OF TI[E STATE OF ARKANSAS. 85 Term, 1856] Hannah. ad: vs: Carrington et al,
I LANNAII. AD. VS. CARRINGT4 N I I. A I tile equity doctrine is, that a mortgage is a mere security for the debt, and only a chattel interest; and until a decree of foreclosure the mortgager continnes the real owner of the fee—though the rule is different at law. The equity of redemption is considered to be the real and beneficial estate, tantamount to the fee at law. A deed of trust, to secure the payment of a debt, with power of sale by the trustee on default of payment, vests the lewd title in the trustee for the purpose of enabling him to sell the properey and pass the title to the purchaser without the necessity of resorting to equity to foreclose, but is not an absolute conveyance—the debtor having the right, at any time before sale, to redeem the property by paying the debt: The equity of redemption, upon the death of a mortgager, passes to his administrator, and may be sold by him and transferred to the purchaser. A decree of a Court of chancery must be regarded as regular. so far as they are concerned, who were parties to the bill but not so as to affect any right which was not within the scope of the bill, nor put in issue by it: An affirmative allegation in an answer, if not denied by replication, must be taken as true: In trust sales there is no doubt that the propert y should be present when sold hut a stranger to the trust has no right to object that the property was not actually present at the sale.
86 CASES IN THE SUPREME COURT Hannah ad: vs: Carrington et aL [July As in private and jrneral sales, if the property, at the time of the sale by a trustee, is in the hands of one claiming it by an adverse title, the legal title will not vest in the purchaser so as to enable him to maintain an action tnesefor in his own name. A subsequent mortgagee of a part of the property embraced ln a prior IllOrt-ga:ze, may, after exhaustung all his other securities without satisfaction, file a bill in equity against the prior mortgagee for the purpose of subpecting such property by compelling him to foreclose, and resort, first, to the other property embraced in his mortgage: Where a deed of trust for the benefit of creditors is given to two or more trustees, and one of them dres, the sunrivor may execute it: In a deed of trust the power of sale is coupled with the legal estate in the hands of the trustee: and, also, with a trust for the benefit of the cestut que trnat and is not affected by the death of the grantor. ()are, Does the term "mortgage" as used in the Statute (DeTst eh 110 sec. 1-2,) requiring mortgages upon personal property to he recorded in the county wlwre ihe mortgager resides, embrace deeds of trust? Wheie the piopert3 ,uniV-ted to truStees to 6eLure a debt Consists of a plantation and many negroes, and the e ,f'stne fine trust causes the whole to he offered in a lump, instead of offering it in such lots and parcels as would suit the convenience ot bidders, it is an unfair mode of sale. A CE'Eltte vie tru:q thus acting and bidding off the whole for less than his debt: does nut acqup e such an equitable title as a Court of chancery should protect and confirm against the owner of the equity of redemp-tion, as to a past of the pioperty embraced in a prim mortgage. Appeal fh)in the Circuit Coto t uf IL2iiefaSti ad Comity, The Hon. SHELTON WATSON, Circuit Judge. Pike & Cummius for appellant As far as the equity of redemptin in the two negroes was concerned, Mrs. Carrington owned that, under the agreement between bur and flouldin; and the effect of the decree in favor of Fowlkes, was to confirm both sales to him, that under order of the _Probate Court and that made by Hannah, the trustee, and absolutely decreed to Fowlkes all the title which Carrington had at his death in the property so sold.
A deed of trust with power of sale will be regarded in equity 'simply as a mortgage, with like power. Equity regards the mortgagor as still owning the fee, and the mortgages as merely creating successive charges on the property, by way of lien or collateral security: and even where sale is made under a power
OF THE STATE OF ARKANSAS. 87 Term, 1856] "liannah, ad. vs Carrington et at contained in a formal mortgage, such sale is equivalent to a statute foreclosure. Jackson vs. Henry, 10 J. R. 185 ; Jackson vs, Bowen, Cowen 13 , Demarest vs. W .4alkoop, 3 J. C. R. 129 ; Doolittle vs. Lewis, 7 J. C. R. 45. And therefore the sale by order of the Probate Court, that by the surviving trustee, and the decree, all taken together, are undoubtedly equivalent to a foreclosure. , Fowlkes is entitled to have the matter closed. At the very least, he is still junior mortgagee, and has a right to foreclose on Peters and Iverson ; and to compel the assignee of Easley to release to him, or proceed likewise to foreclose, or sell first the other property embraced in his mortgage. It is not necessary that Fowlkes should show that the other property conveyed by the deed of trust was not sufficient to pay
his debt. Being junior mortgagee, he hod, before big eondition was changed, and while he held as mere mortgage, the right to keep his own security intact, and to compel Easley, and his equitable assignee to resort, first, to the other property mortgaged to Easley. And when he bought uroler the deed of trust, his title related to the creation of the power ; and he held procisely as if that deed had been an absolute, unconditional conveyance to himself of the title, subject only to Easley's charg?. Doolittle vs. Lewis, 7 .1 - , C. H. 48 ; Cook vs Dickenfield, 2 Atk.
