author: By Mr, Justice Thornton :

text:
    Hogan and wife vs. John B. Lepretre, surviving partner of A. F. Stone & Co.

      An appeal from a decree of the Mobile Circuit Court.
    Where a deed of trust has been made to secure the payment of money, and the, trustee sells real estate in pursuance of said deed, and the cestui que use becomes the purchaser, but afterwards abandons the purchase^ gives no credit in pursuance of it, and accepts of no conveyance, but procures a re-sale of the property by the trustee, such first sale will not be set up and sustained by a court of equity in opposition to an application to redeem the property, by the payment of the money, with interest, which the deed was made to secure.
    If, after such abandonment of the first sale, the cestui que use procures a second sale to be made of the same property, by the same trustee, without any renewal of his authority, at which the property is purchased at half the amount for which the first sale was made, the nominal ' purchaser in this last case being merely the medium or conduit of transfer to the cestui que ksc, .such second sale will be held void.
    The analogy between a mortgage and deed of trust holds thus far: they are both conveyances to secure the payment of money ; and the right to redeem, before a sale is effected, is allowable at any time in either 5 and in neither afterwards. '
    Hogan conveyed a lot and certain bnildings in the city of Mobile, accompanied with relinquishment of dower, to Gordon, as trustee, to secure A. F. Stone and Company against any loss which they might sustain on account of their having become indorsers for him on a note given to the Mobil© Bank. Gordon was authorised to sell, upon the indorsers being subjected to the payment of the note, after giving certain notice by advertisement. Hogan failed to meet the curtailment?, and the indorsers had the money to pay. Gordon was requested to sell the property, and did sell it; and Stone and Company, the indorsers, for whose benefit the trust was made, became the purchasers, at the price of two thousand six hundred dollars. But the purchasers, being advised; as they say, that this sale was not valid, on account of the property having been bought by the cestuis que use, refused to have it carried into effect, would not accept of any conveyance, and gave no credit to Hogan on account of the sale. They requested Gordon to sell the property again; which he did, McLosky became the purchaser on this second sale, for $1300 ; and he soon afterwards conveyed the property to the indorsers, Stone <fc Co. The proceeds of this sale not being sufficient to repay the sum paid by the indorsers for Hogan, suit was brought by A. F. Stone & Co. and a recovery had, against one Vincent, Hogan’s security, for upwards of fourteen hundred dollars, the balance due after deducting the thirteen hundred dollars made by the second sale., Hogan filed his bill against A. F. Stone & Co. and McLosky, praying that both sales might be held for nought; that he might be allowed to redeem the property, by satisfying the amount paid for him by Stone & Co. with interest, and that, for the purpose of ascertaining the amount due, if any, an account be taken of the rents and profits which the defendants had received, from ,the occupation of the premises, together with the amount received on the suit against Vincent,' and for general relief. The defendants in their answer, deny all fraud, and rely upon the second sale.
    The decree of the Circuit Court establishes the first sale, denies to the complainant the privilege of redemption, and awards to him the amount of money, which, according to this adjustment of the controversy, he has over-paid. This decree of the court, in recognising the first sale, and in refusing to the complainant the privilege of redeeming the premises, is here assigned for error,

      Stewart, for Plaintiff in error.
    A deed of trust on real estate, we contend, is in the character of a mortgage; and the property is subject to redemption. The courts of England have, for ages, leaned to the side of the right of redemption. But a practice has been-growing up in this country, having a tendency to overthrow all the guards against fraud, which have been set up by eminent'jurists. Such, it would seem, must be the result, if deeds of trust are not to receive such adjudication as will-permit the right of redemption.
    In support of this general principle of the right to redeem» on deeds of trust, the court is referred to the following authorities — 7 Johns. ■ Ch. R. 40 — I Maddox, 515 — 4 Kent’s Com. 136, 137, 152 — 2 Bridgw. Big. page 359, sec. 279, p. 341, s. 133 — -2 Pern. 520 — 1 Powell on Mortgages, 121., 122 — 1 Per. 488 — 2 Ath. Rep. 120 — 2 Sciwales & Lefroy, 217, 660, 667, 668, 669 — 2 Johns. Ch. Rep. 30 — 9 Vesey, jr. 271 — 2 Fon-hlanque, 261.
    That the doctrine of cutting off the right of redemption should apply to personal property, may not be so injurious ; but if it be made to apply to land, where the instrument is a deed of trust, that mode of conveyance will be resorted to, where the party who is to give the security is under necessitous circumstances, for the purposes of usury and oppression.
    The decisions of the state of New York that militate against the right of redemption, do not apply to this case, be'eause they are made in pursuance of a statute of that state. — 4 ' Kents Com. 183, ’4 — see note. The weight of the English authorities is in favor of the right of redemption.
    Independent of the general principle, there are in this case peculiar circumstances, which entitle us to the right of re- , demption. This right is unquestionable, until there has been a sale of the property; but here there has been no valid sale ; besides, the trustee has divested himself of the power to sell; on what plausible grounds then can the privilege of redeeming the property be denied ? It is true, there were two sales in this case: but neither of them, as I affirm, was ji. valid.' The first sale cannot prevail, because it was not car-riéd into effect by a conveyance; and because, having been abandoned by the purchaser and the trustee, and left without being completed by a conveyance, and being held for nought by the purchasers in* their answer, the court cannot give it validity against the consent of the complainant, and thus deprive him of his right of redemption. For the doctrine that a conveyance by the trustee is necessary to consummate the title, of the purchaser — See 4 Kent’s Coin. 137,* 138, 186,187-*-5 Bacon, 102 — Sytgden on Powers, 349, 392-
    The second sale was invalid) because the trustee had no power to make it. He had exhausted his power ■ by his first ■ defective sale. A trustee has but a naked ''power; when once exercised, it is gone. The purchase by MdLosky was merely colorable : it was for the benefit of Stone and Com-' pany ; and being for but half the sum brought by the first saje, a court of equity cannot sustain it- Would equity permit a party to abandon a first purchase, and thereby embarrass the title, that he might obtain the property on a second sale for half the amount which he had first agreed to give ? This is the sale relied on by the defendants ; but it was re- » .garded as void by the court below.
    According to the deed of trust, no sale could have been made without giving up and cancelling the note.. The sale then, to be good, must bring the amount. The first sale, in fact, brought sufficient to cancel the note ; but it was not can. celled. The sale was given up by the purchasers, who are the defendants, and for that reason also, can have no pre-tence for setting it up. But if the deed should be so construed as to admit of a sale, only bringing part of the sum, and if it be contended that the first sale did not bring enough to authorise the note to be cancelled, still there was no credit given on the note, nor any other release for any pai;t of the debt: the sale then, could not be supported, the deed of trust not having been complied with.

      ft jg plain then that neither sale can bo supported ; the • one was abandoned by the defendant, and never carried into effect, and the other is obviously fraudulent, and without authority, and besides, was held void by the court below. Indeed, the party in the first sale having elected the day, of sale,' upon that election the power of the trustee is gone. There was here a right of election : the party must abide by his choice. — 3 Comyn’s Dig. 160,161 — 1 Maddox’ Ch. 250 — r 1 Bay’s R. 315 — 5 Bacon’s Ab. 94.
    As to what is a proper and sufficient execution of the power of the trustee, see Sugden on Powers, 193, 210, 211, 212, 268, 270, 284, 349, 352, 392, 399, 405.
    The deed given upon the second sale is not, good ; neither , was the power fairly exercised, it not being on the applica- ' tion of all those for whom the trust was given. And the court will not resort to any extraordinary power to cure a legal defect, when, as here, there is any unfairness in the transaction. — 5 Bacon’s Ab. 101.
    But if either of these sales could have been regarded as talcing: away the right of redemption, that right was restored by the subsequent suit for the balance of the money. It has been doubted, whether, where there has been a foreclosure, the party can proceed, at all, for the balance of the money due ; but this seems to be clear, that if he can so proceed, he by so doing, opens the foreclosure. On this subject, the court is referred to 8 Vcsey, jr. 527 — 13 Vesey, jr. 198 — 2 Brown’s Ch. R. 125.
    Here, as I have stated, there was no foreclosure. Tho defendants; however, sued on the bill, and recovered more than was due them. Estimating the previous rents and profits, they had enough by the first sale, which the Circuit Court sets up as valid, to pay themselves ; they had therefore no right to sue Vincent. But there being in fact no foreclosure, and the power of the trustee being gone, the trust cannot bo executed, except by consent of parties, or in a court of chancery. And if such court he resorted to, it will let in the right of redemption. As to the course of courts of equity in regard to foreclosure, see 5 Bacon's Ab. 101 — Sugdcn on Bowers, 352.
    The defendants having received more money than is due, consistent with the sale, it is a waiver of their right under the sale,
    ■Reference was also made to 1 Johns. Ch. 11. 409, 425.
    Elliot, contra.

