HANNAH V. CARRINGTON. VOL. 18 HANNAH, AD. V. CARRINGTON ET AL. The equity doctrine is, that a mortgage is a mere security for the debt, and only a chattel interest and until a decree of foreclosure the mortgagor continues the real owner of the fee—though the rule is different at law. The equity of redemption is considered to be the real and beneficial estate, tantamount to the fee at law. A deed of trast, to secure the payment of a debt, with power of saie by the trustee on default of payment, vests the legal title in the trustee for the purpose of enabling him to sell the property and pass the title to the purchaser without the necessity of reser ing to equity to foreclose, but is not an absolute conveyance—the debt it' having the right, at any time before sale, to redeem the property by paying the debt. The equity of redempti in, upon the death of a mortgagor, passes to his administrator, and may be sold by him and transferred to the purchaser. A decree of a c fort of chancery must be regarded as regular, sa 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 answer, if not denied hy replication, must be taken as true. In trust sales there is no doubt that the property should be present when sold : but a stranger to the trust has no right to object that the property was not actually present at the sale. .As in private and judicial sales, if the prop-[5136 erty, at the time of the sale by a trustee, is in the hands of one claiming it by an atverse title, the legal title will nut vest in the purchaser so as to enable him to maintain an action therefor in his own name. A subsequent mortgagee of a part of the property
JULY TERM, 1856. HANNAH V. CARRINGTON. embraced In a prior mortgage, may, after exhaust-of January following. The slaves em-ing all his other securities wi thout satisfaction, file braced in the mortgage were upon a bill in equity against the prior mortgagee for the purpose of subjecting such property by compelling Carrington's " Caruso" plantation in him to foreelt,se, and resort, first, to the Property Hempstead county. embraced in his mortgage. On the 21st of January, 1845, Robert Where a deed bf trust for the benefit of creditors Carrington and wife, 'Joanna T., made is given to two or more trustees, and otie of them dies, the survivor may execute it. a deed of trust, conveying to Samuel In a deed of trust the power of sale is coupled Baldwin and Joel W. Hannah, as with the legal estate in the hands of the trustee : trustees, the several tracts of land em-and, also, wiih a trust for the benefit of _the cestai braced in Carrington'S "Lost .Prairie" que trust, and is not affected .by the- death -of -the -grantor. plantation in Lafayette county, with . Quere: Does the term "mortgage" as used in the forty slaVes, to secure to EdWard B. .statute (Digest, ch. 110, sec: 1-2), requiring mortga-Fowlkes the payment of a:debt of $10,- ges upon personal property to be recorded, in the 780.34, in three equal annual install-county where the mortgagor resides, embracte deeds of trust ? ments, falling due lst of April, 1846,-- Where the property conveyed to trustees to se-47-48, with interest: at ten per cent. cure a -debt consists of a plantation and many from the date of the , deed. TheAeed negroes, and the cestui Qua trust causes the whole to be void on payment of the debt r by to be offered in a lump, instead of offering-Win such lots and pareels as would suit the convenience of Carrington, but on his failure to meet bidders, it is an'unfair mode of sale. A Cestue -que the installments at maturity, the trust-trust thus acting atid bidding off the witole'for . less. ees were empowered to . make public _. than his debt, wies Mit acquire such an "equitable sale 6f the property, etc. If - 0:14 title as a court of chancery should protect and con-. . firm against the owner of the equity of redemption, failed to attend to the execution of the as to_a part of the property embraced in a prior trust, Fowlkes was empowered to Tap,. morigage. point one or more trustees to :act • Appeal from the Circuit Court of Hemp-- their stead, etc. Among the slai. i.ea stead County. named in this deed of trust .were the - Peter and IVerson embraced ON. SHELTON WATSON, Cir- same H the mortgage to Easely. The deed cuit Judge. was recorded in- Lafayette.' •Pike & Cummins for appellant. In the latter part of theT year 1845, Watkins & Gallagher, - for the ap-Robert Carrington died, and his wife,: pellees. Joanna T. was appointed his adminis .: - tratrix by the Hempstead probate 91*]*VNGLISH, C. J. 'In January, court. : - -1 -4 1854, Edward B. 'Fowlkes On her application, for .the purpOse filed a bill in HeMpstead circuit court, of paying debts, said probate court, -against Joanna 7'. Carrington, Albert the 23d of January, 1846, Made: an Rust and Richard Boyd, as executor. of order for her *to sell: "all the* (Aop Wm. B.: . _Basely, for the recovery of right, title and interest" Of -CarcinitOtc,:: two slaves, Rte. The material allega-in the lands' and 'situ'es enibiaced In , .- tiona of the'bi11 are as follows :• . • -Fowlkes' nnkritS t -Ou the 12th of Angust,._1843, *bait at the Lost Oalrie Carrington; of Henmstead &minty.; ex 21st Of February,' 180. 4 The in-feeat -cuted a m6rtgage to Win B Easely ef' Canington in the property vias accorft=. '7' Virginift;nixin fort3 , two -slOves, ingly sold, -end ptirefiaged which were Peter And Iverson; 6•:46-13.4:1,6 tbe . payment of a bond for $12,228.71; aggregate aum Of 1 010, -and couN;tired'' :due at the time. The mrtgage Tex hy the adminjstraffix, to him. tended the day of payment to the 1st On the 8fh ofjune, 1846, the debt 44