5G2 ; Marlborough vs. Godolphin, 2 Yes.. 78
It is perfectly certain that the estate and representatives of Carrington have no further claim to these two negroes, of any kind whatever. Carrington mortgaged them to Easley ; then he :mortgaged his equity of redemption in them to Fowlkes. Bouldin purehased sip+ intercst as Carrington had remaining;
and that was a right to redeem by paying both mortgoges • that is, he bought the equity of redemption, subject to the mortgage of it to Fowlkes. Fowlkes forecloses his mortgage, himself buying. Then he holds the equity of redemption, and Bouldin loses all his interest in the property for the sale under the power, equivalent to a foreclosure, reaches back, behind his purohn qe, g rid cu ts him mit altogether. carrying the equity of
redemption to Fowlkes, as if it had originally been assigned to
88 CASES IN THE SUPREME COURT Hannah ad: vs. Carrington et al. [July him ; aud has just the same effect as a regular decree of fore-closure—which, bairing Bouldin of his equity to redeem the equity of redemption, gives the purchaser under the decree the
whole equity of redemption, There is, therefore, absolutely nothing left, but whatever may still remain due of the debt to Easley, and Fowlkes' title to the negroes, subject to that debt. But, if we regard Mrs. Carrington or Bouldin as holding the equity of redemption in these two negroes, the Iesult will be precisely the same. Where the assignee of an equity of redemption only, pays off the older lien, in ease there is a junior one or a subsequent purchase, there is no reason wliy the hen so paid off should be kept oh Ye for his benefit_ The law always presumes that the vendor or mortgagor, when paying off a prior lien created by him, does so in order to relieve the property, for tlie benefit of his vendee or mort-gagee. And so also is it as to his assignee of the equity of redemption only. The purchaser of an equity of redemption, where there are successive mortgages, or a prior mortga■-_T awl then a sale, who pays off the prior debt, is supposed to pay it in order to relieve the estate, and not to take an assignment of it. He stands in the place of the mortgagor, and his acts are to be considered the acts of the mortgagor. Tice vs. Armin, 2 J. C. H. 129 Eaton vs. George, 2 New Hamp. 300 ; Taylor vs: Barrett, 3 New fIani, 298; 6 J. C. H. 393, 6 Pick. 492 ; 11 294.
On the death or refusal to act of one or more of several cc/- trustees, the office devilves, with the legal estate, on the sur-vivors, or those who accept. Hill on Trustees 175, 204, 303 Stewart vs. Pettus, 10 Mission, 755; Folley vs. Wontner, 2 Jae, & Walk. 248; Owen vs. Owen, 1 Atk 496 ; Osgood vs. Franklin, 2 J. C. H. 19 ; Franklin vs. Osgood, 15 J. H. 553 ; Peter vs.
Beverly, 10 Peters 563; 8 Sim. 130 ; 1 Vent. 128 •, 9 B. & Cres. 306 ; 2 B. & AM 405; Jones vs. Maffett, 5 Ser,?._ & H. 523 Easley or his executor, by the new arrangement made with Bouldin, whereby enlarged time was Own for pa yment, postponed his lien on these two negroes to that of Fowlkes ; because
he thereby incapaciated himself to enforee his lien on d emand
■111
OF THE STATE OF ARKAIN SAS. S9 Teini, 1S561 Hannah, ail: vs: Carrington et al: by Fowlkes, and prevented the latter from foreclosing, or carts-mg sole by tile trusteo,;; and prevented him from relieving the property in question of that hen in any way, by payment even of a proportional part of the debt to Easley.
Watkins & Clallogher for the appellees. As the holder of the equity of redemption, Bouldin cannot gainsay the hen of the trust deed to Fowlkes ; brit as the equitable assignee of Easley, he became subrogated to his rights to this intent, and no further ; that holding the prior mortgage on Peter and Iverson, he lias the right to insist that F, Iwnes should fairly exhaust all the othei trust property and demonstrate it insufficiency in the mode provided by law, before he could resort to the mortgaged property. or redeem Peter and Iverson, or cause them to be subjected to his debt in any way. Easley having the prior mcrrtgage was under no obligation to foreclose it. A junior incumbrancer might either fuirPolno 1-11 sell subject to the prior incumbrance, or pay it and take an assignment of it, or bring a bill to redeem, and have an account taken of the amount due upon it, if there was any doubt or controversy on that score. Trapnall vs. Richardson, 13 Ark. 552 Watkins vs. Wassell, 15 Ark. 90. As neither Easely or Bouldin were parties to the chancery suit to confirm the sale made by the trustee to Fowlkes, they are not bound by the decree; nor are the widow and heirs of Carrington, who were parties, bound to any further extent than
the scope and object of the bill. : 1. Fowlkes acquired no title to Peter and Iverson by virtue of his purchase of the equity of redemption from Rust, and Rust himself had acquired none, because the equity of redemption had been previously sold by the administratrix to Bouldin, 2. He noquIred lin title to Peter and Iverson under the trus-tee's sale made by Hannah because those slaves were not in possession of the trustee, and were not present at the sale, and
there was and could be no delivery of them to the purchaser. Sheldon vs. Soper, 14 J. R. 353; Jackson vs. Striker, 1 J. Cas.
2S7; Cresson vs. Stout, 17 J. R. 116; Linnendall vs: Doe, 14 J.
CASES 1N TIIE SUPREME COURT Hannah ad: vs. Carrington et aL [July R. 222; Woods VS. Mouell, 1 J. C. R. 503 ; Green vs Green, 9 Cowen 46 ; Allen on Sheriff's, 171 ; Smith vs. Pope's heirs, 5 B. Mon. 337; Greenleaf vs. Queen, 1 Peters 138. 3. He acquired no title by Hannah's sale, because it was made by one of two joint trustees, and when the deed itself contained a provision for supplying any vacancy that might oc-cur—the authority being a mere naked power to sell not coupled with any interest in the trustee: on the a crthoritieb cited by the appellant himself, the point is against him. 4. The sale was made, after the death of Carrington, by a trustee who had not a power coupled with an interest in the subject matter of the trust or power See Nick's heirs vs. Rec-tor, 4 Ark. 280 ; Gates vs. Prior, 6 Eng. 78 ; Garland vs: Nimu, ib. 729.
Where a deed of trust is given merely to secure the payment of a debt, and the trustee has no interest in the estate other than to expose it to sale on failure to pay the money there is no real or solid distinction between such a security and a mort-gage. 4 Kent. Com , 147; 2 Hill. Ab. 544, and cases there cited
1 I-Iill, Ab. 906 see_ 34 ; Brown vs. Morrison, 5 Ark. 217; Smith vs. Robinson 11 Ark: ; 2 Rob: Va. Rep. 530 ; S Ala. 690, 7 Hump. 72, 77; 7 Sm. & Mar. 319; 1 Eng. 269. Wherever the instrument is intended as a security for the payment of money, whatever may be the form of the contract, the mortgagor is entitled to redeem. Cashourne vs. Scarfe 1 Atkyns 603 ; Howard vs. Harris, 1 Vernon 190 ; Skinner vs. Miller, 6 Littell 184 Clark vs. Henry, 2 Cowen 324 ; Conway's Exr. vs Alexander, 7
Cranch 218 ; 1 Dana 200 ; 9 N. Hamp. 69; 3 Ark. Rep, 364; ,5 121 ; Moore vs. Anders, 14 Ark. 638.