    The case cited' by counsel from 4 Kent, makes in favor of the defendants in error. The principle which is there supported is, that contracts of this kind are to be'construed according to the intention of the parties. What were the intentions of Hogan and wife ? Obviously to convey the legal ti- . tie to the trustee, to be subject, on certain conditions, to final sale, without being subject to any right of redemption after-wards. 4 Kent, 298, shows that modern trusts correspond, in principle, to the ancient uses. Express trusts are allowed to sell lands, for the benefit of creditors, in which case the ' whole estate inlaw and in equity vests in the trustee,-subject only to the execution of the trust. — 4 Kent, 298, 304.'
    In this case, either the first sale was valid and operative, or the second is. If the second is void on account of the first; then the first must be good, and a court of chancery will aid a defective execution of the power. — See Sugdcn on Bowers.

    If the first sale was void, on account of those becoming purchasers for whose benefit the trust was made', or for any other reason, then the sale was a mere nullity, and could not impair the validity of the second sale, which must be regarded as good, and a proper execution of the power. On (he supposition that the first sale was void, how could it have such effective operation as to defeat the second sale. The . first sale could not be, at the same times both void and operati vc.
    As to the second sale being colorable, the complainants have made witnesses of the defendants; and they, • by theiy ■ answer, deny all fraud and unfairness, and their statements' must be tafeen as true, unless contradicted by two witnesses, or, one witness and strong corroborating circumstances but there is no such contradiction of the answers in this case.
    The case in 5 Johns. Rep. 441, shows that where the conduct of -a trustee is fair and bona fide, a court of chancery will maintain his proceedings, if he should not hare, minutely in all things, pursued, the power. If by a sale, the property fail to bring the amount which it ought to have brought, or would have brought by pursuing the power more strictly, chancery will rather hold the trustee responsible for the amount of injury, than to make the whole proceeding void, where there was no fraud.
    A suit on a bond or note for a balance, after foreclosure, where there has been a sale, does not open the foreclosure, the amount made by the property being ascertained. — See 4 Kent's Com. 175; also, 5 Cowen, 380. The weight of authorities is in fauor of this doctrine both in England and America. The suit then against Vincent, after there .had been a sale, could not have opened the foreclosure, if it had been a . case of mortgage. But this is not a mortgage ,* but a deed of trust: and therefore, the authorities of counsel, if they had supported the position contended for, would still have been " inapplicable to the case.
    It is said that the application for this sale was not made by all of the cestuis que use. This ground is taken on account of' a lapsispennee, Ashur F. Ames being put for Ashur F. Stone. ■ The objection needs no further answer.
    It has been contended, that the note was to be giv.en up to be cancelled. But it is evident, that the intention of the par- ' ties must have been, that the uote should be given up to be cancelled when it was satisfied. The first sale not being esteemed valid, the property was sold a second time, and did not bring the amount of the note : it ought not therefore to have been given up to be cancelled.

      Iii regard to tbe inadequacy of price, the defendant, Me-Losky’s answer, which must be taken as true, contradicts the position. *
    Hopkins, in reply.
    In equity, the character of the conveyance is determined by the intention of the parties. Any agreement in the deed, or in a separate instrument, which shows that the parties intended the deed shoúld operate as a security for the re-payment of money, will make it a mortgage, and give to the mortgagor the right of redemption. If a conveyance be absolute, it may be shown by parol proof to be a mortgage, as the court has decided during this term. A court of chancery never sustains, but sets aide any agreement in such a conveyance, which provides for the destruction of the right of re- ' demption, or for its forfeiture, if it should not be exercised in a limited time. The parties to this deed of trust had no other intention, in the execution of it, than to secure to Stone &■ Co. the re-payment of the debt mentioned in the deed, in the ■ event that they should pay it as the indorsers of Hogan. This intention of the parties must, according to settled principle,' give to the conveyance the character of a mortgage. The introduction of a trustee, as a party to the deed, who has no beneficial interest in the estate conveyed, and none in the debt secured, should not be allowed to prevent the application of the principle. The object of such a contrivance is to destroy the right of redemption, if the payment of the money be not made before the trustee sells. If the deed ha‘d been made without the intervention of a trustee, directly to the persons who are the cestui que trusts, the court would preserve the right of redemption in defiance of an agreement in the conveyance, that the estate should be irredeemable" after failure to pay the debt. Why should the right be less secure in this case ? Under the pressure of necessity, Hogan would as readily have conveyed the estate to Stone & Co. with an agreement that he would forfeit his right of redemp-tlon, if be should fail to pay the debt when it became due, ás he did to the trustee, with power to sell and convey the estate absolutely, if the debt should be unpaid at tlie maturity of the note. If he had made a conveyance to them upon such agreement, the object of the agreement would be defeated by the principles, on which a court of chancery uniformly acts. Shall not the same principles be applied to put down the same object, when the creditors endeavor to accomplish'it by a deed of trust ? If, instead of this deed, a formal mortgage had been made to Gordon, which stated that the object of the conveyance was to secure the repayment to Stone & Co. who were no parties to the mortgage, of a debt due to them, the right of redemption would exist and would not be jmpaired by a grant of authority in the mortgage to the mortgagee to sell and convey the estate absolutely, upon the default of the mortgagor. In such a case, the mortgagee would have as much interest as he has in this, and the objects o* the mortgage would he identical with those of this deed of trust.
    The trustee and creditors abandoned the first sale, which was made, under the deed of trust. The last sale did not produce half the sum required to pay the debt, and the creditors obtained a judgment for the balance, which Plogan has satisfied/ If the deed shall be considered a mortgage, and the sale by the trustee equivalent to a foreclosure, the suit for the balance opened the foreclosure, and restored the right to redeem. This is the settled doctrine in England. As the creditors are in possoscion of the estate, and claim under the last sale, there is nothing to prevent the application of the doctrine. If our opinion, that the deed should be treated as a mortgage, be erroneous, there are other grounds upon which the decree should be reversed. That the second sale was void, the decree determines, and neither party complains of this part of the decree. The only appeal was taken by Hogan and wife, from the part of the' decree, which established the first sale,'and it is this part of the decree that wil be reviewed here, if the defendants in error had been dissatisfied with the part of the decree which held the second sale void, they had a right to appeal from it. If the second sale could be brought to the' view of this court, it would be held void. The first sale made it a breach of trust in the trustee to make the second. The first sale should have been carried into effect — no satisfactory excuse has been given why it was not. That the creditors were the purchasers at the sale, does not justify the trustee in the abandonment of it: they had a right to make a fair purchase. — 4 Kents Com. 137* 138. The second sale was made upon the request of, the creditors, and without the consent of Hogan. It produced one half only of the sum, which the creditors agreed at the first sale to pay for the estate. If the second sale were valid, Hogan would sustain an injury to the amount of the difference between the prices at the two sales. To prevent the injury the sale must be disregarded. The trustee had exhausted his power to sell by making the first sale.

