text:
    Vaugine et al. vs. Taylor et al.
    It is a usual practice, in chancery, to file a motion to suppress depositions for some defect or omission apparent on the face of the depositions, extrinsic of their substance; but not to move to exclude them for irrelevancy, or on account of the matter deposed to.
    Where two or more instruments are executed at the same time, relate to the same subject matter, and one refers to the other, either tacitly or expressly, they are to be taken together and construed as one instrument.
    Where a deed of conveyance for an interest in a claim to land is expressed to be for a money consideration, the receipt whereof is acknowledged: and at the same time the parties enter into an agreement, with such reference to the deed as to require that both instruments be construed together, with covenants by the grantee for personal services in the prosecution of the claim for the benefit of himself and the grantor, the law will presume that the true consideration of the deed was for the money, as well as for the services.
    The acknowledgment in a deed of the consideration money having been paid, is only prima facie evidence of the payment of the money, and may be controverted like any other receipt, by parol proof, except for the purpose of defeating the conveyance, and the true consideration shown: but this must be by clear and conclusive evidence.

      Appeal from the Circuit Court of Jefferson county in Chancery.

    The Hon. Theodobic F. Sorrells, Circuit Judge.
    Yell & Carltou for the appellants.
    That parol proof is not admissible to vary, explain, or contradict a deed, nor can the terms of a deed be varied or explained by parol, where there is no latent ambiguity. Singleton vs. Fore, 7 Miss. 515; Same vs. Price, 5 lb. 101; Davis vs. Davis, lb. 56; 1 Ala. 436; 1' Brevard 166; Falconer vs. Garrison, 1 McCord, 209; McCullock vs. Girard, 4 Wash. C. C. R. 289; Greenleaf chap. é,p. 162; 3 Starkie 1008.

      Where a contract is reduced to writing all anterior and contemporaneous stipulations and representations are merged in the writing. Gooch vs. Conner, 8 Miss. 391.
    Parol evidence is admitted to enlarge or lessen the consideration of a deed; but the authorities have not gone so far as to permit the consideration to be changed from one kind of consideration to another, or permit, where there is a money consideration expressed, parol proof to show that there was no money consideration. Dozier vs. Duffee, 1 Ala. 320; Bangs vs. Snow, 1 Mass. 182; Lazell vs. Lazcll, 12 Verm. 443; Grant vs. Townsend, 2 Hill 554; Emmonds vs. Littlefield, 1 Shep. 233; Kerr vs. Calvit, Walker 115; Byers vs. Mullin, 9 Watts 266; Green-noult vs. Davis, 4 Hill 643.
    Parol evidence is inadmissible to prove that a deed, which sets out a money consideration, was not given for a money consideration. Hum vs. Soper, & Harr. & /. 276; Maigley vs. Hoover, 7 John. 341.
    Parol proof may establish a consideration, provided it is not different in kind from the one expressed in the deed. Taulmin vs. Austin, 5 Stew. & Port. 410; Jackson vs, Me Chesney, 7 Cow. 361.
    Pike & Cummins, and GallagheR for appellees.
    That the deed and agreement should be taken together and construed as one instrument. Johnson vs. Parkhurst, 4 Wend. 374; Jackson vs. Freer, 17 J. R. 31; Fair. R. 336; 2 Bibb 610; 8 Ark. 257; Cornell vs. Todd, 2 Denio 130; 3 Phil. Ev. 1422.
    That the consideration expressed in a deed may be shown, by parol, not to be the true one, and that the real consideration was more or less than the one expressed. Rawle on Cov.for Title 96, 97, 98 and notes; Sedg. on Dam. 178 and notes; 1 Greenl. Ev. sec. 27, note 1; 3 Phill. Ev. p. 1441, n 264; 2 Phill. Ev. p. 217; 518; 5 Smedes & Marsh. 238.
    Whenever a money consideration is expressed, any valuable consideration may be proven to have been the real one. 7 Pick. 533; 2 Wash. C. C. R. 31; 3 Mon. 349; 4 Monroe, 27, 373; 1 McCord’s Rep. 514; 3 Hawks 238; 4 Dev. 355; 1 Bhep. 233; Wright 755.
    The acknowledgment in a deed of tbe receipt of the consideration, is not conclusive evidence, that any consideration has been paid, much less, an adequate consideration. Needey vs. Mark, 4 Iredell Eq. 339; Ilarrcl vs. Lindad, 10 Miss. 488; vol. 8-Annual Digest, 1848, p. 95.
    The clause in a deed acknowledging payment of a consideration, is only prima facie evidence of the amount, liable to be varied by parol proof. Meeker vs. Meeker, 16 Conn. 383; Beack vs. Packard, 10 Verm. 96; 22 Verm. — ; Kemhalvs. Tenor, 12 N. Hamp. 248; Johnson vs. Taylor, 4 Dev. 355; Byers vs. Mullen, 9 Watts 296.
   Mr. Justice Hanly

delivered the opinion of the Court.

The appellants, complainants below, filed their bill against the appellees, defendants below, in the Circuit Court of Jefferson county, charging, in substance, that they and certain of the defendants, are the sole heirs at law of one Don Joseph Valliere, to whom a large concession or grant of land had been made by the Spanish Government, when that government owned the province of Louisiana. The bill omits to describe the grant, and fails to aver its validity under the Spanish laws, or its recognition or establishment under the government of the United States, since the cession of Louisiana. The complainants further charge that, on the 5th day of June, 1841, they, in common with the other heirs of Valliere, executed a power of attorney to, and in favor of the defendant Taylor, which is duly exhibited with the bill. This power of attorney recites the death of Val-liere, and the descent of the complainants from him, and proceeds as follows: “ For the purpose of receiving to themselves a.s speedily as possible, by petition, suit or suits, compromises or arbitraments, or by legislative enactment, or by sale, their just rights derived to them from Valliere from and under the King of Spain, said parties constitute irrevocably” the defendant Taylor their attorney:

1st. “ To sell, bargain, convey, release, transfer, grant, mortgage or make over, for such consideration or considerations as he might think proper all their rights, interest and claim, to any and all grants of land, by, or under authority from the Spanish government to said Yalliere, in the province of Louisiana, as held by that government when ceded to France, and. as it existed, when ceded by France to the United States, or any part, lot or portion of such grants as have not been heretofore reduced to the possession of the said heirs of the said Don Joseph.”

. 2. To demand, by suit or petition, or acquire by legislative enactment, compromise or agreement, arbitrament or confirmation by the government of the United States, possession or occupancy in quit-title of or to any lands granted as aforesaid by the government of Spain to Yalliere, or any portion of it.

3d. These powers are specially to apply to, (among others recited) a grant made by Spain in 1793, mostly in Arkansas, perhaps partly in Missouri, described in a plat by Fred. Fredson, Surveyor General of the Spanish government, on the 24th October, 1793.

4th. They give their attorney full power of substitution.

This power is signed by Godin, on behalf his three minor children: by James and Martha Brooks for a minor child of Stephen Yaugine, and by the defendant Taylor, for his three minor children.

The bill proceeds to charge that, on the 23d June, 1841, the defendant Taylor, “ in pursuance, and under the power of at-' torriey aforesaid,” made a deed of donveyance of one half of all the interest in the Don Joseph Yalliere grant, consisting of about 4,000,000 acres, “for the consideration of $30,000, to him then in hand paid, to John Wilson of Missouri;” which deed is duly exhibited with the bill.

The deed purports to be made between the heirs of Yalliere of one part, and Wilson of the other; thé consideration, $30,000, being acknowledged to have been received by the parties of the first part, and conveys one half of the Don Joseph Yalliere grant, on White river in this State and Missouri, to Wilson, and contains covenants for further assurance and against prior conveyances by the parties.

The signing of this deed differs from the power of attorney, in this, — that Taylor, the defendant, signs it as attorney for the others, and for himself: and there is no mention therein, that one of the parties acted for, or .represented minors in the execution of the deed.

The'bill further alleges all the other defendants, besides Taylor, to be jointly interested in the grant and the money sued for: charges that, though the defendant Taylor received the $30,000, at the date of the deed, he has never paid over any part,. — never informed complainants of his action, — that they but recently, and by accident, discovered the deed, whereby they came to the knowledge of the fact, that he had received the money, and learned what he had done, and that the money and interest are still due thereon: that defendant Taylor had received other large sums, and made other sales in respect to such grant: that Taylor fraudulently concealed his acts: that complainants were ignorant of the English language, and never intended or understood the power to be irrevocable, and the insertion of that term was a fraud on their understanding, and ignorance of the English language, and ask to have the power revoked.

That Taylor has done many negligent and careless acts in regard to the grant, whereby their title has become incumbered, and their rights injured to the amount of $50,000.

The bill expressly charges that Taylor received the consideration, $30,000, expressed in the deed to Wilson, and specially interrogated him on the subject.

There is no prayer for special relief, except that the power of attorney may be canceled, and title papers given up. There is a prayer for general relief.

Taylor answers — gives a history of the White river grant to Valliere, and exhibits what purports to be copies of the grant. He avers that the grant consisted of 4,000,000 acres or more: was never recognized or confirmed by the United States: that great difficulty existed in the establishment of the claim, and alleges that no person interested in the claim, had the means to prosecute it; and that all the parties expected and designed, that persons should be employed to prosecute the claim for an interest, or that means to do so should be raised by mortgaging it: That the power given to him was given expressly for the purpose of procuring some one to prosecute the claim, if th'at could be done by transfer of part of, or mortgage on, the claim: That the power to him was wholly voluntary and without consideration, coupled with no interest, and was revocable regardless of the declaration on the face, to the contrary: that the power was drawn by a lawyer of the selection of the complainants, and no fraud or imposition exists on his part with respect to the power.

He admits the deed to Wilson, but avers that it was executed by him in strict conformity to the wishes and intention of the parties, including complainants, expressed when they executed the power to him, and declares that the only object and consideration of the deed were to procure the services of Wilson in the prosecution of the claim; and there never was any other consideration: that no money or property ever was given or received in the transaction, and none ever was to be given or received: that the consideration in the deed was mere matter of form.