Whatever rights Fowlkes ma y have had as to the other prop-erty, it is clear that as to Peter and Iverson his lien was inferior and subject to that of Easely under his prior mortgagr, which included them He has no right to subject them to the sntisfacfirm of his claim, except upon the contingencies, first, that the other property mortgaged to him is insufficient, and second, that the other property which the prior mortgage hears upon is Mori' than sufficient. 2 Lead. Cases in Equity 194 and authori-
OF THE STATE OF ATEATSAS. 01 Tarm, 1R511 Hannah, ad. vs. Carrington et al.
-ties cited; Freem. Chy. 574; 1 Paige 185; 5 J. C R 320; 15 J. R., 485_
Mr. Chief Justice ENGLISH delivered_ the opinion of the Court, In January, 1852, Edward B. Fowlkes filed a bill in the Hempstead Circuit Comt. against Joanna I. Carrington. Albert Rust and Richard Boyd, as executors of Wm. E. Basely, for the recovery of two slaves. etc. The material allegation of the bill are as follows: Ou the 1th August, 1842, Robert Corrington, of Hemp-stead ecamty, e-,reented a mortgage to Wm. B. Easley of Vir-ginia, upon forty two slaves, among which were Peter and Iver-son, to secure the payment of a bond for $12,229.71, due at the time. The mortriage extended the day of pa yment to tie . 1,1, of •anuar follownig: The sLiecs embraced in tlw 1110 -rtage A\ITC upon Carrington's "Caruse — plantation in Hempstead county. On the 21st of January, 1845, Robert Iarruurtou aud -wife ,Thaurul T , made a deed of trust, conveynn '' to Samuel Baldwin and Joel W. Hannah, as trustees, the several tracts of land embraced in Carringtou's "Lost Prairie" plantation in Lafayette county, with forty slav es, ILI si Cure to Ed veal.' ForrlteJ s the payment of a debt of $10,780.34, in three equal annual ins t alm en t s falling drip 1st of April 1546-47-48, with inteiv=it at ten per cent, from the date of the deed. The deed to be void on payment of the debt by Cgrvill,gtou, but on loQ failure to
moot the instalments at maturity, the trustees were empowered to make publie sale of the property, etc. If they failed to attend to the execution of the, trust, Fowlkes was empowered to appoint one or more trustee's to act in their stead, etc. Among the slaves named in this decd of trust were the same Peter and Iverson embraced in the mortgage to Easley, The deed -Was recorded in Lafayette. In the latter part of the pa to- 1845, RI-14-qt C a rrin"tmi died and his wife, :Joanna T. was appointed his administratrix by the Hempstead Probate Court.
On her application, for the purpose of paying debts, said Probate Court, on the 22d of Januar y, 1846, made an order for her
92 CASES IN THE SUPREME COURT Hannah ad vs. Carrington et al. [July to sell "all the right, title and interest" of Carrington in the lands and slaves embraced in Fowlkes' deed of trunt—bale made at the Lost Prairie plantation, on the 21st of February, 184G. The interest of Ciirington in the property was accordingly sold, and purchased by Albert Rust, Carrington's son-m-law, for the aggregate sum of $500, and conveyed by the administratrix to him.
On the Sth of June, 1846, the debt of Fowlkes remaining wholly unpaid, he purchased of Rust, for the sum of $8,526.54, the title so acquired by him, and took the conveyance of himself and wife therefor, and, thereupon obtained possession of the lands, and all of the slaves named in the deed of trust, except Peter and Iverson, and had from thence forward continued in the undisturbed possession thereof. He had never had possession of Peter and Iverson.
That desiring to perfect his title, doubting the validity of the sale under the order of the Probate Court, his entire debt remaining unpaid, and Baldwin, one of the trustees named in the trust deed, having died, the complainant Fowlkes caused Han-nah, the surviving trustee, to sell the lands and slaves embraced in the deed, at public sale, on the 3d day of June, 1848: according to the provisions of the trust, and the complainant purchased the whole of the property for the aggregate sum of $15,000: and paid the expenses of the trust, etc. Being afterwards advised, by counsel, that the surviving trustee had no power to mak_ If t—ri le sale, complainant tool: no deed from him: but on the 2d of Ma y, 1849, filed a bill in the Lafayette Circuit Court, against the administratrix and heirs of Car-
rington, and on the :30th of October, 1850, obtained a decree, without contest, confirming the sale, and complainant's title to the property.
That Basely had died in Virginia, and Boyd had been appointed his executor : and that the former, in his lifetime, or the latter, since his death, had made some contract with Mrs. Car-rington, by which the time for the payment of Easely's debt had been extended, and she was permitted to keep possession of the slaves named in the mort,a,re That she. el- Rust, had
OF THE STATE OF ARKANSAS. 93 Term, 1856] Hannah, ad vs Carrington et al been in possession of Peter and Iverson, ever since the death of Carrington. They were worth $900 each, and their annual hire $125 each.
Part of Eesely's debt had been paid, but the amount still due him was so mush larger than the value of Peter and Iver-son, that complainant could not, with any advantage, redeem them by paying off the mortgage: but that the other slaves, em
braced in the mortgage, were amply sufficient to satisfy the whole of the debt. That, by the delay of Easely and his executor, and the extension of time given to Mrs. Carrington, the lien of the mortgage had, in equity, been postponecL and, as against complainant, was no longer a charge upon Peter and Iverson.
Prayer—that the Court decree to complainant possession of these two slaves, with the value of their hire, etc., as against Mrs. Carrington and Rust, and that Easely's executor be required to foreclose his mortgage, and have resort first to the other slaves for satisfaction before touching Peter and Iverson. Boyd, the executor of Easely, states in his answer to the bill, that no steps had been taken to foreclose the mortgage, because he supposed that no one but himself as such executor, and Wood Bouldin, had any interest in the matter. That, after the death of Carrington, the interest of his estate in the slaves embraced in the mortgage, was sold by an order of the Probate Court, and purchased by BoilMin. That, on the 18th of August, 1845, Easely made an agreement with Bouldin, by which be consented to receive payment of the mortgage debt by annual installments nf $2,000, to commence on the 1st June, 1847, etc.
