to Bernard and Michael Gratz; or, it might have been a sale of the lands directly to Michael Gratz, in part payment of the same debt, at a price thereafter to be agreed upon, and fixed by the parties; and, in the mean time, there would arise a resulting trust, in favour of Col. Croghan, by operation of law.
Time, which buries in obscurity all human transactions, has achieved its accustomed effects upon this. ”

“ In this view of the transaction, there could be no ground to impute fraud to M. Gratz; nor could his conduct involve a violation of trust. In the absence of all contrary evidence, is it not just, is it not reasonable, to presume such to have been the reality of the case? That there is no evidence to the contrary, may be safely affirmed.
In addition to this, it may be asked, whether M. Gratz had any adequate motive for practising a deception in this case. Men do not usually act under circumstances such as are imputed to M. Gratz, unless from some strong inducement of interest. ”

“ In the view which the Court is disposed to take of this case, it must consider that Howard was a real, and not a fictitious person. It is then asked, why are not the facts proved who Howard was, where he lived, and the execution of the deed to him. It is to be recollected that this proof is called for, about forty years after the original transaction; when all the parties, and all who were intimately acquainted with the facts, are dead. ”

“ The most that can fairly be expected in such cases, if the parties are living, from the frailty of memory, and human infirmity, is, that the material facts can be given with certainty to a common intent ”

“ It is called for, too, from persons, some of whom were unborn, and some very young at the period to which they refer. They cannot be supposed to know, and they absolutely deny, all knowledge of the facts. ”

“ In our judgment, the trust in the Tenederah lands, such as it was, must be now presumed to have been extinguished by the the parties, in the life-time of Col. Croghan. There is no ground, then, for relieving the plaintiff, as to this part of his claim.
The remaining point in this case respects the M'Ilvaine bond and judgment. On the 30th of March, 1769, Col. Croghan gave his bond to Wm. M'Ilvaine, for the sum of 400, which debt, by the will of M'Ilvaine, became, on his death, vested in his widow, who afterwards intermarried with John Clark. A judgment was obtained upon this bond against Col. ”