HANNAH V. CARRINGTON. VOL. 18 Fowlkes remaining wholly unpaid, he rington. They were $900 each, and their purchased of Rust, for the sum of annual hire $125 each. $8,526.54, the title so acquired by him, Part of Easely's debt had been paid, and took the conveyance of himself but the an:Count still due him was so and wife therefor ; and, thereupon, ob-much larger than the value of Peter tained posession of the lands, and all and Iverson, that complainant could of the slaves named in the deed of not, with any advantage, redeem them trust, except Peter and Iverson, and by paying off the mortgage : but that had from thence forward continued in the other slaves, embraced in the mort-the undisturbed possession thereof. He gage, were amply sufficient to satisfy had never had possession of Peter and the whole of the debt. Iverson. That, by the delay of Easely and his That, desiring to perfect his title, executor, and the extension of time doubting the validity of the sale under given to Mrs. Carrington, the lien of the order of the probate court, his en-the mortgage had, in equity, been tire debt remaining unpaid, and Bald-postponed, and, as against complain-win, one of the trustees named in the ant, was no longer a charge upon Peter trust deed, having died, the complain-and Iverson. ant Fowlkes caused Hannah, the sur-Prayer--Ahat the court decree to com-viving trustee, to sell the lands and plainant possession of these two slaves, slaves embraced in the deed, at public with the value of their hire, etc., as sale, on the 3d day of June, 1848, ac-against Mrs. Carrington and Rust, and cording to the provisions of the trust, that Easely's executor be required to and the complainant purchased the foreclose his mortgage, and have resort whole of the property for the aggre-first to the other slaves for satisfaction gate sum of $15,000 ; and paid the ex-before touching Peter and Iverson. penses of the trust, etc. Boyd, the executor of Easely, states Being afterwards advised, by coun-in his answer to the bill, that no steps sel, that the surviving trustee had no had been taken to foreclose the mort-power to make the sale, complainant gage, because he supposed that no one took no deed from him : but on the but himself as such executor, and 2d of May, 1849, filed a bill in the Wood Bouldin, had auy interest in the Lafayette circuit court against the ad-matter. That, after the death of Car-ministratrix and heirs of Carrington, rington, the interest of his estate in and on the 30th of October, 1850, ob-the slaves embraced in the mortgage, tained a decree, without contest, con-was sold by an order of the probate firming the sale, and complainant's court, and purchased by Bouldin. That, title to the property. on the 18th of August, 1845, Easely That Easely bad died in Virginia, made an agreement with Bouldin, by and Boyd had been appointed his which he consented to receive pay-executor : and that the former, in his ment of the mortgage debt by the an-lifetime, or the latter, since his death, nual installments of $2,000, to com-had made some contract with Mrs. mence on the 1st June, 1847, etc. tin-Carrington, by which the time for the der this agreement, Bouldin paid to payment of Easely's debt had been ex-Easely, in his lifetime, :624.13, and to tended, and she was permitted to keep respondent, since his death $9,811.79. possession of the slaves named in the By the agreement. Easely did not sur-mortgage. That she, or Rust, had render the lien of the mortgage to Boul-931 *been in possession of Peter and din,but expressly retained it as security Iverson, ever since the datlik of Car-for the debt, and respondent claimed
JULY TERM, 1856. HANNAH 1 7. CARRINGTON. the right to hold the mortgage as such were made in accordance with the security until the entire debt was ex-statute, etc., and the title so acquired tinguished under the agreement: a by him valid. After the sale, having copy of which was exhibited, etc. Re-complied with the terms thereof, the spondent knew nothing of the claim administratrix executed and delivered .of complainant to the slaves Peter and to him a deed for the interest in the Iverson, until filing of the bill, etc. property so purchased by him. The 941 *On the coming in of Boyd's order of the probate court, etc., aud answer, Fowlkes filed an amendment the deed, are exhibited. to his bill, making Bouldin a party de-"To the allegation that the purchase fendant, alleging that he chimed to was made by respondent for the benefit hai r e purchased tbe equity of redemp-of his sister, Mrs. Carrington, or for tion of Carrington's estate in the mort-her, and her ohildren, he answers that gaged property ; setting out the agree-if complainant meant thereby that ment between Easely and Bouldin, the respondent was the agent of his sister, payments made. and the amounts due, etc., in making the purchase, or that, etc. That Bouldin was the brother of prior to the purchase, he entered into Mrs. Carrington, and purchased the any agreement with her, creating a equity of redemption, and made the trust between him and her, etc., then, agreement with Easely for her benefit, *respondent wholly denies the al- [*95 in order that she might pay o the legation. He was advised aud kuew, mortgage debt, and retain the slaves. as well on the general principles which 'hat she had retained the possession regulate the conduct of fiduciaries, as of the slaves, and made the payments under the :uccial provisions of the upon the mortgage