text:
    Shall as ad. et al. vs. Biscoe et al.
    Mere delay to sue out execution during the time prescribed by law for the continuance of the judgment lien, would not of itself, be sufficient to displace the lien: nor would the issuance and return of an execution without action, by order of the plaintiff, discharge the lien, or postpone it in favor of a subsequent judgment lien. (Trapnall vs. Richardson et al. 13 ArJc. 551; Watkins et al. vs. Wassell, 15 Arle. 90.)
    íhe vendor of land has, in equity, a lien for the purchase money, not only against the vendee himself, and his heirs and other privies in estate, but also against all subsequent purchasers having notice that the purchase money remains unpaid: and this, though, there is no special agreement that there shall be a lien upon the-land for the purchase money, and notwithstanding the vendor conveys the land by deed, and takes the note or bond of the vendee for the purchase money. (14 Arh. Rep. 634.)
    But where the vendor of land conveys it to the vendee by deed, taking his note for the purchase money, an assignee, by the mere assignment of the note, would not be subrogated to the vendor’s lien upon the land for the payment of the purchase money, to enforce payment of the note. (Qucre: would the vendor, in such case, if forced to pay the note as assignor, regain his lien: or would he lose his lien by taking security for the purchase money? See the adjudications of the several States collated in the opinion.)
    The judgment of a Court of concurrent, or of exclusive jurisdiction is not conclusive of any matter which came collaterally in question, nor of any matter to be inferred by argument from the judgment: and so, where the trustees of the Real Estate Bank — W. being one of them — filed a bill against the vendor and vendees of land to obtain satisfaction of a judgment rendered in favor of the trustees against the vendees for the debt due upon the sale and purchase of the land, by being subroga-ted to the vendor’s lien, and obtained a decree to enforce the lien; W. is not thereby estopped to set up a title acquired, before the bill was filed, by purchase under a prior judgment, which was not called in question or determined by the bill and decree — no question as to the lien of such prior judgment, nor as to the title acquired by W. as purchaser under it, being before the Court.
    W. one of the trustees of the Real Estate Bank, purchased one half interest in certain lots at judicial sale under a judgment having a prior lien; afterwards, W. with his co-trustees filed two bills to fix liens upon the same lots and enforce satisfaction of junior judgments in favor of the Bank, but which had been rendered before the purchase of the lots by W. The trustees obtained decrees for the sale of the lots; caused them to be sold and purchased in their name; took deeds for them; had the sales confirmed and deeds recorded; and in each case made the purchase with the means in their hands as trustees; W., with the means and opportunity of knowing his own acts and those of his co-trustees in the premises, and with a full knowledge of his rights, is silent, during the whole proceedings, as to his own claim. Held, that under the circumstances, neither W. nor those claiming under him can be heard in a Court of equity to assert his title against the title of the trustees.

      Appeal from Pulaski Circuit Court in Chancery.

    The Hon. William H. Feild, Circuit Judge.
    WATiujrs & Gallagher for the' appellants.
    1st. Did not the Bank, if she ever had any lien upon the property in dispute, waive and lose the same by accepting the bill of exchange, with a new and additional security, inpayment of the note assigned to her and which was given for the property? Taking a note, bill or bond with a distinct security is evidence that the vendor does not repose upon the lien, but upon an independent security, and discharges the lien. 4 Kent Com. sec. 58, p. 153 (3 Ed.); Gilman vs. Brown, 1 Mason 214; Bagley vs.

      Greenlcaf, 7 Wheal. 46; Moore et al. vs. Holcombe et al., 3 Leigh 597; Brawleyvs. Catron, 8 id. 522; Campbell vs. Baldwin, 2 Humph. 248; 3 id. 616; Burke et al. vs. Gray et al., 6 How. (Miss.) Rep. 527; Foster vs. Trustees of Ihe Alheneum, 3 Ala. 302; See Annotations of Wallace in ihe American notes to Leading cases in Eq. p. 241 to 251.
    2. Did Walters by joining in the bill filed by the trustees (of whom he was one) to inforce their lien against Johnston, Hutt and Field, and Byrd, estop himself from afterwards setting up any title to the property in himself? He did not: he acted officially, and was in his own right no party to the decree. Jackson vs. Griswold, 4 Hill 528; State Bank vs. Robinson et al., 13 Arks. 318 et sep.; Douglas vs. Howland, 24 Wend. 35; Grant adm. vs. Ashley & Buchanan, 7 Eng. 762; Faulkner et al. vs. Thompson et al. 14. Ark. 481; Gardiner vs. Milling 5 Greenlf. 140.
    3. The lien of Farrelly’s judgment was not postponed by return of the first execution issued thereon unexecuted by his order. Wasselletal.vs. Watkins etal., 15 Ark. Rep. 90. TrapnaTTvs. Richardson & Waterman, 13 Ark. 551; Rankin vs. Scott, 12 Wheat. 177.
    Pike & Cummins, for the appellees.
    The first question is as to the subrogation to the vendor’s lien. Byrd sold to Hutt & Johnston, executed deed, and then, to get the purchase money, signed a joint and several note with them, for discount, on which he is still liable, or on the bill by which it was renewed, and to which also he was a party, which is the same thing.
    Notwithstanding his deed, Byrd retained his lien. Ross. vs. Whitson, 6 Yerger 50. Outtan vs. Mitchell, 4 Bibb 239. Eu-bank vs. Poston, 5 Monr. 287. White vs. Casanare, 1 Harr. & John. 106. Ghiselin vs. Ferguson, 4 id. 522. Graves vs. McCal!} 1 Call 414. Galloway vs. Hamilton, 1 Dana 576. Hundley vs. Lyons, 5 Munf. 342. Wynne vs. Alston, Dev. Eq. 163. Henderson vs. Stewart, 4 Hawks 256. Watson vs. Wells, 5 Conn. 4681 Greenup vs. Strong, 1 Bibb 590. Meek's Heirs vs. Eaby, 2 J. J. Marsh. 339. Voorhies vs. Sustone, 4 Bibb 354. Garson vs. Green,

      J. G. R. 308. Bailey vs. Greenleaf, 7 Wheat. 46,50. Warren vs. Van Alstyne, 3 Paige 513. Kennedy vs. Woolfolk, 3 Hayw. 197. Duval vs. Bibb, 4 Hen. & Munf. 118. Garsonvs. Green, 1 J. C. R. 308. Cole vs. Scott, 2 Wash. 141. Brugess vs.Whcate,! W. Bla. 150, S. C. 1 Eden 211. 2 Story's Eq. §§ 1217.
    It makes no difference whether the estate is actually conveyed, or only contracted to be conveyed. 2 Story's Eq. § 1218. Smith vs. Hubbard, 2 Dickens 730. McLeain vs. McLellan, 10 Peters 625, 640. Dodsley vs. Varley, — 632, 633.
    That lien is valid against the vendee, purchasers from him with notice, and all parties having notice that the purchase money has not been paid. Clark vs. Hunt, 3 J. J. Marsh. 557. Roberts vs. Salisbury, 3 Gill & Johns. 425. Blight's Heirs vs. Banks, 6 Monr. 198.
    The assignee of a bond for the purchase money has a lien on the land, if the assignor had. Kenney vs. Collins, 4 Litt. 289. Eubank vs. Poston, 5 Mon. 287. Eskridge vs.M'Clure, 2 Yerg. 84. Edwards vs. Bohannan, 2 Dana 99. Johnston vs. Gwathmey, 4 Litt. 317.
    Taking a security for the payment of the purchase money is not, of itself, a positive waiver or extinguishment of the lien. Prima facie the purchase money is a lien, and it lies on the purchaser to show that the vendor agreed to waive it. Story's Eq. § 1226, and Notes. Mackreth vs Symmons, 15 Ves. 342. Nairn vs. Prowse, 6 Ves. 759. Garson vs. Green, 1 J. C. R. 308. 4 Kent 152. Hughes vs. Kearney, 1 Sch. & Lef. 135. Saunders vs, Leslie, 2 Ball & Beatt. 514.
    Taking bills of exchange, drawn on and accepted by a third person, or by purchaser and a third person, is not a waiver of the lien, but merely a mode of payment. Hughes vs. Kearney, 1 Sch. & Lef. 135. Gibbons vs. Baddall,|2 Eq. Ab. 682 re. Grant vs. Mills, ü Ves. & B. 306. Cooper vs. Spottiswoode, Tarnl. 21. Ex parte Peake, 1 Madd. 349. Ex parte Loaring, 2 Rose 79. Saunders vs. Leslie, 2 Ball & Beatt. 514.® Winter vs. Lord An-son, 3 Russ. 488.
    The doctrine may be considered settled, that taking a note, bond or covenant of the vendee himself is no waiver of the lien. But taking a note, bill or bond, with a distinct security, or taking a distinct security exclusively by itself, either in the shape of.real or persón property, from the vendee, or taking the responsibility of a third person, is evidence that the vendor does not repose on the lien, but upon an independent security,and it discharges the lien? Gilman vs. Brown, 1 Mason 212. Brown vs. Gilman, 4 Wheat. 290. Fish vs. Howland, 1 Paige 20. Stafford vs. Van Renssaellaer, 9 Cowen, 316. 4 Kent Com. 151 to 153.
    Was the bank entitled to be substituted to Byrd’s lien?
    The doctrine of substitution is one, principally, of recent growth in the English and American law. The first general principle on the subject is, that “if several persons are indebted and one makes payment, the creditor is bound in conscience, if not by contract, to give the party, paying the debt, all his remedies against the other debtors.” Stirling vs. Forrester, 3 Bligh 590.
    A surety paying the debt is put, under some circumstances, in the place of the creditor. So, if a surety has a counter bond or security for his principal, the creditor will be entitled to the benefit of it, and may in equity reach the security, to satisfy the debt. 1 Story’s Eq. sec’s 501, 502; Hayes vs. Ward, 4 J. C. R. 130; 1 J. C. R. 413; Stevens vs. Cooper, 1 J. C. R. 430; Miller vs. Ord, 2 Binn. 382; Aldrich vs. Cooper, 8 Ves. 388; Ex parte Rushforth, 10 Ves. 409. Wright vs. Morley, 11 Ves. 22; Enders vs. Bruñe, 4 Rand. 438.
    The representatives of Walters cannot be heard to deny that the bank was entitled to the lien claimed by the bill of the trustees against Hutt, Johnston and Byrd. In that case the trustees, Walters included, expressly claimed such a lien from June, 1839, and that was a question to be adjudged in that case. The Court, with all the parties before it, upon contestation, and the point being directly in issue, expressly adjudged that such a lien did exist, and decreed its enforcement. That was res adjudi-cata, and Walters wastforever concluded by it, being a party to the suit and expressly claiming that such should be the adjudication.
    Of course, if Walters was concluded by the adjudication that such a lien did exist, his representatives, as well his executor, are equally concluded. That i\ principle, 1 Greenlcaf § 523.
    And, if there was such a lien, as was adjudged at his instance, he was bound to know it, because as a trustee he must be presumed to have known the whole affairs of the Bank, with which it was his business to make himself acquainted, as well when he purchased, in 1843, then having been many months a trustee, as when he filed the bill alleging the lien.
    Besides, if he claimed against the lien, he should have setup his claim in the suit which he aided to institute. Failing to bring it forward then, it is too late now.
    A record is not held conclusive as to the truth of any allegations which were not material nor traversable; but as to things material and traversable, it is conclusive and final. The general rule was laid down with admirable clearness, by Lord Chief Justice De Guay, in The Duchess of Kington’s Cases, 20 Howell’s St. Trials 538, and has been repeatedly confirmed and followed, without qualification: especially in Harvey vs. Richards, 2 Gall. 229, and in Hibsham vs Dulleban, Waits 183.
    That rule is: “ That the judgment of a Court of concurrent jurisdiction, directly upon the point, is, as a plea, a bar; or, as evidence, conclusive, between the same parties, upon the same matter, directly in question in another Court.” Arnold vs. Arnold, 17 Pick 9. Cowen’s Phillips, Notes 557, 558, 561, 586-7-8.
    A former judgment is not an estoppel. It is a bar to future recovery in any Court, on the same point, between the same parties and privies, until reversed; and as much a-bar in chan-eery as at law. It is res adjudicata — and taken to be absolute and incontrovertible truth. Killheffer vs. Herr, 17 Serg. & Rawle 319. Marsh vs. Pier, 4 Rawle 273. Lawrence vs. Hunt, 10 Wend. 80.
    The finding of a Chancery Court, as to a particular fact, is, though not a bar, yet conclusive, as evidence, in a subsequent suit between the same parties, at law, for a distinct object, of the facts found by the Chancellor. Hopkins vs. Lee, 6 Wheat.
      109. Betts vs. Starr, 5 Conn. 550. Coit vs. Tracy, 8 Conn. 268. Lessee of Wright vs. Deklyne, 1 Peters C. C. R. 198, 202.
    A judgment or decree is not only final as to the matter actually determined, but as to every other matter which the parties might have litigated in the cause. Le Guen vs. Gouverneur, 1 J. Cas. 436, A junior mortgagee, made a party to the bill of the elder, and neglecting to defend, will be barred. Cooper vs. Martin, 1 Dana 23. See also, Grant vs. Button, 14 J. R. 377. Loomis vs. Pulver, 9 J. R. 244. White vs. Ward, 9 J. R. 232.
    While Walters held all the claim and title that he ever had, after he had purchased under execution, perhaps and probably buying the property for almost nothing, on account of this very claim of the Bank, he joins with his co-trustees in asserting, pleading and maintaining a lien upon it, paramount to his own and to all others. He neither prefers nor alludes to any claim of his own: He obtains a decree in favor of himself and his co-trustees, for the exclusive benefit of the Bank’s creditors, recognizing and decreeing such paramount lien, and directing a sale of the property under it: at the sale he unites with his co-trustees in buying the property under the decree, pays the purchase money out of the funds of the Bank, and has a deed made to himself and his co-trustees. Again he files another bill, asserting another lien, obtains another decree, has another sale, and again purchases and takes deed to himself and his co-trustees. In the first suit and decree one lot was omitted, by mistake, as is apparent. He remedies that by the second bill, under which all the lots are sold; for after that sale and purchase the lien on lot 10, by subrogation to the vendor, united with the title obtained by decree and sale enforcing the lien of the levy; and yet it did not merge; but a Court of equity will keep the original lien separate from the after acquired title, if it were necessary in order to cut out Walters’ intermediate claim. James vs. Johnson, 6 /. C. R. 423. Starr vs. Ellis, id. 395. Preston on Merger 212. Duke of Chandon vs. Talbots, 2 P. Wms. 604.
    Among the many grounds on which these proceedings precluded any future claim on the part of Walters, or any person claiming under him by devise or descent, is the concealment of his own title, and his silence in regard to it. 1 Story’s Eq. 389; Wendell vs. Van Rensselaer, 1 J. C. R. 354; Storrs vs. Barker, 6 id. 166; Bright vs. Boyd, 4 Story 478. 1 Story’s Eq. sec. 385; Pickard vs. Sears, 6 Ad. & El. 474.
   Mr. Chief Justice English

