Volume 1 — Freeman's Chancery Reports

<p>Where slaves were brought into this state as merchandise, and sold in violation of the constitution on that subject — held, that the contract of sale was void, but that the title to the slaves remained in the vendor.</p> <p>A court of equity will relieve a party from an illegal contract, but will impose such terms as a condition to such relief as will meet the ends of justice and place both parties on equal grounds.</p> <p>A party cannot set aside an illegal contract, and at the same time retain possession of the property acquired by such contract.</p> <p>In order to sustain a bill to annul a contract for slaves sold in violation of the constitu tion, the complainant must offer to deliver the slaves to the vendors. '</p> <p>Where the right to the possession of property is made a matter of judicial controversy, a court of equity will not award possession to the complainant by injunction upon the unsupported showing of the bill.</p>

<p>Where a mortgage grants a power of sale to the mortgagee, the mortgagee cannot execute that power without the aid of a court of chancery.</p> <p>Where an executor was authorised by a will to raise money upon the credit of his testator’s estate through banks, and the executor procured a loan of money from private individuals, and executed a deed of trust on his testator’s estate to secure the payment thereof; held, that this was not such an execution of the power granted in the will as would be binding on the testator’s estate.</p> <p>Where power is given to raise money by mortgage, and a particular method of doing it is pointed out, a negative upon all other modes is clearly implied, and the mode pointed out must be strictly followed.</p> <p>An executor, as such, has no power to pledge the estate of his testator for a loan of money, nor to create any lien upon it, by deed or otherwise.</p>

<p>This bill was filed to enjoin proceedings at law, and to rescind the contract on which the same was based.</p> <p>The bill states, that on the 28th day of January, 1837, Wiley Davis represented himself to be the assignee of the Indian title to five sections of land, which the Indians claimed by virtue of the treaty of Dancing Rabbit Creek, and proposed to sell the same to complainant; and that complainant, trusting to these representations, which he believed to be true, became the purchaser of the said five sections for the .sum of $4,800, for which he executed his note, and that Davis gave a bond to convey to him as soon as he obtained the title to the same, or whenever any person for his use got title.</p> <p>It states that these representations were untrue ; that said Davis was not the assignee of the Indian title, but that John Johnson was the purchaser of a large number of the Indian claims, and agreed to let Davis have a limited portion of them, if he would advance money enough to Johnson to enable him to secure the titles to the land from the United States; that Davis never did advance the money, or comply with the conditions on which alone Johnson agreed that he should have an interest in the same.</p> <p>The bill states that Davis, on the same day he sold to complainant, sold to several other persons a large number of sections of land, which he claimed to hold as assignee as aforesaid; that he was not the assignee as he stated, and that he fraudulently and falsely misrepresented the facts, and thus imposed upon complainant.</p> <p>It also states, that when Davis sold the said land it was held by persons who claimed adversely to his claim, and that the sale is therefore void; that Davis is dead, and that the defendant administered upon his estate; that suit upon the note has been commenced in Yazoo county by defendant. It prays an injunction of the suit, and at the final hearing a perpetual injunction, and a cancellation of the note. It also states the insolvency of Wiley Davis’ estate.</p> <p>The answer of the administrator denies all fraud or misrepresentation by intestate, and calls for proof; and states his belief that complainant Imew the situation of intestate’s title.</p> <p>It states, that a number of Indians applied to the agent of the United States to register their names under the treaty referred to in bill, in order to entitle them to a grant to the land; that the agent failed to do so, and that the lands which the Indians were entitled to were sold improperly, and that Davis purchased or contracted for a large number of these claims, which he located on more than five hundred sections of land, and that the intestate had a much greater interest in the land than he sold; and that intestate’s ultimate title depended upon the action of Congress, and that no final action by that body has yet been had. It admits that the note mentioned in the bill was given for the five sections as stated in the bill, but that complainant was to pay $1900 more if Congress confirmed the claims. It neither admitted nor denied the adverse holding charged in the bill. Exception, was taken to •it on that account, which was sustained, and time given to an-swerno answer was filed, and a pro confesso has been taken as to the allegation that the lands were adversely held when sold.</p> <p>The allegations of the bill were fully sustained by depositions on the part of the complainant. The defendant introduced no evidenoe to corroborate his answer.</p> <p>The injunction must be perpetual, and the contract rescinded.</p> <p>First. Because of the fraudulent misrepresentations of Davis.</p> <p>Second. Because of the illegality of the sale of the land which was adversely held.</p> <p>Thirdly. Because of a failure of consideration, produced by the subsequent rescission between Johnson and the administrator.</p> <p>It is a well settled rule of equity that fraud vitiates every contract, and where one party has been deceived by the fraudulent concealment or misrepresentation of any material part of a contract, equity will relieve by rescinding the contract. 1 Story Eq. 200, et seq. 4 Yerg. 375. 3 Peters R. 210. 13 lb. 26. IDev. Eq. R. 411. Sugden on Sales, 26.</p> <p>2. A sale of lands in the adverse possession of another, is void hy the common law, it being malum in se. 1 Hawk. PL C. 470; 1 Plowd. R. 88; 2 Just. 563, 564; 7 Bing. 369; 8 John. R. 479; 1 Pick. Dig. 133-4-6; 5 How. 413; 4 Kent’s Com. 448, 449; 5 Pick..R. 348; 2 Story’s Eq. 312, 313; 9 Johns. R. 55; 2 Johns. Cases, 58: And the sale being void, the notes given for the purchase money are void also, being against public policy. 4 Kent’s Com. 449, note and cases cited; 2 Story’s Eq. 312, 313; 2 Johns. Cases, 58; Green v. Robinson, by High Court, Jan. term, 1840; 2 Swanston’s R. 167; 3 Dana, 201; 1 Story’s Eq. 296 to 300; 2 Johns. Cases, 58, 417; 1 Rand. 76, 11.</p> <p>Upon the third point I need not cite authorities. The administrator being unable to comply with his contract with Johnson, had the right to rescind; having done so, he places it forever out of the power of Davis’s heirs to comply with the contract with Wilkinson. 1 A. K. Marshall, 434; 4 Cranch, 137.</p> <p>First. The position is believed to be correct, that an actual conveyance of land, of which there is adverse possession, was void even before the passage of the act of Henry VIII. against granting pretended titles. For the deed could not operate as a feoffment, as entry could not be made to release seizen: nor could the use be executed to the possession, so as to enable the grantor to convey by virtue of the statute of Henry VIII. in regard to uses.</p> <p>Second. It is especially so since the act of Henry VIII. in regard to pretended titles. For, although that statute does not, in terms, avoid the deed, but is mérely penal, yet when an act of parliament forbids an act under a penalty, every contract made for such matter is a void contract. See 1 Taunt. R. 136; 1 Rand. 98; for a penalty implies a prohibition. Here neither the grantor nor any ancestor was ever in possession, nor any purchaser from whom he claims.</p> <p>Third. This, however, is not an actual conveyance, but a covenant to convey, &c. I admit that equity will sometimes enforce, or has enforced, a covenant to convey a possibility when it arises; but not in such a case as this — for,</p> <p>1st. It will be upon condition that the party seeking the enforcement of the contract has first done all it was incumbent on his part to perform. Here he not only has not done it, or offered to do it, but, as the proof clearly shows, that he never can do it.</p> <p>2d. And besides, the contract is void, as fraudulent.</p> <p>3d.. Besides, a court of equity will not decree the performance of a contract for the conveyance of a possibility, until that possibility exists — or, more properly, actually vests — for, how could it?</p> <p>But it may be said that the covenants to pay and to convey were independent. It is admitted. But the court will not put the complainant to his defence at law, for the contract was void in its inception; void for fraud; void also as against the policy of the law. But, if the contract were not void, and a recovery could be had at law, it is clear that, under the covenants in the deed, which complainants would have a right to insist on, by the terms of the contract, complainants could recover from Wiley Davis’s administrator the amount of the note now in suit. And thus, by taking cognizance of the matter Holly here, multiplicity of suits and circuity of remedy will be avoided, and great injustice too; since it is alleged in the hill, and not contradicted, that the estate of Davis is utterly insolvent.</p> <p>' Davis’s representations as to facts, which turned out to be untrue, whether founded in mistake or fraud, afford ground for relief, and even for a'rescission of the contract. See 13 Pet. Rep. 30, Smith v. Richards. For the complainant had no means of ascertaining whether they were true or not, and seems to have confided entirely in Davis’s representations.</p>

<p>In the year 1836, Isham Daniel executed the following deed : “ This indenture, made the third day of June, one thousand eight hundred and thirty-six, between Isham Daniel, of the county of Neshoba, and state of Mississippi, of the one part, and Benjamin J. Jackoway, James "Wilson, Temple Tullas, William Young, and A.aron Parker, members of the Board of Police of the county aforesaid, of the other part, witnesseth, That the said Isham Daniel, for and in consideration of the sum of one dollar to him in hand paid, the receipt whereof is hereby acknowledged, hath granted, bargained, sold, donated, .conveyed and confirmed, and by these presents doth grant, bargain, sell, donate, convey and confirm unto the said parties of the second part, and to their successors in office forever, a certain tract or parcel of land, lying and being in the county of Neshoba, to wit, (here describing the land,) containing eighty acres more or less, for the use and benefit of the county of Neshoba aforesaid, for a county site for a court house,’ &c. To have and to hold the same to the party of the second part and their successors in office forever,” &c. Isham Daniel files this bill for a reconveyance of the land to himself, alledging that the trust for which the same was conveyed has been defeated by the trustee’s own act.</p> <p>The following are the facts agreed upon by counsel, and on which the case was submitted to the chancellor.</p> <p>“ It is agreed that the Indenture set out in the bill was made by the complainant to the parties therein for the purposfes therein expressed, and for the consideration named. It is agreed, that the consideration of one dollar is nominal, and that it was not in fact ever paid. It is agreed, that complainant delivered possession under said deed to defendants. It is agreed, that defendants took possession of the land named in said deed,' and that they did build a court house, and establish a seat of justice on said land, and that said court house and seat of justice remained there for a limited time, that lots were laid off and sold, and a town called Camden established; that since that time the Board of Police for the county of Neshoba removed the seat of justice three miles off to Philadelphia, the said seat of justice and court house for said Neshoba county having been kept at Camden six or eight months. It is agreed, that the only understanding or agreement between the parties whatever in relation to the permanency of said court house and seat of justice, or in relation to the reversion of said land to the grantor, is contained in the deed aforesaid, upon the construction of which, and the facts hereby agreed, the rights of these parties rest. It is agreed, that said tract of land in said deed mentioned, was situated in the midst of a considerable tract of land of complainant. It is also agreed, that complainant has sold this tract of land since the establishment of said seat of justice at Camden, and while it remained there, to one-, and that said -has run off, and has not yet paid for the same, and is insolvent. It is also agreed, that the lots so sold in Camden have been transferred by the purchasers back to said Board of Police, who gave to the purchasers in lieu thereof lots in Philadelphia aforesaid.</p> <p>Hays, Yerger, and Forester, Counsel for defendant.</p> <p>Danl. Mayes, for complainant.</p> <p>The authorities referred to by the defendant are not considered by the plaintiff’s counsel applicable to the case. They all merely treat of the circumstances under which estates tail become fee simple, or estates upon condition subsequent become fee simple absolute, instead of estates on condition. Their only purpose is to define and ascertain what quantity of estate the grantee has. The case in 10th Peters, like the others, only presents a question, did the title vest at law upon performing a condition subsequent? which is indeed no question at all, as I humbly conceive. There was no question whether the sovereign making the grant might not have resumed it; for the title having vested, by performance of the condition, the sovereign could only have resumed the thing granted by the appropriate proceeding by scire facias to divest the estate; and the sovereign, Spain, having acquiesced, that question could not arise after the treaty of cession between the United States and Spain. Had it been however a question open and made in the case, I concede that the title vested absolutely upon performing the condition, and that it could not have been resumed according to the principles of the common law. The condition of the grant was expressed — -the whole condition performed; the grant was to Coppinger, not in trust, but in his own right, to vest upon a valuable consideration to pass and which did pass from him.</p> <p>Yery different is the present case ; and being so, it is to be determined upon different principles.</p> <p>Here the deed, by its delivery, passed an estate in fee to the grantees, to hold, not for themselves or in their own right, but as public functionaries in trust for a public purpose, to wit: “for the use and benefit of the county of Neshoba aforesaid, for a county site for a court house,” &c. The question then here is only the plain and simple question, whether property conveyed in trust for a public purpose shall revert to the grantor when that purpose is at an end, or the object of the grant has failed. To cite authority on such an A, B, C question in the law, seems to me a work of supererogation. It is in principle the case of a corporation dissolved. There the land reverts to the grantor. Why? Because the purpose of the grant has failed. Or of a gift to charitable uses, where the charity fails: the reason being the same, the law is the same.</p> <p>Even if the doctrine before adverted to was not conclusive of the case, the leading and indeed the only inducement to the conveyance by the complainant has failed by the act of the grantees, and it would be against the plainest dictates of sound morality that they should hold the land.</p> <p>“The application to a court of equity for a rescission or specific execution of a contract, is not, strictly speaking, a matter of absolute right, upon which the court is bound to pass a final decree. Rut it is a matter of sound discretion to be exercised by the court, either in granting or refusing the relief prayed, according to its own notion of what is reasonable and proper, lender all the circumstances of the particular case.” 2 Story’s Equity, 4, and authorities there cited.</p> <p>If the grantees accepted the deed, intending a removal of the seat of justice, it was a fraud that should vacate the contract. If they supposed it a permanent location, and the public interest required a removal, it was a case of giving and receiving a conveyance under a mistake, which should produce a rescission. See 2 Kent’s|Com. 469, 480, 487.</p> <p>It was conveyed to the grantees and their successors, in trust “for the use and benefit of the county of Neshoba,” not generally, but for a specific purpose, viz: “for a county site for a court-house, <fec.” He who gives may declare the law or fix the terms of his gift, and it cannot be applied otherwise. 2 Fonblanque, 210, marginal paging, Philad. ed. of 1831, in note; Dartmouth College v. Woodward, 4 Wheat. 537; Roper on Legacies, title Charity.</p> <p>The facts in this case are agreed, by which it appears that a gift was made of a piece of ground, for the purpose of building a court house and laying oif a town. This was done, and the town was subsequently removed to another place. It is contended that the land reverts to the donor.</p> <p>It is contended, for the defendants, that it does not revert, because the grant was made on condition that a court house should be built and a town laid oif; which was a condition precedent to the vesting of the right, the rule in which case is, that as soon as the condition is performed the right becomes absolute and unconditional, and completely under the control of the donee. 1 Cruise’s Dig. 75, 76; 2 ib. 30; Plowden’s Rep. 235, 241; 7 Coke’s Rep. 346; 10 Peters 309.</p> <p>The case in 10 Peters 309 is precisely similar to the present. The Spanish governor of Florida granted to the defendant a quantity of land and the timber on it, for the building of a mill, upon the condition that until the mill-was built the grant should not take effect. The mill was built and kept in operation a short time, but has since been allowed to decay, and was not kept in operation longer than a year or so. Held by the court — that the title in fee was complete when the mill was built. The counsel for the defendants believe that the foregoing authorities fully establish the position that when an estate is granted upon condition, it becomes absolute in the grantee the moment the condition is performed.</p>