      Sugden on Powers, S, 4, 5 — 193, 210; 211, 212, 288, 269, 352,392, 399, 405, was cited, to show the first sale was void",
    The second sale was void. But from it the creditor re-* ceived part of his debt, and the balance upon a judgment against another person, who was bound for- the debt intended to be secured by the trust: this balance was paid by Hogan. The creditors have, therefore, received the whole of their debt, and no part of it from the first sale. If a sale were made before the time appointed, or without the advertisement required, it would be void ; and chancery, upon the application of the grantor, would set it aside. If the grantor, upon his application t© set aside the sale, expressed his willingness to pay the money when the decree'he asked, should be made, and should then pay it, he would regain the title relieved from the burden of the trust. If the sale had produced a partial payment, and the grantor had paid the balance, he would have a right to set aside the sale, and the trust would be chargeable only with the sum, which the void sole had produced. What pretext is there for establishing the first sale, which was never completed ? If, after that uii-executed sale was made, the creditors had obliged the debtor to pay, or the debtor had voluntarily paid the debt, with other means than those included in the trust, would not the title to the estate be in the debtor, unincumbered by the trust ? Could the title be disturbed by the assertion of rights under the sale, which was not followed by a conveyance, and was disregarded in the collection of the debt ? The first sale which produced a sufficient sum to discharge the debt, deprived the trustee of power to make the second: the second was a breach of trust, and void. A chancellor would have prevented it, upon application, by injunction. The first sale has never been acted upon by a conveyance of the estate, pursuant to it. It has been disregarded in the steps taken by the creditors to collect their debt ; a part of it they have received from the second void sale, and the balance from other funds of the debtor than the trust. The part produced by the second sale, is a charge upon the trust, but it has no connection with the first sale : it was not produced by that sale, and canfiot support it. Upon what ground is the first sale to be established ?' If it were upheld, the debtor cannot be placed in the situation, in which he would have been, had that sale been carried into effect, and his debt satisfied with the proceeds of it. In that event, he would not have parted with the sum of money which was required to pay the part of the debt, that the proceeds of the second sale did not extinguish.That sum he could have invested in real estate, which would have increased in value as the land included in the trust has. If the first sale be established, the creditors will be confirmed in their title to an estate for which they did not pay with their own money — they paid for it in part, with money of the debtor, which a decree confirming that sale, would treat in effect, as a loan made by the debtor to the creditors — a forced loan. The first sale is void because the trustee had author!-' iy to make it upon condition that be applied the proceeds, and the whole proceeds to the payment of the debt- — he made no such application. The debtor has credit for nothing until the second sale. As the sum for which the first sale was made was not received and appropriated as the trust required, the ■trust was not executed. That the trust was not executed by carrying the first sale into effect, was the fault both of the trustee and of the cestui que trusts. It was the duty of the trustee to have required the delivery of the note, the payment of which was secured by the deed; and it was the duty of the cestui que trusts, who were the purchasers, to have surrendered it to be cancelled. If the trustee had.refused upon the delivery of the note to convey the estate, the purchasers upon a bilhfor the purpose, and proof that they had offered to comply with the terms of the purchase, would be entitled to a decree for a specific performance. In this case the purchasers induced the trustee to commit a breach of trust, they refused to abide by their purchase, and required the trustee to make in three or four months after the first sale, the second-, which produced one half only of the sum, for which the estate sold at the first sale. For this sum the debtor received a credit upon his note, as a payment made atr the time of the second sale, and the halance of the note he has paid out of his other resources. The collection of the note was, therefore, enforced by the purchasers upon the ground that the- first sale was void ; yet they now claim the benefit of the first sale, and a decree for a specific performance of it. When and where was a decree for specific performance made, in a case, in which the sale had been disregarded in every respect by the party, who applied for such a decree ? Both the sales are void — thr first, because the trustee did not execute his power, by conveying the estate — receiving the proceeds — applying them as the trust required ; and because the cestui que trusts, who were the purchasers, gave no credit for the sum which they agred to pay — disregarded the sale, and caused a second one to be made. The second sale is void ;■ because the first sa]e made it a breach of trust in the trustee to make another, , ■ without the consent of the debtor as well as of the creditors. The trust still exists,'but it is chargeable only with the sum, and the interest which has accrued u pon it, that the second sale produced. The cestui que trusty are liable to Hogan for the rent of the estate from the time they took possession until the aggregate amount of the rents shall be ascertained by an account, which should be taken between the parties. The value of the rents exceeds the amount, including interest upon it, for which the second sale was made'. The complainants are entitled to a decree, setting both sales aside — directing ' the conveyance made pursuant to the second sale to be cam celled-; — and ordering the cesiui que trusts to pay to them the .excess of the value oftherent3 over the price, at which the second sale was made,’
   By Mr, Justice Thornton :

This case comes up by appeal from the decree of the chancellor below, which is sought to be reversed, on the ground assigned as error, that the court dismissed that part of the bill praying a redemption of the mortgaged premises. This assignment, though made with a view to an isolated point in the cause, docs in fact, involve the whole merits of the de- 1 cree: for if the appellant, who was also complainant below, be entitled to redeem, or what is equivalent thereto, to vacate all the proceedings had under his trust deed, and be reinvested with title, upon the payment of the money, which ,it was intended to secure,' the whole of the action of the chan- „ cellor below, in the interlocutory., and final decree, is erroneous.

The history of the case is this, -as presented to us by the bill, answers, &c. A. F. Stone & Co. who were a mercan- , tile firm, consisting of Ashur F. Stone, John B. Lepretre, and Thomas F. Townsley, in the city of Mobile, became indor-sers of a promissory note, negotiable and payable at the Bank pf Mobile, for the sum of two thousand eight hundred dollars, made by the said Hogan, on the nineteenth of August, 1823, and discounted for him, in said Bank ; that with the intent to secure them from injury, by said indorsement, the said Hogan executed a deed of trust, conveying the premises therein described, to the defendant Gordon, who was empowered, in case of failure on the part of Hogan, to renew, or pay the said note, upon the request of the said A. F. Stone <& Co.; to sell and dispose of the property; to apply the proceeds'to the cancelment of the note, and pay over the balance, if any, to •the said Hogan. The said Hogan having failed to pay, or renew the said note, the ceshds que use, of whom the defendant Lepretre, is the surviving partner, paid the same, and requested the trustee to proceed arid sell \the property. The property was accordingly exposed, and knocked off at the sum of twenty six hundred dollars, to the cestuis que use, who were the highest bidder's therefor. After this, without,any thing more done towards the completion of this sale, the trustee, upon an erroneous impression, entertained, as it seems by him, in common with the eesiids qui use, that the sale was illegal, because they were the purchasers, exposed the premises to sale a second time, without the consent of the complainant, when the defendant McLosky became the purchaser, at the reduced price of thirteen hundred dollars. A conveyance was executed by the trustee to him, and he after-wards conveyed by a quit claim deed tot he said firm of A. F. Stone & Co. From the answers of the defendant, it is fairly deducible, that he was a mere medium or conduit of transfer, to the said A. F. Stone & Co. to avoid the supposed ille ] gality of an immediate purchase by them. It is not averred in the answer of the trustee, that any money passed ; and MeLosky says, that he did not intend to injure any one of the parties, or “ to affect the interest, in the slightest manner whatever, of the one, to the prejudice of the other.” He says “ he would willingly have reconveyed to the complainant for the cost to him, if the complainant had proposed to ■take the property at that price, and would at any time previous to Jiis conveyance to A. F. Stone & Co. have "conveyed to said complainant Hogan, if he would have paid, or renewed his said note in Bank, whereon the said A., F. Stone <fe Co. were indorsers ; but as this defendant was informed, and had good reasons to believe, that said complainant refused to take up, or renew his said note ; and that the same was paid by A. F. Stone & Co. - as his indorsers ; that not being disposed, as before mentioned, to retain said premises, at the price he had bid for them, he released said premises to said A. F. Stone & Co. for the same amount he had paid therefor, they being the only persons who proposed to take them at that price.” After the transfer from McLoskey, the two-partners, Stone and Townsley, conveyed to the defendant Lepretre. The property was in the possession of A. F. Stone ¿fe Co. by lease from complainant, at the time of the execution of the deed of trust, and has ever sinee been in the possession of the defendant Lepretre, either claiming it as joint owner with his copartners, or as his sole property,. by virtue-of their conveyance to him as aforesaid. After the last sale of the property! suit was brought b,y A. F. Stone & Co. in. Now Orleans, upon the note secured by this deed of trust, and a recovery had against one Yincent, who was the security of complainant, for the balance due upon it, /after crediting the •sum of thirteen hundred-dollars, the proceeds of the last sale. After answer filed by Townsley, he died, and a guardian ad litem was appointed by the court below, for his infant heirs. Since the removal of the cause into this court, Stone has also died ; his death being suggested on the record, and; the cause considered, as it well may be, to survive against Lepretre, the remaining member of the late firm of A. F. Stone <fc Co. The bill of the complainant prays an account, to be taken of the rents and profits, a cancelment of the several conveyances of the property, and a redelivery of it to him, upon payment of whatever amount may be found to be due from him upon said full accounting between the parties. There is also the general prayer for: relief.. The final decree-rendered below, in pursuance of an interlocutory decree rendered in the cause, refuses the specific relief sought; but under the general prayer, undertakes to affirm the first sale of the property, made by the trustee Gordon; and sustains an account taken in pursuance of the said interlocutory decree., The error assigned, is in substance as already stated, “ that the decree of the court repudiated the right to redeem,” which was the main object of the bill; and in view of the statement of facts above exhibited, we will now proceed to consider it. I will premise, however, that the only point upon which this cause can be made to rest, is that of rederiiption, ás presented by the special prayer; for however expansive and efficacious the general prayer of a bill in chancery maybe, of which it was said by an English chancellor, that it was as comprehensive as the Lord’s prayer ; yet I cannot admit that any relief can be afforded under it, which is inconsistent with that specifically sought. So that if no right of redemption is here recognised, there is no warrant for a decree which confirms, as the one rendered! below in this cause does, the first sale made of the property by the trustee. For not only does the complainant not desire it, but he and the defendants both, have consented to eschew it. But although no such decree be,authorised, yet it is necessary to consider' the effect of this sale, as also of the second one, for if the trust has been executed by either, so. as to be obligatory upon the complainant, he cannot have the relief which he seeks, and the error alleged' as the specific ground of the appeal, cannot be maintained. In determining the effect of the first sale, as to its obligatory force upon Hogan, which is assumed as the basis of the decrees below, we have only to ask whether, if the defendants were to attempt its establishment against him, they could enforce it in a court of equity: for if it could not be so enforced, it seems to me, a multo fortiori, that it cannot be done under the present circumstances, where both, parties have concurred in its abandonment. Now that sale was deserted of its parents as abortive, béíorc it was fully brought into existence. The trustee made no deed of con* veyance ; the purchasers would have nono; no money was credited to the grantor; on the contrary, they proceed, as though it had never been, to make a second sale, at which, as might have been anticipated, if it was not so intended, only one half of the amount bid at the first, was realized : and this result was doubtless contributed to at least, by the very fact of a former sale, thus capriciously abandoned, without the knowledge or consent of the grantor.- I feel satisfied that this first sale cannot be set up and established in this cause, however it might be, if the complainant were seeking its execution against the purchasers : as to the last sale it would be manifest injustice to recognise it. Then, considering both of these sales vacated, as I think we are bound to do, under the facts and pleadings in this case, what are the rights of the respective parties ? The cestuis que use are entitled to the benefit of the security afforded to theig by the deed of trust, and th’p grantor is. entitled to pay off the debt, and relieve his property from the incumberance ; of which right, I consider his bill as a suitable assertion. To this éxtent, the analogy holds between a deed of trust, and a mortgage. They are both conveyances to secure the payment of money. At any time, in either, before a sale of the property, a redemption is allowable ; but in neither after the sale is effected. According to the modern doctrine respecting mortgages, and the established" rule of decision in this court, the only decree on a bill to foreclose, is the sale of the premises, if the debt be not paid by a day certain, at such time, and in‘ such manner as in the discretion of the court may seem most likely to result in the best price. After this sale there can of course be no redemption. So in relation to deeds of trust. The final result in both is the sale of the property. The only difference is in the mode and manner of the sale. In the former there is the intervention of a court, fix- ■ ing the time, and .it is conducted by the officer of the court. In the latter, the parlies have themselves fixed upon the time by a contract, which it is competent to them to make ; as they have also selected an individual, who shall conduct it. If it be objected to, this latter procedure, in comparison with the former, that the scrutiny to which the transaction is subjected in its progress through the courts of the country, is an invaluable safeguard in all cases of trust like this, I have only td reply, that in the latter case also, an appeal may at any time be made to the same tribunal, and the sale be arrested, where fraud, or oppression, or usury, or any other vice in the transaction, may make it obnoxious to such an interference.