debt, under Boni-Arkansas statute, that she had *no le-clin's agreement with Easely, out of gal right, either in her owu name or the proceeds of their labor. That by through the agency of another, to the terms of the agreement, the time make such a purchase. It is true, that had been extended for the pay-it was the object of respondent, in leav-ment of the mortgage debt, but that ing his home in Virginia. and visiting Bouldin had failed to comply with Arkansas, as he did, in the spring of his part of the agreement, and Easely's 1845, to render such aid as he lawfully executor had the right to foreclose at might to his sister and her children, in once ; etc. Prayer as in the original their unexpected pecuniary difficulties, bill. and respondent's purpose was well Albert Rust and Mrs. Carrington did known to them. If, then, the com-not answer the bill. plainant meant to allege, that it was Bouldin answered, substantially, as the purpose of respondent, in making follows : That under an order of the said purchase, to take no personal ben-probate court of Hempstead county, efit therefrom, other than the gratifi-Mrs. Carrington, as administratrix of cation of aiding his sister and her Robert Carrington, on the 23d of May, children, but to give the entire benefit 1845, made a pubiic sale of all the right, thereof to his sister, respondent will-title and interest of the estate of her ingly and fully admits the allegation. intestate, iu and to the slaves mort-Such was his purpose, and his sole pur-gaged, by him to Easely, and that repose, and he has yet to learn, that by spondent, in the presence of complain-the code of that or any other State, ant, Fowlkes, became the purchaser there is any moral, legal or equitable thereof at the sum of $500. Respond-obstacle to such a purchase, for such an ent was advised that the order and sale object. If so, respondent must abide
HANNAH v. CARRINGTON. VOL. 18 the consequences of his error : he, cer-as a compliance with the terms of the tainly, would not attempt to conceal mortgage, and waived further proceed-it." ings to foreclose. This act was subse-The circumstances under which the quently ratified by Easely in person, sale was ordered, and the purchase who admitted that, under the circum-made by respondent, were these : The stances, the mortgage was not subject estate of Carrington was fouud to be to foreclosure. The amount so paid indebted to utter insolvency. All his Royston, was not received by respond-assets not embraced in the mortgage to ent from his sister, Mrs. Carrington, Easely, and the deed of trust to but was his own money. Fowlkes, were more than covered by After respondent made the purchase, judgments—no part of Fowlkes' debt and became the absolute owner, as he wa's due, but the interest upon Easely's supposed, of the mortgaged property, debt was in arrear : there were no as-subject to the mortgage debt and the sets in the hands of the administra-widow's dower, he made a verbal trix, out of which it could be paid : the agreement with Mrs. Carrington, by mortgage was subject to foreclosure, which he has ever since held himself and Easely's attorney had given notice morally and legally bou nd,to the effect, to the achninistratrix, that, unless the that he would see Mr. Easely, on his interest in arrear was promptly paid, return to Virginia, and by becoming he would proceed to foreclose, etc. personally bound for the mortgage Property, at that time, when put up at debt, induce him to receive payment public auction, for cash, was selling at thereof in annual installments of a great sacrifice, and the administra-$2,000 each, or installments as favora-trix was apprehensive that if the mort-ble to respondent and his sister, as gage property was brought to the block, could be obtained. In the meantime it would not discharge the debt. Un-that the slaves, or such of them as she der these circumstances, the probate desired, should remain at Mrs. Car-court ordered the sale of the equity of rington's residence, and on her plants-redemption, etc. Um], under the superintendence and Respondent was well acquaint-control of respondent's brother, and as ed with Easely, and believed the property of respondent, but to be 961 *he could make a satisfactory ar-worked exclusively for the benefit of rangement with him in Virginia : and Mrs. Carrington, that from the pro-he believed, also, that Royston, his at-ceeds of their labor, and any other re-torney in Arkansas, would accept the sources at her command, she might interest in arrear, and waive a fore-pay off the bond executed to her as ad-closure of the mortgage : and for these ministratrix of Carrington by re-reasons, respondent purchased the spondent for the equity of redemption equity of redemption, bidding more aforesaid, and S106.26 borrowed by him for it than any one else under the cir-of Rust to enable him to make the pay-cumstances. He gave his bond to the ment of interest to Royston above adry:tinistratrix due at twelve months, referred to ; and ill addition therewith good security, for the purchase to, annually remit to respond-money, according to the terms of the *ent, prior to the period of pay- [*97 sale. ment, such sum as he should agree to On the 28th of May, 1845, respond-pay to Easely, until the whole mort-ent paid Royston $506.26, being the in-gage debt should be discharged. When terest due on the mortgage debt, 1st that ev,ent, should occur, and all ad-January preceding, which he accepted vances, which respondent might make