<p>This bill was filed to enforce the specific performance of a contract for the sale of a town lot, in the city of Jackson, which contract failed to be executed in writing fin consequence of the death of the vendor. lite history of the case is given in the opinion of the court. Two of the defendants demurred to - the- bill, relying upon the statute of frauds.</p> <p>The first position taken by complainant is, that the heirs of James C. Dickson shall be charged upon the contract; because there is a memorandum in writing, not by the party charged, but by “ a person by him thereunto lawfully authorized.”</p> <p>The memorandum in writing, exhibit A., is a contract for the sale of the land, made in the name of both partners, by one co-tenant, and signed by him alone.</p> <p>This alone, without some evidence of ratification of the contract by Dickson, would not charge him. It is not necessary to prove that that authority was given before the contract was made.. It is sufficient if we prove that he adopted it subsequently. We charge three distinct facts, evidencing his adoption of the authority to make said contract in writing. 1st. Putting in possession. 2d. Suffering improvements. 3d. Indorsement of the notes; one of which facts is evidenced by writing. The rule of law is, an adop-tión of the agency in one part, is an adoption of the whqle/act. An act cannot be affirmed as to that which is beneficial, and rejected as to the remainder. 2 Str. 259. •</p> <p>But independent of the law of agency, this case is taken out of the statute of frauds, by part performance. To make-this available, a contract must be shown and part performance established.</p> <p>Upon that question must the contract, and the .terms of it, be specifically established? There is a contrariety among the authorities. Chancellor Kent, in the case of Padkhurst v. Voncordt-land, (1 J. C. R.) contends that not only the contract but a specification of its terms must be proved. Jn the fame case, in the supreme court of New York, that court holds that from the fact of part performance a contract may bq,. presumed, and that the court will in every case determine what that contract was, from the pleadings and evidence before it, .and give relief accordingly. 14 J. R. 31. And these principles are respectively to be found running through the reports of these two courts. ’Tis not for me to decide between them. Either is sufficient for my purpose; for not only the contract but the terms of it are established by the bill. They put complainant in possession — they suffered him to make valuable improvements,.Dickson transferred the notes by his own endorsement: the first recognizes some contract, the last the particular contract. - That such a recognition is conclusive against him, see Niven v. Belknap, 2 J. R. 573.</p> <p>As to the part performance, perhaps the broad position may be taken, that though, the parol contract be proved, and performance established, yet we are <npt entitled to relief. There are some decisions in Tennessee leading to this doctrine; but it has, throughout the Union and in, England, been so repeatedly decided otherwise, that it has beco'me the settled law of the land. It has been otherwise decided in England. — See any volume of Ves. Jr. and the Law Library, No. on Frauds, p. . It has been otherwise decided in New York. — See 2 J. R. 587. 14 J. R. 43. 1 J. C. R. and many others. It has been decided otherwise in Maryland.— See 4 Harw. and McHenry, 43 and 252. It has been otherwise decided in superior court of United States. I b.elieve it has been otherwise decided in every state of the Union except Tennessee.</p> <p>The acts of part performance stated' in the bill, are the putting in possession as owner, suffering them to improve, and a full payment of the purchase money. That these are acts of part performance, see 14 J. R. 43. 2 J. R. 587. Fonb. Eq.</p> <p>But it may be urged that the only ground of relief is fraud in the original purchase and deceit by the vendor. This is not law. The fraud against which this court will relieve, may consist in resisting the completion of an agreement partly performed. 1 J. C. R. 149.</p> <p>The judges say, if the party has been silent when justice demanded that he should speak, the court will not suffer him to speak when justice demands that he should be silent.</p>

<p>When any description of writing, evidencing liability on the part of the makers, whether it be commercial paper, a specialty, or other form of legal obligation, has become extinguished or discharged by subsequent events, as by payment or otherwise, so that the writing has become fundus officio, but where its existence in an uncancelled state might subject the maker to vexatious litigation at a distance of time, when the evidence of such extinguishment or discharge may have been lost, or so obscured as to render the parties less able to repel the claim; in all these cases a court of equity will extend its preventive justice to call out of existence an instrument which ought not tobe used and enforced, or where i t is against _ co nscience to permit the party holding it to enforce it.</p> <p>Although a plaintiff in equity cannot demand by one bill several matters of different natures against several defendants, yet when one general right is claimed by the bill, although the defendants may have separate and distinct rights, a demurrer will not hold.</p>

Some time previous to the month of May, 1837, Joseph M. Sit-ler, who was a member of the mercantile firm of “Sitler & Johnson,” indorsed a promissory note, in connexion with others, for one Benjamin Williams, for the sum of f 1131. At the May term, 1837, of the Madison, circuit comí, John H. Walker, the payee of the note, obtained a judgment at law against Sitler and the other parties to the note.

On the 13th of August, 1835, Heard, the complainant, agreed to sell John M. Evans, 640 acres of land, for which Evans was to pay $2,300, the payment of which was to be secured by Evans’ note payable the first day of January, 1838, and by a mortgage on the land sold, and also on three eighths of land. In pursuance of that agreement, on the 9th of November, 1835, the note was made and mortgage executed.

The bill in this case charges that on 23d of November, 1840, defendants took judgment against complainant by default, in the circuit court of Madison county, as security for Fall and Puckett, for $900, beside costs; that execution issued, which was levied- on his property; that he had no notice of said suit until the judgment by default was taken against him and an execution placed in the hands of the officer; that the writ was not served on him personally, and if a copy was…

<p>The bill- in this case states that some time during the year 1837, James L. Dawson leased a store house in the city of Natchez, to N. L. Williams, and gave him a written lease, by which it was provided that Williams should pay Dawson so much yearly rent as should be appraised by two persons, the one to be chosen by Dawson, the other by Williams; that on the 1st day of April, 1841, there was a year’s rent due and unpaid; that on the 30th day of March, 1841, Dawson- notified Williams that he had appointed one John M. Lawrence as~an appraiser of the yearly rent of said store on his part, and that Williams told Dawson that he had appointed one Joseph Bradley on his part; that during the occupancy of the store by Williams he had therein a valuable assortment of books, drugs and store furniture; that Jackson D. Williams and William Ballantyne were partners with N. L. Williams in the ownership of the said goods, and that they had no visible property other than the said goods, and that Dawson relied solely on his lien on said goods as security for his rent. That on the, morning of the 31st March, 1841, Dawson discovered that the store room was closed; that on the night previous Williams, in order to prevent the levy of a distress by Dawson upon the said goods and chattels, had clandestinely removed them and secreted them. - Dawson then caused his appraiser to meet Bradley and request an appraisement of the rent, but Bradley refused to act, and Dawson’s appraiser estimated the rent at $1,250; whereupon Dawson issued an attachment for that amount against the goods so removed, but failed in findiug the same. N. L. Williams afterwards told Dawson, that on the 29th of March, 1841, the said partnership conveyed all their property in the said goods and chattels for the benefit of one Payson Williams, to Lyman Potter, as trustee, in whose possession a portion of said goods then were; that another portion of said goods were in the possession of one Patrick McGrane, and that Potter and McGrane knew at the time they received said goods that they were subject to Dawson’s lien for rent.</p> <p>The bill makes all these persons parties, prays for a discovery on their part of all the matters charged; that the goods be declared subject to Dawson’s lien, and that they be sold to satisfy the same; and also that the defendants pay Dawson the sum of $1,250, that ,being the amount of rent due.</p> <p>To this bill there is a general demurrer by Ballantyne, one of the defendants.</p> <p>This is a bill filed by a landlord to subject goods to an alleged lien for rent.</p> <p>The bill is defective in the following particulars:</p> <p>First. It does not show that the complainant had the reversion of the leased premises at the time the rent became due, or had any interest in or claim to the rent.</p> <p>Second. It avers a lease by complainant to N. L. Williams, one of the defendants; but it does not show what term was granted, or that such term was unexpired at the date of the rent falling due, or that any of the defendants occupied the premises during the year for which rent is claimed. It merely states that rent for the year ending 1st April, 1841, was due on that day.</p> <p>> j Third. It does not show any rent iiú arrear and unpaid, but merely states when the rent fell due, and that the defendants knew the rent was unpaid, with a general charge that the goods are subject to a lien for rent.</p> <p>Fourth. It shows that no “fixed rent” was due; that the rent was to be annually appraised, but shows no appraisement nor any valid reason why it was not made.</p> <p>The appraisement referred to, (Exhibit A,) is not a valuation of the rent of the premises described in the bill and leased to N. L. Williams, but of the store occupied by N. L. Williams and Co. The bill does not mention any such occupants, but charges a sole occupation by N. L. Williams.</p> <p>The bill states that N. L. Williams appointed one Bradley appraiser on his part. This exhibit does not show a joint appraisement by Bradley and Lawrence. There is no averment of a refusal by Bradley to act, except that he refused to act at that time.</p> <p>Fifth. There is no averment that any goods were on the leased premises at any time during the year for which the rent is claimed; or that any goods were removed from the said premises; or that there were not, at the time the bill was filed, goods on the said premises sufficient to pay the rent.</p> <p>Sixth. It avers that the defendants, Ballantyne and J. D. Williams, were partners with N. L. Williams in the ownership of the goods; but does not show that these defendants were partners in the occupancy of the store, or otherwise occupied it, or show how Ballantyne and J. D. Williams are liable for rent, or that they were concerned in or privy to the removal of the goods.</p> <p>Seventh. Exhibit B. shows that the defendant, Lyman Potter, was not trustee as charged in the bill; nor is it alleged that he has any of the goods: no cause of complaint is alleged against him.</p> <p>Eighth. It states that the defendant, N. L. Williams, claims that the complainant owes him, and therefore will not pay rent. This claim is not denied. The complainant states that he does not believe the defendant, N. L. Williams, has any “legal” claim against him.</p> <p>Ninth. The prayer of the bill is, that all the defendants shall be decreed to pay the rent; and also, that the goods when discovered shall be sold to pay the same.</p> <p>Tenth. The complainant has an adequate remedy at law.</p> <p>The various statements in the bill, that the complainant is “informed,” and that the defendant “admitted,” &c. are not considered as sufficient allegations of facts. Mitford 42, note n.</p> <p>Before a landlord can distrain for rent, or assert in any maimer his lien on goods found upon or removed from the demised premises, he must show,</p> <p>First. A demise at “a certain and fixed rent, so that a tenant may know, in case he is threatened with a distress, what he is to pay to prevent it; or, in case his goods shall be distrained, what snm to tender, in order to retain them. Valentine v. Jackson, 1 Wend. 302; Wells v. Hornish, 3 Penn’a 30;- 4 Amer. Com. Law, 483.</p> <p>Second. That he (the landlord) is entitled to the legal reversion in the demised premises at the time the rent becomes due. 3 jBlack. Com. 6, note 8.</p> <p>Third. A continuing relation of landlord and tenant at the time of rent due — i. e. the rent must fall due before the term expires; or (under our statute) distress must be made within six months thereafter, “and during the' continuance of such landlord’s title or interest, and during the possession of the tenant from whom such arrears become due.” How. & Hutch, ch. 43, sec. 58; Williams v. Zulop, 2 Wend. 148; 5 Cow. 407; Pemberton v. Yan Rensselaer, 1 Wend. 307.</p> <p>Equity will not grant a remedy (for rent) beyond what, by analogy to the law, it ought to grant. 1 Sto. Eq. 635.</p> <p>As in case of innkeeper’s claim against his lodger. “Chancery has no jurisdiction of such demand, independent of the lien.” Black v. Brennan, 5 Dana, 311.</p> <p>The prayer of the bill is bad, for that it seeks a decree against all the defendants for the amount of the rent claimed, and also that the goods may be sold to satisfy the rent.</p> <p>First. The bill shows a lease from complainant, entry and occupancy under it, and rent due, payable 1st April, 1841. No further specification of the landlord’s title could be required, as the tenant could not traverse the title of his landlord.</p> <p>Second. The particulars of the lease are amongst the things sought to be discovered. The bill does show occupancy by the defendants during the year ending April, 1841. It charges that the rent was due, and alleges that the tenant did not controvert the fact, but named his appraiser, and resorted to fraud, not to law, to defeat the payment.</p> <p>Third. Same reply. Bill alleges that there was no controversy about there being rent due. The laws of the land give a specific lien. There is an equitable lien without that, binding upon all who have notice.</p> <p>Fourth. The rent was fixed by lease at an appraisement. It was the defendants’ own wrong if the appraisement was not satisfactory. The party demurring is charged as a confederate in the wrong.</p> <p>Fifth. The bill charges that the appraisement in the exhibit was of the rent of the same premises.</p> <p>Sixth. The bill shows that .the defendants’ appraiser refused to act. The complainant could not make him act; but must take the other alternative, to' act without him; to support the fairness of the valuation it alleges it was the rent paid by the tenant for the previous year.</p> <p>■ Seventh. There is an express averment that the complainant relied on the goods in the store for the rent due April, 1841; and that said goods, of great value, were removed and secreted, on the night of the 30th March, 1841, and the levy entirely defeated by the removal of the goods.</p> <p>Eighth. Ballantyne and J. D. Williams are charged as part owners of the goods in the store, and charged as participating in the conveyance and removal to defeat the levy.</p> <p>Ninth. The particular construction of exhibit B is immaterial. The principle is beyond question, that a party receiving a fund subject to a trust, with notice, is bound by the trust. The facts are charged. Equity raises the trust.</p> <p>Tenth. Rent is not subject to Offset of an ordinary kind. The denial of debt is sufficient, and the pretences of defendant, alleged in a bill, are hardly matter of demurrer.</p> <p>Eleventh. The prayer of the bill is perhaps informal, but is not in the words stated in the brief of defendants. It prays thaf' the defendants be decreed to pay the rent, and the lien be declared on so much sold as may be necessary to satisfy the claim. This is not claiming to be twice paid. If the defendants pay, none of. the goods would be required to satisfy the claim; so that a decree could be made upon this prayer. The words “or in default” have probably been omitted by a clerical error.</p>

The bill in this case states, that in January, 1839, Thomas G. McIntyre contracted with John Grissom for the purchase of him of a tract of land and a plantation, in the county of Claiborne. That in October, 1836, Grissom had conveyed the property in trust to Passmore Hoops, to secure the payment of a large debt owed by Grissom to one Miles Luster, which debt was still unpaid.