The resitlt Of Our examination of this cause, in which we have been greatly aided by the lucid argument of counsel, is that tlie sales by the trustee, Gordon, and all the subsequent conveyances, be held for nought ; that the decree below be reversed; and that the case be remanded to effectuate the principles of this opinion.

It is decreed that air account be directed to be taken by the Judge of the Circuit Court, the basis of which shall be, that the complainant be charged with the amount paid for him by the said firm of A. F. Stone & Co. en the account mentioned in the trust deed, with interest thereon, and that he be credited with all reasonable rents and profits of the said property mentioned in said deed of trust, Since the possession was transferred to the defendants, over and above the value of the lasting improvements which may have been put upon it by "them, if any: and that he be credited with all payments which he may have made -upon the said note : that after the return of the said report, if the said complainant shall, in some reasonable time to be designated by the said court, pay and satisfy to the commissioner who may be appointed by said court, the balance, if any, so reported to be due from him, then the deed of trust aforesaid shall be held as void, and the said complainant be restored to the possession of the premises therein conveyed; but if he fail to pay the said amount, that then the said commissioner shall be directed to proceed, in lieu of the said defendant Gordon, to sell and dis Pose ^1C said premises according to the terms in the said deed specified.'


source: Caselaw Access Project

author: By Mr. Chief Justice Baffold :

license: Public Domain

text:
    Lewis B. Moseley vs. David White.

      krror from the Circuit Court of Dallas County — Before the Hon. P. T. Harris.
    Where a declaration states a recovery against the defendant to have been by a decree of “ tho honorable, the orphan’s court” of a certain county, it is sufficiently descriptive, as to the style of the court, of the county court of said county, doing orphans’ business; and the certificate of the clerk of the county court of the proper county, that the proceedings, as certifiod, constitute a true transcript of the settlement, &c. “ as it is of recordon the minutes B. of the orphans’ court in my office,” is also súíficicntly descriptive of the court, and equivalent to a description of the same as the “ county court, while exercising theju-risdietion of an orphans’ court.”
    Mosely brought suit against White, in the Circuit Court in October, 1831, to recover the amount of a decree of the county or orphans’ court of Dallas county. The declaration states the decree as having been made by “ the honorable, the orphans’ court, held within and for the county of Dallas.” The defendant pleaded mil tiel record. The bill pf exceptions shows that the record introduced as evidence, making a final settlement of tho estate of the intestate, whereof the defendant was administrator,- and a decree against him, was certified by the “ clerk of the county court of Dallas” asa ¡.rue transcript of the settlement, &c. “ as it is of record on minutes B, of the orphans' court in my office."

    The Circuit Court decided that there is no such court “ known to the law as the orphans’ court, and rendered judgment for the defendant. The plaintiff excepted to this opin-< ion, and in this court, assigned the same for error. •
    Pickens, for Plaintiff in error.
    The first inquiry that naturally presents itself here is, as-to what kind of a defence is available under the plea of nul ticl record. The record, introduced, I contend, was conformable to the declaration, and sustained it. Let it be admitted, if you please, that the court is improperly entitled, and that there is no such court as the orphans’ court of Dallas county, and the defendant would still have no right to avail himself of this objection in the state of the pleadings which the record presents. The defendant pleaded nul tiel record; and on this plea issue was joined. Upon this issue it was sufficient if the record corresponded with the declaration. If the defendant intended to rely upon the objection, that there is no such court as the orphans’ court, he ought to have demurred. The question to be tried under .the plea which was pleaded in this case, is matter of verity and not matter of law.— The court, therefore, erred, in sustaining amere legal objec-, tion'under this plea.
    But if the court should even differ with me on this point, they will still, I think, not sustain the opinion of the court below, that there is no such court' known to the laws of this state as the ‘ orphans’ court,’ and that a record certified as this one, was inadmissible evidence under the declaration. The term, orphans’ court, is sufficiently descriptive of the court here intended; and although the language may not boas technical, as to say the county court doing orphans’ business yet the defendant is as well informed of the court intended!,, as if the' latter mode of expression had been adopted. The object of the description is to designate and distinguish thfc court so that it may be known. If one should declare on- a court, held twice a year, stating who was the Judge, and giv- ~ ing such other description that no man could mistake it, even though it were not named at all, would not such declaration be sufficient ?
    Besides, in the first establishment of this court, it was called the orphans’ court. Its powers and jurisdiction were af-terwards conferred on the county court; which court still has particular times at which it sits for the transaction of orphans’ business: it then sits as orphans’ court, and may very properly be so styled. I contend that if we have no orphans’ court, we have no court of chancery, for we have no separate court so named. The circuit court at particular times does chancery business ; at which times it is a chancery court, as the county court is an orphans’ court when it does orphans’ business.
    But I go farther than this. I maintain that under the language of the law, we have an orphans’ court — Aikin’s Dig. 248. Here we have laws, now in force, calling this court the orphans’ court. If this language means nothing in our declaration, or in the clerk’s certificate of the record, then it means nothing in the law; which will not be insisted on. — - See also, Aik. Dig. 252, 253.
    Stewart, contra.

    We are not concluded by the reason given by the court below, for the exclusion of the record. It may be a right judgment, given for a wrong or insufficient reason. But I contend that the reason given is a good one. Our courts are known by definite and precise titles. We have no such court as the orphans’ court. We have a county court, which transacts ophans’ business, as well as various oth.eivkinds of business. if a court is to be designated by the business which it transacts, our courts Would have numerous titles. More strictness is required in declaring on records than on any thing else- The loose descriptions, therefore, which the ■couus'el has contended would be sufficient, would not satisfy the law, nor conform to that legalpractice which has receiyed •the sanction of courts of justice.
    33 uj, this record is objectionable on other grounds. It has 210 title. It does not appear who was the judge. It does not .■appear where the court was held. All that we have is the certificate of the clerk. He certifies that it is from the minutes of the orphans’ court in his office. He does not even say orphans’ court of Dallas county. The clerk styles him,'self the clerk of the county court of Dallas county. There ■is too much uncertainty here. Owing to the divisions which 'have been made'of counties, the records of one county are frequently in the office of the clerk of another county : it does not follow of course, therefore, that because these proceedings are in a certain book in the clerk’s office, that they belong to the county of Dallas.
    The counsel says that the only matter in issue is, whether there be such a record as is set forth in the declaration.— True; but this involves the question, whether there be any Such court. Tf there be no such court, there is no such record. And 'the reason that there is no such record^ may be that there is no such court,
    Pickens, in reply,
    ' The bill of exceptions shows the ground oh which the court below decided the case against us. Will this court now search after other grounds on which a like decision might have béen made ? I think not. The question must turn upon the point stated in the bill of exceptions. The record was not objected, to, on any other grounds but this : it was contended that there was no such court as the orphans’ court.
    But I would ask the court if the caption be of any importance to a record ? It is not the caption, but the certificate of the clerk that gives verity to the record. ' Neither is it of .any importance what particular man sat as judge.