The answer further states that, at the same time the deed was executed and delivered, there was executed by Wilson and the other parties to the deed, an agreement under seal: that this agreement is exhibited with the answer, from which it appears that the deed is referred to therein as a part thereof, and declares that “ in addition to the statements in the deed,” Wilson is to prosecute the claim to the grant, in such manner as he shall judge proper, to use proper exertion, and whatever is recovered, the heirs of Yalliere are to have one half, and Wilson the other half, according to the covenant in the deed, as already conveyed to him: that Wilson should, be at all expense: provides for the prosecution of other supposed grants, and division of the property that might be recovered, etc.: provides for disposition by Wilson, on receiving power for the purpose, of a portion of the claim recovered to Valliere’s heirs.

Both instruments, the deed to Wilson and the contract with bim, are witnessed by John R. White and Chancey Lewis, and’ bear the same date, and at the same time acknowledged. The agreement purports to have been recorded,'in Jefferson county, on the 27th September, 1848. Taylor further answers and says that he always gave full information, in respect to his conduct in the premises, to any of the parties who called on him. He further states that on the 8th October, 1850, the heirs of Valliere, including the complainants, entered into a contract with one Loyal Case in respect to the same grant: states that the agreement with Case was in writing, which is exhibited, by copy, with the answer; from which it appears that Case bound himself to prosecute the same claim at his own expense for one-fourth of the grant. This contract admits the grant to be unconfirmed by the United States, and contemplates a suit, or legislative proceedings, to establish it. In this contract, the heirs agree, in case of success, to confirm to the said Case, his then interest in said grant, consisting of 328,000 acres, which he purchased from John Wilson and D. B. Talmadge. Case stipulates, on establishing the claim, to prosecute a suit against Wilson, or any one claiming under him, for the purpose of setting aside the sale of one half of said grant to said Wilson. The heirs bind themselves to give Case one-half of the lands recovered from Wilson, or his vendee, for his trouble and expense In prosecuting the suit: they also agree not to make any arrangement or contract with any one else, or cause suit to be brought on their account, whilst Case has charge of the prosecution of said claim and suit. Case agrees to frame the petition, (or amend it) filed to establish’ the grant, so that the heirs shall not be compromised in their rights as against Wilson.

Taylor further states in his answer, that on the 14th July, 1848, Grade, the husband of one of the heirs, made a contract with one David J. Baldwin, intended to procure the prosecution of the claim, but which contract was abandoned before it was perfected, or of force as between the parties, before the contract with Case was entered into. Taylor furthermore states in his answer, that the foregoing are all the contracts or transactions in which he had any agency in regard to the said grant, or 'which could, in any manner, affect or incumber the grant: in all of which, he avers, he acted in perfect good faith, for the best interest of the parties concerned, without the least compensation or benefit to himself in that connection, or for any labor or trouble imposed on him, unnecessarily, in respect thereto. He positively denies all fraud laid to his charge: pleads the Statute of limitation to all money demands alleged to exist against him, or for neglect, or injury from his acts: all which, however, he utterly denies. He demurs to the bill, and reserves the right at the hearing, to insist on all defects, etc. He avers that, before the power of attorney was given, all the heirs, who were of age, were advised of the terms proposed by Wilson, and the power was given in direct reference to the conclusion of a contract with him upon the terms substantially adopted by him, subsequently, in the deed and agreement with Wilson. He denies the legitimacy of the descendants of Francis Valliere, part of the complainants.

The answers of the other defendants, admit the truth of Taylor’s answer and corroborate him in all things.

On coming in of the answer of Taylor and the other defendants, the complainants filed an amended bill, on the 14th November, 1853, the chief object of which seems to have been to make Hoard, who bought out McCay, one of the heirs, and Loyal Case, who had acquired an interest in the grant, under his contract mentioned in Taylor’s answer, defendants. But the amended bill also alleges and exhibits the deeds, or copies of them, showing that Wilson had sold portions of the interest in the grant conveyed to him by Taylor, to Peters and Baldwin, for which, it is alleged, they had given him $85,000. They furthermore allege that from the carelessness and negligence of Taylor, in regard to the matters confided to his care by said complainants, under the power of attorney, they had sustained loss, in addition tb that charged in their original bill, to the amount of $50,000. Taylor answered the amendment and denied any knowledge of sales of land by Wilson, or of the genu-iness of the deeds exhibited in the amended bill. States from information he believes the lands, purporting to be conveyed by said deeds, do not lie within the boundaries of the grant of Val-liere. Avers that he never received any sum in respect to said lands or grant. Pleads the Statute of limitations and reserves his demurrer, etc.

Replications were entered to the answers of Taylor.

Complainants moved to suppress the depositions of Taylor on the ground of their competency.

The depositions of Charles and Ignace Bogy were read on the part of the complainants, with the view of proving the legitimacy of the complainants, as heirs of Yalliere. The one of Charles is unsatisfactory on this point, and leaves the question in great doubt and uncertainty. The one of Ignace is to this effect: “ that Valliere begat several children, as it was said, one of whom was called Dotrive, and Dotrive begat a large number of persons called Yalliere.” This was the substance of all the proof offered by complainants, except that which established the several exhibits, accompanying the original and amended bills.

Taylor, by his proof, fully sustains every position taken and assumed by him in his answers. Jones and Scull give the history of the transaction, from the commencement of the negotiation of Taylor with Wilson — established the nature of the transaction: the perfect knowledge of all the parties of the object in view; of the preliminary conversations with Wilson: of the, price to be given for his services before the power was given, and the immediate communication by Taylor of the conclusion and nature of the contract, and the perfect satisfaction of all parties with the contract as made with Wilson.

The testimony of Lewis, White and Underwood, the two former, witnesses to the deed from Taylor to Wilson, and the latter, the magistrate before whom it was acknowledged, proves very clearly what transpired between Taylor and Wilson, at the time the deed was executed and acknowledged, and shows conclusively that no money was paid by Wilson to Taylor, but on the contrary, that the consideration for the deed was the covenants and stipulations contained in the agreement on the part of Wilson to the complainants, in respect to the lands embraced in tbe grant, and the services to be performed by him in the way of its establishment and ultimate recovery.

On this State of pleading and evidence the bills of complainants were dismissed at the hearing, and a decree for costs rendered against them by the Court: from which they appealed to this Court.

There are several interesting, though somewhat intricate and nice questions presented for our consideration and determination in this cause, which we will state, with the view of disposing of them in their order, to-wit: '

1st. Did the Court below err in refusing to exclude the depositions of Scull, Jones, White and Lewis, on the motion of the complainants?

2. Whether the deed to Wilson is, of itself, evidence of the receipt of the money acknowledged therein as the consideration from Wilson to the defendant Taylor, taken alone, or in connection with the agreement between the parties, executed at the same time?

3d. Whether the deed, if proof of the receipt by Taylor, is absolute, or only prima facie evidence of the fact?

1st PropgsitioN. — It seems that the motion of the complainants to exclude from the consideration of the Court below, the depositions of Scull, Jones, White and Lewis, was based on the assumed iact that their depositions, in the language of the motion, “ are wholly irrelevant, and because they attempt to show a different consideration from that expressed on the face of the deed upon which this suit is founded, without showing that there was either fraud or mistake in the consideration of said deed; and because they attempt to show a different contract from the written contract averred by the exhibit in the answer of Creed Taylor.”

It appears from the transcript, that this motion was made, filed, and acted upon, on the 10th November, 1854, just one day before the final hearing, which occurred on the 11th November. In practice, we have never known such a motion made in a chancery cause. A motion to suppress depositions is a common and ordinary course of practice; but such motion is, usually, based on some defect or omission, apparent on the face of the depositions, extrinsic of their substance, resulting from improprieties of the parties at whose instance they were taken, the witnesses themselves, or of the officer before whom they were taken, etc. See Adams Equity p. 805; 2 Daniel’s Chy. Pl. & Prac. 1144-5, et seqr. We think the Court below could not have done otherwise than to have overruled the motion of the complainants to exclude the depositions of the witnesses named, for the causes assigned, taking into consideration the time at which it was made. ' If such a motion should, under any circumstances, be entertained by a Court of Chancery, it should only be done after publication of all the testimony in the cause, for without the entire testimony should be before the Court, we cannot conceive it possible for the Court to have determined the motion, viewing it in all its bearings and latitudinal scope; for the Court could not know whether, “ fraud or mistake” had been shown (except by reference to the depositions moved to be excluded) without appealing to the whole case, and the various mediums through which evidence is brought before a Court of Chancery, unless it should be insisted, as the motion of the complainants in this instance seems to assume, that each deposition should contain intrinsic evidence, of itself, independent of any other evidence in the cause, of its pertinency, relevancy and competency. Another view, which induces the conclusion to which we have come on the subject, is, that the motion itself is a vain one, for the reason, that if the depositions of the witnesses should be found at the hearing to be obnoxious to the objections assumed in the motion, the chancellor, as a matter of course, would discard them. It is presumed that, in forming and making his decree, such questions as those propounded by the motion we are considering, present themselves to his mind, and are then settled, or the chancellor would exclude them as on motion or exception. We therefore hold, in view of these reasons, that the Court below did not err in overruling the motion of complainants to exclude the depositions of the witnesses named.

2d Proposition. This is a more delicate and intricate question than the one we have just disposed 'of. The question, as propounded, is double, and to be properly considered, should be divided. We will, therefore, for the sake of perspicuity, subdivide this proposition into two enquiries, that is to say:

1. Does the agreement made between Wilson and the heirs of Yalliere, by reference and recitation, become a part of the deed from the heirs of Yalliere to Wilson so that, in construing the one, we may, legitimately, consider the other, or in other words, should they properly be construed together for the purposes of this suit.

2d. And if those documents are to be thus construed, should it be considered that they do not afford evidence, of themselves, that no money was paid by Wilson to Taylor, as the consideration for the deed from the latter to the former, whether that fact may be established in a Court of equity, by parol testimony?