JULY TERM 9' 1856. HANNAH V. CARRINGTON. on account of the mortgage, should be these two slaves on either of the returned to him, he was to convey to grounds on which the rests it. [4198 Mrs. Carrington the entire interest And, first, as to his purchase from vested in him by the sale aforesaid : and Rust, of the equity of redemption in it was with a view to such an arrange-the lands and slaves included in the ment alone, that respondent made the deed of trust, the complainant him-purchase. self expresses a doubt as to the validity In pursuance of this agreement, re-of the sale to Rust, under the order of spondent left the slaves on the planta-the probate court, and of the title de-tion of Mrs. Carrington, under the con-rived thereby, etc. But conceding the trol of his brother, but for her benefit, sale to have been valid, complainant and had neither asked nor received derived no title under it, to the two hire for them, being entitled to none slaves in question. All that Rust pur-under his agreement aforesaid. And chased, or could have purchased, and on his return to Virginia, he entered all that complainant purchased of him, into the contract with Easely exhib-was the interest of Carrington's estate ited with Boyd's answer. Under which in the trust property. But all such contract respondent had paid to Ease-interest in the slaves Peter and ley and his executor, to 1st of June, Iverson had been previously sold and 1852, $12,042.18, on the mortgage debt, purchased by respondent ; and could leaving a balance due thereon of $1,- not be sold again, etc. 158.13. The amount paid, and the bal-Respondent submits that the inter-ance due,making $14,100. , 18, chargeable est so purchased by him was the abso-upon the mortgaged property. A por-lute property in the two slaves, subject tion of the money to meet the install-only to Easely's debt, to Fowlkes' ments upon the mortgage debt, under and to the dower right of Mrs. the contract with Easely, was fur-Carrington. That, before the com-nished to respondent by Mrs. Carring-plainant can show any title ton, according to agreement with her. to the slaves in question, he must The balance he advanced out of his first satisfy the court that these slaves own means, and she had afterwards re-are not necessary to discharge the funded it to him. She was in arrear Easeley debt, and secondly, that they with him about $400 upon such ad-are required to discharge his own debt vances, at the time of answering. under the trust deed. Without in-A portion of the slaves named in the quiring whether they would, or would mortgage was still up on the Caruse not be required to satisfy the mortgage, respondent insists that it is mani-place, and the others had been removed fest from the bill itself that the com-to a plantation recently purchased by plainant's debt is greatly more than Mrs. Carrington, on Red river, in Texas. discharged by the property he now Among the slaves purchased by re-holds, without a resort to these two slaves. The debt charged on the prop-spondent under the sale of the equity erty by the terms of the deed, of redemption, and left in the posses-amounted, on the 8th of June, 1846, sion of Mrs. Carrington, under the the date of the complainant's purchase-agreement aforesaid, were Peter and of Rust, to the sum of $12,271.60, as follows : Iverson, who are still in her possession. Principal sum secured by They are admitted to be the same the deed $10,780.34 slaves embraced in Fowlkes' deed of Interest at 10 per cent. from trust by those names. the date of the deed, to Respondent denies that complain-June 8th, 1846 1,491.2a ant, Fowlkes, has shown any title to Making $12,271.60
HANNAH V. CARRINGTON. VOL. 18 To secure this sum, complainant held answer of Wood Bouldin, and exhibits, a lien on the valuable Lost Prairie es- without replication thereto, and upon tate, and forty slaves : and the question an agreement of facts made by counsel. is, was this property more than enough By this agreement, it is admitted to pay the debt, without taking the two that Robert Carrington, when the boys Peter and Iverson. Respondent mortgage and deed of trust were re-refer, as an answer to the question, to spectively executed, had two planta-the act of complainant as set out in tions, with slaves thereon engaged in 99*] *the bill. He actually paid in planting, one known as the Lost money, on the 8th of June, 1846, for Prairie plantation in Lafayette, aud Carrington's interest in the property— the other as the Caruse plantation, in that is, for what might remain as part Hempstead county, about 20 miles of Carrington's estate, after paying the apart. That all the slaves mortgaged debt—the sum of S8,529 54 : thus valu- to Easely, were employed and upon ing the property at a price about two the Gara g e plantation, from the date of thirds greater than the debt. Re- the mortgage until the winter of 1852-3. spondent submits, therefore, that com- That the deed of trust to Fowlkes plainant cannot successfully maintain eluded all the slaves then employad on that the two slaves, Peter and Iverson, the Lost *Prairie plantation, [100 were necessary to discharge his debt ; together with Peter and Iverson, the and not being required for that pur- slaves in controversy. That these two pose, they belong to respondent, he be- slaves were on the Caruse plantation ing the first purchaser of Carrington's in Hempstead county, and were not interest in them. present, when the trustee, Hannah, Respondent insists that the decree made the sale under the deed of trust. obtained by complainant, in the ab- The court dismissed the bill for want sence of all