      The defendant, according to tbe most approved forms of the flea of nul lid record, is required to state that there is no such record as is stated to have existed in such a court. It puts in issue the verity of the record, and not the style of the court. *
   By Mr. Chief Justice Baffold :

This suit was brought in the Circuit Court, by the present plaintiff, in October, 1831, to recover of the defendant the amount of a decree of the County or Orphans’ Court of Dallas.

The declaration, in allusion to the cause of action, charges that the plaintiff, “ by the consideration of the honorable the Orphans’ Court, held within and for the county of Dallas,” recovered a decree against the defendant, as administrator of E. Lane, for eight hundred and sixteen dollars, as by the record now remaining in said court, appears, he. To which the defendant pleaded nul tiel record.

A bill of exceptions shows, that on the trial, the plaintiff offered in evidence what purported to he a record, of the 7th of April 1828, showing a final settlement of the intestate’s estate, by White, the administrator, and a decree against him for the sum claimed; together with a long catalogue of debts allowed to oilier creditors, all appearing to have been scaled, as in ease of. insolvency. To this is appended the certificate of “ 3. D. Craig, as clerk of the County Court of Dallas,” that the same is a true transcript of the settlement, &c. as it is of record on minutes B, of the Orphans’ Court, in my office That the Circuit Court thereupon decided there was no such court known to the laws of this state, and rendered judgment for the defendant, in this judgment it is contended the court erred.

The objection which was sustained to the record, is ufider-stood to be, that the transcript offered in evidence, is variant from fee record described in the declaration, as respects the style or title oí the court in.which the decree was rendered — that it ought to have been described as a decree of the “ County Court,” instead of the “ Orphans’ Court” of Dallas county. To under. stand the nature of this supposed variance, it is necessary to refer to several parts of the statute law creating and modifying the county court, and regulating its powers and duties. As early as 3806 and ’7, the county court was organized, consisting of five justices of the peace, and of the quorum, one of whom was commissioned “ chief justice of the orphan’s court.” They were authorised to hold the county court proper, and at the same time to hold and keep a court of record, to be styled and called “ the orphan’s court of the said county,” with full jurisdiction of all testamentary and other matters pertaining to an orphan’s court, or court of probate, within their respective counties. It was also provided, at this earl}' day, that this chief justice should cause to be kept by the register of the orphan’s court, a docket, &c.:— That the clerk of the county court should, by virtue of his-office, be register of the orphans’ court” of the same county; “ should keep and preserve all records, files, papers, and proceedings of the said court as an orphan’s court, senarate and distinct from , ■, , 1 ,. ’ , „ the records, files, and proceedings ol trie county court, &c.

In 1819, this court was remodelled, by the establishment an “inferior court,” consisting of five justices, styled justices of the county court. To this court, which in some parts of the' same statute is called the county court, was given, besides the jurisdiction previously vested in the county court, and orphans’ court, concurrent jurisdiction with the circuit courts, in actions of debt and assumpsit. It was authorised, at its second and fourth annual terms, to exercise only, the jurisdiction previously belonging to the orphan’s court; and the clerks of the inferior courts were declared to be the clerks of these intermediate courts for the adjustment of orphan court bnsincss. By the same act these justices were authorised to elect one of their own body as “ chief justice.”

I111821, this court was again remodelled, and styled the “county court,” and was directed to be holdcn by one judge only. It was then also provided, that the county court thus organized, and the judges thereof respectively, should be vested with all the powers previously exercised by the said county and inferior coufts, and the chief justice thereof, except such as should be’ otherwise directed. It was then farther directed, that the clerks of the inferior courts should be the clerks- of these county courts respectively, and perform all the duties as such ; should have custody of the records and papers of the orphans’ and county courts previously established in their respective counties. This appears-to have been substantially the organization of the tribunal in question, in 1828, when this decree wasrendered — that the court existed as a county court, to be holden by only one judge, and in this court was vested all the jurisdiction previously exercised by the original county court, orphans’ court, and chief justice thereof; by the inferior court which succeeded it, and the chief' justice thereof- This jurisdiction, as we have seen, embraced,besides cognizance of particular common law actions, (and which was extended by this latter act,) all the powers and duties appropriately incident to an- “ orphans’ court.” It also appears, that the clerks of the present county courts, are charged with- all the subsisting duties heretofore required of the clerks of the county ' and inferior courts,, and-of the register of the orphans’ court; and that among the duties is included that of keeping and preserving “all records, files, papers,-and-proceedings of the said court, as an orphans’ court, seperate and distinct from the records, files and proceedings of the county court»” This direction- of the law may well account for the form and substance of the certificate of the record before us, and explain why the clerk of the county court should have certified to a true transcript, as it is of recordon minutes B, of the orphans’ court in his office.

It may also be remarked, that in 1830, and before the institution of this suit, the legislature acknowledged at least the nominal existence of this court, by directing that “ all decrees made by the orphans’ court on final settlements on the accounts of executors, administrators, &c. shall have the force and effect of judgments at law. And again, in 1832, which was subsequent, have in two instances made similar recognitions, which may be rer garded as a legitimate interpretation of the statutes referred to on this point.

But ifit be conceded that the description of the court in the declaration, and in the clerk’s certificate, is not strictly and tech-nieally correct; that since the reorganization of the court in 1821, its true title in general, is that of the county court; and when liolden for the settlement of decedents’ estates, and other orphans’ business, should be styled the “ county court,” or “ county court sitting as an orphans’ court,” it docs not follow, that, the description given was not sufficiently certain. The certainty required in pleadings generally, is defined to be, such as “ may be understood by the party who is to answer them, by the jury who are to ascertain the truth of the allegations, and by the court who are to give judgment.” Certainty to a certain intent, in general, is held to mean, what upon a fair and reasonable construction may be called certain, without recurring to possible facts, which do not appear; and this is required in declarations, replications, indictments, &c. It is also said less certainty is requisite, when the law presumes that the knowledge of the facts is peculiarly in the opposite party.

It is true, that in declaring on judgments, great certainty is required in the statement or description of the judgment; and a material variance, will in general, be fatal. It has been held, that in stating the amount of the judgment, the omission of only a penny', is a fatal variance, and cannot be cured by a remüíüt. In principle, there can be no difference between the effect of a variance to the amount of one penny, or of one or more pounds or dollars ; in either case the sum is clearly and obviously different. .vBut a slight inaccuracy in the description of the court, which can leave no doubt upon the mind as to the reference, has not necessarily • the same effect, and has been viewed by the courts of the highest authority in a different light. It has been ruled, that where a declaration in an action for a malicious prosecution, alleged that the defendaik caused the plaintiff to be indicted at the “ general quarter sessions” of the peace for Mid-dlesex, and the record stated the indictment to have been found at the “ general sessions,” it was held to be sufficient, the of-fence being cognizable at such general sessions.. Also, that a bill of Middlesex is well described as a “precept f the King.”

On the authority of these and other cases, Stark T maintains, ,j.iat u wjjere it is necessary to allege a court having 'udicial authority, it is not essential that the style set out in \ e record. A’ . . , J ’ should be exactly copied.’

In the Crown cases cited in argument, where, as co, 'ended, the greatest strictness should be observed, the English ourts have held, that slight misdescriptions which could not mis. ad, would be disregarded — such as to describe the court as ‘ he court of the King’s Palace at Westmister,’ when in the record was called ‘ the court of the King’s Palace of Yfestminster;’ or to aver that the cause came up to be tried by a jury of the oun-iy, when the record stated that the jury came of the neighh rhood of Westminster, the cause having in fact been so tried, ; d no county being mentioned in the record. These discre^ urces were held to furnish no objection to the proceedings.

In this case, the description of the record, both in the deck ation and certificate of the- clerk, is believed to be sufficiently cei tain; that the orphans’ court in this state can be understood as no other than the “ county court” while exercising the jurisdiction of an “ orphans’ court,” by which latter description or title it is recognised and designated by several existing statutes ; and that no one can doubt as to which tribunal the record belongs.

The judgment of the Circuit Court is therefore considered erroneous, and must be reversed; but as the record contains other issues, some of them requiring trial by jury, and which have not been disposed of in the Circuit Court, the cause is remanded for - further proceedings.

       Aik. D. 248, 249._Toul. Dig. 175, 6.

      Toulm. Dig 170,177,178

      Aik. D. 252, 253.

       1 Chit. Plea. 237.

       Id. 238.

       Id. 238.

      a Id. 358.—2 Stra. 1171.

       2 Bl. R. 1050.

       2 Stra. 1069.

      3 Starkie on Ev. 1605, ’6.

      Russel on C 538, note I.


author: By Mr. Justice Thornton :

text:
    William R. White vs. William S. Hadnot.