In answer to the first enquiry under this head, we have no hesitancy in laying down the law to be, that where two or more instruments are executed at the same time, relate to the same subject matter, and one refers to the other, either tacitly or expressly, they are to be taken together, and construed as one instrument. See 3 Phillips Ev. 1422 and authorities there cited and collected; Wad us. Reanare, 7 S. & M. 319; Johnson vs. Parkhurst, 4 Wend. 374; Jackson vs. True, 17 J. R. 31; Connell vs. Todd, 2 Denio 130; Parsons on Cont. 66.

In the case at hand, the instruments in question bear date the same day, — are attested by the same witnesses — are acknowledged before the same magistrate, on the same day — relate to the same subject matter — are between the same parties, and the agreement, absolutely, by positive and direct reference and recitation, refers to the deed. It cannot be otherwise, therefore, in construing the contract between the parties, than that both instruments should be looked to, as embodying the essence of what was agreed upon and contracted by them at the time. These contracts, the deed and agreement, are both under the seal of the parties. The one is as conclusive against and estops the parties as effectually as the other. We cannot conceive how it could possibly be questioned, from the face of these documents, that they must be construed together.

As to the second enquiry under this head, we have already said that the deed and agreement should be construed together. We, however, do not conceive, they, when thus construed, offered intrinsic evidence that the sole consideration inducing the execution of the deed, was the covenants, on the part of Wilson, in the agreement. We think it most natural and reasonable to believe, from the face of these instruments, that the consideration inducing the execution of the deed was, in part, the $30,000 expressed therein, and the additional consideration set forth in the agreement. We are forced to this conclusion, from the fact, that the interest conveyed to Wilson was one half of four millions of acres of land! and the additional reason that, if this construction does not and should not obtain, the consideration expressed in the deed would be defeated by that expressed .in the agreement, and thereby violate a known and fixed principle in the law, which obtains in all cases where deeds or instruments in writing are to be construed, that is to say, that they should be construed so that each and every part of them should have effect, or if this cannot be done with consistence, then, that the first shall prevail over the latter. See Davis vs. Tarwater, 15 Ark. R. 287; 2 Parsons on Cont. p. 26.

We hold, therefore, in this case, that the consideration, as manifested by the deed and agreement, independent of any other medium of evidence, was the $30,000 and the covenants, on the part of Wilson, in the agreement; and, furthermore, that that portion of the consideration, which is expressed to be in cash, to-wit, $30,000, was paid to defendant Taylor, for his principals, at the date of the execution of the deed. But at the same time that we thus hold, there can be no serious doubt that the evidence thus afforded is only •prima facie against the defendant Taylor, the law in such case being that the acknowledgment in a deed of the consideration money having been paid, cannot be controverted for the purpose of defeating the conveyance, but for any other purpose may be controverted like any other receipt: or in other words, that the clause in a deed acknowledging the payment of the consideration is mere prima facie evidence of the payment, and may be controverted and repelled by parol proof. See Clapp vs. Terrill, 20 Pick. R. 247; McCrea vs. Purnet et al., 16 Wend. 460; Prichard vs. Brown, 4 New Hamp. R. 397; Hickman & Pearson vs. McCurdy, 7 J. J. Marsh. R. 555; Greley vs. Grubbs, 1 J. J. Marsh. 390 et seqr.; Barney vs. Moss, 3 N. H. R. 134; Morse vs. Shattock, 4 Ib. 229; Shepherd vs. Little, 14 J. Rep. 200; Wilkinson vs. Scott 17 Mass. R. 249; Beach vs. Packard, 10 Vermont R. 96; Ayres vs. McConnell ad. etc., 15 Illinois R. 230; 6 Greenl. 364; 1 Shepl. 233; 12 Serg. & Rawle 131; 1 Bland Ch. R. 236; 1 Rand. 219; 20 J. Rep. 338; 2 Hamm. 182; 1 Har. & Gill 139; 16 Conn. Rep. 383; Rawle on Covenants for title, 96 et seqr.; 1 Greenl. Ev. p. 35, note 1 and authorities cited; 2 Parsons on Cont. 66; Eckles & Brown vs. Carter, 26 Ala. R. 565.

In Greley vs. Grubbs, Robertson J. in delivering the opinion of the Court of appeals, said: “ On the second proposition” (the one involved in our present inquiry)” the authorities are not so satisfactory: and therefore, we have not been so clear, as on the first. The authorities on this subject in England, as well as in the States of this Union, are various and contradictory. • But we believe, that the consistent doctrine, and that which accords best with analogy, and with the practice and understanding of mankind, is, that an acknowledgment in a deed, of the receipt of the consideration, is only prima facie evidence of payment. The acknowledgment is inserted more for the purpose of showing the actual amount of consideration, than its payment: and it is generally inserted in deeds of conveyance, whether the consideration has been paid, or only agreed to be paid. If the consideration has not been paid, such acknowledgment in a deed would be intended to mean, that the specified amount had been assured by note or otherwise.”

“ An ordinary receipt is not conclusive of the facts attested by it,” (and this is in accordance with the decision of our own Court: See Humphreys vs. McCraw, 5 Ark. R. 61.) A separate receipt for the price of the land, would, it seems to us, be much stronger evidence that the money had been paid, than tbe customary acknowledgment in .the deed of conveyance. At all events it should be as cogent. But it may be contradicted: Why not the other? An attention to the principles, up’on which parol evidence is admissible to explain or avoid the effect, or the apparent import of a writing, may reconcile many, if not all of the authorities, which seem to be in conflict. One of these principles is, that, as in certain classes of cases the Statute of frauds and perjuries requires writing to vest rights, it would be subversive of the policy of the Statute to allow parol testimony to change the legal import of the written evidence of a right adopted to certify it; therefore, in all such cases, no inferior grade of testimony shall be admitted to supply or control the intrinsic meaning of the writing.”

Another principle, and one more universal than the former in its application, is, that whenever a right is vested, or created, or extinguished, by contract or otherwise, and writing is employed for that purpose, parol testimony is inadmissible to alter or contradict the legal or common sense construction of the instrument; but that any writing, which, neither by contract, the operation of law, nor otherwise, vests, or passes, or extinguishes any right, but is only used as evidence of a fact, and not as evidence of a contract or right, may be susceptible of explanation by extrinsic circumstances or facts,” etc., etc.

“ A party is estopped by his deed. He is not to be permitted to contradict it: so far as the deed is intended to pass a right, or to be the exclusive evidence of a contract, it concludes the parties. But the principle goes no farther. A deed is not conclusive evidence of every thing which it may contain. For instance, it is not the only evidence of the date of its execution: nor is its omission of a consideration conclusive evidence that none passed: nor is its acknowledgment of a particular consideration an objection to other proof of other and consistent considerations. And by analogy the acknowledgment in a deed, that the consideration had been received, is not conclusive of the fact. This is hit a fact. And testing it by the rationality of the rule, which we have laid down, it may be explained or contradicted. It does not, necessarily and undeniably, prove the fact. It creates no right. It extinguishes none. A release cannot be contradicted or explained by parol, because it extinguishes a pre-existing right. It is only evidence of a fact. The payment of the money discharges or extinguishes the debt: a receipt for the payment does not pay the debt: it is only evidence that it has been paid. Not so of a written release. It is not only evidence of the extinguishment, but is the extin-guishment itself.”

“ The acknowledgment of the payment of the consideration in a deed, is a fact not essential to the conveyance: it is immaterial whether the price of the land was paid or not: and the admission of its payment, in the deed, is generally merely formal.”

At a later day, in Hickman & Pearson vs. McCurdy, the case of Greley vs. Grubbs, came under review, and Underwood J. delivering the opinion of the Court, said:

“ It was decided in that case, that the acknowledgment in the deed of the payment of the consideration, was only prima facie evidence of the payment, and that it might be contradicted by parol testimony. We are satisfied with the doctrine of that case.” * * * * *

In McCrea vs. Purnet et al., Cowen J., in a very elaborate and learned opinion, reviewed all the English and American adjudications, holding doctrines on the point adverse to those expressed in those above cited, and concludes by saying: “ That the consideration clause in a deed; that is, the clause acknowledging the receipt of a certain sum of money as the consideration of the conveyance, or transfer, is open to explanation by parol proofC and adds: “ It seems, according to the American cases, that the only effect of a consideration clause in a deed is, to estop the grantor from alleging that the deed was executed without consideration; and that for every other purpose, it is open to explanation, and may be varied by parol proof.”

In Beach vs. Packard, the opinion of the Court was delivered by Collamer J., who said: “ Parol evidence cannot be admitted to vary, contradict, add to, or control a deed, or written contract. The deed of bargain and sale between these parties, had for its object the conveyance of certain land; and the extent of the land conveyed, the parties thereto, the estate conveyed thereby, and the covenants attending it, could not be affected by parol proof; and even that part which relates to the consideration or payment, could not be contradicted or varied by pa-rol, so as in any way to affect the purpose of the deed: that is, its operation as a conveyance. All this is well settled law, and fully sustained by the authorities cited by the defendant’s counsel. But the question still remains, when this acknowledgment of payment, under seal, comes collaterally in question, not for any purpose of affecting the conveyance of the lands, or raising any trust or interest therein, does any such rule of estoppel apply?” In this case, the Court below allowed parol proof, to the effect, that the consideration money expressed in the deed as having been paid, had not been, in point of fact;- — and the Court in conclusion, said: “ This parol proof was, therefore, correctly admitted:” and in support of the opinion cited a portion of the authorities which we have quoted above.

And in Morse vs. Shattuck, Richardson Ch. J., said: “ It seems to be well settled, as a general rule, that, in a Court of law, where a consideration of money is expressed to have been paid in a deed made for the purpose of conveying land, the law will not permit an averment to the contrary.” (Citing the authorities.)

It has been held in some cases, that, if a particular consideration be expressed in a deed, no other consideration can be averred.” (referring to the authorities relied on by the appellants in their brief on this point.)

In other cases it has been held that any consideration, not inconsistent with that expressed in the deed, may be averred, (quoting the same authorities relied on by appellants on this point.)