Under this agreement, Bouldin paid to Easely, in his lifetime, $624.13, and to respondent, since his death $9,811.79. By the agreement, Easely did not surrender the lien of the mortgage to Bouldin, but expressly, retained it as security for the debt, and respondent claimed the right to hold the mortgage as such security until the entire debt was extinguished under the agreement : a copy of whieh was eyhihited, 00 . Respondent knew nothing
of the claim of complamant to the slaves Peter and Iverson, until the filing of the bill, etc.
V4 CASES IN THE SUPREME COURT Hannah ad vs Cal rington et aL [July On the coming in of Boyd's answer, Fowlkes filed an amendment to his bill, making Bouldin a party defendant, alleging that he claimed to have purchased the equity of redemption of Carrington's estate in tbe mortgaged property ; setting out the agreement between Easely and Bouldin, the payments made, and the amounts due, etc. That Bouldin was the brother of Mrs. Carrington, and purchased the equity of redemption, and made the agreement with Easely for her benefit, in order that sho might pay off the mortgage debt, and retain the slaves. That she bad retined the possession of the slaves, and made the payments upon the mortgage debt, under Bouldin's agreement with Easely, out of the proceeds of their labor. That by the terms of the agreement, the time had been extended for the payment of the mortgage debt, but that Bouldin had failed to comply with his part of the agreement, and Easely's executor bad the right to foreclose at once ; etc, Prayer as in the original bill:
Albert Rust and Mrs. Carrington did not answer the bill. Bouldin answered, substantially, as follows : That, under an order of the Probate Court of Hempstead county, Mrs. Coning-ton, as administratrix of Robert Carrington, on the 23d of May, 1845, made a public sale of all the right, title and interest of the estate of her intestate, in and to the slaves mortgaged, by him to Basely, and that respondent, in the presence of com-plainant, Fowlkes, became the purchaser thereof at the sum of $500. Respondent was advised that the order and sale were made in accordance with the Statute, etc., and the title so acquired by him valid. After the sale, having complied with the terms thereof, the administratrix executed and delivered to him a deed for the interest in the pi operty so purchased by him. The order of the Probate Court, etc., and the deed, are exhibit-ed. "To the allegation that the purchase was made by respondent for the benefit of his sister, Mrs. Carrington, or for her, and her children, he answers that if complainant meant thereby that respondent was the agent of his sister, etc., in making the pur-chase, or that, prior to the purchase, he entered into any agreement with her, creating a trust between him and her, etc,, then,
OF THE STATE OF ARKANSAS. 95 Term, 1856] Hannah, ad. vs Carrington et al. respondent wholly denies the allegation. He was advised and knew, as well on the general principles which regulate the conduct of fiduciai ies, as under the special provisions of the Arkansas Statute, that she had no legal right, either in her own name or through the agency of another, to make such a pur-chase. It is true, that it was the object of respondent, in leaving his tame in Virginia, and visiting Arkansas, as he did, in the spring of 1845, to render such aid as he lawfully might to his sister and her children, in their unexpected pecuniary dif-ficulties, and respondent's purpose was well known to them. If, then, the complainant meant to allege, that it was the purpose of respondent, in making said purchase, to take no personal benefit therefrom, other than the gratification of aiding his sister and her children, hut to give the entire benefit thereof
to his sister, respondent willingly and fully admits the allega-tion. Such was his purpose, and his sole purpose, and he has yet to learn, that by the code of that or any other State, there is any moral, legal or equitable obstacle to such purchase, for such an object. If so, respondent must abide the consequences of his error : he, certainly, would not attempt to conceal it.-
The circumstances under which the sale was itrdered, and the purchase made by respondent, were these: The estate of Carrington was found to be indebted to utter insolvency. All his assets not embraced in the mortgage to Easely, and the deed of trust to Fowlkes, were more than covered by judgments—no part of Fowlke's debt was due, but the interest upon Easely's debt was in arrear : there were no asgettc in the hands of the administratrix, out of which it could be paid: the mortgage was subject to foreclosure, and Easely's attorney had given notice to the administratrix, that unless the interest in arrear was promptly paid, fie would proceed to foreclose, etc. Property, at that time, when put up at public auction, for cash, was selling at a great sacrifice, and the administratrix was apprehensive that it the mortgage property was brought to the block, it would T-Int di qPharg0 the debt. Under these cirenmstaces, the Probate Court ordered the sale of the equity of redemption, etc. Respondent was well acquainted with Easely, and believed
96 CASES IN THE SUPREME COURT Hannah ad. vs Carrington et al. [July he could make a satisfactory arrangement with him in Virginia: and he believed, also, that Royston, his attorney in Arkansas, would accept the interest in arrears, and waive a foreclosure of the mortgage: and for these reasons, responclent purclupsed the equity of redemption, bidding more for it than any one else under the circumstances. He gave his bond to the administratrix due at twelve months, with good security, for the purchase money, according to the terms of the sale. On the 2Sth of May, 1845, respondent pand Royston $06.26, being the interest due on the mortgage debt, 1st January pre-ceding, which he accepted as Lk uompliauee ■vith the terms of the mortgage, and waived further proceedings to foreclose. This act was subsequently ratified by Easely in person, who admitted that, under all the circumstances, the mortgage was not subject to foreelosnre. The amount so paid Royston, was not received by respondent from his sister, Mrs. Carrington, but was his own money. After respondent made the purchase, and became the absolute owner, as he supposed, of the mortgage property, subject to the mortgage debt and the widow's dower, he made a verbal agreement with Mrs. Carrington, by which he has ever since held himself morally and legally bound, to the effect, that he would see Mr. Easely, on his return to Virginia, and by becoming personally bound for the mortgage debt, induce him to receive payment thereof in annual installments of $2,000 each, or in installments as favorable to respondent as his sister, as could be obtained. In the mean time that the slaves, or such of them as she desired, should remain at Mrs. Carrington's residence, and on her plantation, under the superintendence and control of respondent's brother, and as the property of respondent, but to be worked exclusively for the benefit of Mrs. Carrington, that from the proceeds of their labor, and an y other resources at her command, she might pay off the bond executed to her as administratrix of Carrington by respondent for the equity of redemption aforesaid, and $106:26 borrowed by him of Rust to enable him to make the payment of interest to Royston above referred to; and in addition thereto, annually remit to respond-
OF TIIE STATE OF ARKANSAS. 97 Tenn, 1856] Hannah, ad. vs. Carrington et al. ent, prior to the period of payment, such sum as he should agree to pay Easely, until the whole mortgage debt should be dis-charged. When that event should occur, and all advances, which respondent might make ou account of the mortgage, should he returned to him, he was to convey to Mrs. Carrington th0 cutirc interest vested in him by the sale aforesaid: and it was with a view to such an arrangement alone, that respondent made the purchase.