In the year 1835, the trustees of the sixteenth section of school lands for the county of Tallahatchie, advertised and sold one-eighth of the same to James A. Girault. Girault laid the land out in town lots, and formed a town now called Tuscahoma.

On the 22d of January, 1835, A. G. McNutt became the accommodation indorser of James C. Mitchell, on a promissory note given by him to Pinckard and Arnold, for the sum of thirteen thousand and thirty-three dollars, Mitchell having bought slaves of Pinckard and Arnold to that amount. This note was transferred to Wilcox and Fearne, and they brought suit on the same against McNutt alone.

<p>A party who comes into a court of chancery to rescind a contract, upon the ground of the defendant’s inability to comply with his part of the contract, must put his adversary in the wrong. In other words, the complainant must show that he has himself done and performed, on his part, whatever, by the terms of the contract, he is required to do, in order to authorise him to demand a compliance at the hands of the defendant.</p> <p>Complainant purchased land of respondent, and the latter gave the former a bond for title when the purchase money should be paid, Before all of the purchase money was paid, complainant ascertained that respondent had no title, or a defective title. Without offering to pay the balance of the purchase money, or demanding a title, complainant filed a bill to enjoin the collection of the balance of the purchase money: Held by the court, that the allegations of the bill were not sufficient to warrant an injunction. If the complainant had made a tender of the purchase money and demanded his deed, and the defendant had refused or was unable to convey a good title, the court would enjoin the collection of the purchase money until the sufficiency pf the defendant’s title could be investigated, and grant relief accordingly.</p>

In this case the bill states that Rush Nutt, previous to his death, made and executed his will, which was duly probated in Jefferson county. Haller Nutt was appointed executor under the will.

<p>John Powell furnished his son, John M. Powell, with money to buy lands, and take title to John Powell. The lands were bought by John M. Powell, and title taken to himself. John Powell, supposing the title to be taken to himself, entered upon the land and improved forty acres of the same. John M. Powell then claimed the land as his own, and offered it for sale, To prevent this sale, John Powell filed his bill in chancery, stating these facts, and praying that the defendant be injoined from selling the land in controversy, and that he be decreed to malte title to the same to the complainant.</p> <p>The defendant denied the allegations of the bill, and stated that he purchased the land with his own money. The complainant then filed an amended bill, denying the truth of the answer, to which defendant responded, and depositions were taken by both parties, the result of which was, the money with which the land was entered belonged to the complainant.</p>

This bill states that Lyman Harding, the former husband of Elizabeth Harding, died, leaving a large estate, real and personal, and that his said wife and an only son, Winthrop S. Harding, were the only persons entitled to distributive shares of the said estate. That she intermarried afterwards with said Daniel Yert-ner, and in 1828 and 1829 paid to the said Winthrop the whole of his claim to his father’s estate, and took from him a release of all his interest in said estate.

On the 30th day of April, 1833, William Fisher, of Virginia, sold to Benjamin Hughes, of Mississippi, a lot of slaves; and on the following day Hughes sold a part of said slaves to one John W. Thompson, and received a note from said Thompson, dated April 30th, 1833, due 1st day of January, 1837, for the sum of eight thousand dollars. Hughes indorsed the note and delivered it to Wm. Fisher, in part payment of the lot of slaves bought by Hughes of Fisher.

The bill in this case states, that James W. Sumner and John L. Brown, stockholders in the Hernando Rail Road and Banking Company, did, on the 24th of March, 1840, exhibit to the court a bill of complaint against the plaintiffs in this suit, which also prayed that the plaintiffs in this suit, who were directors in the said Hernando Rail Road and Banking Company, might be in-joined and restrained from exercising any of the powers and functions of directors, leaving the same to…

The facts of this case are sufficiently set forth in the opinion of the chancellor. It is contended on the part of the appellants, Niles and Lewis, that the order of the chancellor should be reversed, and that the demurrer should be sustained and the bill dismissed. 1. The reservation granted to the Indian in this case, must have been under the 6th article of the treaty between the United States and Chickasaws, concluded 24th of May, 1834, and ratified 1st July, 1834.

<p>Exceptions will not lie to an answer in aid of a plea.</p> <p>If a purchaser rests his claim in equity on the fact of being a bona fide purchaser without notice, he must deny notice fully, precisely, and positively, even though it he not charged on the other side. He must also deny all knowledge of facts charged from which notice may be inferred. A general denial of notice is not sufficient.</p>

The facts of this case are sufficiently set forth in the opinion of the chancellor. Where a vendee seeks a specific performance for apart to which title can be made, the court will compel performance. Waters v. Irwin, 9 Johns. Rep. 450; 6 Johns. C. Rep. 38, Compensation; 5 Cranch, 275; 9 Cranch 456, 494; Pratt et al. v. Law and Camp. Evans et ux. v. Kingberry et ux.

<p>A femme covert, claiming a separate estate, cannot sue her husband by her trustee. It - is a well settled rule of pleading, that when the wife claims any property in opposition to the marital rights of the husband, she must sue by her next friend.</p> <p>In the year 1834, one Lytle placed in the possession of Thomas Hunt a lot of slaves, with the understanding that said slaves were to be discharged of all claim on the part of Lytle, if Hunt should pay him the sum of eighteen hundred and six dollars and thirty-four cents at a certain time.' Hunt failed to pay the money as agreed by him. Lytle then conveyed the said slaves, in consideration of the above sum paid him by H. S. Morgan & Co., to one Tucker, in trust, to be sold, if necessary, to pay said Morgan & Co. the money so advanced by them to Lytle, as also the further sum of one thousand dollars due from said Hunt to said Morgan & Co.; but if said Hunt paid said Morgan & Co. the several sums -of money mentioned, then said Tucker, as trustee, was to convey said slaves to Elizabeth Hunt, (wife of said Thomas Hunt,) • for life, with a limitation over in favor of her children by name. In March, 1839, Hunt paid said sums of money to Morgan & Co. and obtained their release and discharge of all claims under said deed. In 1839 and ’40, Messrs. Booth and Edwards obtained several judgments against Thomas Hunt, and levied on the said slaves as the property of Hunt, to satisfy said judgments. Hunt’s wife and her trustee, Tucker, filed a bill to enjoin the sale of said slaves, and claiming the same as their property under the deed of trust. Held by the court, that Thomas Hunt’s interest in the slaves commenced from the time he paid the money for them, and a resulting trust arose from thence in his favor, which pre-existing creditors, at least, have a right to make available in the payment of their debts, notwithstanding the form of the conveyance.</p> <p>The intention to create a separate estate for the wife must be clearly apparent, in order to exclude the husband from the right to personal property which is given to the wife. The intervention of a trustee has never been held to go the length of vesting a sole and separate use for the wife.</p> <p>infants who tales in remainder should be made parties to a bill relating to the remainder property.</p>

<p>A purchaser at an administrator’s sale, who is deceived either by the fraud or mistake of the administrator in relation to the subject matter of his purchase, is as much entitled to relief as if the purchase had been made at private sale.</p> <p>Where an administrator sold land to which his intestate had no title; held, that the sale was void and must be set aside.</p>

On the 12th day of July, 1836, Arthur Moore bought of John F. Feme, James Scott and others, trustees, under the statute of this state, of the sixteenth section of township No. 19, range 9 east, in the county of Choctaw, and executed to Daniel S. Farrington, president of the board of trustees, several notes therefor, payable in one, two, three and four years.

On the 25th day of March, 1837, William C. Kenny, of Holmes county, Mississippi, purchased of.

The bill states that on the 1st day of August, in the year 1835, Whitton and Hulbert entered into a co-partnership in the business of merchandise, to continue six years. Whitton agreed to furnish goods or money to an amount not less than two thousand dollars nor more than four thousand dollars. Whitton was also to buy goods, and to be allowed five per cent, on the amount.

<p>A, -verbally appointed .B his agent to sell a tract of land; B sold the land and toolt notes for the purchase money, payable to himself instead of A, his principal; B transferred these notes to a stranger, to secure the payment of one of his own liabilities, without the knowledge or consent of A. The purchaser of the land (knowing that the notes for the purchase money had been transferred without the knowledge of A, the vendor,) went to A and informed him that the notes would surely bo paid at maturity; that he was anxious to get a deed to the land, and would pay two hundred dollars on the notes, not then due, to get the deed. A objected, saying ho had not the notes in possession, and could not make the credit. The purchaser did not disclose the fact that the notes had been transferred by B, the agent of A, but said that B would credit the two hundred dollars on the notes, and if he did not, he, the purchaser, would lose the amount. After much persuasion, A made the deed to the purchaser. The notes were sued on and the money collected by the party to whom they were transferred to secure a liability of B. Held by the court, that the fact that the agent of A had abused his trust and deceived him, would be no ground for relief against the purchaser, and that the purchaser was not bound to disclose the fact that the notes had been transferred.</p> <p>The true definition of undue concealment, which amounts to a fraud in the sense of a court of equity, and for which it will grant relief, is the non-disclosure of those facts and circumstances which one party is under some legal, or equitable obligation to communicate, and which the other party has a right, not merely in foro conscientia, but juris et de jure, to know. '</p> <p>If a man is procured to do an act, even through fraud, the act will be valid if it was such as the law would have compelled him to perform.</p> <p>Where fraud is charged, it must appear'that the party was thereby misled to his prejudice or injury.</p> <p>Courts of equity do not relieve against deceptive acts, which are follorved by no loss or injury.</p>

This bill charges that complainant and John D. Yertner, now deceased, on the 10th January, 1838, gave their joint note to John Murdock for six thousand dollars, payable 10th January, 1839. That John D. Yertner was principal and complainant only security on said note. That Yertner gave a deed of trust or mortgage on certain negroes to secure the payment of the note, and that he wholly failed to pay it at' maturity or since.

<p>A party to a suit, not affected by proceedings in it, cannot object to any irregularity in those proceedings.</p> <p>A party who has tacitly or expressly consented to a decree, will never be heard in an attempt to vacate that decree.</p> <p>A written statement of the complainant, filed among the papers in the case, stating that two of the defendants were not brought into court, because they were found not to be interested in the matter,' is equivalent to a formal dismissal as to the parties not brought in.</p> <p>A decree will not be vacated when the defect complained of is such as may be remedied by mere motion.</p> <p>A decree may at any time be rectified in case of omission, where the omitted matter would have been embraced in it, almost of course.</p>

On the-day of February, 1838, judgment at law was obtained against George R. Garradine, for the sum of twelve thousand dollars. On the thirteenth of April, 1838, Garradine conveyed to Shipp, Ferriday &, Co. nineteen slaves and two hundred acres of land, to secure the payment of sixteen thousand dollars which he owed them.

At the January term, 1839, the complainant obtained a decree of foreclosure of a mortgage of certain negro slaves therein mentioned, in number thirty-five; and an order of sale of said negroes, on a credit of six months, the purchaser giving bond and security. Some of the negroes were in Madison county, some in Warren, some were dead, some had been transported out of the state, and some were supposed to be in the state, but had not been found.

■ Some time in the year 1837, Richard Abbey indorsed several promissory notes for J. N. Dickinson, which were discounted in bank for the benefit of Dickinson, who loaned Abbey $1000 of the ■amount, for which Abbey gave Dickinson his promissory note, with the understanding that Abbey was not to repay the $1000 so 'long as the notes on which he was liable as indorser for Dickinson were unpaid.

