was an ordinary loan, intended to be repaid. After comparing the testimony, we have come to the conclusion that we must treat it as a loan. There is such a general presumption against a gift of this sort, that it ought to be very distinctly shown, if such was the case, and this was not done. On the contrary, we could not but observe some shifting of ground, and conflict of testimony, by the defendant, as to the reasons why the plaintiff gave her this money, and with this fact before us, taken with the general presumption, from our knowledge of human nature, that it is more likely that money is loaned than given, we felt compelled to treat this as a loan.

We are also led to the conclusion that there was an assurance given by the defendant équivalent to a charge of the debt upon this property.

The final inquiry is, whether the property was conveyed to Lizzie Cannon in fraud of this debt. It appears by the testimony that a loan had been made by her to Jane Smith for the improvement of this very property, and that the property itself was subsequently conveyed to Lizzie Cannon for $2,000, the consideration named in the deed. Whether this alleged loan had any existence in point of fact was disputed by the plaintiff. It appears, however, that the defendant Cannon had been serving in government employ here for seventeen or eighteen years. She stated what her compensation had been, and we are satisfied that out of such service and receipts she could very well have saved money enough to make this loan, and that as a matter of fact it was made.

But we find that this same property, yielding a rent of some $40 a month, must be valued at an amount largely exceeding the consideration stated in the deed. In other words, we find that a very large excess of value seems to have been conveyed to her when this debt of Mrs. Smith was in existence. It was said that she bought it with knowledge of that indebtedness, and also with knowledge that it had been charged upon the property. But we do not find it to be clear that she bought it with knowledge of the charge,

although there seems to be sufficient evidence that she knew that there was a debt.

We find further that this property was conveyed to her for an insufficient consideration. At one time, where a conveyance was made in fraud of creditors, it was set aside entirely, but the courts have modified that doctrine, and now hold that all that is given in plain excess of the satisfaction of the debt, when property is conveyed to a creditor for the payment of a debt, is a voluntary gift. Courts of equity separate the conveyance, so far as it is really in satisfaction of the debt, from the conveyance which is plainly not in satisfaction of the debt, and the latter they consider to be fraudulent and void as against the creditor.

We, therefore, have arrived at the conclusion that the title of Lizzie Cannon may stand good so far as it was in satisfaction of her $2,000, and that for any excess over that, it was a voluntary gift, to be reached by this creditor who had this charge.

We do not inquire whether she knew of the charge or not, it is enough that the charge existed, whether with or without her knowledge, is unimportant.

We do not allow the defendant Cannon any interest, because she has had possession of this property and has been receiving the rents.

MACKALL VS. MACKALL.

EQUITY. NO. 8038.

f Decided June 23, 1884.

Justices WYLIE, COX and JAMES sitting.

In a conveyance between parties holding a confidential relation to each other, the grantee, althoug not guilty of actual fraud, can take nothing from the deed which it would be inequitable for him, under the circumstances, and in view of that relation, to retain. On the other hand whatever he should equitably retain the court will not disturb. Such a case being distinguishable from one where the deed must be set aside entirely on the ground of fraud.

THE CASE is stated in the opinion.

S. S. HENKLE and R. M. NEWTON for plaintiff.

W. WILLOUGHBY for defendant.

Mr. Justice JAMES delivered the opinion of the court.

In the case of Mackall et al. against Mackall the bill set forth that Brooke Mackall, sr., conveyed, two or three weeks before his death, to his son, Brooke Mackall, jr., all of his property in Washington and Georgetown; that this deed was procured from him by acts amounting to actual fraud, by coercion and by undue influences growing out of the confidential relation in which the parties stood. It sets out also a will dated about a month before the execution of the deed by which the grantor, Brooke Mackall, devised to his other children the same property. An enormous amount of testimony was taken for the purpose of showing that the defendant, Brooke Mackall, jr., had his father entirely under his control, and really coerced him, except during a period in which they were estranged from each other a month or two, during which time he made this will.

We have examined this testimony with a great deal of care, and we are not satisfied that actual fraud was exerercised. It is shown, however, that the defendant, during a considerable period and down to the death of his father, acted as his agent and stood in a confidential relation to him. The rule of equity is that, in a conveyance between parties holding a confidential relation to each other, the

grantee shall take nothing from the deed which it would be inequitable, under the circumstances, for him to retain. Of course, if the deed was secured by fraud we should have to set it aside entirely; but we have come to the conclusion that the only thing demonstrated to us is that a deed was executed between the parties, one of whom stood in a confidential relation to the other, and that if there is anything in that deed which he ought not in view of that relation to retain, he cannot retain it. If, on the other hand, there is anything which it would be equitable for him to retain, we should. to that extent, sustain the deed; such a case being distinguishable from a case in which the whole deed must be treated as a nullity because it was obtained by fraud. In looking, therefore, through the testimony, we find that Brooke Mackall, sr., long before this will was made, gave an equitable title to certain property on the corner of New York avenue and Fourteenth street to his son, Brooke Mackall, jr. Now if, without the exercise upon him of any of the influences of this confidential relation, the grantor gave this property to his son-in other words, if it originated in the will of the grantor himself the will should not be disturbed. In determining this fact, viz., whether the gift was the voluntary act of Brooke Mackall, sr., we confess it looked at first as if it also had been a transaction under the influence of this confidential relation existing between the grantor and grantee; but we find that in a certain transaction with the government Brooke Mackall, sr., acted in an adverse relation or character to another party. He was not then conducting a transaction with Brooke Mackall, jr., but was acting against the Government, and in that transaction. he insisted upon the right of his son, Brooke Mackall, jr., to receive rents from the Government for the use of this particular piece of property, on the ground that it was the property of his son. In other words, we found that he had made this gift on a good consideration, that he had put the grantee in possession, and that the latter expended more or less money on the property after that, perhaps not a very considerable sum, but the facts show sufficient to establish

en equitable title as between himself and his father. When, therefore, this deed was afterwards executed, so far as it confirms what was done in the exercise, as we think. of a free will and an actual intention, it was a valid deed and must to that extent be allowed to stand.

The decree consequently is that as to the property situated on New York avenue and Fourteenth street this deed is valid, but as to all the rest it is not.

IN RE ROBERT HATCHMAN.

Decided February 4, 1884.

{The CHIEF JUSTICE and Justices MAC ARTHUR and JAMES sitting.

1. In legal effect the action of an applicant or his attorney is the same. 2. Where one of the claims in an original application was rejected upon reference to certain patents, and the applicant, by his attorney, orders the same to be erased, and thus obtains and accepts a patent for the residue of his claims, there has been no inadvertence, accident or mistake within the meaning of the patent law, and the patentee is not entitled to a reissue covering the claim before erased.

APPLICATION of Robert Hatchman for reissue of Letters Patent No. 283,602.

Mr. Justice MAC ARTHUR delivered the opinion of the court.

This is an appeal from the decision of the Commissioner of Patents. In his application for a patent, Hatchman made several claims, all of which were allowed except one, and that was rejected on the ground that it was too broad, and was met by previous inventions for which patents had issued. Upon such examination said claim was erased and withdrawn by order of his attorney, and he obtained and accepted the original patent for the other claims, dated August 21, 1883. The application for reissue was made October 5, 1883, for the same claim which had been examined in granting the original patent and rejected, with his acquiescence, or that of his attorney, which is the same thing