In pursuance of this agreement, respondent left the slaves on the plantation of Mrs. Carrington, under the control of his brother, but for here benefit, and had neither aslced her uor received hire for them, being entitled to IIIMP under his agreement aforesaid And on his return to Virginia, he entered into the contract with Easely exhibited with Boyd's answer. Under which contract respondent had paid to Easely and his executor, to 1st of June, 1852, $12,942.18, on the mortgage lebt, leaving a balance due thereon of $1,158:13. The amount paid. and the balance due, making $14,100.18, chargable upon the mortgaged property. A portion of the money to meet the installments upon the mortgage di-ht, Trm-lor the contract with Easely, was
furnished to respondent by Mrs. Carrington, according to agree
ment with her. The balance he advanced out of his own means, and she had afterwards refunded it to hint. She was in arrear with him about $400 upon such advances, at the time of an-swering. A portion of the slaves named in the mortgage was still upon the Caruse place. and the others had been ”emoved to a
plantation recently purchased by Mrs. clarrington, on Red river, in Texas Among the slaves purchased by respondent under the sale of the equity of redemption, and left in the possession of Mrs. Carrington, under the agreement aforesaid, were Peter and Iverson, who are still in her poRsession They are admitted to be the same slaves embraced in Fowlkes' deed of trust by those
names.
Respondent denies that complainant, Fowlkes, has shown any title to these two slaves on either of the grounds on which
98. CASES IN THE SUPREME COURT Hannah a& Ts. Carrington et aL [July he rests it. And, first, as to his purchase from Rust, of the equity of redemption in the lands and slaves included in the deed of trust, the complainant himself expressed a doubt as to the validity of the sale to Rust, under the order of the Probate Court, and of the title derived thereby, etc. But conceding the sale to have been valid, complainant derived no title under it, to the two slaves in question: All that Rust purchased, or could have purchased, and all that complainant purchased of him, was the interest of Carrington's estate in the trust property. But all such interest in the slaves Peter and Iverson had been previously Sold and purchased by respondent ; and could not be sold again, etc. Respondent submits that the interest so purchased by him was thL! absolute property in the two slaves, subject only to Easely's debt, to Fowlkes' debt, and to the dower right of Mrs. Corrington. That, before the complainant can show any title to the slaves in question, he must first satisfy the Court that these slaves are not necessary to discharge the Easely debt, and secondly, that they are required to discharge his own debt under the trust deed. Without inquiring whether they would, or would not be required to satisfy the mortgage, respondent insists that it is manifest from the bill itself that the complainant's debt is greatly more than discharged by the property he now
holds, without a resort to these two slaves. The debt charged on the property by the terms of the deed, amounted, on the 8th of June, 1846, the date of the complainant's purchase of Rust, to the sum of $12,271.60, as follows : Principal sum secured by the deed,_, . . . $10,780.34 Interest at 10 per cent, from the date of the deed, to June 8th, 1846, 1,491.26 Making ,„ ,...„ :: __ :_:,_, „, „ „ , .. $12,271,60 To secure this sum, complainant held a lien on the valuable
Lost Prairie estate, and forty slaves : and the question is, was this property more than enough to pay the debt, without taking the two boys Peter and Iverson. Respondent would refer, as an answer to the question, to the act of complainant as set out in
OF THE STATE OF ARHANSAS. 99 Term, 1S5ii] Hannah, aul Carrington et aL the bill. He actually paid in money, on the Sth of June, 1846, for Carrington's interest in the property—that is, for what might remain as part of Carrington's estate, after paying the debt— the sum of $8,526.54: thus valumg the property at a price about two thirds greater than the debt. Respondent submits, therefore that complainant cannot successfully maintain that the two aaves, Peter and Iverson, were neeessaly to discharge his debt ; and not being required for that purpose, they belong to respondent, he being the first purchaser of Carrington's interest in them. Respondent insists that the decree obtained by complainant, in the abqPn OP of all defeuce, confirmmg his purchase under the trust sale, was moperative and void as to respondent, he not being a party thereto. That decree being of no binding force as to him, he insists that there is nothing in its teims to commend it to the Court as an original measure of equitable relief. That it should not be adopted : 1st, because, by the complain-ant's own admission the sale confirmed was void: 2d, It wa=; a monstrous sacrifice of the property, as shown by the value put upon it by complam ant when he purchased of Rust the equity
of redemption, etc. : 3d, The slaves, Peter and Iverson, were not in the possession, or under the control of the trustee, at the time of the sale, but were then, and ever since, in the adverse possession of another, holding under and for respondent, etc. The eanqe was heard upon tbe nrigival bill, amendment and exhibits : the answer of -Wood Bouldin, and exhibits, without replication thereto, and upon an agreement of facts made by counsel. By this agreement, it is admitted that Robert Carrrngton, when the mortgage and deed of trust were respectively execu-ted, had two plantations, with slaves thereon engaged in plant-ing, one known as the Lost Prairie plantation in Lafayette, and the ofta ,r aq the Caruqe plautation in llomps4tend enmity, About