<p>This bill states that in December, 1835, David B. Allen, the complainant, purchased of Samuel Hopson a tract of land, lying-in the county of Coahoma, and agreed to pay for said land forty-seven. hundred dollars; twenty-two hundred of which was to be paid to Wiley Davis, John B. Davis and A. A. Halsey, of whom Hopson bought the land, and to whom he owed that sum of the original punchase money, and twenty-five hundred dollars to said Hopson. Allen executed an obligation, binding himself to take up Hopson’s obligation to the Davises and Halsey, and also an obligation to Hopson to pay him the sum of twenty-five hundred dollars, one half on the first of July, 1837, and the residue on the first of July, 1838. This latter part of the agreement will appear more fully by the following bond:</p> <p>“Know all men by these presents, that I, David B. Allen, am held and firmly bound unto Samuel Hopson, his heirs and assigns, in the just and full sum of twenty-five hundred dollars, to be paid in two several equal payments, viz: one thousand two hundred and fifty dollars on the first day of July, 1837, and the second payment of one thousand two hundred and fifty dollars to be made on the first day of July, eighteen hundred and thirty-eight, well and truly to be paid, I bind myself, my heirs, executors and administrators firmly by these - presents. In witness whereof I have hereunto set my hand and seal, this 12th day of December, 1835.</p> <p>“The condition of the above obligation is such, that if Wiley Davis, John B. Davis and A. A. Halsey, of the state of Mississippi, do not make a bona fide right and title to David B. Allen to a certain tract of land, which Samuel Hopson cleared, cultivated] and lived on, on the river Sunflower, in the state of Mississippi, by the first day of July, 1836, then the said David B. Allen is to return the said land to the said Samuel Hopson on the first day of January, 1837, or otherwise pay the above sum of twenty-five hundred dollars, according to the specification of the above obligation, and which obligation is to remain in full force and virtue.</p> <p>'“And it is further distinctly understood, that if said Wiley Davis, John B. Davis and A. A. Halsey fail to make a title to said land, and the said David B. Allen chooses to take the chances of the government and others for a right and title to said land, at the time aforesaid to return said land, then this obligation to be in full force. (Signed) David B. Allen. [Seal.]</p> <p>“J. P. MCDONALD, ?</p> <p>Geo. B. Hopson, A</p> <p> WUness-es, </p> <p>Hopson represented the title to the land to have been secured by an Indian reservation claim called a “float,” and referred Allen to one J. P. McDonald, who assured Allen that the statement of Hopson was correct; said there was scarcely any doubt about the title, and advised Allen to complete the contract. Under this advice, in February, 1837, Allen, at the request ,of Hopson, executed his two obligations for twelve hundred and fifty dollars-each, payable respectively on the first day of July, 1837, and 1838, and took in the bond above set forth. Hopson, at the time of said sale, was settled on the land,' and had made improvements thereon, which were included in the purchase. Suits were brought on the said notes' of Allen to Hopson, and judgment obtained thereon in October, 1839, for two thousand and twelve dollars thirty-one cents, some payment having been made before suit was brought.</p> <p>The bill charges 'that Hopson never had any title to the land: that the title is still in the government of the United States; that Hopson was a mere trespasser on the same; that the representations of Hopson and McDonald were false and fraudulent; that the sale is void, contrary to the laws of the United States, and in opposition to the settled policy of the government; that complainant has not yet obtained a title to the land, and is willing to surrender all claim thereto, upon being placed in his original situation, and having the money paid by him returned. The bill prays a perpetual injunction against the collection of Hopson’s judgments against Allen; a rescission of the contract, and a return of the money paid by Allen on the notes to Hopson.</p> <p>The answer of Hopson states, that on the 12th day of December, 1835, Allen came to his house and said he was pleased with his land, on which he had built good and comfortable cabins, and cleared about twenty acres of land, on which was a fine crop of corn; the land was fine cotton land, and exceedingly fertile and valuable. Previous to that time Hopson had bargained with the Davises and Halsey to secure a title by “float” to said land, being four hundred and forty acres. They agreed to float the land by the', first day of July, 1S36, for which Hopson bound himself to pay them the sum of twenty-two hundred dollars. At the strong solicitation of Allen, Hopson agreed to sell his possessory interest in said land, his buildings and improvements, crop thereon and the obligation of Davises and Halsey to float the land for the sum of forty-seven hundred dollars, as stated by Allen, the latter agreeing to rely on the Davises and Halsey, or on the government of the United States for his title, and not on any guaranty of Hopson. Under this agreement Allen took possession of the land, and' still has it. In two or three weeks after this, contract was made, Allen took up the obligation of Hopson to the Davises and Halsey, for floating the land, and the same was cancelled and Allen’s obligation substituted therefor. In the month of November, 1836, Allen notified Hopson that he would keep the land, and pay the twenty-five hundred dollars, according to the terms of the agreement Hopson denies the other material allegations of the bill, and says Allen made his full defence at law, and cannot now be heard in chancery.</p> <p>By the decisions of this state, the sale of said land and of the improvements was void, being contrary to the settled policy of the government of the United States. 1 How. 150.</p> <p>The contract being void, and founded on fraud, and contrary to public policy, equity will still take jurisdiction and give relief. Apart from the judgment, there is no doubt equity would give relief. In cases of gaming and usury, and of other acts against statutory provisions, chancery often relieves against judgments founded upon instruments contravening those statutes. See Rex v. Duke of Beaufort, 2 Atk. 190; Rich v. Sydenham, 1 Ch. Cas. 202; Ch. Dig. 193-94; 2 Rob. Prac. 220.</p> <p>The application of this rule, and of the principle of the case in 1 How. 150, seems to me to authorize the interposition of the court in this instance. The charge of fraud, too, against the defendant and his agent, which is admitted by the demurrer, forms an indisputable ground for the interposition of the court. All which is respectfully submitted.</p> <p>Defendant insists, first, that, upon complainant’s own showing in the bill and exhibits, there was no fraud practised on him, or intended to be practised on him, by defendant, either directly or indirectly, by any act of Hopson, or by any one at his instance or procurement; but that complainant is only endeavoring to avoid what has turned out a bad speculation, brought upon him by his own avarice.</p> <p>Second. It is clearly shown by the exhibit A, and complainant’s manner of stating his case, that nothing was ever sold by Hopson to him but his improvements and labor, which appears to have been enjoyed by complainant to this day, without molestation or hindratice, and which he seeks to make perpetual.</p> <p>Third. The complainant is estopped from being heard in this court, having defended the case at law, or at least having had every opportunity to have done-' so, successfully, if the facts set forth in his bill are true. He had a clear, unembarrassed defence at law, and, having assigned no reason for not making it, his palpable negligence will not be excused.</p> <p>Where a court of law and a court of equity have concurrent jurisdiction of the matter in dispute, the court which takes the jurisdiction settles the matter conclusively. Thompson v. Hill, 3 Yerg. Term. R. 167.</p> <p>A court of equity will not entertain jurisdiction of a cause which has undergone a full and fair investigation at law, unless the party has been prevented, by fraud or accident, or the act of the opposite party, without any negligence on his own part, from making his own defence. 3 Yerg. 99, Thurmond v. Durham and White; Kearney and Moore v. Smith and Jackson, same book, 127.</p> <p>A court of equity will not entertain jurisdiction where there has been a defence at law. Stone v. Moody and Perry, 6 Yerg. Term. R. 31; see Lewis’s Ex’ors v. Brooks, ibid. 167.</p> <p>Fourth. The defendant should have some reason why he did not defend at law, otherwise, in every case, a court of equity would entertain jurisdiction when its powers were concurrent with a court of law, notwithstanding there had been a trial at law. Complainant should have made an exhibit of the record of the suit at law, in order to inform the court that injustice had been done him by the judgment he seeks to avoid.</p>

■ The bill in this case was filed to compel the defendant to rescind a contract entered into by him with Hunt, relative to an exchange of real estate, and for the performance of which they had mutually executed bonds. Johnson failed to perform his contract, left the state, and at the time this bill was filed was a resident of the Republic of Texas. An order of publication was obtained and publication made and a pro confesso taken.

The facts of this case sufficiently appear from the argument of counsel and the opinion of the chancellor. This bill was filed to injoin two judgments on forth-coming bonds, upon the grounds that the bonds were signed in blank, and afterwards filled up without authority, and in cases to which they were not intended to apply. The chancellor, at the March term, 1840, directed an issue to inquire, First. Whether the forth-coming bonds were signed and delivered in blank? Second.

This bill states that about the year 1830 Resin Hood purchased of Richardson Bowman a tract of land in the county of Yazoo, for the- sum of three hundred dollars; that Hood immediately went into possession of the laird, and commenced improving the same, upon the faith and in virtue of said purchase; that Hood remained in possession of the land until his death, in' the year 1835; that Hood, previous to his death paid the whole amount of the purchase money, but did not procure…

<p>Joseph Callender,' for a good consideration, executed to Amariah Rollins his two promissory notes, the first dated the 20th of April, 1835, for the sum of $950, payable on the 1st day of May, 1837; the second of the same tenor, amount and date, payable on the 1st day of May, 1838. To secure the payment of these notes, and another note for the sum of $895, made by said Rollins, dated June 7th, 1838, and payable to Posey on the 1st day of May, 1839, which Callender had agreed to pay, Callender and his wife executed a mortgage on lot No. 2, in square No. 3, in the town of Port Gibson. The attorney who drew the'mortgage described the two notes for $950 each as payable on the first days of January, 1837 and 1S38, whereas they were due and payable on the first days of May, 1837 and 1838. The original notes are filed as exhibits, and charged to be same notes secured by the mortgage, and that the misdescription as to the time of payment was a mistake of the attorney who drew the mortgage, which was not discovered at the time the same was executed. This mortgage was duly acknowledged and recorded. The note for $895 was paid at maturity. At the maturity of the next note, $550 was paid and credited, on the same, leaving a balance due of $400. The last note was wholly unpaid.</p> <p>In November, 1836, B. Hughes obtained two judgments against Callender, on which executions subsequently emanated, and were levied on the lot mortgaged to secure the payment of these notes. Under these executions the lot was sold by the sheriff, and B. Hughes, the owner of the executions, purchased the lot, and took possession of the same.</p> <p>In the year 1837, Rollins transferred the note on which $500 had been paid to William Molder; and the note for $950, entirely unpaid, to James P. Parker, together with the mortgage, to secure the payment of said notes. Molder and Parker obtained judgments at law on these notes in May, 1839, and the executions thereon were returned nulla bona. Rollins then filed his bill for the use of Molder and Parker, to foreclose the mortgage on the lot bought byjB. Hughes at sheriff’s sale. Callender in his answer admits all the allegations of the bill. Hughes in his answer admits the allegations of the bill, except as to the mistake and mis-description of the notes in the mortgage; of this he denies all knowledge or notice, and claims to be a bona fide, purchaser of said lot for a valuable consideration, without notice of the existence of said note.</p>

This bill was filed for the purpose of subjecting firm assets to the payment of firm debts, upon the following state of facts: In the year 1837 Joseph C. Lewis, Joseph W. Dobbs and Samuel B. Cusack, who is now dead, were transacting a mercantile business-in Manchester, as partners under the firm and denomination of “Cusack, Lewis &, Dobbs.’’ They purchased on credit a large stock of goods, for which promissory notes executed in the firm name of Cusack, Lewis & Dobbs were…

The bill of Sarah Armfield, formerly Gustavus, who sues by her next friend, states, that in March, 1825, she was courted by Isaac A-rmfield, and that, to induce her to marry him, he agreed to settle upon her, in money or property, exclusive of dower, the sum of two thousand dollars, and she makes an exhibit (A) of the articles of agreement to that effect; and that, in consideration of said agreement, she married him on 'the 24th March, 1825; that said articles of agreement…

The original bill filed 20th August, 1838, states, that in January, 1837, one Crockett, with a fraudulent design, sold Ewing a. tract of land, and gave him a deed in fee simple with a general warranty. Ewing executed his two promissory notes, with the complainant as surety for the parchase money.

This bill charges that about the 13th of August, 1835, one Lewis Reno sold lot No. 8 in the city of Jackson, to E. B. and S. F. Noble; that to secure the payment of part of the purchase money, Reno took two bills single on the purchasers, dated Jackson, June 24, 1835, the one for three thousand five hundred dollars, payable on or before the first day of January, 1837, the other for three thousand six hundred and forty dollars, payable on or before the first day of July,…

This was a motion by a part of the defendants to dissolve the injunction previously granted, on the bill answers and exhibits filed in the case, all of which are sufficiently referred to in the opinion of the chancellor. The case is submitted on motion, by Wright, Blakey &, Go. and Catlett Rhodes, to dissolve the injunction restraining them from enforcing decrees of foreclosure obtained in Claiborne circuit court.

<p>If a complainant suffers two entire terms to elapse after filing his bill, without taking any farther step to prosecute his suit, the same will be dismissed for want of prosecution.</p>

<p>When a defendant at law transfers his case to a court of equity, upon an allegation that his defence is equitable, the plaintiff at law should always be allowed to proceed to judgment, in order that he may have execution thereof without delay, if the defence to his action is not sustained in equity.</p>

Elizabeth Pulliam, by her next friend, Joseph Leroy, complains that, on the 6th day of March, 1836, she was married to one Albert B. Pulliam, who was wholly destitute of property, but who had falsely represented to her that he owned a plantation and ne-groes; that, at the time of said marriage, said Elizabeth was entitled, as one of the heirs at law of her father, John Robb, late of the state of Louisiana, to the one undivided sixth part of the estate of said Robb, appraised…

The complainant in this case states, that for some time previous to January, 1835, George Pulling, the defendant, had been his cleric in his apothecary store; that being well pleased with him as a cleric, he proposed to take him in as a partner in his business, provided Pulling would execute to complainant his note with a satisfactory indorser for the sum of five thousand dollars, that being one half of the estimated value of complainant’s stock of drugs and medicines then…

<p>The circuit court has concurrent jurisdiction With a court of chancery, for the purpose of trying the validity of a forfeited forthcoming bond, upon grounds arising anterior to its forfeiture; and the court which first takes jurisdiction will retain it.</p> <p>Where a forthcoming bond was signed in blank, and the sheriff subsequently filled the same up conditioned fopfhe delivery of property which had ño existence; held by the court, that such a bond is wholly without consideration as to the sureties, and creates no obligation oif their part, legal or moral, to pay it.</p> <p>The validity of a forthcoming bond depends upon there having been a substantial levy made upon actual tangible property of the defendant in execution, which was restored to him upon the condition that it should be redelivered on a specific day, to he sold.</p> <p>The surety on a forthcoming bond is not liable on the same, where the property levied on and described in the bond is not liable to the execution.</p> <p>The obligation of a surety on a forthcoming bond is not that he will pay the money, but that the property of the defendant in execution, upon which a levy has been made, shall be forthcoming for that purpose.</p>

<p>The cashier of a bank is not necessarily one of the corporators, and is not therefore a defendant to a bill against the bank, unless made so by the bill.</p> <p>An injunction will not be dissolved upon the answer of a person who is not a party to the bill.</p> <p>Where a bank answered a bill under its corporate seal, and the cashier of the bank made affidavit that the statements of the bill were “true to the best of his knowledge and belief,” without stating that he had any knowledge of the facts set forth in the answer — held, that the answer was not evidence against the positive averments of the bill.</p> <p>The denials of an answer, made on information and belief, are not sufficient to disprove positive allegations in a bill, especially when the equity of the bill is not charged to be in the knowledge or information of the defendant.</p>

The deposition of Rainey disproves the answer of Clark wherein he states he never agreed that Neill, the attorney for him in prosecuting the suit against McLaughlin, should receive claims to collect for him. The witness proves that he did send such written authority by him to Neill, and instructed him to dismiss the suit against McLaughlin, and receive the claims and collect them for his (Clark’s) use.