delivered the opinion of the Court.

On the 7th of July, 1849, Henry L. Biseoe and others, residuary trustees of the Real Estate Bank, filed a bill in the Pulaski Circuit Court, against Thomas W. Newton, as executor of Ebenezer Walters, deceased, John Hutt. John W. Johnston, Wm. Field, Richard C. Byrd, James Lawson, Francis Pitcher, Sackett J. Bennett, David J. Baldwin, Arthur Hays, Virginia Lemon and Ellen Lemon, alleging,’in substance, as follows:

On the 21st May, 1839, Richard G. Byrd, being the owner in fee, of lots 10,11,12, in block l,East of the Quapaw line, Pope’s addition of Little Rock, sold them to John W. Johnston and John Hutt, for $4,500, and by deed, executed by himself and wife, with general covenants of warranty, conveyed the lots to them, which deed was filed for record on the 24th of the same month, and is exhibited.

In payment for the lots, Johnston and Hutt made their note to Byrd for $4,500, dated 1st May, 1839, due at 8 months, negotiable and payable at the Real Estate Bank, which Byrd endorsed, and the Bank discounted on the 13th of June of the same year, paying to him the proceeds.

At the maturity of the note, in order to renew it, Johnston and Hutt (on the 4th January, 1840,) drew a bill in favor of Byrd, at six months, on the Canal and Banking Company, New Orleans, for $4,800, which Byrd and Robert W. Johnson endorsed, and the Real Estate Bank discounted, and applied the proceeds first to the payment of the note, and paid the residue to John W. Johnston. The bill, at maturity, was protested for non-payment, etc.

The Real Estate Bank brought suit on the bill, in Pulaski Circuit Court, and on the 22d June, 1841, obtained judgment against Hutt, John W. Johnston and Byrd for the amount of the bill. The note, bill and judgment are exhibited.

On the 2d April, 1842, the Bank made a general assignment of all her assets, including the judgment, and her lien upon the lots for the payment thereof, to trustees for the benefit of creditors: which is exhibited.

Ebenezer Walters became one of such trustees, by appointment under the deed, 3d of January, 1843, and acted as such, receiving pay for his services, until he died, 14th June, 1849.

On the 29th July, 1844, the franchises of the Bank were seized into the hands of the State, by judgment on quo warranto issued by this Court.

On the 2d January, 1845, the trustees of the Bank, including Walters, filed a bill on the chancery side of the Pulaski Circuit Court, against Ilutt, Johnston and Byrd, to subject lots 11 and 12 to the satisfaction of the said judgment on the protested bill, (inadvertently omitting lot 10) claiming the benefit, by substitution, of Byrd’s lien upon the lots, as vendor, for the purchase money. On the 9th of June, 1845, the trustees obtained a decree pro confesso, recognizing their claim, declaring the lien in their favor, as of the 13th June, 1839, and decreeing payment of the judgment by a day fixed, and on default, that lots 11 and 12 be sold, by David J. Baldwin, Commissioner, to satisfy the debt, etc. On the 27th Oct. 1845, the lots were sold under the decree, and purchased by the trustees, including Walters, for $55. On the 15th December following, the commissioner made his report of the sale to the Court; and executed a deed conveying the lots to the trustees, acknowdedging it before the Court; and on the same day, it was filed for record, etc. The bill, decree, report of sale, and deed are exhibited.

That the omission of lot 10 in all of said proceedings, was a mere misprision of the attorney for complainants, caused by insufficient information afforded him by the trustees, and especially Walters, who was the resident trustee at Little Rock, and whose peculiar duty it was to attend to the enforcement of the lien and the collection of the debt, etc., etc.

On the 15th December, 1845, upon the application of the trustees, including Walters, the report of the commissioner was approved, and the sale of the lots confirmed by the Court. The record of the confirmation is exhibited.

On the 3d of December, 1842, the Real Estate Bank recovered a judgment in Pulaski Circuit Court, against John W. Johnston, John Hutt and Wm. Held, for $2,070, debt, and interest, etc., which is exhibited.

On the 31st December, 1842, execution was issued on this judgment to the Sheriff of Pulaski, returnable to March term, 1843, which, on the day it was issued, was levied on said lots 10, 11 apd 12, as the property of Johnston and Hutt, who claimed the benefit of the appraisement act then in force, and the lots failing to sell for two thirds of their appraised value, th % fi.fa. was returned with the facts endorsed. The execution and return are exhibited.

On the 25th of September, 1844, after the assignment of the Bank, and after her charter had been seized upon quo warranto, the trustees, including Walters, filed a bill in Pulaski Circuit Court against Johnston, Hutt and Field, for the payment of this judgment, and the enforcement in equity of the lien and levy aforesaid, by sale of the lots, etc. The bill, etc. is exhibited.

On the 19th April, 1837, John W. Onstott, administrator of Kirkwood Dickey, recovered a judgment in Pulaski Circuit Court, against John Hutt and Wm. Field for $56 debt, and $3 62 damages, and costs. On the 31st of May, 1844, the judgment was revived on scire facias, and the lien thereof continued, etc. On theA14th of August, 1844, afi. fa. issued on the revived judgment, to the Sheriff of Pulaski, which, on the same day, was levied on all the interest of John Hutt, in and to the undivided half of said lots 10, 11 and 12, and other lands; which were sold under the execution on the 21st of April, 1845, and purchased by Wm. Field for $15; who received the Sheriff’s deed therefor, on the 7th of May of the same year; which, on the 31st of that month, was acknowledged before the Court, and filed for record on the 16th of June following, etc. The original judgment, judgment of revivor on scire facias, execution, return, deed, etc., are exhibited.

On the 18th August, 1845, an alias Ji. fa. was issued to the .Sheriff of Pulaski, on the same judgment, levied on the same interest of John Hutt in said lots, which was sold on the 21st of October, 1845, and purchased by Walters for $26, who, on the 16th December following, obtained the Sheriff’s deed therefor, acknowledged in open Court, etc., and filed for record after-wards, etc. The deed is exhibited.