20 miles apart. That all the slaves mortgaged to Easley, were employed and upon the Canise plantation, from the date of the mortrrage until the winter of 1852-3. That the deed of trust to Fowlkes included all the slaves then employed on the Lost
100 CASES IN THE SUPREME COURT Hannah ad: vs. Carrington et al. [July Prairie plantation, together with Peter and Iverson, the slaves m controversy. That these two slaves were on the Caruse plantation in Hempstead county, and were not present, when the trustee, Hannah, made the sale under the deed of trust. The Court dismissed the bill for want of equity. In the meantime Fowlkes had died, and the cause had been revived in the name of Hannah as his administrator, who appealed to this Court. 1. It appears that Robert Carrington died in the spring, and not in the latter part of the year 1845, as alleged in the bill, The order of the Probate Court for the sale of his interest in the slaves mortgaged to Easely, was granted on the 22d of April, and the sale was made on the 23d of May, 1845, at the Caruse place, where the slaves were. Both the order and the sale appear to have been regular, and were authorized by Statute. Dig. eh. 4 see. 164-5. At this sale, Bouldin purchased, and became the owner of "all the right, title and interest" which Carrington had, in and to the slaves embraced in the mortgage at the time of his deatIr Ib. What was such interest in the slaves Peter and Iverson ? He had first mortgaged them to Easely. "The equity doctrine is that the mortgage is a mere security for the debt, and only a chattel interest : and that until a decree of foreclosure, the mortgagor continues the real owner of the fee. The equity of redemption is considered to be the real an] beneficial estate, tantamount to the fee at law, and is accordingly held to be descendible by inheritance, devisable by will, and alienable by deed, precisely as if it were an absolute estate of
inheritance at law." 4 Kent's Com. 159. Trapnall's adx. vs. State Bank, present term. Afterwards, Carrington made the deed of trust for the benefit of Fowlkes. Ey this deed, he conveyed the legal estate in the slaves to the trustees, charged with a prior incumbrance in favor of Easely. The legal estate was vested in the trustees for the purpose of enabling them to sell the property, and pass the title to the purchaser, without the necessity of resorting to equity to foreclose, in the event of Carrington's failure to pay the debt secured by the deed. But the conveyance was not absolute
OF THE STATE OF ARIZANSAS 101 Term, 1856] Hannah, ad. vs: Carrington et aL By its terms, it was made to secure a debt, and was to be void on the payment, by Carrington, of the debt, by the instalments, and at the times, recited in the deed. The payment of the debt by him, nt the times stipulated, would have defeated the con-veyance. If he had tendered the money, and it had been re-fused, he could have filed a hill, brought the money into Court, and enjoined the sale—in othe twords, redeemed the property. Mayo vs. Judah, 5 Munf, 495. Wright vs. Henderson, 12 Texas R. 44. Marriott & Hurdesty et al. vs. Givens. 8 Ala, R. 694 Magee vs. Carpenter, 4 Ala. 469. P. & M_ Bank of M, vs. Willis & Co., 5 Ala. 771_ Hawkins vs. May. 8 Ala. 673. Sims vs. Hundley, 2 How. ( Miss.) R, 896.
Whatever difference there may be, between a mortgage and a deed of trust in other respects, ( see Crittenden vs. Johnson, Eng. R. 94 ; Petit et al vs. Johnson et al., 15 Ark. R. 60) it is manifest that they agree in this, that the debtor Las the right in equity to redeem the property, by paying or tendering the amount of the debt, at any time before foreclosure of the former,
and sale under the hitter. At the time, therefore, of earring-tor's denth, the title to the slaves had not passed absolutely out of him, but he had the right to redeem by discharging the two incumbranees upon them; and his administratrix, etc., succeed-, ed to this right, and it existed down to the time that Bouldin purchased the equity of redemption.
No matter what the mterest remaining in Carrington after the P-Ve01/6011 of the two instruments, may be technically called.
it is beyond dispute that whatever interest he bad, in law or equity, was purchased by Bouldin, at the sale made under the order of the Probate Court. It follows that Rust purchased no title at nil in Peter and Iverson at the sale of Carring-ton's equity of redemption in the property embraced in the trust deed, this sale being subsequent to the one at which Bouldin piirobasPd and that Rust °mild, and did convey no title to Fowlkes in these slaves. 2.Fowlkes' title under the trust sale will next he considered. He having caused a sale of the trust property to be made, under the provisions of the deed, and become the purchaser
102 CASES IN THE SUPREME COURT Hannah ad, vs: Carrington et oL [July
thereof, and having, by bill in equity against thu ailministratrix, and heirs of Carrington, obtained a decree confirming the sale, we must regard it as regular so far as they are concerned, who were parties to the bilL But Bouldm and Easely were not parties, and their rights were not affected in any way by the decree. Nor was any right, which Mrs. Carrington may have acquired ander Bo-I:Jain, cut off or barred by the decree, because it was not within the scope of thu bill—hot put in issue by it. 1 Greenleaf's Ev., sec. 528-9. Bouldin urges several objections to the validity of this sale.