The bill in this case charges that the testator, Green Speight, became indebted by note to one Irwin C. Wadlington, in the sum of $500 for the hire of negroes, due the 1st January, 1838. That previous to the maturity of the note, Wadlington left the State of Mississippi.

<p>A payment of an execution to a sheriff in bank notes, which are at par at the time and place of payment, unless objected to by the plaintiff in execution, is a full and complete discharge of the defendant in the execution, whatever may be the subsequent depreciation of such bank notes. If the bank notes are not at par, their payment to a sheriff is no satisfaction of the execution to which they are applied, unless expressly assented to by the plaintiff in execution.</p> <p>Although the sheriff is, in a qualified sense, the agent of the plaintiff in execution’ yet he is also the agent of the law, which points out his duty and limits and defines his power; the execution is his warrant of authority, and that restricts his agency to the receipt of money alone, or convertible bank paper: he has no discretion to substitute any thing else in satisfaction of the plaintiff’s claim.</p> <p>It has been expressly decided, that an attorney, as such, has no authority to receive bank paper not at par, and that his receipt therefor would not discharge the defendant in execution.</p> <p>Where a judgment was obtained, and before the court adjourned one of the defendants applied to the clerk and had an execution issued and placed in the hands of the sheriff, and then immediately paid the same in bank notes which were received ordinarily at par, but about which there was great distrust in the public mind, and which shortly after became greatly depreciated; held by the court, that the issuance of the execution at the instigation of the defendant was a fraud on the plaintiff, and conferred no authority on the sheriff to receive the money called for, so as to bind the plaintiff in execution, and that the payment of said notes under such circumstances, was no satisfaction of the execution.</p> <p>Ás a general rule, no one but the plaintiff, or his attorney of record, has the right to sue out and control an execution.</p> <p>Defendants in equity cannot question the jurisdiction of the court after filing a general answer to the bill.</p>

The bill in this case states that in 1837 complainant was owner of lots fifty-two and fifty-five, in the town of Koscinsco, and that he sold them to the defendant, McGill, for the sum of four thousand dollars, of which the sum of one thousand was paid in cash, and the remainder was payable in two equal annual instalments, for which McGill gave his two notes, payable on the first of January, 1838, and first of January, 1839..

<p>A deed to land made by an agent authorized to sell and convey the same, but made in the name of the agent for his principals, is not a legal deed. To mate a conveyance binding, which is executed by an attorney or agent, the contract must be made and signed in the name of the principal.</p> <p>A contract or conveyance made in the name of an agent or attorney, and signed by him as for his principal, is not the contract of the principal, and is binding merely upon the attorney.</p> <p>Where the rigor of the commercial law is strictly enforced, to entitle the holder of commercial paper to retain the same, against the equities of third persons, it must appear that he came to the possession of it in the usual course of trade, by having paid a valuable consideration without notice of the equity or claim of any third person. The reception of commercial paper as collateral security for a pre-existing liability, or as an indemnity against ultimate liability, is not within the meaning of this rule.</p> <p>If the holder of a negotiable note receives it in payment of a precedent debt, or takes it by way of indemnity against some responsibility incurred for his immediate in-dorser, without paying any present consideration therefor, he takes it subject to all the existing equities between the original parties.</p> <p>Where an agent transferred the notes of his principal to his own indorser to indemnify him for an indorsement of such agent’s own paper, — held, that the transfer conveyed no title to the notes, but that the title to the same remained in the principal of said agent.</p> <p>By the statute of this state, the purchaser of negotiable paper is placed on the same footing with the original payee. To protect the holder of a note against the true owner thereof, it is not alone sufficient that he paid a valuable consideration therefor. If, at the time of the transfer he had notice that it was a fraudulent appropriation of the note by the then holder, and that the right to it was in a third person, he will be decreed to deliver it up, or to account for its value or proceeds.</p> <p>Where notes were payable to Cairman as agent for Floyd, held that this was sufficient notice to third persons that Carman was not the owner of the notes, and had ' no right to transfer the same. Whatever is sufficient to put a party upon inquiry, amounts, in equity, to notice.</p> <p>The holder of a note who takes it with a knowledge that it belonged to another, can stand in no better situation than the purchaser of a chattel who knew that the title was not in his vendor, but in a third person.</p> <p>A purchaser of property from one holding it in trust, knowing that fact, becomes ipso facto a trustee, and is liable to the cestui que trust to the same extent as the original trustee.</p>

In the month of May, 1837, the Agricultural Bank obtained judgment against Thomas J. Randolph, who owned several town lots in the city of Yicksbuig, all of which were subject to this judgment. Before the judgment was satisfied, Randolph sold one of the lots to Moses M. Pallen, and subsequently sold the other lots to other persons. Execution then issued on the judgment, and was levied on the lot sold tO'Tallen. Pallen filed his bill, and obtained an injunction.

<p>Although, as a general rule, the father is entitled to the services and earnings of his children during their minority, resulting from his obligation to support them, this is a privilege which the father may waive at his pleasure, or which may be extinguished by operation of lavv.</p> <p>Where there is evidence of any distinct act of emancipation on the part of the father— as by sending a son forth to shift for himself — neither he nor his creditors will be permitted to assert any right to the subsequent earnings of the child so emancipated.</p> <p>A conveyance by a father (who was largely indebted at the time,) to a minor son, in consideration of past services of the sou, for which the father had agreed to compensate him, cannot be sustained against the creditors of the father. The conveyance would be binding as between the father and son, hut would be regarded as purely voluntary as against the creditors of the father.</p> <p>Where the son during his minority was a married man, and continued in the service of his father subsequent to such marriage; held, that this, of itself, was a legal emancipation, and entitled the son to the proceeds of his labor independent of any act of emancipation on the part of the father. A bona fide contract made by the father with his son, under such circumstances, would be good against the other creditors of the father.</p> <p>A married man, although a minor, has control over his own. actions, and is entitled to apply the proceeds of his labor to the support of his family.</p> <p>A minor son worked for his father four or five years after his marriage, with the verbal understanding that he was “on wagesbut there was no agreement as to the amount of wages to be paid, nor was there any settlement between them until the father became embarrassed, hard pressed by his creditors, and was on the verge of bankruptcy ; a settlement then took place, and a balance struck in favor of the son' for four thousand five hundred dollars, and the father conveyed to the son a tract of land, valued at eight thousand dollars, in payment of his services; the father and son continued to occupy the land jointly; the title of the father to the land, and the conveyance to the son, were both registered at the same time. After the conveyance to the son, the father conveyed the same land in trust to indemnify a person who was his surety upon the'very claims which the complainants in this bill were seeking to enforce; held,, that these circumstances were evidence of fraud, notwithstanding the general denial of fraud by the defendants, in their answer; that the conveyance from the father to the son was therefore void, and the property subject to the judgment creditors of the father.</p>

<p>Where the makers of a promissory note procured the same to be indorsed by representing to the indorser that the note was to be used as a renewal or substitute of a note on which said indorser was already liable, and it afterwards appeared that the in-dorser was under no such previous liability, and that the makers negotiated the note so indorsed for a different purpose; held by the court, that the indorsement was procured by fraud, and the note fraudulently put into circulation, and that there was a failure of consideration as to the indorser, who was thereby discharged, unless the holder obtained it without knowledge of the fraud, in the usual course of trade, and for a present valuable consideration.</p>