      Err : from the Circuit Court of Autauga County — Before the Hon. P. T. Harris.
    An action will lie on a judgment rendered by a justice of the peace, after the expiration of p. year and a day from the time said judgment was rendered, no execution having issued within that time.
    In a statement made, on such action, in the Circuit Court, it having been brought there by appeal, it is not essential that it be averred that no timely execution had issued on such judgment. If any such execution had issued, it would be proper matter of defence.
    This case was brought into the Circuit Court by an appeal from the judgment of a justice of the peace. It originated in a warrant by White against Hadnot, to recover the amount of a judgment rendered before a justice of the peace, several years previously. The statement in the Circuit Court sets out the parties, the amount of the judgment, when rendered, and by whom; and alleges that the same is in full force.— There was a demurrer to this statement, which was sustained by the court. This judgment on demurrer, is assigned for error in this court.
    Pickens, for Plaintiff in error.
    This was an action of debt on a judgment before á justice of the peace, The only question is, Will debt lie ? Of this -I conceive there can be no doubt. — Chitty's Pleadings, 106, 107 — ^14 Johnson, 4J9 — Toul. Dig. 459.
    If it be said that the judgment should have been revived by sci. fa., I answer that it never was intended that the remedy of sci. fa. should her *ci. úve of the action of debt: sci. fa_
      will he ; but the action of debt will also he. Even the set. fa. 1S a new action.
    The first process that appears in the cause, sets out that this was a judgment against the defendant, as garnishee. A judgment of this kind becomes final, if the party should not appear within a certain time. That judgment was final is to be presumed, unless the defendant should make the contrary appear in his defence. But the demurrer cannot go back beyond the statement of the case, which stands in the place of a declaration.
    Peck, contra.

    I conceive that we have a right to look into the warrant in this case. The statement, however formal and lawyer-like it is in the commencement, is in fact defective. It should have set out the nature and character of the judgment. Let us suppose — if it were necessary to resort to supposition — that this-were a judgment against a garnishee, who had answered that lie had specific property in his hands to a certain amount; would debt have lain on such a judgment ? Certainly, it would not. For although it be a final judgment, yet it is one of a peculiar kind, under the statute, requiring a demand for specific property, &c. Then it is clear that the party should have set out the character of his judgment.— When we look into the warrant, we find that'this was in fact a judgment against the defendant as garnishee. It must be apparent that a justice of the peace may render judgment on which debt will not lie. Then when the party resorts to the extraordinary remedy of debt on judgment, he is bound to show that the judgment is such a one as would sustain an action of debt.
    Picicens, in reply.
    The statement says the action’is founded on a debt, arising from a judgment given before II. Brown, a'just.ice of the peace. The statement sets out a certain sum. Can we then
      resort to imagination, and suppose that this was a judgment by default, and for specific property ? Surely not. You cannot look beyond the statement ; but if you could, you could find nothing there to justify the supposition made by the defendant in error.
   By Mr. Justice Thornton :

This case originated before a justice of the peace, and was a warrant to recover the amount of a judgment, which had previously been rendered by a justice of the peace, in favor of the plaintiff in error, against the defendant. It was brought into the Circuit Court, by appeal, where a statement of the cause of action was made, representing as the ground of claim, a judgment rendered for the plaintiff, on the 12th January, 1828, against the defendant, for the sum of thirty eight dollars and seventy seven cents, which is alleged to be in full force: to which statement there was a demurrer by defendant, and a judgment had thereon against the plaintiff below, who is also the plaintiff in this court. The error assigned is for this judgment on demurrer, and the only question presented is, whether an action lies to recover the amount of a judgment of a justice of the peace.

I have no doubt, that after a year and a day from the rendering of such judgment, an action will lie for it, if within that time, no execution had issued upon the same. This is the doctrine of the common law, as applicable to all judgments. No execution can issue after such lapse of time : but the party must pursue his remedy, by action on the judgment. The scire facias, quare executio non, was provided by statute in England, of 13th Edward I. Our statute affording this suit, applies expressly to courts of record. Now, if an execution were to issue, after the time aforesaid, no doubt a supersedeas would quash it. *

We have seen, that that there is no warrant for a sci. fa.; and we have a statute preventing a prosecution of the same cause of action by a secopd warrant therefor. From all which it follows, that without an action on the judgment a such case, there is no remedy whatever.

The objection was taken to this statement, that it did ot contain the negative allegation — that no timely execut >n had issued on the judgment. Our construction of the t i-tutc regulating the trial of cases, brought into the circuit or' county courts, by appeal, or certiorari, from a justice of íe peace, has been such, as to allowgreat generality in the pic ding«. An issue is required to be made up, at the trial, wl re the sura exceeds twenty dollars ; and the cause is to be t ed according to the equity and justice of the case. We h ve never required any very critical accuracy in the stateme t; any thing proposing an issue, under which the merits of t e controversy can be settled, will suffice. Here, the statemei 1 shows, that the judgment sued on, was rendered four years at least, anterior to the time of making said statement. We will not presume against the plaintiff, that an execution had issued; nor will we require, that the statement should contain the averment, that none had issued within a year and a day after the rendering of the judgment. Under that statement, as made, an issue might Well have been taken, which would have admitted proof of that fact ; and if it appeared that an execution was still available to the plaintiff upon the judgment, the justice and equity of the case would demand, that the issue should be found against him.

There was error in sustaining the demurrer.

Let the judgment be reversed, and the cause remanded, for -■trial upon an issue, as lhe statute provides.

       Aik. D. 294, s. 14.


text:
    J. J. Harrison and Absolem Harrison v. Nathan Hicks.

      Error from the County Court of Bibb County,

    Ap order for money, %j accepted as a payment, where no fraud intervenes or failure happens, is sufficient to discharge a debt.

      The payment of a debt, although it be made by one who is not a party to , the contract, and although the assent of the debtor, to such payment, / does not appear, is still the extinguishment of the demand.
    Although an equity of redemption is only available in chancery; yet, in the case of a mortgaged chattel, where the debt has been paid, the legal title is perfect in the mortgagor, and may be asserted at law; although the mortgagee should have in his possession a bill of sale for . the property.
    Nathan Hicks brought an action of trover in the Circuit Court, against J. J. Harrison and Absalom Harrison, for the value of a slave by the name of Harry. The defendants pleaded not guilty; and the jury found a verdict for the plaintiff for the sum of seven hundred dollars.
    From the bill of exceptions, taken in the case, it appears, that the slave Harry had been sold on an execution against Edward Hicks and Nathan Hicks, the latter being the security of the former : That Harry was taken as the property of Nathan Hicks; and purchased at the sale by one Wheeler, for the sum of one hundred and five dollars ; who agreed that if the said N. Hicks would repay him the-money he had paid for the slave, with interest, the slave should be returned to him: That a bill of sale of the slave was given to Wheeler: That some short time afterwards, Wheeler transferred his right in the slave to one Paydon, for oiie hundred and twenty five dollars, who took a transfer of the bill of sale by in-dorsement, but whether he obtained possession of the slave, or not, docs not appear : That after the sale to Paydon, Edward Hicks executed a power of attorney to Paydon, author- “ ising him to receive one hundred and twenty five dollars from the Cherokee Agency, due him from the United States, as an emigrating Cherokee; which power of attorney was left by said E. Hicks in the office of the agent; but it does not appear that Paydon was present, at the time the same was executed : That said Hicks entered a credit on his certificate for the amount which said Paydon was authorised to receive: That Paydon twice applied for the money at the agency, before the same was received from the United States, and did not receive the same : That nearly two years after the bill of sale was so transferred to Paydon, he sold the same to the defendants : That, according to the proof, the slave remained in the possession of Nathan Hicks, the plaintiff, until forcibly carried away immediately before the commencement of the suit. The bill of exceptions further shows, that the defendants asked the court to instruct the jury, if they believe there ivas a contract with Wheeler, in which it was , agreed that Hicks might redeem the slave — that he could only do so, by the actual payment of the money which the slave was sold, or by a tender and refusal of the same; which instructions the court refused to give ; That the defendants asked the court to instruct the jury, that if Hicks was entitled to redeem the slave, it could only be within a reasonable time ; and that what was a reasonable time could only be determined by a court of equity; which instructions the court refused to give.: That said defendants asked that the jury might be instructed, that if Paydon agreed to take the order on the agency for the money, he did not thereby forfeit his lien on the slave, which could only be defeated by the payment of the money ; which instructions the court refused, saying that if Paydon received the power of attorney as a payment, he made it one : That the defendants asked the court to instruct the jury, that the slave being suffered to return into the possession of Hicks, would not prevent Paydon’s lieu from continuing, and that said lien • would continue until tbe money was paid, or tendered and refused; which instructions the court refused: That defendant asked the court to instruct the jury, that although Edward Hicks executed a receipt to the agency office for one hundred and twenty five dollars, he could still recover the same from the agent, Paydon having refused to receive the same, after the sale of the slave ; which instruction the court refused, saying that said Hicks could not recover it, having-given his receipt for the same: That the defendants also asked the court to instruct the jury, that a payment of the money by Edward Hicks, without the consent of Nathan Hicks, could not revest the legal title of the slave in the said Nathan Hicks ; which instruction the court also refused to give, but charged the jury, that the purchase by Wheeler of the slave, was sufficient to vest the title in him ; and that the tranfer to Paydon was sufficient to transfer the title of the slave ; and •that if the plaintiff had a right to recover, that right must arise from some subsequent contract; but that Edward Hicks being the principal in the execution, on which the slave was sold, was competent to make a contract with Paydon which would vest the right of the slave in said Nathan Hicks ; and, if they believed the power of attorney, or authority to draw the one hundred and twenty five dollars from the agency, was accepted by Paydon as a release, of his title to the slave to Nathan Hicks, and that Edward Hicks had credited his certificate for the same, such transaction was sufficient to revest the title of the slave in said Nathan Hicks, and they, so believing, should find for the plaintiff.
    The opinions of the court in the instructions thus refused, and in those given, are, in this court, assigned for error.
    Stewart, for Plaintiff’ in error.
    It requires two things to make a payment, namely, tender > ing on the one part, and receiving on the other. Here the party attempts to establish a payment, by proving that a pow~ er of'attorney was given to the party who was to be paid, an authority conferred on him to receive money. But it does not appear that Paydon agreed to receive this authority as a, payment. The nearest approach that is made to proof of acceptance of the payment on his part is, that he applied at the United States Agency office to receive the money in virtue of this authority or power of attorney. But it does not appear by this that he was willing to receive any thing but money ; and it does not appear that'the money was ever paid to him. It is said that Hicks gave a receipt for the money to the agency ; but this was not at the instance of Paydon ; and does it not make Paydon’s case worse ? If the agency had a receipt for the payment, from Hicks, why should the agency pay Paydon ?
    As to what constitutes a payment, I will refer the court to 17 Johns. R. 340 — 7 Johns. R. 311 — 8 Johns. R. 34, 389, > 304 — 9 Johns. 310 — 3. StarMe on Evidence, 1084 — Searg. & Louh. 167.
    One who owes a debt may be released from the same either by payment or tender. But a tender must be made in money. A payment may be made in something else; yet it - cannot be a payment if it be not received. The power of attorney or order, in this instance, even if it. had been received as a payment, would not have been a payment in fact, if the money could not, by means of it, be obtained. Where a debt is paid, or attempted to be paid, by a note, if the note prove to be valueless, it is not a good payment.
    We say it was only Nathan Hicks that was authorised by the contract to pay the money and redeem this negro. A payment of Edward Hicks, without the consent of Nathan Hicks, could not be' a proper payment. We have nothing to do with Edward Hicks being principal in the debt, on account of which the slave of Nathan Hicks was taken in execution.' We are innocent purchasers. There is no evidence that the Harrisons knew any thing of the agreement, said to bare been made, that Hicks might redeem the slave, by the payment of the money for which he was sold.
    Pickens, contra.