' On the 24th Oct., 1845, the trustees of the Bank obtained a decree on their bill against Johnston, Mutt and Field, ordering payment of the balance due on the judgment, that the three lots be chai'ged with a lien therefor, as of 3d December, 1842, and that they be sold for the satisfaction thereof, etc. The lots were sold under the decree on the 27th April, 1846, purchased by the trustees, including Walters, for $45, who obtained the commissioner’s deed therefor, duly acknowledged, ete., and recorded, etc. The report of the sale was approved and confirmed by the Court on the day the sale was made. The decree, deed, report and confirmation of sale, etc., are exhibited.

On the 12th Nov. 1840, Terence Farrelly obtained a judgment' in Pulaski Circuit Court against Hardy Jones and John W. Johnston, for $150 debt, $17 20 damages and for costs. On the 17th January, 1842, a fi-fa. was issued on the judgment, returnable to March term following, which -was returned without action, by order of the plaintiff. On the 28th April, 1843, anotherfi-fa. was issued on the judgment to the Sheriff of Pulaski county, returnable to May term following, which was levied on the interest of John W. Johnston, in the three lots. There was a sale thereof on the 29th May, 1843, and Walters became the pui’-chaser for $30, as he in his lifetime pretended,but complainants aver that there was really no sale, and that no deed was executed to him under the pretended sale, until the 16th January, 1846, more than a year after the Sheriff, Lawson, had gone out of office, and nearly three years after the pretended sale. The deed of Lawson to Walters for Johnston's interest in the lots, bearing that date, acknowledged in open Court, etc., and also the judgment,^, fa's, and returns are exhibited.

Walters was trustee of the Bank under the deed of assignment, from 3d January, 1843, until 14th June, 1849, when he died, having made a will, appointing Newton his executor, and devising the residue of his estate, after the payment offhis debts, and a specific legacy to his mother, to Frances Pitcher, and Virginia and Ellen Lemon.

The executor of Walters, and the two devisees last named being the only defendants who appealed from the decree of the Court below, the allegations of the bill charging the other defendants with liability for rents, etc., etc., need not be stated.

The bill insists that the lien of the Onstott judgment had expired long before the sci. ja. issued to 'revive it, and that the lien of the judgment of revivor dated only from the time it was rendered, (31st May, 1844.) That, though the Farrclly judgment was rendered, 12th Nov. 1840, no execution issued thereon until the 17th January, 1842, more than a year and a day, and having been returned by order of the plaintiff without action, no other execution issued until 28th April, 1843, more than another year and day, whereby, in any event, the lien of the judgment was postponed, etc. That, after Walters purchased Johnston’s interest in the lots under the Narre//?/judgment, May 29th, 1843, (long before which, he was a trustee for the Bank,) and before he purchased Hutt’s supposed interest, (21st Oct. 1845,) he, with his co-trustees, filed the two bills aforesaid, one against Johnston, Field and Hutt, on the 25th Sept, 1844, and the other against Johnston, Hutt and Byrd, 2d January, 1845; in the former of which he and his co-trustees claimed a lien on the lots, as of 3d December, 1842, and in the latter, a lien by substitution for purchase money, as of 21st May, 1839, and prosecuted both bills to decree, establishing the liens as claimed, and as in truth they did exist.

The bill prays that the pretended liens of defendants be canceled, and the title of complainants to the lots quieted, and for an account of rents, etc.

Newton, as the executor of Walters, answered the bill. He admits that the papers and records referred to in the bill are correctly stated, and that the facts proved by them are true; and admits the truth of all the allegations of the bill, except such as are specially denied, etc.

He cannot state whether the omission of the attorney of the trustees to include let 10 in the bill filed by him, claiming for the trustees the benefit of Byrd’s lien on the lots for the purchase money, by subrogation, was occasioned by the neglect of Walters, or not. The trustees having full confidence in their attorney, it was not customary for them to superintend the prosecution of suits, examine records in relation to liens, or to give the attorney information in respect to such matters, unless called upon by him, etc., but all such matters were peculiarly under his management. For these reasons, respondent does not believe that Walters had any knowledge of the claim of the trustees upon said lots, before he purchased the interest of Johnston therein, under the Farrelly judgment. But even if he had, respondent insists that he purchased under a lien prior and paramount to the pretended claim of the trustees; and such béing the case, it was not a breach of trust or violation of duty in him to make such purchase, particularly as he did it for the purpose of partially indemnifying himself for large sums which he had before then paid as the security of Johnston, who was insolvent, etc.

Respondent insists that Byrd having made an absolute conveyance of the lots to Hutt and Johnston, was not entitled to any lien thereon for the purchase money, as against a stranger or third parties, and consequently the Bank could not be subro-gated to any such rights as against a purchaser under the judgment of Farrelly.

Respondent does not insist that Walters obtained any title by his purchase of Hutt’s interest in the lots, under the Onstott judgment, but insists that by his purchase of Johnston's interest, under the Farrelly judgment, he became the owner of one undivided half of said lots as against complainants, and all other persons. t

Respondent avers that a sale was in fact made to Walters under the execution upon the Farrelly judgment, at the time, place and- in the manner recited in the sheriff’s deed exhibited with the bill. He admits that no deed was made to Walters, under his purchase, until 16th January, 1846, as stated in the bill, but he avers that such delay was not intentional or designed, but a mere omission and oversight; and as the sale was returned upon the execution, he is unable to perceive how any one could be prejudiced by the delay. Respondent was informed and believed that Walters was under the impression that a deed had been made in pursuance of said sale during the return term of the execution, as was the custom of the sheriff, and as soon as he was apprised of the omission, he caused the deed referred to in the bill to be executed, acknowledged and recorded.

Respondent admits that no execution issued on the Farrelly judgment until the 17th January, 1842, and that it was returned without action by ord'er of the plaintiff therein; and that none other issued until 28th April, 1843, under which Walters purchased; but he insists that, as said sale was made within three years from the date of the judgment, the lien thereof was not waived, or postponed by such delay.

The cause was heard upon bill and exhibits, answer of Newton, replication, and an agreement of the parties, that Walters had to pay upwards of $1,500 as security of Johnston upon a note executed in 1840, and that Johnston had been insolvent since the year 1841; and that the object of Walters, in purchasing Johnson’s interest in the lots, was partially to indemnify himself from loss on account of money so paid for Johnston, etc. The Court decreed the relief sought by the bill, that the titles of defendants be canceled, and the title of complainants to the lots quieted, etc., and referred the case to the master to take an account of rents, etc.

Newton, and Virginia and Ellen Lemon appealed from the . decree.

Afterwards, Newton died, and Shall was made a party, as administrator, etc., of Walters.

The appellants claim no title under the Onstott judgment; but they insist that Walters purchased a valid title to Johnston's undivided half of the three lots, under the Farrelly judgment! This judgment was rendered 12th Nov., 1840, and Walters purchased under it 29th May, 1843. By Statute, (Dig. ch. 93, sec. 5,) the lien of a judgment commences on the day it is rendered, and continues for three years, subject to be revived by scire facias, (lb. sec. 8 to 13.) The Farrelly judgment was the oldest record lien upon the lots, at the time Walters purchased, and he purchased before the expiration of the three years, and whilst the lien of the judgment was in full force.

It is insisted by the appellees, however, that the lien of the Farrelly judgment was postponed by his laches. That the lien of the judgment obtained by the Bank against Johnston, Mutt and Field, 3d December, 1842, was continued and made specific by the levy upon the lots made 31st December, 1842, under the execution issued on this judgment; and that inasmuch as the execution upon the Farrelly judgment under which Walters purchased, did not issue until the 28th April, 1843, the lien of the judgment was waived and postponed by the return of the first execution, without action, upon the order of Farrelly.

But, this point has heretofore been adjudged against the appellees in Trapnall vs. Richardson et al., 13 Ark. 551, and Watkins et al. vs. Wassell, 15 Ark. 90. In the case last cited, Mr. Justice WalkeR, delivering the opinion of this Court, said: “ The statute continues the lien of the judgment creditor for three years, unless displaced by some act of the party. Mere delay to sue out process within the time would not of itself be sufficient for that purpose; nor would the levying of process, and an order by the creditor, or his attorney, to return the process without selling the property, or to return process before it had been levied, necessarily discharge the judgmentlien. Such acts do not amount to an abandonment of the lien, or a release of the property, etc.” These decisions are sustained by Rankin et al. vs. Scott 12th Wheat R. 177.

The appellees also insist upon the following propositions:

1st. The Bank was subrogated to the lien of Byrd upon the lots for the purchase money.

2. As Walters so claimed as one of the trustees of the Bank, and on that ground obtained a decree and sale, he was thereby estopped to deny it, and could not controvert a decree obtained ■by himself asserting and recognizing that lien.

3d. Walters, as one of the trustees, purchased the property twice for the creditors of the Bank, after he had purchased for himself, each time bidding, and, by giving credit on the decrees, paying away their money, for the title, or supposed title obtained by such purchase, and taking deeds to himself and co-trustees — -he cannot, therefore, set up his previous title, even supposing it otherwise good.

1. Was the Bank subrogated to the vendor’s lien?

It is very well settled in England, and in most of the States of this Union, that, in equity, the vendor of land has a lien for the purchase money, not only against the vendee himself, and his heirs and other privies in estate, but also against all subsequent purchasers having notice that the purchase money remains unpaid. The lien exists, although there be no special agreement for that purpose, and notwithstanding the vendor conveys the land by deed, and takes the note or bond of the vendee for the purchase money. To the extent of the lien the vendee becomes a trustee for the vendor and his heirs, etc., and all other persons claiming under him, with such notice, are treated as in the same predicament. The principle upon which Courts of equity have proceeded in establishing this lien, in the nature of a trust, is, that a person who has gotten the estate of another ought not, in conscience, as between them, to be allowed to keep it, and not pay the full consideration money. And third persons, having full knowledge that the estate has been so obtained, ought not to be permitted to keep it, without making such payment, for it attaches to them, also, as a matter of conscience and duty. It would otherwise happen that the vendee might put another person in a predicament better than his own, with full notice of all the facts. Mackreth vs. Symmons, 15 Vesey 329. Sugden on Vendors, 856, 7th American Edition, and notes. 4 Kent’s Com. 152. 2 Story’s Equity, sec. 789, 1219, 1221, 1224, 1225. 1 Leading Cases in Equity, by White & Tudor, Notes by Hare and Wal., marg. p. 174 et seq., and cases cited. Manly et al. vs. Slason et al., 21 Verm. 271, where the English and American cases are cited.

The same doctrine has been recognized in the Circuit and Supreme Courts of the United States. Gilman vs. Brown et al., 1 Mason 192; same case, 2 Wheat. 255. Bayley vs. Greenleaf et al., 7 Ib. 46. Pintard vs. Goodloe et al., Hempstead's C. C. R. 503.