<p>The bill states that on the 8th day of. January, 1835, complainant Newman purchased of Joseph Meek, since deceased, a tract of land containing about five hundred and sixty acres, for sixteen thousand eight hundred dollars, and took a general warranty deed from Meek; that on the 9th of January, 1835, complainant Newman purchased of Meek forty negro slaves, for thirty eight thousand dollars, and took bill of sale for them from Meek, which contains their names and ages; that complainant Newman was .to pay for the land and negroes in three instalments, one of $17,666 on the 1st of March, 1836; one of $17,667 on the 1st March, 1837; and the third of $17,667 on the 1st of March, 1838, for which complainant Newman executed three promissory notes, payable as above, to secure the payment of which he executed a mortgage of the land and negroes to Meek; that on the 30th of May, 1836, complainant Newman sold to complainant Beck and Warner M. Yates, the land he had bought of Meek, with some more land, in all making about twelve hundred and eighty acres, and gave a general warranty deed for the same; • and that complainant Newman at the same time sold to complainant Beck and said Yates all or nearly all the negroes he had purchased of Meek, with some others, making about forty four; and that complainant Beck and said Yates were to pay complainant Newman for the land and ne-groes $97,000, for which they executed four promissory notes, one for $>25,000, payable 1st of January, 1838; one for $24,000, payable 1st of January 1839 ; one for $24,000, payable 1st of January, 1840, and one for $24,000, payable 1st of January, 1841, to secure which notes complainant Beck and said Yates executed a mortgage to complainant Newman upon the land and negroes sold by him to them; that on the 20th of December, 1836, complainant Beck transferred to said Yates all the interest he had in the land and negroes by them purchased of complainant Newman, for a full consideration, which appears by a reference to the bill of sale; that on the 20th of December, 1836, aforesaid, said Yates executed a deed of trust to John Montgomery, of Madison county, which was signed, sealed and delivered to said Montgomery by said Yates, complainant Newman and said Meek; that the said deed after stating the facts in relation to the different sales, and declaring the original mortgage made by complainant Newman to Meek, and the deed of trust to complainant Newman made by said Yates and complainant Beck to be void, contained a relinquishment to said Yates of the legal title which said Meek had to the property sold by him to complainant Newman, and by him sold to said Yates; it also contained a release of all the interest which complainant Newman had in the property sold by him to said Yates, and to secure the payment of seven thousand nine hundred and sixty dollars, due 1st of March, 1837, and a debt of twenty thousand six hundred and ninety-seven dollars, due 1st of March, 1838, due from complainant Newman to said Meek, the same b.eing the balance of the original sum which complainant Newman was to pay said Meek for the property; and to secure certain debts said Yates owed complainant Newman for the property, the said Yates sold and transferred his interest to said Montgomery — the tract of land of twelve hundred and eighty acres, and' the forty-two negroes; that the said deed contained a power of sale, authorizing said Montgomery or his executors, in the event that said Yates should fail to pay either of the said notes as they fell due, upon the request of said Meek or complainant Newman, to whom the said notes might be payable, after the expiration of sixty days from the failure of said Yates to pay the same, to sell the property or as much of it as would be sufficient to pay said note so due and unpaid, he the said Montgomery giving fifteen days notice of the time and place of sale, and in the notice describing said property with sufficient certainty; that after making said deed to said Montgomery, said Yates, on the 7th of April, 1838, sold complainants the tract of land of about twelve hundred and eighty acres, and eighty acres more, making about thirteeen hundred and sixty, for $40,800; that at the same time, for the sum of $40,000 paid to said Yates by complainant, he sold to them the negroes mentioned in the deed to said Montgomery, and gave them a bill of sale for them, by means of which purchase the deed to Montgomery, as far as complainant Newman had any interest in it, became inoperative and void, and the debts which said Yates owed complainant Newman were cancelled; that complainant Newman, in consideration of the purchase, and as a means of ;paying his share of the purchase money to said Yates, discharged and released him from the payment of the same. By means of which purchases complainants became jointly interested in the plantation and negroes aforesaid, and received them incumbered with the deed of trust to Montgomery, in favor of said Meek.</p> <p>That some time in 1837 the said Meek died intestate, in the state of Tennessee; that no person has as yet, as complainants believe, taken out letters of administration in this state on his estate; that one Jesse Meek, a citizen of Tennessee, pretends as complainants have heard to have obtained letters of administration on said estate in the state of Tennessee; that complainants cannot tell whether this is so or not; and that of the original purchase money agreed to be paid by complainant Newman to said Meek, for the land and negroes, thirty four thousand seven hundred and thirty dollars or thereabouts had been paid previous to the commission of the grievances to be alleged hereafter, leaving the sum of $18,000, or thereabouts due and unpaid, which with the interest upon the same would have amounted to something like 22 or $23,000; that some time in the fall of 1838, the said Jesse Meek came to complainants and represented himself to be the executor or administrator of the said Joseph, deceased, and stating to complainants that he .wished to obtain a portion of the money due the estate of said Joseph for the purchase of land and negroes aforesaid, and thereupon in consideration that the complainants would deliver biin the crop of cotton then growing upon the plantation aforesaid, which crop was worth about 6,000 dollars, he agreed and promised complainants to wait for the remainder of the money until they could conveniently pay the same; that he would not attempt to enforce or have enforced the deed of trust made to the said Montgomery upon the land and negroes, and that he would take the annual crops made upon the place in discharge of the same; that believing the said Jesse to be the rightful administrator of the said Joseph, and capable of making this contract, they delivered him the crop of cotton then growing upon the land according to their agreement; and placing full confidence in the honesty of said Jesse, they made no other effort to raise the remainder money due the estate of said Joseph at that time; that believing they need have no apprehensions that the deed of trust would be enforced against them, complainant William C. went home to Marshall, and ceased to make any other exertion to raise money to discharge said incumbrance; that the faith which they placed in said Jesse had been abused; that in violation of his agreement with complainants he had combined with the said Montgomery and others unknown to complainants, to defraud complainants, and procured said Montgomery on the 4th of March, 1839, to sell under the deed of trust, the land and negroes mentioned in it; that this sale was made in fraud and in violation of the agreement between said Meek and complainants, and to enable said Meek to purchase in the property .at a price far less than it was worth; that Meek and Montgomery well knew money was so scarce at that time that no bidder would be present who could buy and pay cash for so large an amount of property; that they well knew the complainants could not in the short space of time between the notice and day of sale raise the money to pay off the incumbrance or claim of the estate of Meek upon the property, particularly as they did not expect a sale to take place, until they saw it advertised; that the notice of the sale was the shortest which the terms of the deed allowed; that the notice of the sale did not describe the property as the deed of trust enjoined, and appointed the sale to take place on the premises; that the same paper which contained the notice of sale by Montgomery, contained a notice of the marshal that by virtue of certain executions against complainant Beck and his sureties, he would sell on the 4th day of March, 1839, in the town of Canton, all the interest which complainant Beck had in the negroes aforesaid; which notice the said Montgomery knew was published in the same paper with his own; that under all these circumstances the said Montgomery did proceed and sell the land and negroes mentioned in the deed, on the premises, on the day appointed by him; that the distance was seven miles from Canton, the place where the marshal had advertised to sell the same negroes; that there were not more than six or eight persons present; that complainants insisted that Montgomery should postpone the sale until some more favorable opportunity when complainants’ property might be sold, and not sacrificed, as complainants told him would be done; that Montgomery refused, to postpone the sale, but took a bond of indemnity from said Meek and proceeded to sell; that no one bid for it, but the said Meek; that the same was sold to bino at a price not equal to one-fourth its real value, the amount bid by him not being equal to the amount due the estate of said Joseph Meek, when the property was worth, seventy-five thousand or one hundred thousand dollars; that if they had known that Meek would not have complied with his agreement, they could have raised the money to pay off the incumbrance upon the estate. The bill prays for a rescission of the contract, an account, &c.</p> <p>The separate answer of Jesse Meek admits the purchase of the land and negroes by complainant Newman from Joseph Meek, and the execution of the notes and mortgage by Newman to secure the payment, and the sale of the said land with the addition stated, and the slaves, to said Beck and Yeats as stated, and the sale by Beck to Yeats, and the execution of the deed of trust by Yeats on the 20th December, 1836, to defendant Montgomery, and the repurchase by the complainants from Yeats; admits the death of Joseph Meek, but denies that he died- in Tennessee; says he died in Madison county, Miss., and says he obtained letters of administration of Joseph Meeks’ estate from the probate court of Madison county, the place in which said Joseph died, and where the property was situated; that he also obtained letters of administration in Davidson county, Tennessee, the place where said Joseph resided at the time of his death; that he is unable to say how much of the purchase money had been paid to said Josejjh in his lifetime; that no portion of it had been paid to defendant, except two thousand dollars and some cotton; that he believes the amount due to said Joseph is correctly stated in the deed of trust to Montgomery by Yeats; that some time in the spring of 1838 he was desirous of obtaining the money due his intestate from Yeats, and commenced suit against Yeats for it.</p> <p>Soon after the commencement of these suits, Yeats agreed with defendant, in consideration that he would indulge him to December, 1838, to pay two thousand dollars immediately, which he did, three thousand dollars at the May circuit court for Madison county, and to dismiss a bill of injunction at his own cost, which he had obtained against Joseph Meek to stay the collection of this money; that, before the arrival of the May circuit court, Yeats made the sale to complainants; was unable to pay the three thousand dollars; that the complainants being then the purchasers from Yeats, that complainant Newman entered into an agreement in writing, which is not in his possession, by which he agreed, according to the recollection of defendant, to draw a bill for thirty-five hundred dollars, which was done by him and Uriah Newman, on the house of Maunsel White & Co. in favor of James Priestly, and by him indorsed to defendant; that he agreed to let defendant have the cotton crop made that year (1838) upon said tract of land, called the Yeats tract, and also the cotton crop which should be made on two other plantations, one in Hinds and the other in Carroll county, in connexion with Uriah Newman; that defendant agreed to wait for the balance till January, 1839; that he received from the Yeáts plantation and the agency plantation (in Hinds county) about one hundred and forty bales of cotton, being much less than the entire crop; that complainant failed to give him any part of the crop from the Carroll county’ plantation; that he has jiot yet received an account of sales of said cotton, and cannot say what credits complainants will be entitled to on that account; and denies that he agreed to wait for the remainder till complainants could conveniently pay the same; and denies that he agreed not to have the deed to Montgomery enforced; denies having agreed to take the annual crops made upon the place in discharge of the debt; and denies having done or promised any thing to justify complainants for their want of exertions to pay the debt; and says that the estate of Jesse Meek was much embarrassed, and that he needed the money as administrator, and was so anxious to procure payment from complainants that he admits he told them if they would raise him ten thousand dollars he would indulge them ano7, ther year, but that they made no offer to raise him any money at all. Defendant further states, that, for some time before the sale under the deed, he was afraid complainants were unable to raise Mm any .money, or were unwilling to do so, and that he had told said defendant Montgomery that he was afraid he would have to sell; that Montgomery, having occasion to go to New Orleans, and thinking he might have to proceed under'said deed before his return, had authorized defendant Meek to use his name in advertising the property for sale; that it was well known that judgments were obtained against complainant Beck; that he expected both the sheriff and marshal would proceed to sell his interest in said land upon executions; that this was frequently a subject of conversation between defendant Meek and complainant Newman; that Newman expressed it as his opinion, if not his wish, that he should proceed under the deed to make his money, and denies that defendants Meek and Montgomery combined to fix the sale at the shortest notice; and states that, having to go to Carroll county, he authorized complainant to advertise the property for sale, and that he believes said Newman had it made in his absence and during the absence of Montgomery in New Orleans; and that, as soon as defendants returned home, they adopted the act as their own, but neither of defendants had any agency in fixing the time of sale; that neither of them knew of the coincidence of that advertisement and the marshal’s advertisement appearing ■in the same paper, or of both sales being fixed for the same day, until it was done by the agency of Newman, and that liotices of the sale were put up in several public places, and that defendant Meek was industrious in giving personal'notice to several persons, and requesting their attendance, and that, though the township and range in which said land was situated was omitted in the advertisement, yet the reference to the deed of trust, with its date and place of registration, notified the public, with sufficient certainty, where the sale would take place; that complainant Newman was at the sale with a diagram, and showing the subdivisions as they were under sale and crying.</p> <p>Defendant admits that complainants expressed a wish to have the sale postponed, but that he saw no chance of complainants getting in a better situation by further indulgence, that complainants had deceived him in not giving him the quantity of cotton they promised, and offered no assurances of money at a short time, nor at any time, as an inducement for further delay.</p> <p>Defendant denies that there were only a few people at the sale, but says there were from twelve to twenty respectable farmers, able to purchase and good judges of property, that Yeats had sold nine of the negroes and carried one off; that Newman had sold some, and he believes it was his intention to defeat the collection of the debt entirely, as, since the sale, several of the negroes have been induced to run off.</p> <p>Defendant further says, that he believes he bid as much for the property as it would have sold for under any circumstances for cash; and further, that he had not given said trustee, Montgomery, any indemnity before the sale, but that he has since the sale; and that, under all these circumstances, he proceeded to sell, as he believed it his duty to do as administrator; and further, denies all fraud and combinations, and denies all things neither admitted nor denied, and prays to be dismissed with his reasonable costs, &c.</p> <p>The separate answer of John Montgomery states that he knows nothing of the different sales and transfers of said land and ne-groes made previous to his connection with them; admits that he was trustee, as charged in complainant’s bill; that he sold the land and negroes mentioned in said deed on the fourth March, 1839 ; that Jesse Meek became the purchaser at said sale; that the time was the shortest limited by the deed for the sale, but denies that it was by his wish, but that he was absent from home when made; that complainant Newman had it made according to his own wish and understanding of the interest of all concerned; that when he came home, he approved it, and proceeded to sell, by the wish of defendant Meek; and admits that the township and range of the land was omitted, but that it was not his fault but the fault of the complainant, and states that the omission made no difference, as the place was so well known, and that the description fully notified the public of said sale; admits that complainant Newman wished a postponement of the sale, but not for any particular time; denies taking any indemnity until after the sale admits that Meek requested him to advertise before he left home, but being in a hurry to leave, did not do so, but authorized Meek to do it in his absence.</p> <p>Defendant states that there were fifteen or twenty persons at the sale, and that the property sold for more than its real value in their condition. Defendant further states that the statements made by defendant Meek, in his separate answer, arc substantially correct, and further denies all fraud, and says that is wholly and utterly false, and that he only done what he conceived to be his duty, and prays-to be dismissed with his reasonable costs.</p> <p>Job G. Selph, a witness for the plaintiff, proved that there was an agreement between defendant Meek and complainant Beck, made about the 1st of March, 1838, in which Meek, as executor of the estate of Joseph Meek, agreed that if Newman & Beck would give up their entire crop of cotton to him, that he would let them keep possession of the plantation and negroes, on which Meek had a claim by virtue of a deed of trust, in which John Montgomery was trustee; and that he would allow them to work out said claim by continuing to give him their crop from year to year, till the claim was satisfied; that he heard Meek say that Newman & Beck were complying with their contract, and that he had no doubt they would make all right; and that it was a matter of general notoriety that Newman & Beck did deliver the crop of cotton to said Meek; that he knew nothing of the sale of the property by Montgomery, except he heard Meek say he had bought it at the trust sale made by Montgomery, and that Meek had told him a short time prior to the sale that the property was worth upwards of fifty thousand dollars in cash; that the property was known as the Newman Plantation on the Panther creek; that there was between thirty and forty negroes; that said plantation adjoined the plantations of'John Montgomery, Thomas Henderson, and Mrs. Hilliards, in Madison county, and contained about twelve hundred and eighty acres, about six hundred acres in cultivation in 1838.</p> <p>George W. Terrill, a witness for the plaintiff, proved that there was an agreement between Meek and Newman & Beck, in which Meek agreed to take the crop of cotton then growing, and make no further demand till the next crop made upon the said plantation; that Meek agreed to take the annual crop of cotton made upon the plantation in payment of the claim he had upon it, as administrator of Joseph Meek, till the whole debt was discharged; that in pursuance of this agreement Newman & Beck did deliver during 1838 and 1839 the whole crop of cotton made upon the place, amounting to about one hundred and twenty bales; that he heard Meek say he had not only received this crop, but also the greater portion of the cotton grown the same year (1838) upon the individual plantation of Newman in Hinds county, amounting to about one hundred bales; that this cotton by agreement was to be credited on the debt of Newman & Beck to Meek; that Meek afterwards told him he intended to place it on another debt which he had against Newman; that he knows nothing of the sale of the property by Montgomery as trustee, except he heard Meek say'it was the same property conveyed by Yeats to Montgomery as trustee, and the same purchased by Newman and Beck from Yeats; that he heard Meek say that Montgomery, the trustee, was absent when the property was advertised, but was present at the sale, and that he, Meek, had purchased nearly all the property sold under the said deed of trust.</p> <p>Robert M. Latimore, a witness for the plaintifF, proved that he went at the request of Charles C. Shackelford to the probate clerk’s office of Madison .county, and procured a description of the real and personal property named in a deed of trust made by Warner M. Yeats to John Montgomery, as trustee, for the use of Joseph Meek; that it was the same as advertised for sale under said deed, except that a slave named Betty is called Billy in the deed; that the township and range is not inserted in the advertisement; that the advertisement was published in the Madison Whig Advocate, a public newspaper, published in Canton; that he thinks the township and range left out in the advertisement in the paper, were inserted in the hand bills; that' a correction was afterwards made as to the description of the land; that from what he could learn .Newman was opposed to the sale, and • expressed a determination to stop it if he could, by an injunction; that some of the hand bills containing the advertisements were stuck up in Canton; that Beck was considered insolvent for some time before the sale; that he did not know any thing of the embarrassments of Newman, if he had any; that the correction in the advertisement about the land was made in the next paper after the first publication; that the injunction spoken of by Newman was to stop the sale of the said property on the 4th of March.</p> <p>Charles C. Shackelford proved that he was one of the editors of the paper in which the advertisement was made; that Jesse Meek employed him to prepare the advertisement, and to have the notice given both in the Madison Whig Advocate and in hand bill form, and authorized him to use the name of John Montgomery, who was absent, that Newman knew all the proceedings that were done by him, as far as related to preparing the advertisement; that he did not recollect whether Newman was with Meek at the time the application to make the notice was made to him; that sometimes Newman appeared willing that the sale should be made; that he believed he heard Newman say he would rather the property should be sold to pay the debt for which it was bound, than for the individual debts of Beck; that Beck was much embarrassed at the time the sale was made; that Beck’s interest in the property was about to be levied on, which induced him to shorten the time of notice; that if he did not shorten the time, he thought the rights of cestui que trust would be jeopardised.</p> <p>Harry Christmas, a witness for complainants, proved that he was present at the sale; that Meek ordered the sale; that Meek was the only bidder at the sale, except one William B. Perkins, who bid for one boy; that Meek purchased all the property, land and negroes; that there were six or seven persons at the sale; that several of them were about leaving before the sale commenced, but staid at Meek’s request till it was over; that the negroes sold for as much as he thought they were worth, but the land did not; that the negroes were in bad condition and badly clothed; that their condition was such as to endanger their health; that Meek gave more for some of the negroes than they were worth; that Meek requested them to purchase the property two or three times, saying he would rather have the money; that Newman pointed out the particular tracts or parcels of land as they were sold.</p> <p>Abraham Davis, a witness for the complainants, proved that he was present at the sale; that Newman forbid the sale, because there had been an injunction obtained, which he thought would hold good; that Meek asked him to bring the property up for sale; that Mr. Cayce proceeded to sell; that Meek was the only bidder, ! except Mr. William P. Perkins, who bid for two of the negroes ; that the negroes sold for as much as they were worth; that the negroes were all sound, with one or two exceptions; that they were badly clothed; that the land was sold to the best advantage, but did not sell for as much as it was worth; that Meek and Newman were out to examine the property; that Newman insisted that the property should be sold to pay the debt due Joseph Meek, mentioned in the deed of trust; that he did not want it sold to pay Beck’s debt; that Newman proposed to Meek that he should buy the property, and that he would put in his hands lauds in Carroll county, and they would go in partnership; that Newman’s reason for wishing the property sold was, that Beck’s interest was levied on by the marshal and sheriff; that Newman said he expected Meek would purchase the property; that he thought the sale would take place because Beck would not be able to do anything ; that George W. Terrill had taken off six of the negroes from the place, under a purchase from Yeates ; that none of these were present at the sale but one, a man named Alfred, who was sold; and Andy and’ Grace were sold as they fun; that they after-wards came back, but run off again; that none of the other ne-groes taken by Terrill have been obtained, except a woman and child who are on the plantation; that the negroes named in exhibit C. were the negroes Newman proposed to put in partnership with Meek; that he believes the writing to be Newman’s.</p> <p>Charles Moore, a witness for defendants, proved that he saw au advertisement in Madisonville, in the post-office, and at some other place, but doés not know how long the notice was up, but saw it the 3d Saturday in February; that he did not know on what day the sale took place.</p> <p>Girard Stites, a witness for complainant, proved that an advertisement signed by John Montgomery, trustee, was posted 10 days previous to the day of sale.</p> <p>George E. W. Nelson proved that he was publisher of the Madison Whig Advocate, published in Canton; that the advertisement marked A. in the deposition of Mr. Latimore was published in said paper about the 16th day of February, 1839 ; that the alteration shown in the advertisement marked B. was inserted in the next paper, about the 23d of February, that 25 hand bills were printed in the said office, containing the said advertisements.</p> <p>Thomas Sanders, a witness for defendants, proved that he saw the advertisement spoken of in Madisonville, but does not know how long previous to the day of sale; that he does not know of any lands selling for more in cash than the land in dispute.</p> <p>Daniel P. Perkins, a witness for complainants, proved that he was at the sale mentioned in complainant’s bill; that Newman forbid the sale ,• that it was generally understood that Mock would purchase the property; that there were not more than 15 or 20 persons at the sale; that some .of the negroes brought their full value; that some did not; that the land sold for less than it was worth, and that no one bid for it but Meek; that if the sale had been postponed the property would have brought a better price; that Meek requested persons present to bid for the property, saying he only wanted the money.</p> <p>William P. Perkins, a witness for complainants, proved that he was present at the sale mentioned in complainants’ bill; that Meek purchased the property, no one bidding for the land but him,'and no one for the negroes except Meek and himself; that Meek had it in his power to purchase the property, as he did not think any of the persons present had the money to purchase it; that the land sold for less than land was generally selling for at that time; that he saw the property advertised in Livingston.</p> <p>Matthew C. Cayce, a witness for complainants, proved that Meek and Montgomery called on him to sell some property, land and negroes; when he arrived at the place, (the place now in dispute,) he found but few people there; that Josiah Newman forbid the sale, but Meek instructed him to proceed; that Meek purchased the laud at five dollars per acre; that no one else bid for if; that Meek purchased all the negroes; that he thought the land as good as any in the neighborhood, and worth fifteen dollars per acre in cash; that the negroes were not a very good lot; and that he thought the persons present were able to purchase if they chose.</p> <p>John F. Cook, a witness for the complainants, proved that he levied-on Beck’s interest in the land and negroes mentioned in complainants’ bill, but did not sell any of the property, it being subject to trust deeds and older executions; that he sold two plantations about that time, one brought nine dollars, the other five dollars, that it was about such land as the property in dispute; that he had several executions against Beck, and considered him insolvent; that he considered Newman perfectly solvent; that good negro men were selling for about eight hundred dollars or a thousand, and women from six to eight hundred.</p> <p>Samuel M. Flournoy, a witness for defendants, proved that on the 4th of March, 1839, he was sheriff of Madison county, and about that time sold lauds from seventy-five cents to four dollars an acre; that the laird he sold was not of the first quality, and was not within eight or ten miles of Canton; that he had one or two executions against Newman at that time, but did not press them, because he thought he was a man of his word, and therefore indulged him.</p> <p>First. A sale made by a trustee under circumstances of great improvidence, and with a view to advance the interest of a particular creditor, will not be enforced, though there was no imputation upon the conduct of the purchaser. Ord v. Noel, 5 Madd. R. 438; Willis on Trustees, 134; 10 vol. Law Lib.</p> <p>Second. A sale by a trustee, though clothed with all the forms required by the deed, will be set aside, if the price paid be greatly disproportioned to the real value. Wright v. Wilson and others, 2 Yerg. Rep. 294; 4 Dali. Rep. 221.</p> <p>Third. A sheriff who sells property, at a price greatly dispro-portioned to its real value, is liable to an action, although the goods were sold at auction. Knightly v. JBirch, 3 Camp. Rep. 520; Watson on Sheriffs, 136 — 163.</p> <p>Fourth. An enormous inadequacy of price, is a circumstance from which unfairness may be inferred, and in connection with other circumstances, may authorize the chancellor to vacate the sale. Gist v. Frazer, 2 Litt. Rep. 118.</p> <p>Fifth. The trustee is bound to manage the trust property, with the same care and diligence of a provident owner. Fletcher on Estates, 59, 126; Hovenden on Frauds, 486; Ex Parte Bennett, 10 Ves. Rep. 385; Dorone v. Gragebrook, 3'Mer. Rep. 208.</p> <p>The grounds upon which it is sought to set aside the sale mentioned in the bill by the brief of the complainant, are—</p> <p>First. Because there was great improvidence by the trustee, and the sale was made with a view to advance the interest of a particular creditor.</p> <p>We presume this is the first ground, because an authority is cited to that effect. There are no such circumstances attending the case; no evidence of improvidence. The sale was made for the payment of the debt in the deed of trust mentioned, which, it is true, .was a particular creditor. ■ On this authority the sale cannot be set aside.</p> <p>Second. It should be set aside, because the price given was greatly disproportioned to the real value of the property.</p> <p>We admit the principle-of the authorities referred to, to sustain this position; but that principle does not apply, because the fact is not proven that the price given was greatly disproportioned to the value. The proof of all thé witnesses is, that the negroes were, some of them, sold for more than they were worth, and all for -something like their value. As to the land, some of the witnesses say it was not sold for its value; although by some witnesses it is testified, that other lands, about the same time, were sold at sheriffs’ sales for much less than the price given for this land. Taking the whole sale together, it is most manifest, that as much or more money was bid for the property than would again be bid, or than at the time the same would have sold for, if Meek himself had not attended the sale and bid himself. The amount bid for the property was about nineteen thousand dollars, more than the property is now worth. If there had been an enormous inadequacy of price, we admit that this would have been a circumstance from which unfairness might have been inferred. This was not, however, true; but on the contrary, it is certain, that the negroes sold for their full value, and the land though less than the ideal value fixed upon it by the witnesses, yet not for so much less than its true value as to shock the senses of a right-minded man.</p> <p>These are all the grounds which appear to be taken by the counsel for complainants in their brief. We have therefore nothing further to say.</p>