“ These authorities (continued the learned Judge) may be, probably, all reconciled by adverting to the different purposes for which an attempt has been made to show other considerations, than those expressed in the deeds, and to the different species of considerations which have been expressed in the deeds.”

“ It is perfectly well settled that a consideration expressed in a deed cannot be disproved for the purpose of defeating the conveyance, unless it be on the ground of fraud. Thus, when a consideration of money is expressed in a deed of bargain and sale, no averment is admissible that no money was paid, in order to show that nothing passed by the deed for want of consideration.”

“ But for other purposes, the acknowledgment of the receipt of money in a deed, may be contradicted.” * * * *, Concluding the opinion by saying: “ And we are of opinion in this cause, that although the receipt of the payment of the consideration expressed in a deed, cannot be contradicted for the purpose of defeating the conveyance) yet, for the purpose of ascertaining the damages to which a plaintiff may be entitled for the breach of the covenant of seizin in a deed, the true consideration may be shown, notwithstanding a different consideration is expressed in the deed.”

Having settled the legal question, in regard to the competency of parol proof, to establish the real consideration inducing the execution of the deed, by Taylor, as the agent and attorney in fact of the complainants, to Wilson, in conformity with the above authorities, we will now look to the evidence, and determine whether the prima facie case made out against the defendant Taylor, has been repelled by the proof, aliunde, which he offered at the hearing. Before proceeding to do this, however, we will state, that to remove this presumption, and defeat its effect, evidence clear, conclusive, and of the most irrefragible character haá been uniformly held to be required, and that the burden of proof is on the defendant Taylor. See Ayres vs. McConnel, ubi. sup.

By reference to the testimony of the defendant’s witness, it will be discovered from our statement that there can be no doubt on the subject. The witness Jones states that he “waspresent wdien a verbal agreement was negotiated between Creed Taylor (defendant) and John R. White, who was acting as agent for John Wilson, in relation to the prosecution and confirmation of a certain Spanish grant of land, purporting to be made by the Spanish government, in the year 1793, to one Don Joseph Yalliere. The said agreement was negotiated between said White and Taylor in the spring of 1841. John R. White, as the agent of John Wilson, proposed to Creed Taylor (defendant) to prosecute the said grant to final confirmation, at his own expense, for one half of said grant, which proposition Creed Taylor (defendant) acceded to, provided it met with the wishes of the heirs of Don Joseph Valliere, whom he promised to see, and make known to them the proposition.

The witness Scull testified that, “ some time in the spring of 1841, as my recollection serves me, Creed Taylor (defendant) addressed a letter to me, or my father, to whom I do not now remember, but am certain that a letter was addressed to one of us, stating that he had received information from a man by the name of White, that one John Wilson was extensively engaged in investigating old Spanish claims, and that from the interview had with the said White, that a contract could be effected with Wilson to take charge of, and prosecute a certain Spanish grant, made by the Spanish government, in the year 1793, to Don Joseph Valliere, and from the interview had with White, he believed Wilson would take charge of, and prosecute said grant to final confirmation — pay all expenses and costs attending such prosecution, for one half of the grant,.and requested the witness Scull, to see the heirs of Valliere, and advise them of the proposition, which he states he did, except as to some two or three; and he further states that those who were consulted expressed themselves perfectly agreed as to it.

The witness, White, states, substantially, the facts testified to by Jones; adding that he was a witness to both the deed and agreement — was present when they were executed — knows that no money consideration was paid, or agreed to be paid, for the deed: but that the covenants, in the agreement, on the part of Wilson, was the sole and only consideration, inducing the execution of the deed. He furthermore testifies thathe was acting as agent for Wilson in the negotiation with Taylor, mentioned by Jones.

The witness, Lewis, states that he was one of the attesting witnesses to both the deed and agreement, and knows, from the admissions and conversations of the parties at the time of the execution of those documents, that no money consideration was paid by Wilson to Taylor, and that none was to be paid on account of said deed; that the true consideration inducing the execution of said deed, was the covenants and agreements entered into by said Wilson, as set forth in said contract.

There was no proof militating against this evidence of the defendant, introduced by the complainants. We think, therefore, that there can be no doubt, but that it is clearly manifest, from this testimony, that the consideration of money named in the deed from Taylor to Wilson, was only nominal; that the true consideration inducing the execution, was the covenants of Wilson, contained in the agreement between himself and Taylor, in respect to the grant of Valliere. Having received no money from Wilson he is responsible for none to the complainants on this score.

But is he liable to the complainants for neglect, for bad faith, or covinous conduct with Wilson? We think not, most clearly; for the reason that, from the testimony of Jones and Scull, he not only did not keep from the complainants what he had done with Wilson, but that he absolutely advised them of the proposition that had been made to him by Wilson, and obtained the approval of all, except three, of the parties, who, we may reasonably infer, in the absence of direct proof of the fact, were absent, or did not reside in the vicinity of the other heirs of Yalliere, who were really applied to by Scull, on the subjeet, at the instance of Taylor.

3d. Proposition. This has been determined in response to the second inquiry, which we have just considered and disposed of. It is, therefore, wholly unnecessary that we should further pursue the subject in this place.

In the above propositions, all the points, made by the counsel on both sides, have been considered and determined, which materially involve the final result of this cause in this Court. There were several minor points made by the counsel in their argument, and discussed to some extent in their briefs, which, determined either one way or the other, could not affect the result of this cause, in the views which we have hereinbefore expressed. We do not, therefore, conceive that we are called upon to notice those unimportant points.

On the Avhole transcript, we are of the opinion that there is no error. The final decree of the Jefferson Circuit Court in Chancery, is, therefore, in all things affirmed, with costs.

Absent, Hon. C. C. Scott.


source: Caselaw Access Project

author: Mr. Chief Justice English

license: Public Domain

text:
    Hannah, ad. vs. Carrington et. al.
    The equity doctrine is, that a mortgage is a mere security for the debt, and only a chattel interest; and until a decree of foreclosure the mortgager continues the real owner of the fee — though the rule is different at law. The equity of redemption is considered to be the real and beneficial estate, tantamount to the fee at law.
    A deed of trust, to secure the payment of a debt, with power of sale by the trustee on default of payment, vests the legal title in the trustee for the purpose of enabling him to sell the property and pass the title to the purchaser without the necessity of resorting to equity to foreclose, but is not an absolute conveyance — the debtor having the right, at any time before sale, to redeem the property by paying the debt.
    The equity of redemption, upon the death of a mortgager, passes to his administrator, and may be sold by him and transferred to the purchaser.
    A decree of a Court of chancery must be regarded as regular, so far as they are concerned, who were parties to the bill: but not so as to affect any right which was not within the scope of the bill, nor put in issue by it.
    An affirmative allegation in ah answer, if not denied by replication, must be taken as true.
    In trust sales there is no doubt that the property should be present when sold: but a stranger to the trust has no right to Object that the property was not actually present at the sale.

      As in private and judicial sales, if the property, at the time of the sale by a trustee, is in the hands of one claiming it by an adverse title, the legal title will not vest in the purchaser so as to enable him to maintain an action therefor in his own name.
    A subsequent mortgagee of a part of the property embraced in a prior mortgage, may, after exhausting all his other securities without satisfaction, file a bill in equity against the prior mortgagee for the purpose of subj ecting such property by compelling him to foreclose, and resort, first, to the other property embraced in his mortgage.
    Where a deed of trust for the benefit of creditors is given to two or more trustees, and one of them dies, the survivor may execute it.
    [n a deed of trust the power of sale is coupled with the legal estate in the hands of the trustee: and, also, with a trust for the benefit of the cestui que trust, and is not affected by the death of the grantor.

      Quere: Does the term “ mortgage” as used in the Statute (Digest ch. 110, sec. 1-2,) requiring mortgages upon personal property to be recorded in the county where the mortgager resides, embrace deeds of trust?
    Where the property conveyed to trustees to secure a debt consists of a plantation and many negroes, and the cestue que trust causes the whole to be offered in a lump, instead of offering it in such lots and parcels as would suit the convenience of bidders, it is an unfair mode of sale. A cestue que trust thus acting and bidding off the whole for less than his debt, does not acquire such an equitable title as a Court of chancery should protect and confirm against the owner of the equity of redemption, as to a part of the property embraced in a prior mortgage.