It was also recognized by this Court in Moore & Cail admrs. vs. Anders, 14 Ark. R. 634, though Mr. Chief Justice Watkins, who delivered the opinion, seems not to have been very favorably impressed with the doctrine. Treating of the lien retained by the vendor, who has executed his bond to make title to the ven-dee on payment of the purchase money, he says: The lien reserved to the vendor, by means of such contracts, has none of the odious characteristics of the vendor’s equitable lien for the unpaid purchase money, where having conveyed the legal title, acknowledging the receipt of the purchase money, he ought not to be heard to assert it against any subsequent purchaser or in-cumbrancer, without clear and unequivocal proof of actual notice.”

There being no showing of any agreement to the contrary, in the record before us, it follows that, notwithstanding Byrd conveyed the lots in question to Hutt and Johnston, by deed, and took their joint note for the purchase money, he retained an equitable lien upon the lots for the payment of the purchase money, not only against them, but all subsequent purchasers, etc., with full notice, etc.

The note was made to Byrd, but negotiable and payable at the Real Estate Bank, and upon Byrd’s endorsement, the Bank discounted the note, and paid to him the proceeds: Was the Bank subrogated to his lien upon the lots, for the payment of the note?

In Moore & Cail, ad’rs vs. Anders, this Court held that where the vendor does not convey the land by deed, but gives the ven-dee a bond to make him a title on payment of the purchase money, for which the vendee’s note is taken, the vendor has a lien upon the land, in the nature of a mortgage, for the payment of the note; and that an assignment of the note transfers the lien to the assignee, as an incident to the debt. But where the vendor conveys the land by deed, taking the vendee’s note for the purchase money, the Chief Justice said: The weight of authority no doubt is, that the equitable lien of the vendor is personal to him, and is not, unless under some peculiar equitable circumstances, assignable. We decline going into any such question, because it is not presented here, and is only noticed by way of contrast with the description of lien under consideration.”

The question which the Court declined going into in that case, comes directly before us in this.

In Pollexfen vs. Moore, 3 Atk. 272, Lord Hardwick is reported to have stated, that the lien of the vendor does not prevail for the benefit of a third person; yet his decree was, that a legatee in that Court was entitled to the benefit of the lien of the vendor. In Selby vs. Selby, 4 Russell 336, the Master of the Rolls held, notwithstanding the dictum of Lord Hardwick in Pollexfen vs. Moore, that where the purchaser died, and the vendor was paid the purchase money out of the personal assets of the deceased, the simple contract creditors of the purchaser stood in the place of the vendor with respect to his lien on the estate sold, against a devisee of the estate. These cases, however, are not directly to the point in question, nor have we been able to find an English decision directly in point.

The American decisions are very much in conflict.

Kentucky — The assignee of the note or bond for the purchase money, takes with it, all the lien which the vendor had upon the land, etc. Eubank vs. Poston, 5 Monroe 286. Edwards vs. Bohannon, 2 Dana 98. Johnston vs. Gwathany, 4 Littell 317. Kinney vs. Collins Ib. 289. Honore's Exr. vs. Bakewell et al., 6 B. Monroe 68. Ripperdon vs. Cozine, 8 Ib. 465. In some of these cases the vendor had made the vendee a deed; in others a bond for title, but no distinction is made between the cases in regard to the lien passing to the assignee with the note, etc.

Alabama follows Kentucky. But if the vendor assigns the note, without recourse upon him, the lien does not pass to the assignee. And where the lien passes by the assignment, and the note is returned to the vendor unpaid, he may enforce the lien. White vs. Stover et al., 10 Ala. 441; Roper vs. McCook, 7 Ib. 319; Hall’s Ex. vs. Click et al., 5 Ib. 363; Kelly vs. Payne, 18 Ala. 373.

Indiana follows Kentucky also. Brumfield et al. vs. Palmer, 7 Blackford 227; Lagow et al. vs. Badollet et al., 1 Ib. 416. But, in these cases, the vendors did not make deeds to the vendees, but covenanted to convey on payment of the purchase money.

Texas. In Pinchain vs. Collard, 13 Texas 333, the Court, citing some of the authorities on both sides of the question, declines to express any opinion as to whether the mere transfer of the note or bond given for the purchase money, passes the vendor’s lien; but holds that where a third person is substituted for the vendor as payee in a note, given, as expressed on its face, for the purchase money, he will be entitled to the vendor’s lien. To some extent, Dayden vs. Frost, 3 Mylne & Craig, 670, sustains this decision.

Tennessee. In Eskridge vs. McClure et al., 2 Yerger 84, the vendor made a deed to the purchaser, and took his bond for the purchase money, upon the face of which it was expressed that the land should be liable for the debt; and it was held that the assignee of the bond had, in equity, the same lien that his assignor, the vendor, had. In Claiborne vs. Crockett, 3 Yerger 27, where the vendor gave a bond for title, and took the ven-dee’s note for the purchase money, it was held that the mere assignment of the note did not transfer to the assignee the benefit of the vendor’s lien. In Garm vs. Chester et al., 5 Yerger 205, the vendor made a deed to the vendee, and took his notes for the purchase money; and it was held that an assignment of the notes did not transfer, but extinguished the lien. So, too, in Sheratz vs. Nicodemus, 7 Yerger 9. In Graham vs. McCampbell, Meig’s Rep. 52, Claiborne vs. Crockett was overruled, and it was held that where the vendor gives his bond for title, and takes the note of the vendee for the purchase money, the vendor retains a lien upon the land, in the nature of a mortgage for the payment of the debt, and that an assignment of the note by him, transfers to the assignee, as an incident to the debt, the lien upon the land; but where the vendor conveys the land by deed, taking the vendee’s note for the purchase money, tbe lien is personal to the vendor, and is not transferred by an assignment of the note. In Green et al. vs. Demoss et al., 10 Humphries 371, this distinction was approved and confirmed; and it was held that where the vendor has conveyed the land by deed, the lien is a mere personal, equitable right in him, and not assignable; but that the assignment of the vendee’s note does not, ipso facto, extinguish the vendor’s lien; but if he is made liable upon his endorsement, or the note is returned to him unpaid, his lien revives.

Mississippi — Holds, as finally held in Tennessee, that where there is a bond for title, the vendor’s lien follows the note for the purchase money into the hands of an assignee. Parker vs. Kelly et al., 10 Sm. & Mar. 184. But where the vendor has conveyed the land, his lien does not pass by the assignment of the note. Briggs et al. vs. Hill, 6 Howard 362.

GeoRgia — -Holds that, upon principle, the vendor’s equitable lien is not assignable. But if it were, it must be assigned specially. It does not follow the simple transfer of the note for the purchase money. Wellborn et al. vs. Williams et al., 9 Geo. R. 86, 92.

Iowa: The assignee of a note given for the purchase money of land, cannot in equity enforce the original lien of the vendor against the land. The equity arises to the vendor, but cannot be transferred.” Dickinson vs. Chase et al., 1 Morris R. 492.

Ohio: The vendor’s lien is personal, and does not pass to the assignee of a note given for the purchase money. Jackman vs. Hallock et al., 1 Ohio 318; Tiernan vs. Beam et al., 2 Ib. 383; Bush et al. vs. Kinsley et al., 14 Ib. 20; Horton vs. Horner, Ib. 437. In these decisions, no distinction is taken between cases where the vendor gives bond for title, and where he conveys by deed.

Maryland. In Schnebly et al. vs. Ragan, 7 Gill. & John. 124, the Court seems to have inclined to the opinion that the as-signee might get the benefit of the vendor’s lien by express agreement; but held that where the vendor assigned the note for tbe purchase money, loitliout recourse upon him, the lien was extinguished, being personal to the vendor.

In Inglehart vs. Armiger, 1 Bland 519, and Moreton vs. Harrison, Ib. 491, held, that the assignment of the note for the purchase money operates as a tacit relinquishment of the vendor’s lien, and it can never be revived, unless he is made liable as assignor. Maryland Digest, p. 685.

New York. In White vs. Williams, 1 Paige R. 506, Chancellor Walworth held, that the lien of the vendor did not pass, by implication, to the assignee of the note for the purchase money, but intimates that it might be transferred by special agreement. In Hallock vs. Smith, 3 Barbour’s S. C. R. 272, Strong, J., said: “ If the note or bond (for the purchase money) is assigned or transferred to a third person for his benefit, the security (the lien of the vendor) is gone forever. The reason is, there is no peculiar equity in favor of third persons. But that does not apply where, as in this case, the transfer is only for the purpose of pajdng the debt of the vendor, so far as it may be available, and is, therefore, for his benefit. There, the equity continues.”

It would seem from the cases cited above, that the weight of authority is, that where the vendor conveys the land by deed, taking the note of the vendee for the purchase money, a mere assignment of the note does not transfer to the assignee the benefit of the vendor’s lien upon the land for the payment of the purchase money.

In the case now before us, the Bank seems to have taken the note, upon the endorsement of Byrd, in the ordinary course of business. There is no allegation in the bill that she contracted for the lien of the vendor, or looked to it as a security, when she discounted the note.

If the Bank had been subrogated to the lien of Byrd, by his endorsement of the note to her, whether she lost the benefit of the lien by taking a bill of exchange, endorsed by Robert W. Johnson, in payment of the note, as insisted by the appellants— or whether the lien of Farrclly’s judgment was superior to the lien of the vendor, the judgment having been obtained before tbe Trustees filed their bill to get the benefit of Byrd’s lien— or whether, and to what extent, Walters was affected with notice of the vendor’s lien, when he purchased the lots under the judgment — are questions which need not be determined, as we have decided that the Bank was not subrogated to the benefit of the vendor’s lien.

2. The second 'proposition insisted on by the appellees is, that, inasmuch as Walters, as one of the Trustees of the Bank, claimed that the Bank was subrogated to the benefit of the vendor’s lien, and, on that ground, obtained a decree and sale of the lots, he was thereby estopped to deny it, and could not controvert a decree obtained by himself, asserting and recognizing that lien.