The first objection is, that at the time the sale was made, the slaves, Peter and Iverson were not present ; were not under the control of the trustee, but were in the adverse possession of Bouldin, or his agent: In private sales of personal property, it is not essential to the validity of the sale that the article sold should be present, or actually in the possession of the vendor at the time of the trans-
fer. For example, if the subject of the sale be a horse, it may be running in the range : or, if a slave, he may be in the hands of a bailee of the vendor, and yet the legal title will pass to the vendee by the sale, because, in contemplation of law, the possession follows the title. But if at the time of the sale, the property is in the possession of one claiming adversely to the ven-dor, the legal title does not vest in the verideu, because the right
of the vendor to the property is a chose in action, which is not assignable by the common law. See Stedman vs. Riddick, 4 Hawks (N: C_ R 29_ Goodwyn vs. Lloyd 8 Porter 237. Foster vs. Garee 5 Ala. R. 427. O'Keefe vs. Kellogg, 15 Illinois R. 347. McGoon vs. Ankeny, 11 D. 558. Stogdell vs. Fugate, 2 A. K. Marsh. 136. It has been held that in judicial sales of personal property, the property should be present, and pointed out by the officer to the bidders, otherwise the sale will not be vand_ Cresson vs Stout, 17 Johnson R. 116 ; Sheldon vs. Soper, 14 Ib. 353. Jackson vs. Striker, I Johnson's cases 287. Linnendoll vs. Doe, 14 John. R. 222. Bostick vs. Keizer, 4 J. J. Marshall's Rep: :597. But it is said that this restriction is intended for the benefit of the owner,
OF THE STATE OF ARXASSAS. 103 Tenn, 1S56] Hannah, rot vs: Carrington et al: and he may waive the actual presence of the property. Gift vs. Anderson, 5 Hump. R. 577. If, however, the property, at the time of the sale, is in the possession of a person claiming to hold it by a title adverse to that of the defendant in the execu-tion, it has been held that the legal title would not pass to the purchaser, be eause the right of the defendant in thc execution to the property, is but a chose in action, which iq not tho ject of execution by the eommon law. Bostick vs Keizer, 4 J. J. Marsh. 597.
In trust sales, like the one under consideration, no doubt but the property should be present when sold. It is to the interest both of the maker of the trust, and the cestniqic Imst, that it should bring a fair price—other creditors may also have an :in-
terest in the matter. It seems, however, that a stranger to the trust has no right to object that the property wh q not aetually present at the sale. Bot, ns in the other classes of sales, if at the time of the sale of property is in the hands of one claiming it by an adverse title, the legal title will not vest in the purchaser so as to enable him to manitain an action therefor in his own namc, for the reason that the subject of the sale is but a
chose in action. Herbert vs. Henrick, 16 Ala. R 599. Gary vs. Colgin, 11 Ala. 514-519. Foster vs. Garee, 5 lb. 425_ Brown vs. Lipscomb, 9 Porter 472. Bostick vs kei7er. S J. Marsh. 597. Huudley vs Buckner, 6 Sm. & M. 77.
This prmciple seems to apply to all three of the classes of sales whieh we have been considering:
How far, and under what circumstances, a Court of equity would protect, or enforce the claim of the purchaser is another question.
In this ease, the answer of Bouldin avers that he held the slaves adversely at the time of the trust sale. He had pur
chased Carrington's equity ef redPmption in them, and had, as he insists, become subrogated to the rights of Eesely under the mortgage, which was prior to the trust deed, to the extent that -he had paid the mortgage debt. It is clear that the trustee had no right to the possession of time slaves at the time of the sale, the corlior inilimhrariee not
104 CASES IN THE STJPREME COURT Hannah ad vs: Carrington et al: [July being discharged. He could not have recovered them by ah action at law for the purpose of selling them. Manifestly, the proper course for Fowlkes to have pursued, would have been to cause the trustee to expose to a fair sale all of the property embraced in the trust, except the two slaves included in the mort-gage, first, and if it was not sufficient to satisfy his debt, then to have filed a bill against Bouldin and Easely for the purpose of subjecting Peter and Iverson, by compelling them to foreclose their mortgage, and resort first to the other property embraced therein. Given's ad. vs. Davenport, 8 Texas R. 451. Hall and wife vs. Harris et aL, 11 Texas 300. Or, there being doubts about the power of the surviving trustee to sell any of the pro-perty, Fowlkes might have resorted to equity to close up the entire trust. Sullivan vs. Hadley 16 Ark.; Walton et al. vs. Cody, 1 Wisconsin R. 420. Wright vs. Henderson, 7 How, Miss. R. 569. The second objection to the validity of the trust sale is, that the power of sale was vested by the deed of trust jointly in two trustees, and that one of them being dead, the power did not survive to the living one—that he could not execute the trust. This is not a valid objection. Joint trustees are not within the reason of the Statute, t Digest ch. 92, see. 6,) abolishing sur-vivorships. It is a well settled rule of the law, that if a power coupled with a trust be given to two or more, it may be executed by one who has survived the others. Parsons vs. Boyd, 20 Ala. 118. Hawkins vs. May, 12 lb. 672. Taylor vs. Benham, 5 How. U. S. R. 233. Peter vs. Beverly, 10 Peter's R. 532. Frank-lin vs. Osgood, 14 John, R. 527. The third objection to the validity of the sale, that the power of the trustee was not coupled with an interest and therefore was revoked by the death of Carrington is likewise untenable. After Barrington executed the deed, he could not have revoked it himself while living, and his death would hardly recall a power, which had passed beyond his control.
A power of sale in a mortgage falls under the class of powers appendant or annexed to the estate : and they are powers coupled with an interest, and are irrevocable, and demand part of
OF THE STATE OF ARKANSAS. 105 Term, 1856] Hannah ad: vs, Carrington et al. the mortgage security, etc. 4 Kent's Com. 148. In a deed of trust the power of sale is coupled with the legal estate, and, also, with a trust for the benefit of the cestui qur trust. There is a fourth objection to Fowlkes' title, under the trust sale, aparent on the face of the record before us. The deed of trust seems to have been recorded in Lafayette county, but at what time does not appear from the recorder's certificate_ At the time of tlIP PIKPOution of the deed, and from the/lee forward until his death, Carrington resided in Hempstead county : and the slaves Peter and Iverson were on the Carusc plantation in the same county. There is no allegation in the bill, or showing of record, that the trust deed was ever recorded in Hemp-stead. The Statute provides that "all mortgages" upon lands shall be recorded in the counties where the land lie : and mortgages upon personal property, in the eounty in which the mortgagor resides: and that every mortgage, whether for real or personal property, shall be a lien on the mortgaged property from the time the same is filed in the Recorder's office for record, and not before, etc. Digest ch. 110, sec 1-2. A mortgage not acknowledged, or proven, and recorded as required by the Statute, though good between the parties to it, is not valid as against subsequent purchasers, or incumbrancers, of the subjeet nf the mortgage. Main et al. vs, Alexander, 4 Eng, R. 112. Does the term "mortgage, used in the Statute, embrace deeds of trust ? Mr. Kent defines a mortgage, thus: "A mortgage is the conveyance of an estate, by way of pledge for the security of debt, and to become void on payment of it. The legal ownership is vested in the creditor : but, in equity, the mortgagor remains the actual owner, until he is debarred by his own default, Or by judicial decree." 4 Coin. 136. The definition of Mr. Coote is substantially the same. Coote on Mortgages, 1.