    If a court refuse to give a charge which might properly have been given, yet if it charge correctly, embracing every thing properly involved in the charge required, the refusal to charge in detail, as asked, is not error.
    ' The question here is this: Had Hicks acquired a new right to the slave by giving an order for money ? The negro was given up, although the bill of sale was retained. Could Paydon then, or any body else, get the slave again, until the remedy on the order was exhausted ? The question of pay mcnt does not arise. Whether the debt was subsisting, or whether it was paid off and satisfied, is unimportant as to the question, who had a right to the slave.
    ■ It is a matter of no consequence, who negotiated this matter, whether Edward Hicks or Nathan Hicks. ,It is sufficient if such negotiation was made, in consequence of which the slave was put into the possession of Nathan Hicks, or, in consequence of which, he was permitted to retain the possession.. . .
    This negro, worth seven hundred dollars, was bought by Wheeler for one hundred and five dollars, who promised to restore him to the owner, Edward Hicks, upon the payment of that sum of money, with interest. The slave, or a bill of sale for him, passed into the hands of Paydon, for about the same amount of money. A strong presumption must surely arise here, that Paydon took the slave on the same condition that Wheeler had agreed to hold him. An order was given for the money — for one hundred and twenty five dollars, in favor of Paydon, on account of the claim which Paydon had to this slave,, And Paydon’s repeated applications for the money, sufficiently prove his assent to the arrangement'. The reason he did not receive the money when he applied was, the money bad not then been received from the Unitcd States at the agency office.
    , rpjie cvj(]01lcc iSjthat Hicks had possession, and was forcibly deprived of it shortly before the commencement of the suit. Hicks having had peaceable, possession, until after this money negotiation, throws the omis on the other party, who ought to show that our possession was not rightful.
    Hut it is said that the Harrisons were innocent purchasers. How can this be so, when the property was in possession of Hicks — when all that the purchaser could get was the transfer of a bill of sale ? The maxim caveat emptor properly applies to those who purchase under such circumstances. The purchasers, in this case, the possession of the property not accompanying the deed, must have taken the bill of sale subject to all the equity appertaining to it in the hands of Wheeler and Paydon.
    Paydon’s lien can cut no figure here ; for the recovery of Hicks cannot impair that lien if it exists. On the contrary, it > rather favors it, by placing the very property in Hicks’s hands to ho subject to the lien. I do not.however admit the existence of any such lien after the acceptance of the order on the agency, by Paydon : that released the property from all incumbrance. As to the receipt of Hicks, it was a receipt in favor of Paydon, and not an acknowledgment of the money having been paid by the agency.
    Stewart, in reply. ■
    The court assumes, in the charge, what is negatived by •the bill of exceptions, that Paydon restored the possession to Hicks, when it does riot appear that Paydon ever had the possession.
    Paydon’s calling at the agency office for the money, does not prove his reception of the power of attorney for payment: it only proved that he wished to got his money. He had been told that he could get it at the agency office ; but when .he calls, he gets nothing. The forcible taking away from Micks docs not appear to have been done by the Harrisons. I contend they received the slave when they purchased, and that they were innocent purchasers. The legal title is obviously in them; and if Hicks has an equitable claim, it can only be asserted in a court of chancery.
   By Mr. Justice Thornton :

This-was an-action of trover, brought by the defendant, in error, to recover damages for the conversion of a negro man slave, (the property of said defendant) by the plaintiffs in error. The errors assigned, arc for the refusal of variops charges requested by the said plaintiffs to be given by the court below, to the jury; as also, for charging as the bill of exceptions sets forth.

The evidence, to which reference is had, in the instructions given, and refused, is substantially — that the slave sued for, had been, some time prior to the institution of the present action, sold under an execution, upon a judgment obtained according to the laws and usages of the nation of Cherokee Indians, as to the validity of which, no question is raised, on the record, against the defendant in error,, and his brother Edward Hicks : That one Wheeler became the purchaser of said slave-; and by an agreement between him and the said defendant, the said defendant was entitled to redeem the said slave, upon the payment of the sum of money, viz. one hundred and five dollars, with interest thereon ; which the said Wheeler had paid for him at the sale. Wheeler retained an absolute bill of sals for him ; and the defendant retained the possession of the slave. Wheeler transferred the bill of sale to one Paydon, who, it would seem ,took the assignment with the full knowledge of the contract between the defendant and Wheeler'; and was only substituted to Wheeler’s rights, under the said contract of redemption, between him and the defendant. There was evidence conducing to'prove that, whilst Paydon held the bill of sale, Edward Ilicks, the brother of the defendant, had, by a transfer of a demand, which he held as an emigrating Indian, upon the agency of the government of the United States, for said emigrating tribe ~ of Indians, paid off, and discharged to Paydon, the said sum of money, upon payment of which, es aforesaid, the unincum-bered title to the slave, was to be reinvested in the defendant. After this, Paydon transferred his claim to the slave to the plaintiffs. The defendant, in error continued in the possession of the slave until a short time before the commencement of this action, when he was forcibly taken from him — by whom, it does not appear.

The several charges which were requested of the court, and refused to be given to the jury, involved three propositions. First — that the debt due by the defendant, on the 'agreement with Wheeler, could only be discharged by the actual payment of money. Secondly — that a payment, or discharge of it, by Edward, the brother of defendant, without any contract between him and his brother, would not revest ( the legal title in the defendant. And thirdly — that the facts, 1 constituting the defendant’s right to recover in this case, are cognizable only in a court of equity. All these propositions were repudiated by the court, and as I think, very properly.

As to the first, if the transfer of the claim upon the government agency, was in fact, by the contract between the parties, accepted in payment, and discharge of the debt, unless fraud intervened, or some failure happened, such as this record does not disclose, to vitiate the transaction, I know of no principle of law, which will avoid the contract.