“ The general rule on this subject was laid down with admirable clearness, by Lord Chief Justice De Grey, in the Duchess of Kingston’s case (20 Howell’s State Trial’s 538) and has been repeatedly confirmed and followed, without qualification— ‘ From the variety of cases, said he, relative to judgments being given in evidence in civil suits, these two deductions seem to follow, as generally true; first, that the judgment of a court of concurrent jurisdiction, directly upon the point, is, as a plea, a bar; or, as evidence, conclusive, between the same parties, up-on the same matter, directly in question in another Court; secondly, that the judgment of a Court of exclusive jurisdiction, directly upon the point, is, in like manner, conclusive upon the same matter, between the same parties, coming incidentally in question in another Court for a different purpose. But, neither the judgment of a concurrent nor exclusive jurisdiction is evidence of any matter which came collaterally in question, though within their jurisdiction; nor of any matter incidentally cognizable; nor of any matter to be inferred by argument from the judgment.’ 1 Greenleaf’s Ev. sec. 528, et seq. Hibsham vs. Dulleban, 4 Watts 190; Harvy vs. Richards, 2 Gallison 216; Trammell et al. vs. Thurmond et al., 17 Ark.

The bill upon which the decree was rendered, which is relied on as an estoppel by the appellees, was filed by the Trustees of the Bank, including Walters, against Hutt, Johnston & Byrd The object of the bill was to obtain satisfaction of the judgment which the Bank had obtained against them, on the protested bill, taken by her in payment of the original note for the purchase money, etc. The Trustees claimed in that suit that the Bank should be subrogated to the benefit of Byrd’s lien upon the lots, and obtained a decree to enforce the lien as against Hutt and Johnson, who had purchased the lots, but never paid for them, and as against Byrd who held the lien, etc.

But, in the mean time, and before the bill was filed, Farrelly had obtained a judgment, which was a lien on Johnston’s interest in the lots, and Walters had purchased under the judgment, and the bill and decree in no way determined whether the lien of Byrd could prevail against the intervening lien of Farrelly’s judgment, and against the title of Walters as a purchaser under the judgment. These questions were not before the Court, and were not decided; and, as to them, the decree, under the above rule, could not be regarded as an adjudication, operating as an estoppel upon Walters.

3d. But after Walters had purchased Johnston’s interest in the lots, he, with his co-trustees, filed two bills to fix liens upon the lots, and enforce the satisfaction of judgments upon them, dating back of his purchase; obtained decrees, caused the lots to be sold, and purchased in the name of the Trustees, took deeds from the commissioners, had the sales confirmed by the Court and the deeds put on record; in each case making the purchase with the means belonging to the cestui que trusts under the deed of assignment. While all these legal steps were being taken in his name, Walters appears to have remained silent as to his own claim, with a full knowledge, as we must suppose from the record before us, of his rights.

We cannot presume, from the pleadings and evidence in the cause, that Walters was ignorant of the legal proceedings taken in his name to enforce the claims of the Trustees upon the lots. It was his duty, as a Trustee, receiving compensation for his services, under the provisions of the trust deed, to attend to the collection of the debts, etc., of the Bank. He resided in Little Rock, where the Court was held, in which the bills were filed, the decrees obtained, and where the lots were sold and purchased in his name, after being advertised in the public newspapers. Was he acting in good faith as a Trustee, to remain silent as to his own claim, and join with his co-trustees in putting the trust to the expense of prosecuting all the proceedings above referred to, and then to turn about and set up a personal claim which he had permitted to sleep in the meantime, for the purpose of defeating the title which he had aided in procuring for the benefit of the creditors interested in the trust ? Can he, or those holding under him, and standing in his place, be heard in a court of equity to assert his title against the title of the Trustees, under all the facts and circumstances disclosed in the record before us? We think not.

If a man, having a title to an estate, which is offered for sale, and knowing his title, stands by and encourages the sale, or does not forbid it; and thereby another person is induced to purchase the estate, under the supposition that the title is good, the former, so standing by, and being silent, will be bound by the sale; and neither he, nor his privies, will be at liberty to dispute the validity of the purchase in equity. 1 Story’s Equity sec. 385; Danley vs. Rector, 5 Eng. R. 212.

By the strongest analogy, the conduct of Walters in this case operates as an estoppel upon him and his privies in estate.

The^decree of the Court below is affirmed.

Absent, the Hon. Thomas B. Hakly.


source: Caselaw Access Project

author: Mr. Chief Justice English

license: Public Domain

text:
    Kannady vs. McCarron.
    The legal title to mortgaged property passes, at law, to the mortgagee, subj eet to be defeated by the performance of the conditions of the mortgage; and the right of possession follows the legal title unless it is expressly provided in the deed, or clearly appears to be the intention of the parties, that the mortgager shall remain in possession until after default.
    N mortgaged personal property to the plaintiff to indemnify him as his security in a bond, retaining possession under the deed: afterwards, upon suit being brought upon the bond, the plaintiff demanded possession of the property under the provisions of the mortgage, and the property was surrendered to him by the mortgager, but not then taken away. The defendant, subsequently, purchased the property at execution sale, and the plaintiff brought replevin for it: Held, that the plaintiff had the legal title to the property, the immediate right of possession, and good grounds of action against the defendant.

      Appeal from the Circuit Court of Sebastian county.

    Before the Hon. John J. Clendenin, who had interchanged with the Judge of the Circuit.
    S. F. Clark for the appellant.
    The legal effect of a mortgage of personal property, independent of any stipulation contained in it as to the possession, is to transfer the possession to the mortgagee, or to give him an immediate right of possession. Watson et al. vs. Williams et al., 4 Blaclcf. 26; Hawkins vs. Ingals, id. 35, 4 Blaclcf. 425.
    And so, although the mortgage in this case provided that the mortgagor should retain the property until it might become necessary for the mortgagee to take possession, more fully to secure him in the purpose for which it was executed, the mortgagee had a right of immediate possession, upon the happening of the contingency mentioned in the mortgage, and might maintain an action for the property.
   Mr. Chief Justice English

delivered the opinion of the Court.

Jeremiah R. Kannady brought an action of replevin, in the detinet, against Thomas McCarron, in the Sebastian Circuit Court, for two sofas, one dozen chairs, a ward-robe, rocking chair, and two center-tables. The defendant pleaded non detinet, and property in himself, to -which the plaintiff took issues, and, by consent, the cause was submitted to the Court sitting as a jury.

The plaintiff claimed title to the property under a mortgage executed to him by Wm. H. Norton, on the 19th December, 1853, which he read in evidence. The mortgage recites that, on the 9th of January, 1851, Norton had been appointed guardian of Henry Miller, a minor, by the Probate Court of Crawford county, and entered into bond, in the penal sum of $4,000, with Kannady and others, securities, conditioned according to the Statute, etc. Then for the consideration of one dollar, etc., and for the purpose of securing and indemnifying Kannady, his heirs, etc., on account of the suretyship aforesaid, Norton conveys to Kannady, etc., certain real and personal property, upon the following conditions: — “ All of which said personal property is to remain in the possession of said Wm. H. Norton, until it becomes necessary for the said Kannady to take the same into his possession for the purposes of securing him more fully in the premises — provided, nevertheless, that if the said Wm. H. Norton, his heirs, executors, administrators, or any of them, shall and do well and truly keep, execute and perform all and singular the covenants, promises and agreements in the said condition of the said guardian’s bond contained, or by other lawful means and ways, save and keep harmless and indemnify the said Kannady, his heirs, executors and administrators f-om the payment of said bond, and all costs, damages and charges, as surety as aforesaid, then and from thenceforth this indenture to be void,” etc. The mortgage was duly acknowledged and recorded.

The plaintiff proved that the property mentioned in the declaration was embraced in the mortgage; and that Norton was the owner thereof before and at the time of the execution of the mortgage. That the mortgage and guardian’s bond therein recited were still in full force, and that suit was now pending in the Sebastian Circuit Court against the plaintiff on the bond. That some time after the execution of the mortgage and before the 24th of July, 1854, (the time when this suit was commenced) the plaintiff, by his agent, called at the residence of Norton and informed him that he desired to take possession of the property in pursuance of the stipulations of the mortgage. That Norton pointed out the property, directed plaintiff to take possession of it, and stated that he then and there delivered it to him. That plaintiff was at that time deterred, from taking the property away by the sickness of Norton’s wife. That the property was afterwards, on the 24th of July, 1854, sold at the Court-house door of said county, by the sheriff, on an execution against Norton in favor of the defendant, and purchased by him at a mere nominal price. That plaintiff appeared and publicly forbid the sale, and at the same time informed the defendant of his mortgage on the property. That the property was delivered to the defendant pursuant to his purchase at said sale, and plaintiff afterwards, and before suit, demanded the property of the defendant, and he refused to give it up. That the plaintiff was still bound in the guardian’s bond recited in the mortgage, etc.

The defendant proved that on the 9th day of February, 1854, he obtained a judgment against Norton in the Sebastian Circuit Court for $678 90 debt, and for costs; on the 29th March, execution issued thereon; was levied on the goods in controversy, which were sold by the sheriff on the 24th July following, and purchased by defendant for $19 75, who received possession thereof from the sheriff, and held them until they were replevi-ed by the plaintiff.

This being all the evidence introduced by the parties, the plaintiff asked the Court to declare the law to be as follows:

1st. That if the court believe from the evidence that Wm. H. Norton, having complete title to the property in controversy, executed to the plaintiff the mortgage read in evidence; that the mortgage contained the same property, and was duly acknowledged according to law, and recorded; that, afterwards, and while the property was in the possession of Norton, plaintiff, by his agent, called upon him and demanded possession of the property under the mortgage; that Norton assented to his taking possession, pointed out the property and directed him to take it; that plaintiff was then deterred from doing- so by the sickness of Norton’s wife; that the property afterwards came to the possession of defendant, by virtue of a sheriff’s sale to him under an execution against the said Norton in his favor; that before the commencement of this suit, plaintiff demanded the property of defendant, and he refused to give it up; that the property was in the possession of defendant when replevied, and that he had no title except in virtue of his purchase at said sheriff’s sale; then the plaintiff had such right to immediate possession under the mortgage as would support this action, and the Court must declare the law to be for the plaintiff.

2. That the legal effect of the mortgage is to confer an immediate right of possession to the mortgaged property upon the mortgagee, the plaintiff, unless by the express stipulations of the parties in the mortgage it is otherwise provided; and the law is that the stipulation in the mortgage that Norton should retain the possession of the property until it might be necessary for the plaintiff to take possession thereof more effectually' to secure him in the premises, did not confer any right to possession upon the defendant claiming title under Norton by subsequent pm-chase, as against the plaintiff’s right under the mortgage.

3. That the provision in the mortgage permitting Norton to retain possession until the happening of a certain contingency, does not extend to confer such right upon defendant.

4. That the subsequent sale of the property on execution to the defendant was the happening of such contingency as satisfied the provision in the mortgage, that Norton was to retain possession of the property until it might be necessary for plaintiff to take possession of the property the more effectually to secure him in the premises, and gave the plaintiff a right to immediate possession by virtue of his mortgage.