      Appeal from the Circuit Court of Hempstead county,
    The Hon. Sueltos- Watson, Circuit Judge.
    Pike & Cummins for appellant.
    As far as the equity of redemption in the two negroes was concerned, Mrs. Carrington owned that, under the agreement between her and Bouldin; and the effect of the decree in favor of Fowlkes, was to confirm both sales to him, that under order of the Probate Court and that made by Hannah, the trustee, and absolutely decreed to Fowlkes all the title which Carring-ton had at his death in the property so sold.
    A deed of trust with power of sale will be regarded in equity simply as a mortgage, with like power. Equity regards the mortgagor as still owning the fee, and the mortgages as merely creating successive charges on the property, by way of lien or collateral security: and even where sale is made under a power contained in a formal mortgage, such sale is equivalent to a statute foreclosure. Jackson vs. Henry, 10 J. R. 185; Jackson vs. Bowen, 7 Gowen 13; Demarest vs Wynkoop, 3 J. G. R. 129; Doolittle vs. Lewis, 7 J. G. R. 45. And therefore tbe sale by order of tbe Probate Court, that by the surviving trustee, and the decree, all taken together, are undoubtedly equivalent to a foreclosure. '
    Fowlkes is entitled to have the matter closed. At the very least, he is still junior mortgagee, and has a right to foreclose . on Peter and Iverson; and to compel the assignee of Easely to release to him, or proceed likewise to foreclose, or sell first the other property embraced in his mortgage.
    It is not necessary that Fowlkes should show that the other property conveyed by the deed of trust was not sufficient to pay his debt. Being junior mortgagee, he had, before his condition was changed, and while he held as mere mortgagee, the right to keep his own security intact, and to compel Easely, and his equitable assignee to resort, first, to the other property mortgaged to Easely. And when he bought under the deed of trust, his title related to the creation of the power; and he held precisely as if that deed had been an absolute, unconditional conveyance to himself of the title, subject only to Easely’scharge. Doolittle vs. Lewis j7 J. C. R. 48; Cook vs. Dickenfield, 2 Atlc. 562; Marlborough vs. Godolphin, 2 Ves. 78.
    It is perfectly certain that the estate and representatives of Carrington have no further claim to these two negroes, of any kind whatever. Carrington mortgaged them to Easely; then he mortgaged his equity of redemption in them to Fowlkes. Bouldin purchased such interest as Carrington had remaining; and that was a right to redeem by paying both mortgages: that is, he bought the equity of redemption, subject to the mortgage of it to Fowlkes. Fowlkes forecloses his mortgage, himself buying. Then he holds the equity of redemption, and Boul-din loses all his interest in the property for the sale under the power, equivalent to a foreclosure, reaches back, behind his purchase, and cuts him out altogether, carrying the equityof redemption to Fowlkes, as if it had originally been assigned to him; and has just the same effect as a regular decree of foreclosure — which, barring Bouldin of his equity to redeem the equity of redemption, gives the purchaser under the decree the whole equity of redemption. There is, therefore, absolutely nothing left, but whatever may still remain due of the debt to Easely, and Fowlkes’ title to the negroes, subject to that debt.
    But, if we regard Mrs. Carrington or Bouldin as holding the equity of redemption in these two negroes, the result will be precisely the same. Where the assignee of an equity of redemption only, pays off the older lien, in case there is a junior one or a subsequent purchase, there is no reason why the lien so paid off should be kept alive for his benefit.
    The law always presumes that the vendor or mortgagor, when paying off a prior lien created by him, does so in order to relieve the property, for the benefit of his vendee or mortgagee. And so also is it as to his assignee of the equity of redemption only. The purchaser of an equity of redemption, where there are successive mortgages, or a prior mortgage and then a sale, who pays off the prior debt, is supposed to pay it in order to relieve the estate, and not to take an assignment of it. He stands in the place of the mortgagor, and his acts are to be considered the acts of the mortgagor. Tice vs. Annin, 2 J. C. R. 129; Eaton vs. George, 2 New TIamp. 300; Taylor vs. Barrett, 3 New Ramp. 298; 6 J. G. R. 893; 6 Pick. 492; 11 lb. 294.
    On the death or refusal to act of one or more of several co-trustees, the office devolves, with the legal estate, on the survivors, or those who accept. Hill on Trustees 175, 204, 303; Stewart vs. Pettus, 10 Missou. 755; Folley vs. Wontner, 2 Jac. & Walk. 248; Owen vs. Owen, 1 Atk. 496; Osgood vs. Franklin, 2 J. C, R. 19; Franklin vs. Osgood, 15 J. R. 553; Peter vs. Beverly, 10 Peters 563; 8 Sim. 130; 1 Vent. 128; 9 B. & Ores. 306; 2 B. & Aid. 405; Jones' vs. Maffett, 5 Serg. & R. 523.
    Easely or his executor, by the new arrangement made with Bouldin, whereby enlarged time was given for payment, postponed his lien on these two negroes to that of Fowlkes; because he thereby incapacitated himself to enforce his lien on demand by Fowlkes, and prevented the latter from foreclosing, or causing sale by the trustees; and prevented him from relieving the property in question of that lien in any way, by payment even of a proportional part of the debt to Easely.
    Watkins & Gallagher for the appellees.
    As the holder of the equity of redemption, Bouldin cannot gainsay the lien of the trust deed to Fowlkes; but as the equitable assignee of Easely, he became subrogated to his rights to this intent, and no further; that holding the prior mortgage on-Peter and Iverson, he has the right to insist that Fowlkes should fairly exhaust all the other trust property and demonstrate its insufficiency in the mode provided by law, before he could resort to the mortgaged property, or redeem Peter and Iverson, or cause them to be subjected to his debt in any way.
    Easely having the prior mortgage was under no obligation to foreclose it. A junior incumbrancer might either foreclose or sell subject to the prior incumbrance, or pay it and take an assignment of it, or bring a bill to redeem, and have an account taken of the amount due upon it, if there was any doubt or controversy on that score. Trapndllvs. Richardson, 13 Ark. 552; Watkins vs. Wassell, 15 Ark. 90.
    As neither Easely or Bouldin were parties to the chancery suit to confirm the sale made by the trustee to Fowlkes, they are not bound by the decree; nor are the widow and heirs of Carrington, who were parties, bound to any further extent than the scope and object of the bill.
    1. Fowlkes acquired no title to Peter and Iverson by. virtue of his purchase of the equity of redemption from Rust, and Rust himself had acquired none, because the equity of redemption had been previously sold by the administratrix to Bouldin.
    2. He acquired no title to Peter and Iverson under the trustee’s sale made by Hannah because those slaves were not in possession of the trustee, and were not present at the sale, and there was and could be no delivery of them to the purchaser. Sheldon vs. Soper, 14 J. R. 353; Jackson vs. Striker, 1 J. Gas. 287; Cresson vs. Stout, 17 J. R. 116; Linnendall vs. Doe, 14 J.R. 222;
      Woods vs. Monell, 1 J. C. R. 503; Green vs. Green, 9 Cowen 46; Allen on Sheriffs, 171; Smith vs. Pope's heirs, 5 B. Mon. 337; Greenleaf vs. Queen, 1 Peters 138.
    3. He acquired no title by Hannah’s sale, because it was made by one of two joint trustees, and when the deed itself contained a provision for supplying any vacancy that might occur — the authority being a mere naked power to sell not coupled with any interest in the trustee: on the authorities cited by the appellant himself, the point is against him.
    4. The sale was made, after the death of Carrington, by a trustee who had not a power coupled with an interest in the subject matter of the trust or power. See Nick's heirs vs. Rector, 4 Ark, 280; Gates vs. Prior, 6 Eng. 78; Garland vs. Nunn, ib. 729.
    Where a deed of trust is given merely to secure the payment of a debt, and the trustee has no interest in the estate other than to expose it to sale on failure to pay the money there is no real or solid distinction between such a security and a mortgage. 4 Kent Com. 147; 2 Hill. Ab. 544, aud cases there cited; 1 Hill; Ab. 206 sec. 34; Brown vs. Morrison, 5 Ark. 217; Smith vs. Robinson 13 Ark. 533; 2 Rob. Va. Rep. 530; 8 Ala. 690, 7 Humph. 72, 77; 7 Sm. & Mar. 319; 1 Eng. 269. Wherever the instrument is intended as a security for the payment of money, whatever may be the form of the contract, the mortgagor is entitled to redeem. Casbourne vs. Scarfe 1 Atlcyns 603; Howard vs. Harris, 1 Vernon 190; Skinner vs. Miller, 6 Littell 184; Clark vs. Henry. 2 Cowen 324; Conway's Exr. vs. Alexander, 7 Cranch 218; 1 Dana 200; 9 N. Hamp. 69; 3 Ark. Rep. 364; 5 ib. 321; Moore vs. Anders, 14 Ark. 638.
    Whatever rights Fowlkes may have had as to the other property,^ is clear that as to Peter and Iverson his lien was inferior and subject to that of Easely under his prior mortgage, which included them. He has no right to subject them to the satisfaction of his claim, except upon the contingencies, first, that the other property mortgaged to him is insufficient, and second, that the other property which the prior mortgage bears upon is more than sufficient. 2 Lead. Cases in Equity 194 and authori

      ties citedj Freem. Chy. 574; 1 Paige 185; 5 J. C• R' 320; 15 J. R., 485. .
   Mr. Chief Justice English

delivered the opinion of the Court.

In January, 1852, Edward B. Fowlkes filed a bill in the Hempstead Circuit Court, against Joanna T. Carrington, Albert Rust and Richard Boyd, as executor of Wm. B. Easely, for the recovery of two slaves, etc. The material allegations of the bill are as follows:

On the 12th of August, 1843, Robert Carrington, of Hemp-stead county, executed a mortgage to Wm. B. Easely of Virginia, upon forty two slaves, among which were Peter and Iver-son, to secure the payment of a bond for $12,229 71, due at the time. The mortgage extended the day of payment to the 1st of January following. The slaves embraced in the mortgage were upon Carrington’s “ Caruse” plantation in Hempstead county.

On the 21st of January, 1845, Robert Carrington and wife, Joanna T., made a deed of trust, conveying to Samuel Baldwin and Joel W. Hannah, as trustees, the several tracts of land embraced in Carrington’s “ Lost Prairie” plantation in Lafayette county, with forty slaves, to secure to Edward B. Fowlkes the payment of a debt of $10,780 34, in three equal annual in-stalments, falling due 1st of April 1846-47-48, with interest at ten per cent, from the date of the deed. The deed to be void on payment of the debt by Carrington, but on his failure to meet the instalments at maturity, the trustees were empowered to make public sale of the property, etc. If they failed to attend to the execution of the trust, Fowlkes was empowered to appoint one or more trustees to act in their stead, etc. Among the slaves named in this deed of trust were the same Peter and Iverson embraced in the mortgage to Easely. The deed was recorded in Lafayette.

In the latter part of the year 1845, Robert Carrington died, and his wife, Joanna T. was appointed his administratrix by the Hempstead Probate Court.

On her application, for the purpose of paying debts, said Probate Court, on the 22d of January, 1846, made an order for her to sell “ all the right, title and interest” of Carrington in the lands and slaves embraced in Fowlkes’ deed of trust — sale to be made at the Lost Prairie plantation, on the 21st of February, 1846. The interest of Carrington in the property was accordingly sold, and purchased by Albert Rust, Carrington’s son-in-law, for the aggregate sum of $500, and conveyed by the ad-ministratrix to him.

On the 8th of June, 1846, the debt of Fowlkes remaining . wholly unpaid, he purchased of Rust, for the sum of $8,526 54, the title so acquired by him, and took the conveyance of himself and wife therefor; and, thereupon, obtained possession of the lands, and all of the slaves named in the deed of trust, except Peter and Iverson, and had from thence forward continued in the undisturbed possession thereof. He had never had possession of Peter and Iverson.