The second proposition is equally untenable. It involves a palpable solecism; for the payment and discharge of a debt, no matter by whom effected, can be nothing more nor less than its extinguishment as a demand. As between the person who paid it, and him for whose benefit it was intended, a question might arise, whether it were purely voluntary or not which would depend on the circumstance of previous request, .or oí subsequent assent, cither express or implied, ' ,

As for tbe last of these propositions, the right of the de-iVndant, as it appears from tlie evidence, was clearly maintainable in a court of law. It "is ■ true, that an equity of redemption is only available in chancery. Hut in the case of a mortgaged chattel, where the debt has been paid, the legal title is perfect in the mortgagor. If this principle be correct, a resort to chancery would not be tolerated, even if the mortgagee were in possession of the property. But when the debt has been paid, and the chattel in possession* there can be no doubt of a perfect legal title, the bill of sale notwithstanding.

The charge which was given, being in accordance those principles, was, as we think, altogether unexception-

Let the judgment be affirmed.

      5 Com. Dig, 99,-4 Bibb, 452.


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    Duke K. Jameson, et al. vs. John Harper.

      .Error from Wilcox Circuit Court — Before the Hon. Sio?? L. Perry.
    In a motion against a sheriff and another, as his security, under our statute, for not paying over money collected by said sheriff on execution, if the person sued as security, relies for his defence, on a generaldenial of the facts stated in the notice, the plaintiff is not bound to produce the sheriff’s bond, to show that such defendant is security.
    If the defendant would deny the fact, that he is the sheriff’s security, is® should crave oyer of the bond, and plead non est factum.

    This cause was submitted to the court without argument. The following is the opinion of the court.
   By Mr. Justice Thornton :

This was a summary proceeding in the court below, by mo- ' tion against Jameson as sheriff, and Evans as his security, for failing to pay over money alleged to have been collected by said sheriff, on execution. ,

It seems that an issue vVas formed, and the case submitted to a jury. By a bill of exceptions taken during the trial of that issue, it appears that the only exception taken below, to the proceeding, was relative to the fact, whether the plaintiff in error, Evans, was in truth, a security or not, of the said Jameson.

As we consider the notice, disclosing the grounds of the motion, to be substantially good, we will confine ourselves to the consideration of that assignment of error, which refers to the exception above mentioned. The point of objection was, that the defendant in error was not compelled, or required by the court to produce the bond of the sheriff, to prove the liability of said Evans as his security. The issue is stated in the bill of exceptions, to have been a general denial of the facts stated in the notice. Although the statute, by ■ virtue of which this proceeding was had, is a remedial one, to some extent at least, yet such a reasonable construction will be put upon it, as not to advance the remedy, at the expense of vital principles of justice. In this view, we have hitherto said, that although the statute ^authorised by its literal-terms, a judgment against a sheriff, and his securities, upon notice to the sheriff alone, yet that no judgment could be rendered against such'security, without notice, or a waiver of it, by appearance. As the object of this notice, is to allow an opportunity to defend; we will so construe the proceeding, as to render all legal defences available. I do not think that in this case, any just claim lies on this head; nor was any proof dispensed with, which by the issue joined, ought to have been required to be adduced, to enforce the liability. The notice which is in this case, the foundation of the proceeding, charges the defendant below, Evans, as a security. Now, what 'is the appropriate mode of denying that character, in which he is so sued. If he be security, it could only be by force of a proper legal bond ; and thé only way in which the existence of such a bond could be put in issue, was by a plea of non est factum. The analogy is considered as holding in this respect, between this proceeding, and an action against an executor or administrator. If the latter aré sued as such, any jilea but ne uhques exeiutor, admits their character. So I think in the case of this motion, any plea but the appropriate one, of non est factum, is an admission of the fact, that the character of the parties, is, as charged. If the security desired to put the question of security, vel non, in issue, and had req uir-ed the production of the sheriff’s bond, by craving oyer of it, which he might do, though no profert vvere made of it in thb notice; and the opportunity then sought, had been denied tb him, then he would have had just cause of complaint.

Let the judgment be affirmed.


text:
    Thomsas Crawford vs. James McKissack.

      Error from Bibb Circuit Courti
    An attorney, who lias obliterated an indorsement on the bond belonging to his client, on which bond suit is pending, and who states upon oatK that he has no knowledge of the contents of the indorsement but that which he had received as attorney in the cause, is hot bound to testify as to the contents of that indorsement.
    The action was debt on bond. The attorney of the plaintiff was introduced by the defendant, to prove what had bceri the contents of an indorsement on the bond, which had bees obliterated by the witness. The attorney having been sworn, stated that the matter erased was a mere private memorandum for the benefit of the plaintiff, and that he had no knowledge of the case, other than such as he had received as attorney in the cause. The court did not require the witness to testify as to the contents of the indorsement. The refusal of the court to require the witness to give evidence as to this matter, having been requested so to do, by the defendant below, is assigned for error in this court.
    Pickens, for Plaintiff in error.
    A lawyer is only privileged from stating, as a witness, what he has received confidentially, in his character, as attorney or counsel. It is not sufficient that the information was merely received as counsel. The matter erased is said to have been a private memorandum. Credits as commonly entered, may be called private memorandums: and yet if they be erased, their contents may be inquired into. Every paper put into a lawyer’s hands may be said to have been received by him as counsel; but the indorsements thereon are not therefore confidential ; and any knowledge he may have by mere inspection of those papers, without any confidential communication, he may be required to state.
    Moody, contra.

    The privilege, that matters communicated to counsel are are not to be divulged, is the privilege of the client, and not of the counsel. The counsel is not at liberty to divulge such matters, as evidence against his client, if he were disposed to do so. The court will not permit a communication of this kind to be made. It is not necessary that it should be stated to be confidential. The.confidence is implied. Information received, as counsel, is in its nature confidential information. It appears here, that this was a mere private memorandum, for the benefit of the plaintiff. The counsel then bad a right to erase it. It may have been a direction as to what witnesses were to be examined, or how the amount of the judgment was finally to be made.
    Stewart, on the same side. ■
    If the counsel, who is called as a witness, must say what the information is, the protection is gone. But he may state the general nature or character of the information. He doe3 state that, it was a private memorandum, made for the benefit of the plaintiff, and that he had no information in regard to it, only that which he had received as counsel. The rule excluding the information must then operate. But, I contend that in cases of this kind, there is a discretion in the court below ; especially if the party claiming the information does not show that he has a right to the information. The court below could judge better from the appearances of the erasure, and from other circumstances, than this court can, before whom these circumstances cannot be presented in the same aspect.
    Pickens, in reply.
    There is na more discretion in this case than in any other Jegakquestion. The privilege of exemption from testifying, being an exception from a common obligation, must be strictly construed. To authorise the exemption, the information must be communicated confidentially, and to an attoruey 5 that it was to an attorney is not of itself sufficient. Of the signing of a bond, or indorsements on paper, of which a lawyer may be apprised, he may be required to testify as well as another.
    A lawyer who gets a note to bring suit on, of course gets it as counsel, with all its indorsements ; but that is no reason that the character of that note, and of all the indorse-ments may not be inquired into, and that the lawyer shall ■not be made a witness to prove the character and condition of the same, when the note was put into his hands.
   By Mr. Justice Thornton :

This case comes before us by writ of error, to a judgment of tbe Circuit Court of Bibb county, rendered against the. plaintiff in error, upon a verdict, on issue( taken upon a plea of payment to debt on bond. The assignment of errors refers us to a bill of exceptions, signed on the trial, from which it appears that the only question presented for revision is, whether the circumstances in which a. witness who was palled by the plaintiff in error, stood, deprived him of the benefit of his testimony. The facts to which the, plaintiff wished to interrogate the witness, were, if there had been an indorsement or memorandum indorsed On the bond, which be had stricken off, and obliterated ; and what that indorsement was or had been. The witness was the attorney of the defendant in error, a.nd. being sworn, said that he. had no knowledge of the case, other, than such as he had received as attorney in the cause. The court sustained the witness in refuging to testify as to the contents of tbe indorsement, which he had obliterated from! he back of the obligation. As to the fact, whether there had been an indorsement, or memorandum, the court did not interdict the testimony. The general rule is, that a matter entrusted to one as an attorney, shall not be betrayed. The rule is conceived to be a very salutary one, and seem.s to, embrace all matters, which have come to the knowledge of the witness^ whilst acting as attorney, and through the medium of the relation., I consider that to authorise the withholding of the matter, both those circumstances must concur : that is, it must have come to the knowledge of the. witness since his retainer; and must have been derived, by virtue of his being attorney in the cause. As to what he knew before the retainer, his. subsequent employment cannot deprive the opposite party of the benefit of i.t: nor, as to what he knows of his own knowledge, not being acquired by means of.the relation of client and attorney, can it be withheld. I do no" find the rule restricted to such matters as may have, been communicated in special confidence. The relation its, self is of a confidential character, and every fact derived through the medium of it, seems to partake of its nature.— We do not think the court erred in tbe application of the prin- . . ' , espíe. .

The judgment mu?t be affirmed» ,

       Bul. N. P. 284 Beame's P. in E. 279, 281.