5. That Norton’s right to the possession of the property under the aforesaid stipulations in the mortgage, was, according to those stipulations, subject to be put an end to by agreement of the parties; that such necessity on the part of the plaintiff to take possession of the property more effectually to secure Mm, had happened; and if the Court believe from the evidence that the plaintiff called on Norton and demanded possession of the property and that Norton pointed out the property to him, and directed him to take possession of it, the same amounted to an agreement between them that such contingency had happened, and put an end to Norton’s right of possession by virtue of such stipulations, and to the right of any person claiming under him, and immediately gave plaintiff a right of possession by force of the mortgage.

Each and all of which declarations the Court refused to make, but declared that the law of the case, upon the evidence before the Court, was for the defendant, and accordingly found the issues for him, and gave judgment accordingly.

The plaintiff excepted, and appealed to this Court.

All of the propositions submitted to the Court below by the plaintiff may be considered together. They present, really, but one question, and that is, whether or not, upon the facts of the case, the plaintiff was, by law, entitled to the immediate possession of the property, and had the right to maintain re-plevin therefor against the defendant. The Court below held that he had not.

In equity, a mortgage is regarded as a security for the debt, etc., and the mortgagor is considered the owner of the property until he is debarred by his own default, or by judicial decree^ but at law, the legal title passes to the mortgagee, subject to be defeated by the performance of the conditions of the mortgage. 4 Kent. 136, 158; Jamieson vs. Bruce, 6 Gill. & John. 74; Trapnall, adx. vs. Bank of the State; Hannah, ad. vs. Carrington et al., present term.

This is a case arising in a Court of law, and the plaintiff must be regarded as holding the legal title to the property under the mortgage, which, it seems, was in full force.

The law is, that the right of possession follows the title, unless it is expressly provided in the deed that the mortgagor pbnll remain in possession until default; or by faff inference or necessary implication from the nature and provisions of the instrument, the conclusion may be drawn that it was the intention of the parties that the mortgagor should continue in possession until default. 4 Kent. 154-’5. Jamieson vs. Bruce, 6 Gill. & John. 74. Hartshorn vs. Hubbard, 2 New Hamp. R. 453.

But in the case before us it was expressly provided in the deed, that the property was to remain in the possession of the mortgagor, until it became necessary for the mortgagee (the plaintiff) to take it into his possession for the purpose of securing him more fully in the premises.

It seems, however, that before the plaintiff brought this suit, and before the defendant purchased the property under execution, the plaintiff had demanded the possession of the property of the mortgagor under the provisions of the mortgage, and it was surrendered to him, but in consequence of the sickness of the mortgagor’s wife, and the property being household furniture, the plaintiff did not then remove it. His right to do so, however, became perfect, and he could have maintained an action against the mortgagor for it, if he had afterwards withheld the possession. The defendant purchased the property subject to the provisions of the mortgage. He could purchase no greater right thereto than the mortgagor had, and when he purchased, the mortgagor had no legal right, as we have seen, to withhold the possession from the plaintiff.

The plaintiff was the security of Norton in the guardian bond, and took the mortgage to indemnify him against loss. It seems that he had been sued upon the bond, and the property being movable chattels, but for his assertion of his right to possession of it under the provisions of the mortgage, it might have been scattered and wasted, after it passed into the hands of the defendant, and the plaintiff might have thereby lost his indemnity to the extent of its value.

We think, upon the facts of the case, the plaintiff had the legal title to the property, the immediate right of possession, and good grounds of action against the defendant, and that the Court below should have so declared the law to be.

The judgment is reversed, and the cause remanded for further proceedings, etc.

Absent, the Hon. Thomas B. Hanly.


text:
    Cornish vs. Dews et al. as admr.
    If a deed of trust for the benefit of creditors was valid when executed, no subsequent conduct on the part of the grantor, or the trustee, however fraudulent, could avoid the deed, and deprive the creditors accepting it in good faith, and not participating in the fraud, of their rights under it {Hempstead vs. Johnston, ante.)

    And even if a debtor making a deed of trust, had the purpose, at the time he made the deed, of hindering and delaying creditors, not provided for by it, yet it will be valid as to the preferred creditors, if they were not parties or privies to his fraudulent purpose, but accepted the deed in good faith, to secure debts really due them.
    Where a bill is filed by a trustee to injoin the sale under execution of property included in the trust deed, on the ground, not merely that it was included in the trust deed, but that it was required by the trustee to pay the trust debts, and the proof shows that there was but a balance of the trust debts remaining unpaid, that there was an abundance of other property included in the trust deed, which had been sold by the trustee, to pay such balance, the Court should dismiss the bill for want of equity.
    Where by the terms of a deed of trust it is to become void, and the property to revert to the grantor on the payment of all the trust debts, the deed becomes inoperative eo instanti all the debts are paid. And so, on the payment of a part of the trust debts, the property is discharged from the incumbrance pro tanto.

    Where there is more property included in a trust deed than is sufficient to satisfy all the debts secured by it, a pursuing creditor may file a bill against all the parties interested to have the trust closed and the property subjected first to the payment of the trust debts, and the excess to the satisfaction of the complainant’s debts.
    The rule in equity is that the testimony introduced by the parties must be relevant to the issues: but where the answer to a bill by the trustee to injoin a judicial sale of the trust property, alleges that the trust deed was made to hinder and delay creditors, testimony of the subsequent acts of the trustee and grantor conducing to sustain such allegation, is not irrelevant.

      Appeal from the Circuit Court of Union county in Chancery.

    The Hon. Shelton Watson, Circuit Judge.
    Carleton, for tbe appellant.
    The Court should have sustained the motion to strike out thatpart of the testimony objected to, as it was irrelevant, for no proof can be admitted of any matter not noticed in the pleadings. DanielPs Gh. Pr.. 814, 815, 992.
    As fraud is never presumed, the facts and circumstances constituting the fraud must be stated with distinctness and precision. Conway vs. Ellison, 14 Ark. 363; Alden vs. Lincoln, 13 Mete. Rep. 204,
    That a debtor may prefer one creditor, or set of creditors to another. Twyne's Case, 3 Coke 80; Eastwick vs. Carlland, 5 Term 420. And a deed preferring creditors is not fraudulent because made in the absence and without the knowledge of the beneficiaries. 2 Kent 533; Marbury vs. Brooks, 7 Wheat. 526; Brooks vs. Marbury id. 78; Bransheer vs. West, 7 Peters U. S. Rep. 608; Ellison vs Ellison, 6 Ves. 656; Small vs. Oudley, 2 P. Wms. 427. The assent of absent creditors will be presumed, if the assignment be beneficial to them. 2 Kent 533; North vs. Turner, 9 Serg. & R. 224; DeForest vs. Bacon, 2 Conn. Rep. 633; Galt vs. Debrel, 10 Yerg. 146; Nicolvs. Munford, 4 /. C. R. 529.
    Such deed is not fraudulent because all the grantor’s property is included in the deed. Nunn vs. Willsmore 8 Tenn. 521; Wilkes & Fontain vs. Ferris 5 J. R. 335; nor because any effects undis-posed of are, by the terms of the deed, to be reconveyed to the grantor. 2 Kent 536 notea. (5 Ed-i) 5 J. R. 335; nor because the deed provides that the grantor shall remain in possession until the day of payment. Hopkins vs. Scott, 20 Ala. Rep. N. S. 184; Magee vs. Carpenter, 4 Ala. 474; Ravesair vs. Alston, 5 Ala. 279; 8 ib. 694; 7 id. 235,356; 11 Mete. 333; 13 id. 204; nor because the grantor subsequently sold a portion of the property. Alden vs. Lincoln, 13 Mete. Rep. 204.
    A deed of trust is valid, though it may hinder and delay the creditors not preferred, if it was executed in good faith, and with no intention of fraud. Hendrick vs. Robinson, 2 J. C. R. 308: Mean et al. vs. Howell & Atler, 4 East 1; 3 J. R. 84; 5 id. 344; id. 412,456; 2 J. C. R. 308.
    The deed being valid in its inception could not be rendered fraudulent by the subsequent acts of the grantor or the trustee. Alden vs. Lincoln, 13 Metcf. 204; Brooks vs. Marbury, 11 Wheat. 89.

      The deed being valid the grantor had no interest in the slaves subject to levy and sale under execution — his interest being only the equity of redemption. Scott vs. Scholy, 8 East Rep. 467; Wilkes & Fontaine vs. Berris, 5 J. R. 335; Hawkins vs. May, 12 Ala. 673; Hopkins vs. Scott 20 Ala. 179.
    Lyon, for the appellees.
    The issue being that the trust deed was made and contrived to hinder and delay creditors, any facts tending to show the object and intent of the grantor in making the trust — the manner of the sale of the trust property, and the conduct of the grantor and trustee in relation to it — were admissible in evidence. Underhill vs. Van Cortlandt 2 J. C. R. 339. Dan. Ch. Pr. 995.
    If the trust deed under which complainant claims, was made or contrived with the intent to hinder or delay creditors, then it is void against the defendants. Rev. Stat. 541. sec. 4.
    That the pleadings and evidence show conclusively that the grantor in the trust deed did make and execute it with an intentto hinder and delay his creditors — that he assigned all of his property subject to execution, in trust to his son, with a reservation for the benefit of himself and family; that the trust was only for the benefit of a part of his creditors, and the property conveyed was worth double the amount of the debts the trust was made to secure; that the trustee was his son, and like the grantor and his family, wholly dependent on the trust property for a support; that the grantor was not in failing circumstances; that the grantor was permitted to sell and convey the trust property in violation of the terms of the trust, and the trustee took no steps to prevent it — all these acts are badges of fraud; and the property levied upon was subject to the execution of defendants. See Kent Com. 3d Ed. 2 Vol. 534, 536 and note; Groose vs. Wakeman, 11 Wend. Rep. 187, and authorities there cited; Bailey & Green vs. Burton et al., 8 Wend. Rep. 339; Baldwin vs. Cawthorne, 19 Ves. p. 168.
   Mr. Chief Justice English

delivered the opinion of tbe Court.

This was a bill for injunction, filed in the Union Circuit Court, on the 12th of April, 1852, by John L. Cornish against Hezekiah Dews and Rowland B. Smith, as administrators oí Hiram Smith, deceased.

The bill alleges that on the 30th of Sept., 1850, John H. Cornish of Union county, being in failing circumstances, executed to complainant, as trustee, a deed of trust on the property therein described, for the purpose of securing the debts therein mentioned, which deed was duly acknowledged and recorded, on the day of its execution, in the Recorder’s office of said county, where the complainant and the grantor resided, and the property was situated. The bill recites the provisions of the deed, and makes an exhibit of it.