defence, confirming his of equity. purchase under.the trust sale, was in- In the meantime Fowlkes had died, operative and void as to respondent, and the cause had been revived in the he not being a party thereto. That name of Hannah as his administrator, decree being of no binding force as to who appealed to this court. him, he insists that there is nothing in 1. It appears that Robert Carrington its terms to commend it to the court as died in the spring, and not in the latter an original measure of equitable relief. part of the year 1845, as alleged iu the That it should uot be adopted : 1st, bill. The order of the probate court because, by the complainant's own ad- for the sale of his interest in the slaves mission the sale confirmed was void : mortgaged to Easely, was granted ou 2d, It was a monstrous sacrifice of the the 22d of April, and the sale was property, as shown by the value put made on the 23d of May, 1845, at the upon it by complainant when he pur- Caruse place, where the slaves were. chased of Rust the equity of redemp- Both the order and the sale appear to tion, etc.: 3d, The slaves, _Peter and have been regular, and were author-Iverson, were not in the possession, or ized by statute. Dig. ch. 4 sec. 164-5. under the control of the trustee, at the At this sale, Bouldin purchased, aud time of the sale, but were then, and became the owner of "all the right, ever since, in the adverse possession of title and interest" which Carrington another, holding under and for res- had, in and to the slaves embraced in pondent, etc. the mortgage at the time of his death. The cause was heard upon the origi- lb. What was such interest in the nal bill, amendment and exhibits : the slaves Peter and Iverson? He had first
JULY TERM, 1856. HANNAH V. CARRINGTON. mortgaged them to Easely. "The P. & M. Bank of M. v. Willis & Co., 5 equity doctrine is, that the mortgage is Ala. 771. Hawkins v. May, 8 Ala. 673. a mere security for the debt, and only Mms v. Hundley, 2 How. (Miss.) R. 896. a chattel interest : and that until a de-Whatever difference there may be, cree of foreclosure, the mortgagor con-between a mortgage and a deed of trust tinues the real owner of the fee. The in other respects (see Crittend.en v. equity of redemption is considered to Johnson, 11 Ark. R. 94; Pettit et al. v. be the real and beneficial estate, tanta-Johnson et al., 15 Ark R. 60), it is man-mount to the fee at law, and is accord-ifest that they agree in this, that the ingly held to be descendible by inherit-debtor has the right in equity to re_ ance, devisable by will, and alienable deem the property, by paying or ten-by deed, precisely as if it were an abso-dering the amount of the debt, at any lute estate of inheritance at law." 4 time before foreclosure of the former, Eent's Com. 159. Trapnall's adx. v. and sale under the latter. At the time, S?ate Bank, prdsent term., therefore, of Carrington's death, the Afterwards, Carrington made the title to the slaves had not passed ab-deed of trust for the benefit of Fowlkes. solutely out of him, but he had the By this deed, he conveyed the legal right to redeem by discharging the two estate in the slaves to the trustees, ineumbrances upon them ; and his ad-charged with a prior incumbrance in ministratrix, etc., succeeded to this favor of Easely. The legal estate was right, and it existed down to the time vested in the trustees for the purpose that Bouldin purchased the equity of of enabling them to sell the property, redemption. and pass the title to the purchaser, No matter what the interest remain-without the necessity of resorting to ing in Carrington after the execution of equity to foreclose, in the event of the two instruments, may be techni-Carrington's failure to pay the cally called, it is beyond dispute that debt secured by the deed. But whatever interest he had, in law or the conveyance was not absolute. equity, was purchased by Bouldin, at 101*] *By its terms, it was made to the sale made under the order of the secure a debt, and was to be Void on probate court: It follows that Rust the payment, by Carrington, of the purchased no title at all in Peter and debt, by the installments, and at the _Iverson at the sale of Carrington's times, recited in the deed. The pay-equity of redemption in the property ment of the debt by him, at time stip-embraced in the trust deed, this sale ulated, would have defeated the con-being subsequent to the one at which veyance. If he had tendered the mo-Bouldin purchased ; and that Rust ney, and it had been refused, he could could, and did convey no title to have filed a bill, brought the money Fowlkes in these slaves. into court, and enjoined the sale—in 2. Fowlkes' title under the trust sale other words, redeemed the property. will next be considered. Mayo v. Judah, 5 ibunf. 495. Wright v. He having caused a sale of the trust Henderson, 12 Te.xas R.44. Marriott property to be made, under the pro-& Hurdesty et al. v. Givens, 8 Ala. R. visions of the deed, and become the 694. Magee v. Carpenter, 4 Ala. 469. purchaser *thereof, and having, [*102 1. To the same effect, see Kannady v. McCarron, by bill in equity against the adminis-18-166; Burr v. Robinson, 25-277; Gockrill v. Arm-strong, 31-581; Whittington v. Flint, 43-519, and tratrix, and heirs of Carrington, ob-cases cited; Turner v. Watkins, 31-129 and cases tained a decree confirming the sale, cited; Biscoe v. Royston, 18-508; Pope v. Boyd, we must regard it as regular so far as 22-535. they are concerned, who were parties