Again, says Mr. Kent: "It is usual to add to the mortgage, a power of sale in case of default, which enables the mortgagee to obtain relief in a prompt and easy manner, without the ex-
106 CASES IN THE SUPREME COURT Hannah ad: vs Carrington et al. [July pense, trouble, formality and delay of foreclosure by a bill in equity." 4 Corn. 146. The instrument nnder consideration falls fully within Mr. Kent's definition of a mortgage with a power of sale. Upon its face, it purports to be a security for a debt, to become void on payment : the grantor remained in possession: on default of payment, the trustees were to sell sufficient property to pa y the debt only, and any excess of property, or of the proceeds of the sale, that might it'uotin after paying the debt, belonged to the grantor. The character of the instrument is the same, whethei the power of sale be vested in the mortgagee, or a third person as trustee c,^7_7nsni en both sides nf this ease agree that the deed of
trust is but a mortgage with a power of sale, and so the Courts have generally regarded such instruments—though they differ, in sonic respects, from mortgages without such power, See Wright vs. Henderson, 12 Texas R. 44. Byron vs. May, 2 Chandler R. 103. Walton vs. Cod y et al. 1 Wisconsin R. 420. Marriott et al. vs, Givens, S Ala. R. 694. Planter's and Merchant's Bank of Mobile vs_ Willis &T , Co , 5 Ala. PL, 791. Simms vs. Hund-ley, 2 How. Miss. R. 896. (Sinede's Digest p_ 410 ) If therefore the term "mortgage," as used in the Statute, embraces deeds of trust, and we see no good reason why it does not, it follows that Bouldin purchased the Slaves in question discharged of any lien of the trust deed, and as against Fowlkes asquired a perfect title to them. Sustaining the objection to Fowlkes' title would dispose of
the whole case, but it may be well to look further into his right to the relief songht by the bill, on the supposition that the term "mortgage" as used in the Registry act, was not intended to embrace deeds of trust like the one under consideration. As above shown, he cannot he regarded as having purchased the legal title to the slaves Peter and Iverson at the trust sale. Did he purchase such an equitable title as a Court of chancery should protect and confirm as against Bouldin There is nothing in the bill or exhibits to show that the other slaves and lands embraced in the deed were first exposed to sale, and
OF THE STATE OF ARKANSAS- 107 Term, 1856] Hannah, ad vs, Carrington et al. failed to satisfy the trust debt. Indeed, it is to be inferred from the conveyance from the trustee to Fowlkes, that the whole of the property was put up at once in a body, and bid -off for Fowlkes, at the sum of $15,000. This mode of sale was unfair. and coutrary to the provisions of the deed, which manifestly contemplated a sale of so much of the Property roily, as should he found necessary to discharge the debt : and whether less than
the whole was sufficient for that purpose or not, could only be fairly ascertained by offering it in such lots or parcels as would suit the convenience of bidders, and comport with the character of the property to be sold. At best, therefore, upon the record before us, we cannot regard Fowlkes as having any claim to the two slaves in question other than that of a restu'i gut' trust in an meumbrance junior to the mortgage. 3d. It may now be enquired what equitable right Fowlkes
has to claim that the two slaves in question shall be subjected, in the hands of Bouldin, ttS3a further satisfaction of his debt ? There is no allegation in the bill, that the other property purchased by him at the trust sale, was of less value than the amount of his debt. The answer of Bouldin avers that it was
worth greatly more than the debt. This is an affirmative alle-gation, but not being denied by replication, it must be taken as
true. Walton vs. Cody, 1 Wisconsin R. 427. Moreover, Bouldin assumes in his answer, that the value which Fowlkes put upon the property, is to be inferred from the price to he paid Rust for the equity of redemption, purchased by him at the sale under the order of the Probate Court. That, he
estimated its value at over $8,000 more than his debt. The counsel for Fowlkes pronounced this an "egregious sophism We cannot so regard it. Tf Fowlkes desired merely to make his debt, and not to speculate upon the property, a fair 'legal sale under the trust deed, would have cut off Rust's title by relation back to the date of the deed. Fowlkes could have bid the amount of his debt upon the property, and if no one would have given more, he would have obtained it for his debt. But
11.16 CASES IN THE SUPREME COURT Hannah ad. vs, Carrington et al. [July if others would have given more, his debt would have been paid out of the proceeds of the sale.
But he chose rather to give Rust over $8,000 for his title, and then, it is to be inferred from the record before us, caused the whole of the property to be exposed to sale by the trustee, in a lump, thereby lessening the chances for competing bidders, and purchased it in for about the amount of his debt. Under these circumstances, we do not think that his claim upon a Court of equity for further relief is well founded_ Bouldin being the owner of the equity of redemption of the mortgaged property, when he pays off the remainder of Easely's debt, whether the mortgage will be thereby entirely extingiushed, and his title to the property will become perfect and absolute. or whether he will ho merely suboated to thu rights of EaseIv, and hold, in any sense, or for any purpose, as mortgagee, are
questions discussed by counsel, but we do not deem it necessary now to decide them. Upon the case made for Fowlkes ; his representatives are not interested in the determination of these questions.
We have regarded Bouldin as the contesting party in this case, because by his contract with Mrs. Carrington, she was nut to obtain title to the property. until Easely's debt was paid, and
she had refunded to Bouldin all sums advanced by him in discharging the debt: and his answer shows that she is still in ar-rear. It was, however, measurably by the proceeds of her industry and labor that Ea sely's debt was discharged pro hunto, and we have not failed to consider her ultimate equitable rights
in the premises, in passing upon the claim of Fowlkes to a further satisfaction of his debt out of the slaves in controversy. The decree of the Court below is affirmed.
Absent, Hon. T. B. HANLY.