<p>Where a trustee sells trust property to a stranger, who has no knowledge of his trust character, the stranger may acquire title to the property by the acts of the trustee, and hold it discharged from the trust.</p> <p>A and B, administrators, sold a slave of their intestate to C, who failed to pay the purchase money. The slave was levied on and sold by virtue of an execution against C, and was bought by D. A and B, the administrators who originally sold the slave, were present at the sale. One of them urged D. to buy the slave, and told him the title would be good, in consequence of which D bought the slave. A and B then filed their bill as administrators, to enforce the statutory lien on the slave for the payment of the purchase money. Held by the court, that D held the slave discharged of the statutory lien, in consequence of the fraudulent acts of the administrators.</p>

<p>■Where one of the defendants in an execution, on which only $13 of the original judgment was due, ordered out an execution, directed it to be levied on property of his co-defendant in the execution, valued at $5,000 to $8,000, and purchased the same himself at sheriff’s sale for the sum of $10; held by the court, that the sale was fraudulent, and that the same would be set aside on the payment by complainant of the balance due on the execution under which the lots were sold.</p> <p>A court of equity will set aside a sale made under execution, when the sale is tainted with fraud or infected with other vices which render it inequitable that it should stand.</p> <p>Where a sheriff finds that property which he exposes to sale is about to be sacrificed, he should return that it was not sold for want of bidders, and wait for a venditioni exponas.</p> <p>A defendant has no right to sue out an execution against himself and co-defendants.</p>

<p>A court of equity will not grant relief on account of irregularities or errors at law.</p> <p>If a forthcoming bond be quashed by a void proceeding, the bond remains in full force notwithstanding that proceeding; and an execution subsequently issued on the original judgment would be irregular, and would be superseded on application to the court from which it emanated.</p>

<p>The statute of limitations of this state barring all claims against the estates of decedents unless presented for payment within eighteen months after publication of notice to that effect, does not apply to claims, the payment of which is secured by mortgage on real estate.</p> <p>The statute provides that all claims not presented within eighteen months after publication of notice for that purpose, “ shall be forever barred, and the estate of the testator discharged from such claim or claims,” &c. The term “estate” has a technical legal sense, and denotes the quantity of interest a person has in the thing to which it it is applied. The interest which a mortgagor has in the thing mortgaged, is that portion of it which may remain after satisfying the debt, a mere equity of redemption. A mortgage conveys the legal estate to things mortgaged to the mortgagee, a title which can only be divested by a payment of the mortgage money.</p> <p>As between the mortgagor and mortgagee, the fee of the estate passes to the mortgagee, and he may, unless he has stipulated to the contrary, at once enter or bring an action of ejectment to recover the possession.</p> <p>In a bill for foreclosure it is not necessary to bring the personal representatives of the' mortgagor before the court.</p> <p>Although a mortgagee may seek the personal assets in the hands of the administrator of the mortgagor, for the satisfaction of his debt, he is under no obligation to do so; he may rely exclusively upon his mortgage, and the only effect of the non-presentation of his claim would be to deprive him of any participation in the personal property of the estate.</p> <p>When a mortgage is duly recorded in the lifetime of the mortgagor, the administrator, of the mortgagor is as much bound to take notice of the claim which the mortgage recites as if the claim had been formally presented to him in person.</p>

In November, 1835, James C. Dickson died, leaving a large estate in stock, farming utensils, and also fifty-six slaves. His only children were Michael J. Dickson, David Dickson, and Martha Ann Dickson, all of whom were minors. On the 23d of February, 1836, Jacob B. Womack obtained letters of administration and guardianship on said estate, and proceeded to administer the same. Shortly after Martha Ann Dickson intermarried with Joseph W. Miller.