Qc) HANNAH V. CARRINGTON. VOL. 18 to the bill. But Bouldin and Easely Id. M. Jackson v. Striker, 1 Johnson's were not parties, and their rights were cases 287. Linnendoll v. Doe, 14 not affected in any way by the decree. John. R. 222. Bostick v. Keizer, 4 Nor was any right, which Mrs. Car-J. J. Marshall's Rep. 597. But rington may have acquired under it is said that this restriction is Bouldin, cut off or barred by the decree, intended for the benefit of the owner, because it was not within the scope of *and he may waive the actual [.103 of the bill—not put in issue by it. 1 presence of the property. Gift v. An-Greenleaf's Ev., sec. 528-9.2 derson, 5 Humph. R. 577. If, however, Bouldin urges several objections to the property, at time of the sale, is in the validity of this sale. the possession of a person claiming ta The first objection is, that at the hold it by a title adverse to that of de-time the sale was made, the slaves, fendant in the execution, it has been Peter and Iverson, were not present ; held that the legal title would not pass were not under the control of the to the purchaser, because the right of trustee, but were in the adverse posses-the defendant in the execution to the sion of Bouldin, or his agent. property, is but a chose in action,which In private sales of personal property, is not the subject of execution by the it is not essential to the validity of the common law. Bostick v. Keizer, 4 J. sale that the article sold should be J. Marsh. 597. present, or actually in the possession of In trust sales, like the one under con-the vendor at the time of the transfer. sideration, no doubt but the property For example, if the subject of the sale should be present when sold. It is to be a horse, it may be running in the the interest both of the maker of the range : or, if a slave, he may be in the trust, and the cestui que trust, that it bands of a bailee of the vendor, and should bring a fair price—other credit-yet the legal title will pass to the vendors may also have an interest in the ee by the sale, because in contempla-matter. It seems, however, that a tion of law, the possession follows the stranger to the trust has no right to title. But if at the time of the sale, object that the property was not ac-the property is in the possession of one tually present at the sale. But, as in claiming adversely to the vendor, the other classes of sales, if at the time of legal title does not vest in the vendee, the sale the property is in the hands because the right of the vendor to the of one claiming it by an adverse title, property is a which is the legal title will not vest in the pur-chose in action, not assignable by the common law. chaser so as to enable him to maintain See an action therefor iu his own name, Stedman v. Riddick, 4 Hawks (N., C.) 29. 8 Porter for the reason that the subject of the R. Goodwyn v. Lloyd, 237. sale is but a chose in action, Herbert v. Foster v. Garee, 5 Ala. R. 427. Henrick, 16 Ala R. 599. Gary v. Cog-O'Keefe v. Kellogg, 15 Illinois R. 347. Mc Goon v. lin, 11 Ala. 614-519. Foster v. Garee, A nkeny, 11 Id. 558. Sto g dell 5 Id . 425. Brown v. Lipscomb, 9 Por-v. Fugate, 2 A. K Marsh. 136. It has been held that in ter 472. Bostick v. Keizer. 5 J. J. Marsh. judicial sales of personal property, the property 597. Hundley v. Buckner, 6 Sm. & should be present, and pointed out by 77.2 This principle seems to apply to all the officer to the bidders, otherwise the three of the classes of sales which we sale will not he valid. Cresson v. Stout, have been considering. lc JohnsonR. 116; Sheldon v. Soper, 14 1. Kennedy v, Clayton, 29-270; Rowan v. Be-2. On parties in chancery, bee Porter v. Clem-feld, 31-643 ; the property must be present. But ents, 3-382, uote 1. see : —Morrow v. McGregor, 49-67. -
JULY TERM, 1856. HANNAH V. CARRINGTON. How far, and under what circum- valid objection. Joint trustees are not stances, a court of equity would pro- within the reason of the statute (Di-tect, or enforce the claim of the pur- gest, ch. 92, sec. 6) abolishing survivor-chaser, is another question. ships. It is a well settled rule of the' In this case, the answer of Bouldin law, that if a power coupled with a avers that he held the slaves adversely trust be given to two or more, it at the time of the trust sale. He had .may be executed by one who has sur-purchased Carrington's equity of re- vived the others. Parsons v. Boyd, 20 demption in them, and had, as he in- Ala. 118. Hawkins v. May, 12 Id. 672. sists, become subrogated to the rights Taylor v. Benham, 5 How. U. S. R. 233. of Easely under the mortgage, which Peter v. Beverly, 10 Peter's R. 532. was prior to the trust deed, to the ex- .M. anldin v. Osgood, 14 John R. 527. tent that he had paid the mortgage The third objection to the validity of debt. the sale, that the power of the trustee It is clear that the trustee had no was not coupled with an interest, and right to the possession of the slaves at therefore was revoked by the death of the time of the sale, the senior incum- Carrington, is likewise untenable. Aft-104] brance not *being discharged. er Barrington executed the deed, he He could not have recovered them by could not have revoked it himself while an action at law for the purpose of living, and his death would hardly reselling them. Manifestly, the proper call a power, which had passed beyond course for Fowlkes to have pursued, his control. would have been to cause the trustee A power of sale in a mortgage falls to expose to a fair sale all the property under the classof powers appendant or embraced in the trust, except the two