That, desiring to perfect his title, doubting the validity of the sale under the order of the Probate Court, his entire debt remaining unpaid, and Baldwin, one of the trustees named in the trust deed, having died, the complainant Fowlkes caused Hannah, the surviving trustee, to sell the lands and slaves embraced in the deed, at public sale, on the 3d day of June, 1848, according to the provisions of the trust, and the complainant purchased the whole of the property for the aggregate sum of $15,000: and paid the expenses of the trust, etc.

Being afterwards advised, by counsel, that the surviving trustee had no power to make the sale, compláinant took no deed from him: but on the-2d' of May, 1849, filed a bill in the Lafayette Circuit Court, against the administratrix and heirs of Car-rington, and on the 30th of October, 1850, obtained a decree, without contest, confirming the sale, and complainant’s title to the property.

That Easely had died in Virginia, and Boyd had been appointed his executor: and that the former, in his lifetime, or the latter, since his death, had made some contract with Mrs. Car-rington, by which the time for the payment cf Easely’s debt-had been extended, and she was permitted to keep possession of the slaves named in the mortgage. That she, or Rust, had been in possession of Peter and Iverson, ever since the death of Carrington. They were worth $900 each, and their annual hire $125 each.

Part of Easely’s debt had been paid, but the amount still due him was so much larger than the value of Peter and Iver-son, that complainant could not, with any advantage, redeem them by paying off the mortgage: but that the other slaves, embraced in the mortgage, were amply sufficient to satisfy the whole of the debt.

That, by the delay of Easely and his executor, and the extension of time given to Mrs. Carrington, the lien of the mortgage had, in equity, been postponed, and, as against complainant, was no longer a charge upon Peter and Iverson.

Prayer — that the Court decree to complainant possession of these two slaves, with the value of their hire, etc., as against Mrs. Carrington and Rust, and that Easely’s executor be required to foreclose his mortgage, and have resort first to the other slaves for satisfaction before touching Peter and Iverson.

Boyd, the executor of Easely, states in'his answer to the bill, that no steps had been taken to foreclose the mortgage,because he supposed that no one but himself as such executor, and Wood Bouldin, had any interest in the matter. That, after the death of Carrington, the interest of his estate in the slaves embraced in the mortgage, was sold by an order of the Probate Court, and purchased by Bouldin. That, on the 18th of August, 1845, Easely made an agreement with Bouldin, by which he consented to receive payment of the mortgage debt by annual instalments of $2,000, to commence on the 1st June, 1847, etc. Under this agreement, Bouldin paid to Easely, in his lifetime, $624 13, and to respondent, since his death $9,811 79. By the agreement, Easely did not surrender the lien of the mortgage to Boul-din, but expressly retained it as security for the debt, and respondent claimed the right to hold the mortgage as such security until the entire debt was extinguished under the agreement: a copy of which was exhibited, etc. Respondent knew nothing of the claim of complainant to the slaves Peter and Iverson, until the filing of the bill, etc.

On the coming in of Boyd’s answer, Fowlkes filed an amendment to his bill, making Bouldin a party defendant, alleging that he claimed to have purchased the equity of redemption of Carrington’s estate in the mortgaged property; setting out the agreement between Easely and Bouldin, the payments made, and the amounts due, etc. That Bouldin was the brother of Mrs. Car-rington, and purchased the equity of redemption, and made the agreement with Easely for her benefit, in order that she might pay off the mortgage debt, and retain the slaves. That she had retained the possession of the slaves, and made the payments upon the mortgage debt, under Bouldin’s agreement with Easely, out of the proceeds of their labor. That by the terms of the agreement, the time had been extended for the payment of the mortgage debt, but that Bouldin had failed to comply with his part of the agreement, and Easely’s executor had the right to foreclose at once; etc. Prayer as in the original bill.

Albert Rust and Mrs. Carrington did not answer the bill.

Bouldin answered, substantially, as follows: That, under an order of the Probate Court of Hempstead county, Mrs. Carring-ton, as administratrix of Robert Carrington, on the 23d of May, 1845, made a public sale of all the right, title and interest of the estate of her intestate, in and to the slaves mortgaged, by him to Easely, and that respondent, in the presence of complainant, Fowlkes, became the purchaser thereof at the sum of §500. Respondent was advised that the order and sale were made in accordance with the Statute, etc., and the title so acquired by him valid. After the sale, having complied with the terms thereof, the. administratrix executed and delivered to him a deed for the interest in the property so purchased by him. The order of the Probate Court, etc., and the deed, are exhibited.

“ To the allegation that the purchase was made by respondent for the benefit of his sister, Mrs. Carrington, or for her, and her children, he answers that if complainant meant thereby that l’espondent was the agent of his sister, etc., in making the purchase, or that, prior to the purchase, he entered into any agreement with her, creating a trust between him and her, etc., then, respondent wholly denies the allegation. He was advised and knew, as well on the general principles which regulate the conduct of fiduciaries, as under the special provisions of the Arkansas Statute, that she had no legal right, either in her own name or through the agency of another, to make such a purchase. It is true, that it was the object of respondent, in leaving his home in Virginia, and visiting Arkansas, as he did, in the spring of 1845, to render such aid as he lawfully might to his sister and her children, in their unexpected pecuniary difficulties, and respondent’s purpose was well known to them. If, then, the complainant meant to allege, that it was the purpose of respondent, in making said purchase, to take no personal benefit therefrom, other than the gratification of aiding his sister and her children, but to give the entire benefit thereof to his sister, respondent willingly and fully admits the allegation. Such was his purpose, and his sole purpose, and he has yet to learn, that by the code of that or any other State, there is any moral, legal or equitable obstacle to such a purchase, for such an object. If so, respondent must abide the consequences of his error: he, certainly, would not attempt to conceal it.”

The circumstances under which the sale was ordered, and the purchase made by respondent, were these: The estate of Carrington was found to be indebted to utter insolvency. All his assets not embraced in the mortgage to Easely, and the deed of trust to Fowlkes, were more than covered by judgments — no part of Fowlke’s debt was due, but the interest upon Easely’s debt was in arrear: there were no assetts in the hands of the administratrix, out of which it could be paid: the mortgage was subject to foreclosure, and Easely’s attorney had given notice to the administratrix, that, unless the interest in arrear was promptly paid, he would proceed to foreclose, etc. Property, at that time, when put up at public auction, for cash, was selling at a great sacrifice, and the administratrix was apprehensive that if the mortgage property was brought to the block, it would not discharge the debt. ■ Under these circumstances, the Probate Court ordered the sale of the equity of redemption, etc.

Respondent was well acquainted with Easely, and believed he could make a satisfactory arrangement with him in Virginia: and he believed, also, that Royston, his attorney in Arkansas, would accept the interest in arrear, and waive a foreclosure of the mortgage: and for these reasons, respondent purchased the equity of redemption, bidding more for it than any one else under the circumstances. He gave his bond to the administra-trix due at twelve months, with good security, for the purchase money, according to the terms of the sale.

On the 28th of May, 1845, respondent paid Royston $506 26, being the interest due on the mortgage debt, 1st January preceding, which he accepted as a compliance with the terms of the mortgage, and waived further proceedings to foreclose. This act was subsequently ratified by Easely in person, who admitted that, under all the circumstances, the mortgage was not subject to foreclosure. The amount so paid Royston, was not received by respondent from his sister, Mrs. Carrington, but was his own money.

After respondent made the purchase, and became the absolute owner, as he supposed, of the mortgaged property, subject to the mortgage debt and the widow’s dower, he made a verbal agreement with Mrs. Carrington, by which he has ever since held himself morally and legally bound, to the effect, that he would see Mr. Easely, on his return to Virginia, and by becoming personally bound for the mortgage debt, induce him to receive payment thereof in annual instalments of $2,000 each, or in instalments as favorable to respondent and his sister, as could be obtained. In the mean time that the slaves, or such of them as she desired, should remain at Mrs. Carrington’s residence, .and on her plantation, under the superintendence and control of respondent’s brother, and as the property of respondent, but to be worked exclusively for the benefit of Mrs. Carrington, that from the proceeds of their labor, and any other resources at her command, she might pay off the bond executed to her as .administratrix of Carrington by respondent for the equity of redemption aforesaid, and $106 26 borrowed by him of Rust to enable him to make the payment of interest to Royston above referred to; and in addition thereto, annually remit to respondent, prior to the period of payment, such sum ashe should agree to pay to Easely, until the whole mortgage debt should be discharged. When that event should occur, and all advances, which respondent might make on account of the mortgage, should be returned to him, he was to convey to Mrs. Carrington the entire interest vested in him by the sale aforesaid: and it was with a view to such an arrangement alone, that respondent made the purchase.

In pursuance of this agreement, respondent left the slaves on the plantation of Mrs. Carrington, under the control of his brother, but for her benefit, and had neither asked nor received hire for them, being entitled to none under his agreement aforesaid. And on his return to Virginia, he entered into the contract with Easely exhibited with Boyd’s answer. Under which contract respondent had paid to Easely and his executor, to 1st of June, 1852, $12,942 18, on the mortgage debt, leaving a balance due thereon of $1,158 13. The amount paid, and thebalance due, making $14,100 18, chargable upon the mortgaged property. A portion of the money to meet the instalments upon the mortgage debt, under the contract with Easely, was furnished to respondent by Mrs. Carrington, according to agreement with her. The balance he advanced out of his own means, and she had afterwards refunded it to him. She was in arrear with him about $400 upon such advances, at the time of answering.

A portion of the slaves named in the mortgage was still upon the Caruse place, and the others had been removed to a plantation recently purchased by Mrs. Carrington, on Red river, in Texas.

Among the slaves purchased by respondent under the sale of the equity of redemption, and left in the possession of Mrs. Carrington, under the agreement aforesaid, were Peter and Iverson, who are still in her possession. They are admitted to be the same slaves embraced in Fowlkes’ deed of trust by those names.