<p>The bill in this case charges that Valentine C. Ray died in the latter part of the year 1836, leaving his last will and testament, which has been duly proven and recorded, in the probate court of Warren county. That by the will various legacies are bequeathed to different persons, and all the property both real and personal after the payment of all his debts and several legacies particularly specified, is devised to his wife, Martha, who is charged to be the same Martha who is one of the complainants, and who has since intermarried with complainant, James Simmons. It is charged that defendant Henderson and George W. McEnrath were nominated and appointed executors of said will, and “ all the property directed to be kept together until all the debts were paid;” that Henderson qualified as executor and took possession of all the property, and McEnrath in the proper court renounced the appointment. That Henderson has managed the property in a wasteful and extravagant manner, and with a view to his own private gain; that he has borrowed large sums of money from banks as executor' without authority and in violation of law; paid large sums for interest which he ought not to have paid; that he has shipped cotton to Liverpool through banks, instead of selling it at home, and sold it in the European market for less than it would have brought in Vicksburg, and the estate has consequently been greatly injured, and sustained heavy losses; that he has purchased of John Henderson & Co. of which firm he was the acting partner, unnecessarily large quantities of goods and merchandise with the view of reaping large profits; that he has fed the corn and fodder of the estate to his own horses, oxen and mules; tha the has cut cord wood on the estate and sold it for his own gain; that he has rented and is cultivating about two hundred acres of the cleared land of the estate, to the serious injury of the legatees, and particularly the complainants; that he has received sufficient of the proceeds of the place, if prudently managed and applied, to have paid off all the debts and legacies; that he has refused to receive on the place fifteen hands in addition to the force belonging to the estate; and that he has been guilty of numerous other acts of maladministration; that his securities are insolvent, &c., and prays to have the account surcharged and falsified, the property delivered up, <fcc. if the court thinks it has jurisdiction; and that a receiver be appointed and all the property delivered over to him, until the probate court of Warren- county can hear and determine the matters and things set forth in a bill filed therein, and which has been continued from time to time between the same parties for the same objects, and in all respects similar to that now under consideration.</p> <p>The answer of John Henderson admits all the allegations touching the death of Ray, his last will and testament, the various legacies bequeathed, the appointment of executors, qualification of one and renouncement of the other, <fcc.; admits that he borrowed money from and shipped cotton through the banks; but expressly denies that the estate has been injured thereby, or sustained any loss; and the answer charges that by the depreciation in the paper of the banks from which he borrowed money and shipped cotton by, the estate has been greatly benefited, and moreover that the executor was obliged to borrow money, and on his own individual credit too, to prevent the estate’s being sacrificed by a forced sale under mortgage; the answer denies that the estate has been wastefully, extravagantly or improperly managed, or that it has been managed with a view to the private gain of the executor, but avers that he has managed it with prudence and care, and applied the whole proceeds faithfully to the payment of the debts and with an earnest desire to promote the interest as well of creditors as legatees; denies that he has used the corn and fodder of the estate in feeding the horses, oxen and mules belonging to him, or that he cut and sold wood for his own gain, or that he has received any cotton, even a single bale, which he has not faithfully and truly accounted for, or that he has been guilty of any act of maladministration. He charges that he has made annual settlements with the probate court of Warren county, and all his accounts have been approved and allowed, and his acts as executor have been ratified and confirmed by that court; denies that all the debts of the estate have been paid, and shows there are still debts unpaid amounting to more'than twenty-one thousand dollars; denies the insolvency of his securities, and shows that they are, if not rich, amply able to pay any damages the complainants may sustain by the executor’s mismanagement of the property, and avers his readiness to give any other or further security that may be required by the proper tribunal. Admits the estate has purchased a good deal of merchandise of John Henderson &. Co. of which firm he was the acting partner, and that more than was actually necessary may have been bought, but avers it was nearly all purchased by complainants themselves while they were managing and .controlling the estate, and bought too of the clerks in the store when he was not present. The answer denies every other material allegation in the bill.</p> <p>The defendant insists that under his management thirty-five thousand dollars of the debts of the estate have been paid, and that repairs and improvements have been made on the plantation worth at least eight or ten thousand dollars. And, finally, the answer avers the executor’s entire willingness to comply with any order the probate court of Warren may think it right and proper to make, but expressly denies the right of this court to revise and re-examine the settlements he has made with said probate court, or entertain said bill, or take any jurisdiction of this cause.</p> <p>Moved for the appointment of a receiver on the bill and answer.</p> <p>The first and important question presented by the pleadings is, has this court jurisdiction of the cause?- It certainly has not, if the complainants have a complete remedy and can obtain full and ample relief under the appropriate powers of the probate court of Warren county, as well upon the familiar principle that when one of two courts having concurrent jurisdiction takes cognizance of a cause and has it under investigation and advisement, or has once acted on it, the other is thereby divested of all jurisdiction over the same cause — as that it is forbidden by the fundamental law of our state. Agreeably to the allegations of the bill, the complainants are now seeking relief in said probate court. This court therefore will not, if it were permitted by the constitution, now go into an examination of the lenghty accounts of the defendant, and an investigation of all his acts as executor.</p> <p>We have been repeatedly told by the High Court of Errors of this state, that of all matters testamentary, and in all cases arising under air administration or the grant of letters testamentary which concern the rights or the liabilities of the executor or administrator, the probate courts have exclusive jurisdiction; and that k court of equity will not in any case interpose unless the probate court be wholly incompetent to give relief, nor even then if the party has lost his remedy by his own laches. See the cases of Blanton v. King et al. 2 Howard, 861; Carmichael et al. v. Brow-der, 3 lb. 255; Walker et al. v. McCrea, 4 lb. 457; and Hurd et ■ux. v. Smith, 5 lb. 562.,</p> <p>It will not, we presume, be contended that the probate court has not the power to require additional security of the executor, if that already given be not amply sufficient; or to remove him if he manages the estate in an extravagant, wasteful, improvident and improper manner; or compel him to make a final settlement, pay over legacies, and in short grant every relief sought for in this bill, unless it should be contended that it has not the power of appointing a receiver. If it should, however, it will be seen by reference to the Revised Code, pages 45 and 46, that that court has ample power, and it is made its duty when a proper case is made out, to require additional and counter security, and grant every relief required or asked in this case. We are not prepared to say that a probate court in this state e.ver has taken property out of the hands of an executor or administrator and placed it in the hands of a receiver. Yet we presume no such case has ever occurred, for the very obvious reason that no case can arise in which there can be any necessity for such an order. They have frequently been removed by that court. And it is believed any case that will warrant the appointment of a receiver, will justify the removal of an executor or administrator. Hence the removal is the course always pursued in such cases. But if a case can arise that would require the appointment of a receiver to take charge of the property in the hands of an executor or administrator in progress of administration, we contend that the probate court has power to make the appointment. The powers of that court are in every respect as ample, as far as its jurisdiction extends, as those of a court of chancery. See the case of Blanton v. King et al. above referred to. If this be not law, then will parties be driven to the necessity of pursuing their remedies and seeking relief in two different courts, distant from each other, in one and the same cause. Then, too, may executors and administrators be compelled to leave the counties of their residence, in which they have qualified or administered, and come to the seat of government to defend their rights or answer the unfounded charges brought against them by impatient or avaricious legatees or hungry speculators, instead of having their rights and interests adjudicated in cheaper and more convenient courts provided for that purpose.</p> <p>But suppose your honor should be satisfied that the probate court has no power to appoint a receiver, and this court should proceed to appoint one in the case now under consideration, and it should turn out on a full and final hearing before the probate court of Warren county, for we presume this court will not now overhual and thoroughly investigate all the defendant’s settlements and accounts as executor, that the defendant has not mismanaged the estate, that his securities are not insolvent, and that the debts have not all been paid. What course would the defendant then have to pursue ? Would he have to incur the trouble and expense of applying to this court to have the order appointing a receiver rescinded, and the property redelivered to him. We can perceive no other remedy. Hence we think the impropriety of this court exercising jurisdiction of this case perfectly manifest.</p> <p>Yet suppose this was the proper tribunal to hear and determine this controversy, upon what grounds do the complainants rest their application for the appointment of a receiver? It must be on the grounds of the insolvency of the defendant’s securities, and that all the debts of the estate have been paid. It might be a sufficient answer to the first ground, that the bill does not even name one of the securities, John Crawford, and therefore, he having been received by the proper court, and that too when these very complainants were demanding additional security, and they now omitting studiously to mention his name, the probate court must be presumed to have discharged its duty, and this court is bound to believe said security ample; yet even if that were not so, still the full and explicit negative of the answer sweeps that ground entirely from under them. The other ground we think they have been even more.unfortunate if possible in their endeavor to maintain. Is it not strange if the debts have all been paid, that the complainants should so long have neglected to prosecute their petition filed about fifteen months ago in the probate court of Warren for the express purpose of coercing a final settlement, and getting possession of the property ? Why have they thus slumbered on their rights ? Why permit the executor to waste and squander the estate, when they could so easily prevent it. They do not pretend that the defendant has had that case continued from time to time, or that he has ever been either unwilling or unprepared for trial. On the contrary, it seems to have been entirely neglected, if not abandoned by them. Again, if the debts have all been paid, is it not passing strange that the complainants should have solemnly bargained and sold, not yet two months ago, to John S. Brien, one half of all the estate both real and personal, worth seventy-five thousand dollars or eighty thousand dollars, provided he would “ pay off all the debts and legacies bequeathed in money,” when it was well. known said legacies amounted to only nine thousand five hundred dollars ? If their allegation is true,, why did they require of Mr. Brien a bond in the penalty of one hundred thousand dollars! that he should pay off the debts and legacies? Why say any thing about the debts at all, if none existed? Can it be presumed for a moment that they would have been so stupid as to sell, or Mr. Brien so illiberal as to receive a property worth thirty-five thousand dollars or forty thousand dollars, for nine thousand five hundred dollars ? We apprehend not. Indeed, when we reflect on the manner in which they have neglected the prosecution of their petition in the probate court, and the terms of said sale to Mr. Brien, we are forced to the conviction that they did not, and do not now believe that all the debts have been paid. We moreover think it more than probable that said sale will explain the reason of this remarkable and very extraordinary application.</p> <p>Yet even if they do believe the debts have all been paid, the answer shows most clearly, and we think satisfactorly, that they have not; but that there is still a balance due of twenty or twenty five thousand dollars. Of the various other charges in the bill we deem it unnecessary here to speak. They are all fully met and refuted bjr the answer.</p> <p>Of the result of this application we cannot entertain a doubt. For if there was no question about the jurisdiction of this court, it appears to us perfectly clear that the complainants have wholly failed to make out a case that will warrant the appointment of a receiver. When the appointment of a receiver is sought against an executor or administrator, it is necessary to establish by clear proof that there is some positive loss, or danger of immediate injury to those interested in the estate. See 2 Story’s Equity, 135-6, top page. In this case it is not pretended that there is any danger of the executor’s running off the negroes, or removing any of the property beyond the jurisdiction of this court. It is not charged that he ever failed to comply with any order made by the probate court, or that he ever objected to an examination of his accounts, or thorough investigation of his acts as executor by that court, nor is there any other charge contained in their bill, even if they were not all fully and explicitly denied, as they are by the answer, which we think will render the interposition of this court necessary. It is very clear that there is no proof before the court that the complainant’s interests will be jeopardised, or the safety of the estate endangered by 'permitting it to remain in the hands of the executor, until their case can be heard and determined in the probate court of Warren; if indeed they intend ever prosecuting it any further, which we admit we consider extremely doubtful. Nor can we believe the complainants apprehend the slightest danger of loss by the acts of the executor, but that all their clamor is a shallow pretence, raised for no other purpose than to get possession of the property.</p>

This bill was filed to foreclose a mortgage executed by Stock-man and wife to the Planters’ Bank to secure the payment of. a promissory note made by said Stockman in favor of the bank for the sum of fifteen thousand dollars and the interest thereon.

<p>A party has no right to build a house so near his neighbor as to immediately obstruct the passage of either light or air; but the mere tendency to obstruct the free passage of the one or the other, has never been, considered sufficient to warrant the restrain- ' ing process of a court of equity.</p> <p>In cases of nuisance, this court interferes only where the complainant’s rights are clear, either from contract or ancjent possession, on the ground of preventing irreparable mischief; and the thing complained of must be directly and immediately hurtful.</p> <p>If the thing sought to be prohibited is in itself a nuisance, the court will interfere; but where the thing sought to be restrained is not unavoidable and in itself noxious, but only something which may, according to circumstances, prove so, then the court will refuse to interfere until the matter has been tried at law.</p>

<p>Upon the death of one of several partners a joint creditor has no claim for the payment of his debt out of the separate estate of the deceased partner until the claims of the separate creditors have been first satisfied.</p> <p>Where the equities of creditors are equal, but one has a legal priority, the latter will prevail.</p> <p>Where the assets of a partnership are purely equitable, and the surviving partner is • insolvent, the claimants will take pari passu.</p> <p>A court of probate cannot take jurisdiction of the conflicting rights and remedies of creditors of an estate in the course of administration before it.</p> <p>The power of marshalling the assets of an insolvent estate between separate and partnership creditors, belongs exclusively to a court of chancery.</p>

On the 4th November, 1840, complainant, Charles Sevier, purchased from John Briscoe thivty odd negroes and other personal property, for an adequate price then accepted by Briscoe as full… Held: and indeed may be regarded as well established doctrine, that equity will not interfere unless under very peculiar circumstances.

This bill states that on the 19th January, 1838, the complainant’s intestate, and the defendants, Calvin Hansborough and Jesse Denson, did form a partnership in mercantile business, which partnership was dissolved on the 31st January, 1838, and the complainant’s intestate agreed to retire from the firm, and in consideration thereof took from the defendants a bond, conditioned that they would “ save harmless, and indemnify the said.James M. Buckner, his heirs, executors and…

<p>Where the complainant’s hill required'the defendants, who were executors, to answer what estate of their testator they had received, and what had become of the same; and the defendants answered that the assets which came to their hands had been exhausted in the payment of the debts of their testator; held, that the answer was evidence against the complainant, and as there was no testimony disproving it, the answer must be taken as true, and the bill dismissed.</p> <p>In administering the assets of an estate, private property' is to be first applied to the payment of private debts; and where it constitutes the only fund out of which payment can be had, partnership debts are to be postponed to private ones.</p>

A suit was brought by Mikell and Robinson, executors, &c. and judgment recovered in Hinds circuit court, against all the makers of the following note: “ February 19th, 1838.. “Twelve months after… Held: that the forfeiture of the forthcoming bond against the maker was not a satisfaction of the judgment against the security. McNutt &c. v. Wilcox & Fearne, 3 Howard 417.

The bill states that complainants are the assigness of two promissory notes given for the purchase money of land, and specifying on their face that the land was bound for their payment. That-said land was sold by one James R. Creecy to 'William B. Creecy and L. H. Smith. That prior to said sale divers judgments at law were recovered against said James R. Creecy, all of which have been satisfied except one in favor of the Planters’ Bank.

On the 26th day of August, 1834, Isaac'Ross made his last will and testament, to which he afterwards attached several codicils. Held: in all countries where slavery has obtained, as one of the most valuable and important powers of the master.

<p>An application for the appointment of a receiver.is one which is addressed to the sound discretion of the court, to be exercised as an auxiliary to'the attainment of the ends of justice.</p> <p>In order to obtain the appointment of a receiver, the plaintiff must show, first, either that he has a clear right to the property itself, or that he has some lien upon it, or that the property constitutes a special fund to which lie has a right to resort for the satisfaction of his claim. Secondly; that the possession of the property by the defendant was obtained by fraud, or that the property itself, or the income arising from it, is in danger of loss, from the neglect, waste, misconduct or insolvency of the defendant.</p> <p>A purchaser of real estate at sheriff’s sale may apply to the chancellor to set aside a deed of the property so purchased, which had been made to defraud the judgment creditor, and the court will extend to the purchaser the same remedies and measure of relief that would have been afforded to the judgment creditor himself.</p> <p>A motion to appoint a receiver will not be heard until the defendant has had notice, if it be practicable to give notice.</p>

The bill states, that-in the year 1835 James C. Dickson died, and that Jacob B. Womack administered upon his estate, and sold of his slaves a large number to Wiley Davis, who gave his bond payable to Womack, with Thomas Land and Hugh W. Davis as his securities. This bond was dated on the 25th day of February, 1836, due at twelve months.

<p>An equity of redemption in personal property is not subject to seizure and sale under an execution at law.</p>

<p>A. S. J. Alston died in the state of Tennessee, leaving a widow and two infant children. By last will and testament he appointed his brother guardian of his children, who qualified under the laws of Tennessee, and took possession of the children. The widow subsequently intermarried with C. A. Poster, and removed to the state of Mississippi. Foster and his wife went to Tennessee with an armed force, seized the children, and took them to their residence in Mississippi, where they procured for themselves letters of guardianship. On application to the chancellor by the testamentary guardian for a writ of habeas corpus, to recover possession of his wards; held by the chancellor, that the custody of the children must be restored to the testamentary guardian, and that the letters of guardianship obtained by Foster and wife in the state of Mississippi were fraudulent and void.</p> <p>Note. — An appeal was taken from the decision of the Chancellor to the High Court of Errors and Appeals, where the case was argued at great length, before Associate Justices Tubseb and Tbottbb, Chief Justice Shabicey not being present at the hearing, Messrs. Tubseb and Tbotteb reversed the decree of the Chancellor. Chief Justice Shabkey delivered an able dissenting opinion, concurring with the Chancellor. The case is reported at length in 6 How. Eep. 406.</p>