annexed to the estate : and they are slaves included in the mortgage, first, powers coupled with an interest, and and if it was not sufficient to satisfy are irrevocable, and demand part of his debt, then to have filed a bill *the mortgage security, etc. p105 against Bouldin and Easely for the pur- 4 Kent's Com. 148. Iu a deed of trust pose of subjecting Peter and Iverson, the power of sale is coupled with the by compelling them to foreclose their legal estate, and, also, with a trust for mortgage, and resort first to the other the benefit of the cestui que trust.' property embraced therein. Given's ad. There is a fourth objection to Fowlkes' v. Davenport, 8 Texas R. 451. Hall and title, under the trust sale, apparent on wife v. Harris et al., 11 Texas 300. Or, the face of the record before us. The there being doubts about the power of deed of trust seenis to have been re-the surviving trustee to sell any of the corded in Lafayette coun ty, but at what property, Fowlkes might have resorted time does not appear from the record-to equity to close up the entire trust. er's certificate. At the time of the ex-Sullivan v. .Hadley 16 Ark. 129; Wal- ecution of the deed, and from thence ton et al. v. Cody I Wisconsin R. 420. forward until his death, Carrington Wright v. Henderson, 7 How. Miss. R. resided in Hempstead county: and the 569. slaves, Peter and Iverson were on the The second objection to the validity Caruse plantation in the same county. of the trust sale is, that the power of There is no allegation in the bill, or sale was vested by the deed of trust showing of record, that the trust deed jointly in two trustees, and that one of was ever recorded in Hempstead. them being dead, the power did not The statute provides that "all mort-survive to the living one —that he could gages" upon lands shall be recorded in not execute the trust. This is not a the counties where the lands lie: and
HANNAH V. CARRINGTON. VOL. 18 mortgages upon personal property, in strument is the same, whether the the county in which the mortgagor power of sale be vested in the mortgagee, resides: and that every mortgage, or a third person as trustee. whether for real or personal property, The counsel on both sides of this case shall be a lien on the mortgaged prop-agree that the deed of trust is but a erty from the time the same is filed in mortgage with a power of sale, and so the recorder's office for record, and not the courts have generally regarded before, etc. Digest, ch. 110, sec. 1-2. such instruments—though they differ, A mortgage not acknowledged, or in some respects, from mortgages with-proven, and recorded as required by the out such power. See Wright v. Hen-statute, though good between the par-derson, 12 Texas R. 44. Byron v. May ties to it, is not-valid as against subse-2 Chandler R. 103. Walton v. Cody et al. quent purchasers, or incumbrancers, of 1 Wisconsin R. 420. Marriott et al. v. the subject of the mortgage. Main v. Givens, 8 Ala. R. 694. Planter's and Alexander, 9 Ark. 112, note 1 thereof. Merchant's Bank of Mobile v. Willis & Does the term "mortgage," used in Co., 5 Ala. R, 791. ASims v. Hnndley, statute, embrace deeds of trust? 2 How. Miss. B. 896. (Smede's Digest p. Mr. Kent defines a mortgage, thus: 410.) "A mortgage is the conveyance of an If therefore the term "mortgage," as estate, by way of pledge for the security used in the statute, embraces deeds of of debt, and to become void on pay-trust, and we see no good reason why ment of it. The legal ownership is it does not, it follows that Bouldin pur-vested in the creditor: but, in equity, chased the slaves in question dis-the mortgagor remains the actual own-charged of any lien of the trust deed, er, until he is debarred by his own de-and as against Powlkes aquired a per-fault, or by judicial decree." 4 Com. fect title to them.' 136. The definition of Mr. Coote is Sustaining this objection to Powlkee substantially the same. Coote on Mort-title would dispose of the whole case, gages 1. but it may be well to look further into Again, says Mr. Kent: "It is usual to his right to the relief sought by the add to the mortgage a power of sale in bill, on the supposition that the term case of default, which enables the mort-"mortgage" as used in the registry act, gagee to obtain relief in a prompt and was not intented to embrace deeds of 1061 easy manner, without the ex*- trust like the one und-r consideration. pense, trouble, formality and delay of As above shown, he cannot be re-foreclosure by a bill in equity." 4 Com. garded as having purchased the legal 146. title to the slaves Peter and Iverson at The instrunrient under consideration the trust sale. Did he purchase such falls fully within Mr. Kent's def-an equitable title as a court of chancery inition of a mortgage with a pow-should protect and confirm as against er of sale. Upon its face, it pur-Bouldin? There is nothing in the bill ports to be a security for a bebt or exhibits to show that the other to become void on payment: the slaves and lands embraced in the grantor remained in possession: on de-deed were first exposed to sale, and fault of payment, the trustees were to *failed to satisfy the trust debt. F107 sell sufficient property to pay the debt Indeed, it is to be inferred from the only, and any excess of property, or of conveyance from the trustee to the proceeds of the sale, that might re-Fowlkes, that the whole of the prop-main after paying the debt, belonged to erty was put up at once in a body, and the grantor. The character of the in-4. See Bowen v. Fassett, 37-510.