The debts of the grantor intended to be secured, according to the allegations of the bill, and the recitals of the deed, were as follows:

To Parsons & Co. of Boston, by open account for merchandize, $774 35, due March 1st, 1850.

To Montross & Stilwell, of New Orleans, about $1,800, secured by three notes; the first for $1,742 85, due 15th January, 1848; the second for $1,047 58, due 1st April, 1849; and the third for $272 25, dated 21st May, 1849, and due at six months; which notes were entitled to a credit for payments made at sundry times of about $1,400.

To Wills, Peas & Co., of New Orleans, $2,125 51, by note due 1st March, 1851.

To Taylor & Rayne about $300, by two notes, the first for $522 62, due 25th March, 1849, and the second for $417 06, due 1st January, 1848; which notes should be credited, for payments made at sundry times, with about $650.

To Smith & Brother about $100, on note for $257 62, due 1st of April, 1849, with sundry credits, etc.

That for the purpose of securing, and enabling the complainant, as trustee, to pay the above debts of the grantor, the deed conveyed to him several tracts of land, sixteen slaves, among which was Peter, a number of horses, mules, cattle and other chattels, all of which are described in the deed.

The property was conveyed in trust that the trustee should, as soon as convenient, after the expiration of fifteen months from the date of the deed, if the debts, or any, or either of them remained unpaid, and on request of any or all of the creditors, make public sale of the property, or so much thereof as might be necessary to satisfy so much of the debts, as remained unpaid, etc., etc., etc. That the grantor should remain in possession and use of the property until it became necessary for the trustee to take it into his possession, for the purposes of the trust, or to protect it from waste, etc.

The bill further alleges that after the execution and registration of the deed, and on the 16th of April, 1851, the defendants Dews and Smith, as administrators, etc., obtained a judgment in the Union Circuit Court against John H. Cornish, the grantor in the deed, and one John H. Hines, for $454 28 debt, and for costs. That on the second of June following they caused execution to issue thereon to the Sheriff of Union county, who levied on the slave Peter embraced in the deed. That John H. Cornish (who, by the terms of the deed, was permitted to retain possession of the slave) executed a bond for the delivery of the negro to the Sheriff on the return day of the fi. fa., which was forfeited. That, afterwards, on the 30th Oct., 1851, the defendants, Dews and Smith, caused afi-fa. to be issued on the delivery bond judgment, which the Sheriff again levied on Peter, and advertised him for sale, and would sell him unless restrained.

That, defendants were well notified of the existence of the deed of trust, but were contriving to distress complainant by putting it out of his power to execute the trust, and exposing him to the suit of the cestui que trusts, for the non-execution thereof, thereby defeating the design of the trust, to the manifest wrong and injury of the beneficiaries, who had accepted and claimed the benefit of the trust deed.

That complainant believed that if Peter was sold by the Sheriff, no responsible resident would purchase the equity of redemption in him; or that if any one should, the title was so clouded he would give nothing for it, and the right of redemption would be lost to John H. Cornish or his heirs. That, in all probability, the slave would be purchased by some reckless person, who, either in ignorance or disregard of the trust, would run Peter beyond the jurisdiction oí the Court, and the limits of the State, and before complainant was aware of it, sell him to some innocent purchaser, and thereby defeat the trust.

That the circumstances of John H. Cornish, and the claims of the beneficiaries in the deed, who were threatening to sue complainant if he did not so proceed, made it necessary for him to take possession of the trust property, by virtue of the deed, and proceed to execute the trust, which he could not do, unless assisted by the Court to get possession of Peter.

Prayer for injunction restraining defendants and the Sheriff from selling Peter, and that he be surrendered up to complainant, and for general relief.

A temporary injunction was granted on the filing of the bill.

The defendants answered, in substance as follows:

They admit the execution and registration of the deed of trust as alleged.

They do not know that Cornish, the grantor, was in failing circumstances at the time he made the deed, but believe he had sufficient property to pay all his debts, etc.

They deny that the object of creating the trust was the payment of the debts named in it, but charge that Cornish executed the deed upon all his property for the purpose of hindering and delaying creditors, amongst whom were respondents, and of obtaining time.

They admit that the debts named in the deed were debts due from, and owed by Cornish at the time he made the deed, but they were informed and believed that he had paid off and satisfied nearly all of them since the execution of the deed. That complainant knew, at the time he filed the bill, that nearly all of said debts were satisfied. That the debts of Parsons & Co., and Montross & Stilwell had been paid. That a large amount of the debts of Wills, Peas & Co., had been paid. That the debts of Taylor & Payne, and Smith & Brothers, had also been paid. That all of the said payments were made by Cornish, since the execution of the deed, which was known to complainant when he filed the bill.

That Cornish, a short time before the bill was 'filed, did, with the knowledge and consent of complainant, sell to one Epps R. Brown, Amy, a woman, and Betsy, a girl, two of the slaves embraced in the deed, for a sum more than sufficient to pay the balance due on the trust debts.

They admit that they had taken the steps stated in the bill to subject the slave Peter to the satisfaction of their judgment against John H. Cornish, etc. But aver that complainant is his son, was a mere youth when the deed of trust was executed, lived, and still lives with and under the control of his father; is poor and dependant upon him for support, and is using the trust property for the maintenance of himself, and the other members of his father’s family. That complainant is irresponsible for any and all of his acts as such trustee, and the deed of trust was used as a blind to screen the property embraced in it, from respondents’ execution, and other judgment creditors of John PI. Cornish.

That the first levy on Peter, referred to in the bill, was made with the knowledge and assent of complainant, and he became the security of his father in the bond for the delivery of the slave: and after the bond was forfeited, and the negro again levied on, complainant for the first time objected, and interposed his claim as trustee, by filing the bill, which was done, as respondents believe, at the instance and request of the father of complainant, for the purpose of hindering and delaying respondents in the collection of their debt.

They admit constructive notice that Peter was included in the deed: but deny that they caused him to be levied on for the purpose of harrassing complainant, or subjecting him to suit, etc., as alleged in the bill: and aver that the first levy was made upon Peter by direction of John H. Cornish, and with the knowledge and assent of complainant, in order to protect other property belonging to said John H., which was subject to the execution, and not included in the deed.

Respondents were informed, and believed that none of the creditors named in tbe deed of trust, except Wills, Peas & Co., had ever accepted the trust, as an indemnity for their debt, etc.

That there was no danger of Peter being sacrificed under an execution sale, for respondents would have bid for him the full amount of their debt and costs.

That there was no necessity for the complainant to file the bill to protect himself, or the rights of the cestui que trusts. That the time allowed by the deed for the payment of the debts had expired; that the creditors had made no request of the trustee to proceed to sell the property, or if they had, he had not done so; that the debts were long due; nearly all of them had been paid, and but a small amount remained unpaid, etc.

They aver that the deed was made to hinder and delay creditors, and plead this in bar of the relief sought by the bill. They also claim the benefit of a demurrer, for want of equity, upon the hearing, etc.

The answer was filed 18th October, 1852.

The cause was heard, at June term, 1854, on bill and exhibits, answer, replication and depositions; and the Court being of opinion that the deed of trust was made to hinder and delay creditors, and was void, as well also as all acts done under and by virtue of it, and that the property embraced therein was subject to levy and sale, as the property of John PI. Cornish, to satisfy the judgment of defendants, decreed that the injunction be dissolved, that the deed of trust be set aside and held for naught, and that defendants be restored to all their legal rights and remedies at law on their delivery bond judgment, and have execution thereon, etc., and that the property embraced in the trust deed be subject thereto, etc., and that complainant pay the costs of the bill, etc.

The complainant appealed from the decree to this Court.

There are two grounds of defence relied upon in the answer:

1. That the deed of trust was made to hinder and delay creditors, and was, therefore, void under the Statute of frauds. Digest, ch. 73, sec. 4, 5.

2. That if the deed was valid when made, the debts secured by it had nearly all been paid when the bill was filed, and there was property amply sufficient embraced in the deed, besides the boy Peter, to pay any balance that remained unpaid, and that, therefore, there was no just ground for the Chancellor to interpose in behalf of the trust, and protect Peter from being subjected to the satisfaction of the judgment of the ap-pellees.

1. The appellees failed to produce any express proof that the deed was made to defraud creditors, but they insist that from surrounding circumstances in proof, it is to be inferred that the deed was a fraudulent contrivance.

The answer makes the important admission that the debts recited in the deed were genuine, and justly due from John H. Cornish to the cestui que trusts when the deed was executed.

John H. Cornish, whose deposition was taken by the appel-lees, states that he executed the deed in good faith, for the purpose of securing the debts recited in it, and not for the purpose of hindering or delaying the appellees, or any other creditors, in the collection of their claims. That, at the time he made the deed, he felt doubtful of his solvency. He owed as much as $13,000; and, besides the property embraced in the trust, had not more than $5,000, in available notes and accounts. That, by the trust deed, transferring notes, etc., etc., he made provision for the payment of all the principal debts which he owed personally. That the debt of appellees was contracted by himself and Hines, as partners in a steam mill, and his reason for not including this debt in the deed of trust, or making other provision for its payment was, that he believed that the partnership property would pay all liabilities contracted on its account, and yield a handsome profit beside; and that he did not suppose that he should become individually liable for any of the firm debts, etc. That he informed the cestui que trusts of the execution of the deed, and they accepted and claimed the benefit of its provisions before the appellees had taken' any steps to subject Peter to the satisfaction of their claim.

These statements conduce to sustain the fairness of the deed, and furnish grounds to uphold its validity for the benefit of such of the cestui que trusts as may not have been paid their claims after its execution.

There are other facts in proof which tend to show that John II. Cornish used the deed to protect the property for his own purposes, other than the payment of the debts secured by it.

He states that it was essentially necessary that he should have the use of the property embraced in the deed for the support of his family. The trustee was his son, lived with him, and was about 21 years of age, when the deed was made. Sometime after the execution of the deed, he sold Betty and Amy, two of the slaves, and some chattels, included in the deed, and appropriated the money to other purposes than the payment of the trust debts. Afterwards, and while this suit was pending, in 1853, the trustee made a sale, under the trust deed, of all the other property including Peter, and it was purchased by Wm. Cornish, a brother of John II., who claimed to have a mortgage on it. The trustee did not stop selling when he had sold enough of the property to pay the balance due on the trust debts, as provided by the terms of the deed, but sold the whole of the property. The negroes were put up in three lots by the direction of John H. Cornish, and against the objec-jection of the attorney of one of the creditors, etc. The purchaser paid over to the trustee so much of the purchase money as it was supposed would be required to discharge the balance due on the trust debts, and retained the remainder in his own hands, etc.