Respondent denies that complainant, Fowlkes, has shown any title to these two slaves on either of the grounds on which he rests it. And, first, as to his purchase from Rust, of the equity of redemption in the lands and slaves included in the deed of trust, the complainant himself expresses a doubt as to the validity of the sale to Rust, under the order of the Probate Court, and of the title derived thereby, etc. But conceding the sale to have been valid, complainant derived no title under it, to the two slaves in question. All that Rust purchased, or could have purchased, and all that complainant purchased of him, was the interest of Carrington’s estate in the trust property. But all such interest in the slaves Peter and Iverson had been previously sold and purchased by respondent; and could not be sold again, etc.

Respondent submits that the interest so purchased by him was the absolute property in the two slaves, subject only to Easely’s debt, to Fowlkes’ debt, and to the dower right of Mrs. Carrington. That, before the complainant can show any title to the slaves in question, he must first satisfy the Court that these slaves are not necessary to discharge the Easely debt, and secondly, that they are required to discharge his own debt under the trust deed. Without inquiring whether they would, or would not be required to satisfy the mortgage, respondent insists that it is manifest from the bill itself that the complainant’s debt is greatly more than discharged by the property he now holds, without a resort to these two slaves. The debt charged on the property by the terms of the deed, amounted, on the 8th of June, 1846, the date of the complainant’s purchase of Rust, to the sum of $12,271 60, as follows:

Principal sum secured by the deed,'.$10,780 34

Interest at 10 per cent, from the date of the deed, to June 8th, 1846,. 1,491 26

Making.$12,271 60

To secure this sum, complainant held a lien on the valuable Lost Prairie estate, and forty slaves: and the question is, was this property more than enough to pay the debt, without taking the two boys Peter and Iverson. Respondent would refer, as an answer to the question, to the act of complainant as set out in the bill. He actually paid in money, on the 8th of June, 1846, for Carrington’s interest in the property — that is, for what might remain as part of Carrington’s estate, after paying the debt — the sum of $8,526 54: thus valuing the property at a price about two thirds greater than the debt. Respondent submits, therefore, that complainant cannot successfully maintain that the two slaves, Peter and Iverson, were necessary to discharge his debt; and not being required for that purpose, they belong to respondent, he being the first purchaser of Carrington’s interest in them.

Respondent insists that the decree obtained by complainant, in the absence of all defence, confirming his purchase under the trust sale, was inoperative and void as to respondent, he not being a party thereto. That decree being of no binding force as to him, he insists that there is nothing in its terms to -com mend it to the Court as an original measure of equitable relief. That it should not be adopted: 1st, because, by the complainant’s own admission the sale confirmed was void: 2d, It was a monstrous sacrifice of the property, as shown by the value put upon it by complainant when he purchased of Rust the equity of redemption, etc.: 3d, The slaves, Peter and Iverson, were not in the possession, or under the control of the trustee, at the time of the sale, but were then, and ever since, in the adverse possession of another, holding under and for respondent, etc.

The cause was heard upon the original bill, amendment and exhibits: the answer of Wood Bouldin, and exhibits, without replication thereto, and upon an agreement of facts made by counsel.

By this agreement, it is admitted that Robert Carrington, when the mortgage and deed of trust were respectively executed, had two plantations, with slaves thereon engaged in planting, one known as the Lost Prairie plantation in Lafayette, and the other as the Caruse plantation, in Hempstead county, about 20 miles apart. That all the slaves mortgaged to Easely, were employed and upon the Caruse plantation, from the date of the . mortgage until the winter of 1852-3. That the deed of trust to Fowlkes included all the slavés .then employed on the Lost Prairie plantation, together with Peter and Iverson, the slaves in controversy. That these two slaves were on the Caruse plantation in Hempstead county, and were not present, when the trustee, Hannah, made the sale under the deed of trust.

The Court dismissed the bill for want of equity.

In the meantime Fowlkes had died, and the cause had been revived in the name of Hannah as his administrator, who appealed to this Court.

1. It appears that Robert Carrington died in the spring, and not in the latter part oí the year 1845, as alleged in the bill. The order of the Probate Court for the sale of his interest in the slaves mortgaged to Easely, was granted on the 22d of April, and the sale was made on the 23d of May, 1845; at the Caí use place, where the slaves were. Both the order and the sale appear to have been regular, and were authorized by Statute. Dig. ch. 4 sec. 164-5. At this sale, Bouldin purchased, and became the owner of “ all the right, title and interest” which Carrington had, in and to the slaves embraced in the mortgage at the time of his death. Ib. What was such interest in the slaves Peter and Iverson? He had first mortgaged them to Easely. “ The equity doctrine is, that the mortgage is a mere security for the debt, and only a chattel interest: and that until a decree of foreclosure, the mortgagor continues the real owner of the fee. The equity of redemption is considered to be the real and beneficial estate, tantamount to the fee at law, and is accordingly held to be descendible by inheritance, devisable by will, and alienable by deed, precisely as if it were an absolute estate of inheritance at law.” 4 Kent’s Com. 159. Trapnall's adx. vs. State Bank, present term.

Afterwards, Carrington made the deed of trust for the benefit of Fowlkes. By this deed, he conveyed the legal estate in the slaves to the trustees, charged with a prior incumbrance in favor of Easely. The legal estate was vested in the trustees for the purpose of enabling them to sell the property, and pass the title to the purchaser, without the necessity of resorting to equity to ■ foreclose, in the event of Carrington’s failure to pay the debt secured by the deed. But the conveyance was not absolute. By its terms, it was made to secure a debt, and was to be void on the payment, by Carrington, of the debt, by the instalments, and at the times, recited in the deed. The payment of the debt by him, at the times stipulated, would have defeated the conveyance. If he had tendered the money, and it had been refused, he could have filed a bill, brought the money into Court, and enjoined the sale — in oíher words, redeemed the property. Mayo vs. Judah, 5 Munf. 495. Wright vs. Henderson, 12 Texas R. 44. Marriott & Hurdesty et al. vs. Givens, 8 Ala. R. 694. Magee vs. Carpenter, 4 Ala. 469. P. & M. Bank of M. vs. Willis & Co., 5 Ala. 771. Hawkins vs. May. 8 Ala. 673. Sims vs. Hundley, 2 How. (Miss.) R, 896.

Whatever difference there may be, between a mortgage and a deed of trust in other respects, (see Crittenden vs. Johnson, 6 Eng. R. 94; Pettit et al. vs. Johnson et al., 15 Arh R. 60) it is manifest that they agree in this, that the debtor has the right in equity to redeem the property, by paying or tendering the amount of the debt, at any time before foreclosure of the former, and sale under the latter. At the time, therefore, of Carring-ton’s death, the title to the slaves had not passed absolutely out of him, but he had the right to redeem by discharging the two incumbrances upon them; and his administratrix, etc., succeeded to this right, and it existed down to the time that Bouldin purchased the equity of redemption.

No matter what the interest remaining in Carrington after the execution of the two instruments, may be technically called, it is beyond dispute that whatever interest he had, in law or equity, was purchased by Bouldin, at the sale made under the order of the Probate Court. It follows that Rust purchased no title at all in Peter and Iverson at the sale of Carrington’s equity of redemption in the property embraced in the trust deed, this sale being subsequent to the one at which Bouldin purchased; and that Rust could, and did convey no title to Fowlkes in these slaves.

2. Fowlkes’ title under the trust sale will next be considered.

He having caused a sale of the trust property to be made, under the provisions of the deed, and become the purchaser thereof, and having, by bill in equity against the administratrix, and heirs of Carrington, obtained a decree confirming the sale, we must regard it as regular so far as they are concerned, who were parties to the bill. But Bouldin and Easely were not parties, and their rights were not affected in any way by the decree. Nor was any right, which Mrs. Carrington may have acquired under Bouldin, cut off or barred by the decree, because it was not within the scope of the bill — uot put in issue by it. 1 Greenlcaf’s Ev, sec. 528-9.

Bouldin urges several objections to the validity of this sale.

Thé first objection is, that at the time the sale was made, the slaves, Peter and Iverson, were not present; were not under the control of the trustee, but were in the adverse possession oí Bouldin, or his agent.

In private sales of personal property, it is not essential to the validity of the sale that the article sold should be present, or actually in the possession of the vendor at the time of the transfer. For example, if the subject of the sale be a horse, it may be running in the range: or, if a slave, he may be in the hands of a bailee of the vendor, and yet the legal title will pass to the vendee by the sale, because, in contemplation of law, the possession follows the title. But if at the time of the sale, the property is in the possession of one claiming adversely to the vendor, the legal title does not vest in the vendee, because the right of the vendor to the property is a chose in action, which is not assignable by the common law. See Stedman vs. Riddick, 4 Hawks (N. C.) R. 29. Goodwyn vs. Lloyd 8 Porter 237 Foster vs. Garee 5 Ala. R. 427. O’Keefe vs. Kellogg, 15 Illinois R. 347. McGoon vs. Ankeny, 11 Ib. 558. Stogdell vs. Fugate, 2 A. K. Marsh. 136.

It has been held that va. judicial sales of personal property, the property should be present, and pointed out by the officer to the bidders, otherwise the sale will not be valid. Cresson vs. Stout, 17 Johnson R. 116; Sheldon vs. Soper, 14 Ib. 353. Jackson vs. Striker, 1 Johnson’s cases 287. Linnendoll vs. Doe, 14 John. R. 222. Bostick vs. Keizer, 4 J. J. Marshall’s Rep. 597. But it is said that this restriction is intended for the benefit of the owner, and. he may waive the actual presence of the property. Gift vs. Anderson, 5 Humph. R. 577. If, however, the property, at the time of the sale, is in the possession of a person claiming to hold it by a title adverse to that of the defendant in the execution, it has been held that the legal title would not pass to the purchaser, because the right of the defendant in the execution to the property, is but a chose in action, which is not the subject of execution by the common law. Bostick vs. Keizer, 4 J. J. Marsh. 597.