JULY TERM, 1856. HANNAH V. CARRINGTON. bid oft for Fowlkes, at the sum of Fowlkes could have bid the amount of $15,000. This mode of sale was unfair, his debt upon the property, and if no and contrary to the provisions of the one would have given more, he would deed, which manifestly contemplated have obtained it for his debt. But a sale of so much of the property only, *if others would have given L*108 as should be found necessary to dis- more, his debt would have been paid charge the debt : and whether less than -out of the proceeds of the sale. the whole was sufficient for that pur- But he chose rather to give Rust over pose or not, could only be fairly ascer- $8,000 for his title, and then, it is to be tained by offering it in such lots or inferred from the record before us, parcels as would suit the convenience caused the whole of the property to be of bidders, and comport with the exposed to sale by the trustee, in a character of the property to be sold. lump, thereby lessening the chances At best, therefore, upon the record for competing bidders, and purchased before us, we cannot regard Fowlkes it in for about the amount of his debt. as having any claim to the slaves in Under these circumstances, we do question other than that of a cestui que not think that his claim upon a court trust in an incumbrance junior to the of equity for further relief is well mortgage. founded. 3. It rtsay now be enquired what Bouldin being the owner of the equitable right Fowlkes has to claim equity of redemption of the mortgaged that the two slaves in question shall be property, when he pays off the re-suljected, in the hands of Bouldin, to mainder of Easely's debt, whether the a further satisfaction ot his debt ? mortgage will be thereby entirely ex-There is no allegation in the bill, that tinguished, and his title to the prop-the other property purchased by him erty will become perfect and absolute, at the trust sale, was of less value than or whether he will be merely subro-the amount of his debt. The answer gated to the rights of Easely, and hold, of Bouldin avers that it was worth in any sense, or for any purpose, as greatly more than the debt. This is mortgagee, are questions discussed by an affirmative allegation, but not being counsel, but we do not deem it neces-denied by replication, it must be taken sary now to decide them. Upou the as true. Walton v. Cody, 1 Wisconsin case made for Fowlkes; his representa-B. 427. tives are not interested in the deter-Moreover, Bouldin assumes in his mination of these questions. answer, that the value which Fowlkes We have regarded Bouldin as the put upon the property, is to be inferred contesting party in this case, because from the price he paid Rust for the by his contract. with Mrs. Carrington, equity of redemption, purchased by she was not to obtain title to the prop-him at the sale under the order of the erty until Easely's debt was paid, and probate court. That he estimated its she had refunded to Bouldin all sums value at over $8,000 more than his advanced by him in discharging the debt. The counsel for FoWlkes pro- debt: and his answer shows that she is nounce this an "egregious sophism." still in arrear. It was, however, meas-We cannot so regard it. If Fowlkes urably by the proceeds of her industry desired merely to make bis debt, and and labor that Easely's debt was dis-not to speculate upon the property, a charged pro tanto, and we have not fair le g al sale under the trust deed, failed to consider her ultimate equi-would have cut off Rust's title by rela- table rights in the premises, in passing tion back to the date of the deed. upon the claim of Fowlkes to a further
VoL. 18 malefaction of his debt out of the slaves in controversy. The decree of the court below is affirmed. Absent, Hon. T. B. Hanly. Cited:-18-170-520; 20-92-193; 22-142; 25-282-372; 31-440; 32-602; 33-68; 37-416-510; 40-540; 41-192; 49-85.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.