But, as held in the case of Hempstead vs. Johnston, present term, if the deed was valid when executed, no subsequent conduct on the part of the grantor, or the trustee, however fraudulent, could avoid the deed, and deprive the creditors, accepting it in good faith and not participating in the fraud, of their rights under it. And even if Cornish had the purpose, when he made the deed, of hindering and delaying creditors, not provided for by it, yet if the preferred creditors were not parties or privies to his fraudulent purpose, but accepted the deed in good faith, to secure the debts really due them, it would be valid as to them.

Upon all the facts of this case, as they appear before us, we are not prepared to say that the appellees sustained, with sufficient clearness to warrant a decree in their favor, the affirmative allegation of their answer, that the deed was void dh initio under the Statute of frauds.

2. The second ground of defence, made, substantially, by the answer of the appellees, that there was sufficient property included in the deed to pay the balance due on the trust debts beside the boy Peter, was clearly established by the testimony.

John H. Cornish states that the balance due upon the trust debts at the time of the sale of the trust property by the trustee, was $3,942 94, from which was to be deducted the amount of a collateral security, turned over by him to Montross and Still-well, if it had been paid. The testimony of Lyon shows that this collateral security, amounting to $1,339 94, was paid; leaving the balance due upon the trust debts $2,603 39.

John Ii. Cornish states that he sold Betty and Amy for $1,250, and some other property embraced in the deed for $85, making $1,335. This property, of course, was subject to the trust. The trustee sold the remainder of the property at the trust sale, including Peter for $4,071. Taking these sales as a criterion of its value, the entire trust property was worth $5,406. Wm. Cornish, who purchased the property at the trust sale, values Peter at $700. Deduct his value from the value of the whole property and it leaves $4,706 to discharge $2,603 39, the balance due on the trust debts, leaving an excess of $2,102 63.

But Wm. Cornish estimates the cash value of the property sold at the trust sale at $6,960 in the aggregate; deduct $700 for Peter, and add $1,335, the value of the property sold by John H. Cornish, and $7,595, is the result. From this sum take the balance due on the trust debts, and the remainder is $4,991 61.

The bill sought the interposition of the Chancellor to prevent the sale of Peter under the appellees’ execution, not merely upon the naked ground that he was included in the trust deed, but upon the ground that he was required by the trustee for the purposes of the trust to discharge the trust debts. The proof shows that this was not tone; that there was an abundance of property included in the trust deed, without Peter, to satisfy the balance due upon the debts. Under this state of case what decree should the Chancellor have rendered? Should he have made the injunction against the sale of Peter perpetual, or dismissed the bill for want of equity?

In the State use, etc. vs. Lawson, 1 Eng. R. 269, this Court held that the equity of redemption of the grantor in a deed of trust upon land, was the subject of execution.

In Crittenden vs. Johnson, 6 Eng. R. 103, the doctrine of this case was held not to be good law. Mu. Justice Scott said: “It obliterates the well defined lines between deeds in trust and mortgages — breaks down their partition walls.”

In Pettit et al. vs. Johnson et al., 15 Ark. 55, it was expressly decided that the grantor in a deed of trust to secure the payment of debts, had no such interest in the property (while the deed was in full force) as was the subject of execution at law. That the whole title to the property was in the trustee.

Is the doctrine of that case applicable to the one now before us? In that, it seems that the deed was in full force as a security for all the debts embraced in it. In this, nearly half of the amount of the debts secured by the deed had been paid after its execution. By the terms of the deed it was to be void, and the property to revert to the grantor on the payment of all the trust debts. If all the debts had been paid, the deed, eo instanti, by operation of law, would have become inoperative, and the property would have reverted to the grantor, without a reconveyance by the trustee. On the payment of part of the debts, the property was discharged from the incumbrance pro tanto; and there being more property included in the deed than was required to satisfy the remaining debts, how was a creditor not provided for by the deed, to proceed in order to subject the excess of property to the payment of his debt?

No doubt but the proper course for the judgment creditor to pursue in such case, would be to file a bill against the grantor, trustee, and cestui que trusts, praying an account of the balance due upon the trust debts, and a decree that the trust be closed, and the property subjected first to the discharge of such balance, and the excess to the satisfaction of the complainant’s debt. Pettit et al. vs. Johnson et al. ubi sup.

Had the appellees in this case, made their answer a cross-bill, and brought in the proper parties, the same result might have been attained.

But the question reverts, what decree should the Chancellor have rendered in this case, upon the facts before him? Should the bill have been dismissed for want of equity, or the injunction been made perpetual? We have seen that the complainant failed to sustain the allegation that Peter was required for the purposes of the trust. Moreover, while he held off the execution of the appellees by means of the temporary injunction, and while the bill was pending, he proceeded to sell the whole of the trust property, (except what his father had before sold) including Peter, regardless of the provision of the deed, which authorized him to sell only so much of the property as was necessary to pay the debts and expenses of the trust. And his father, whose interest the bill seeks also to protect, was present, sanctioning and directing the mode of sale. No proof was made that the cestui que trusts had given the trustees any direction to file the bill, or to sell the property under the provisions of the trust.

Under all the facts of the case we think the Chancellor might well have dismissed the bill for want of equity; and such should have been the form of the decree. So much of the decree as declared the deed null and void, ah initio, as we have above intimated, was not warranted by the proof. So much of the decree as declared all acts done under the deed to b§ null and void, and that the property be subject to the satisfaction of appellees’ judgment by execution at law was not warranted by the pleadings. This was in effect to declare the trust sale void, which occurred after the filing of both bill and answer, and its validity was not directly put in issue by cross-bill or otherwise. The bill being dismissed for want of equity .the appellees would have been left to pursue such legal or equitable remedies for the satisfaction of their judgment as they may have been entitled to in the premises. Conway vs. Ellis, 14 Ark. 363.

The appellant insists that the Court below should have excluded, on his motion, all the testimony in reference to the trust sale, as being irrelevant to the issues made by the pleadings.

It is doubtless the rule in equity, as well as at law, that the testimony introduced by the parties must be relevant and pertinent to the issues formed by the pleadings.

It is also .true, as we have seen, that the validity of the trust sale was not put directly in issue by the pleadings.

But it was' alleged by the answer that the trust deed was a contrivance to hinder and delay creditors, and though the conduct of the grantor and trustee subsequent to the execution of the deed in relation to the property, however fraudulent, could not, as we have seen, avoid the deed, if valid in its execution, yet, proof of such conduct might conduce to throw light upon the original design of the grantor in making the deed.

The value of the trust property was also in issue; and the price which it brought at the trust sale might afford some criterion of its true value.

It was also alleged in the answer, that a large portion of the debts had been paid; that the deed was used by the grantor and trustee as a blind to screen the property from the execution of appellees; and that the bill was filed not really for the purpose of protecting the interest of the cestui que trusts, but for the benefit of the grantor in the deed, etc. The testimony objected to was not irrelevant to such allegations.

The decree, in the form in which it was rendered in the Court below, must be reversed, and the cause remanded with instructions to dismiss the bill for want of equity.

Absent, Mr. Justice Scott.


text:
    Stockden vs. The State.
    It is not necessary, in an indictment under the act of 12th January, 1852, (Paraph acts of 1852, p. 205,) for playing cards on Sunday, to allege that the game was played for amusement, or that the defendant bet upon the game.

      Appeal from the Circuit Court of Yell county,
    The Hon. John J. Clendenin, Circuit Judge.
    Walker & Green for the appellant.
    Johnson, Attorney General, for the State.
   Mr. Chief Justice English

delivered the opinion of the Court.

Stockden was indicted in the Yell Circuit Court, for playing cards upon the Sabbath. There were two counts in the indictment:

The first charged: “ That Anderson Stockden, late of, etc., on Sunday, the first day of July, A. D. 1855, at etc., did unlawfully play at and upon an unlawful game at cards, commonly called seven up, which said game at cards was then and there, on Sunday as aforesaid, played by the said Anderson Stockden, William Blake, Monroe Phifer and James Lands, contrary to the form of the Statute,” etc.

The second count charged: “ That the said Anderson Stock-den, on the day and year aforesaid, in the county aforesaid, did bet one dollar at and upon an unlawful game at cards, commonly called seven up, contrary to the form of the Statute,” etc.

On the plea of not guilty, a jury found the defendant guilty upon the first count in the indictment, and not guilty upon the second. He filed a motion in arrest of judgment, -which the Court overruled, and he appealed.

The indictment was drawn under the following Statute:

“ Every person who shall, on the Christian Sabbath, or Sunday, be engaged in any game of brag, bluff, poker, seven-up, etc., etc,, etc., or at any other game at cards, known by any name, etc., etc.,/or any bet or wager on such games, or for amusement without any bet or wager, shall, on conviction thereof, be fined in any sum not less than twenty-five, nor more than fifty dollars.” Act 12th January, 1853, Pamph. Acts 1852, p. 205.

The motion in arrest of judgment was based upon the ground that the indictment was defective in substance, because it did not aver whether the defendant played the game at cards for a wager, or for amusement; and it is insisted that it should have been alleged that he played for the one or the other, to bring the offence within the terms of the Statute. The objection assumes that the two are distinct offences, and that one or the other is a material ingredient to constitute any offence under the Statute.

We think the objection is not well taken. The object of the Statute was to prohibit the desecration of the Sabbath by engaging in the* vicious employment of playing cards on that day, which is set apart by Divine appointment, as well as by the law of the land, for other and better engagements; and whether the defendant play for a wager or amusement, he is alike guilty of a desecration of the Sabbath, and consequently of a violation of the law. The playing cards upon that day is the gist of the offence, and whether the playing be for a wager or amusement is not material. No matter what the purpose of the game may be, it is a desecration of the day, and vicious to . public morals in its tendencies.

If the State were required to charge that the game was played for a wager, or for amusement, the defendant would insist that the proof should correspond with the allegation, and he might escape upon a technical variance, when he was really guilty of a violation of the law.

The second count in the indictment before us, charged the defendant with betting on the game, and he was acquitted; and perhaps because the State failed to prove the betting.

Whether the defendant bet upon the game, or played for idle amusement, or whether the playing was in a public place, where the evil example would be extensive in its influence, or in a private and secluded place, and the like circumstances, might perhaps be considered by the jury in mitigation or enhancement of the amount of the fine to be assessed by them against the accused, but all such circumstances would be matters of evidence, and not of allegation in the' indictment.

The judgment of the Court below is affirmed.

Absent, Hon. C. C. Scott.