In trust sales, like the one under consideration, no doubt but the property should be present when sold. It is to the interest both of the maker of the trust, and the cestui que trust, that it should bring a fair price — other creditors may also have an interest in the matter. It seems, however, that a stranger to the trust has no right to object that the property was not actually present at the sale. But, as in the other classes of sales, if at the time of the sale the property is in the hands of one claiming it by an adverse title, the legal title will not vest in the purchaser so as to enable him to maintain an action therefor in his own name, for the reason that the subject of the sale is but a chose in action, Herbert vs. Henrick, 16 Ala R. 599. Gary vs. Colgin, 11 Ala. 514—519. Foster vs. Garee, 5 Ib. 425. Brown vs. Lipscomb, 9 Porter 472. Bostick vs. Keizer. 5 J. J. Marsh. 597. Hundley vs. Buckner, 6 Sm. & M. 77.

This principle seems to apply to all three of the classes oí sales which we have been considering.

How far, and under what circumstances, a Court of equity would protect, or enforce the claim of the purchaser, is another question.

In this case, the answer of Bouldin avers that he held the slaves adversely at the time of the trust sale. He had purchased Carrington’s equity of redemption in them, and had, as he insists, become subrogated to the rights of Easely under the mortgage, which was prior to the trust deed, to the extent that he had paid the mortgage debt.

It is clear that the trustee had no right to the possession of the slaves at the time of the sale, the senior incumbrance not being discharged, He could not have recovered them by an action at law for the purpose of selling them. Manifestly, the proper course for Fowlkes to have pursued, would have been to cause the trustee to expose to a fair sale all the property embraced in the trust, except the two slaves included in the mortgage, first, and if it was not sufficient to satisfy his debt, then to have filed a bill against Bouldin and Easely for the purpose of subjecting Peter and Iverson, by compelling them to foreclose their mortgage, and resort first to the other property embraced therein. Given’s ad. vs. Davenport, 8 Texas R. 451. Hall and wife vs. Harris et al., 11 Texas 300. Of, there being doubts about the power of the surviving trustee to sell any of the property, Fowlkes might have resorted to equity to close up the entire trust. Sullivan vs. Hadley 16 Ark.; Walton et al. vs. Cody 1 Wisconsin R. 420. Wright vs. Henderson, 7 How. Miss. R. 569.

The second objection to the validity of the trust sale is, that the power of sale was vested by the deed of trust jointly in two trustees, and that one of them being dead, the power did not survive to the living one — that he could not execute the trust. This is nof. a valid objection. Joint trustees are not within the reason of the Statute, (Digest ch. 92, sec. 6,) abolishing sur-vivorships. It is a well settled rule of the law, that if a power coupled with a trust be given to two or more, it may be executed by one who has survived the others. Parsons vs. Boyd, 20 Ala. 118. Hawkins vs. May, 12 Ib. 672. Taylor vs. Benham, 5 How. U. S. R. 233. Peter vs. Beverly, 10 Peter’s R. 532. Franklin vs. Osgood, 14 John. R. 527.

The third objection to the validity of the sale, that the power of the trustee was not coupled with an interest, and therefore was revoked by the death of Carrington, is likewise untenable. After Barrington executed the deed, he could not have revoked it himself while living, and bis death would hardly recall a power, which had passed beyond his control.

A power of sale in a mortgage falls under the class of powers appendant or annexed to the estate: and they are powers coupled with an interest, and are irrevocable, and demand part of the mortgage security, etc. 4 Kent's Com. 148. In a deed of trust the power of sale is coupled with the legal estate, and, also, with a trust for the benefit of the cestui que trust.

There is a fourth objection to Fowlkes’ title, under the trust sale, apparent on the face of the record before us. The deed . of trust seems to have been recorded in Lafayette county, but at what time does not appear from the recorder’s certificate. At the time of the execution of the deed, and from thence forward until his death, Carrington resided in Hempstead county: and the slaves, Peter and Iverson were on the Carase plantation in the same county. There is no allegation in the bill, or showing of record, that the trust deed was ever recorded in Hemp-stead.

The Statute provides that “ all mortgages” upon lands shall be recorded in the counties where the lands lie: and mortgages upon personal property, in the county in which the mortgagor resides: and that every mortgage, whether for real or personal property, shall be a lien on the mortgaged property from the time the same is filed in the Recorder’s office for record, and not before, etc. Digest ch. 110, sec. 1-2.

A mortgage not acknowledged, or proven, and recorded as required by the Statute, though good between the parties to it, is not valid as against subsequent purchasers, or incumbrancers, of the subject of the mortgage. Main et al. vs. Alexander, 4 Eng. R. 112.

Does the term “ mortgage,” used in the Statute, embrace deeds of trust?

Mr. Kent defines a mortgage, thus: “ A mortgage is the conveyance of an estate, by way of pledge for the security of debt, and to become void on payment of it. The legal ownership is vested in the creditor: but, in equity, the mortgagor remains the actual owner, until he is debarred by his own default, or by judicial decree.” 4 Com. 136. The definition of Mr. Coote is substantially the same. Coote on Mortgages, 1.

Again, says Mr. Kent: “ It is usual to add to the mortgage, a power of sale in case of default, which enables the mortgagee to obtain relief in a prompt and easy manner, without the expense, trouble, formality and delay of foreclosure by a bill in equity.” 4 Corn. 146.

The instrument under consideration falls fully within Mr. Kent’s definition of a mortgage with a power of sale. Upon its face, it purports to be a security for a debt, to become void on payment: the grantor remained in possession: on default of payment, the trustees were to sell sufficient property to pay the debt only, and any excess of property, or of the proceeds of the sale, that might remain after paying the debt, belonged to the grantor. The character of the instrument is the same, whether the power of sale be vested in the mortgagee, or a third person as trustee.

The counsel on both sides of this case agree that the deed of trust is but a mortgage with a power of sale, and so the Courts have generally regarded such instruments — though they differ, in some respects, from mortgages without such power. See Wright vs. Henderson, 12 Texas R. 44. Byron vs. May. 2 Chandler R. 103. Walton vs. Cody et al. 1 Wisconsin R. 420. Marriott et al. vs. Givens, 8 Ala. R. 694. Planter's and Merchant's Bank of Mobile vs. Willis & Co., 5 Ala. R. 791. Sims vs. Hundley, 2 How. Miss. R. 896. (Smede’s Digest p. 410.)

If therefore the term “ mortgage," as used in the Statute, embraces deeds of trust, and we see no good reason why it does not, it follows that Bouldin purchased the slaves in question discharged of any lien of the trust deed, and as against Fowlkes acquired a perfect title to them.

Sustaining this objection to Fowlkes' title would dispose of the whole case, but it may be well to look further into his right to the relief sought by the bill, on the supposition that the term “ mortgage" as used in the Registry act, was not intended to embrace deeds of trust like the one under consideration.

As above shown, he cannot be regarded as having purchased the legal title to the slaves Peter and Iverson at the trust sale. Did he purchase such an equitable title as a Court of chancery should protect and confirm as against Bouldin? There is nothing in the bill or exhibits to show that the other slaves and lands embraced in the deed were first exposed to sale, and failed to satisfy the trust debt. Indeeed, it is to be inferred from the conveyance from the trustee to Fowlkes, that the whole of the property was put up at once in a body, and bid off for Fowlkes, at the sum of $ 15,000. This mode of sale was unfair, and contrary to the provisions of the deed, which manifestly contemplated a sale of so much of the property only, as should be found necessary to discharge the debt: and whether less than the whole was sufficient for that purpose or not, could only be fairly ascertained by offering it in such lots or parcels as would suit the convenience of bidders, and comport with the character of the property to be sold.

At best, therefore, upon the record before us, we cannot regard Fowlkes as having any claim to the two slaves in question other than that of a cestui que trust in an incumbrance junior to the mortgage.

3d. It may now be enquired what equitable right Fowlkes has to claim that the two slaves in question shall be subjected, in the hands of Bouldin, to' a further satisfaction of his. debt? There is no allegation in the bill, that the other property purchased by him at the trust sale, was of less value than the amount of his debt. The answer of Bouldin avers that it was worth greatly more than the debt. This is an affirmative allegation, but not being denied by replication, it must be taken as true. Walton vs. Cody, 1 Wisconsin R. 427.

Moreover, Bouldin assumes in his answer, that the value which Fowlkes put upon the property, is to be inferred from the price he paid Rust for the equity of redemption, purchased by him at the sale under the order of the Probate Court. That he estimated its value at over $8,000 more than his debt. The counsel for Fowlkes pronounces this an egregious sophism.” We cannot so regard it. If Fowlkes desired merely to make his debt, and not to speculate upon the property, a fair legal sale under the trust deed, would have cut off Rust’s title by relation back to the date of the deed. Fowlkes could have bid the amount of his debt upon the property, and if no one would have given more, he would have obtained it for his debt. But if others would, have given more, his debt would have been paid out of the proceeds of the sale.

But he chose rather to give Rust over $8,000 for his title, and then, it is to be inferred from the record before us, caused the whole of the property to be exposed to sale by the trustee, in a lump, thereby lessening the chances for competing bidders, and purchased it in for about the amount of his debt.

Under these circumstances, we do not think that his claim upon a Court of equity for further relief is well founded.

Bouldin being the owner of the equity of redemption of the mortgaged property, when he pays oif the remainder of Easely’s debt, whether the mortgage will be thereby entirely extinguished, and his title to the property will become perfect and absolute, or whether he will be merely subrogated to the rights of Easely, and hold, in any sense, or for any purpose, as mortgagee, are questions discussed by counsel, but we do not deem it necessary now to decide them. Upon the case made for Fowlkes; his representatives are not interested in the determination of these questions.

We have regarded Bouldin as the contesting party in this ease, because by his contract with Mrs. Carrington, she was not to obtain title to the property until Easely’s debt was paid, and she had refunded to Bouldin all sums advanced by him in discharging the debt: and his answer shows that she is still in ar-rear. It was, however, measurably by the proceeds of her industry and labor that Easely’s debt was discharged pro tanto, and we have not failed to consider her ultimate equitable rights in the premises, in passing upon the claim of Fowlkes to a further satisfaction of his debt out of the slaves in controversy.

The decree of the Court below is affirmed.

Absent, Hon. T. B. Hanly.