Alexander v. Ghiselin

Under the act of 1805, ch. 110, and its supplements, the trustee of an insolvent is not restricted in his sales to what he has in actual possession. Property in •’ the hands of a tenant, a bailee, or a trespasser, or mortgagee of more value than the debt, may be sold. The design of the 7th section of that act was to allow full force and effect to an execution levied, as a lien or incumbrance, in connexion with which words, the process is mentioned, but not to determine nor indicate by whom the sale was to be made. ■The act of 1805 and its supplements, require the trustee to take into his possession all the estate and effects to which the insolvent had the right of possession at the time of his application, and to sell and dispose of all his property in possession, reversion or remainder, and pay off the liens and incumbrances * thereon,- and to regard an execution as a lien upon personal property, only in the case where it was actually levied before the insolvent’s petition. In the case of the personal estate, it secures to the execution creditor a priority over all judgments not in the same condition, by making his debt a specific lien oh the property seized in execution. The law has given to the trustee the entire management of the estate, subject to the control of the court by whom he is appointed; charging him with the duty of paying off liens and incumbrances, to which the estate might be subject. An agreement to mortgage personal property alone, to secure a debt due from the ■ one contracting party to the other, to be performed forthwith, is not affected by the statute of frauds; but if it had also related to land, it would have been within its operation. An equitable mortgage may be enforced against others than the contracting party. Although the exception in the act of 1729, ch. 8, sec. 5, is broad enough in terms to defeat a bona fide purchaser, who has paid his money on the faith of a legal transfer or security, to he forthwith executed, if the rights of a creditor should happen to intervene; still it is not always to have that construction, hut has been so considered in equity, as to avoid many of the inconveniences which a literal interpretation of it would inflict. A court of equity may specifically execute a contract for a mortgage or other equitable lien against creditors. The rule that equity regards as done that which was agreed to be done, is part of our law. The instances in which it has been enforced, and against the very terms of the registry acts, are numerous. A written contract to execute a mortgage, clearly expressed, made bona fide, and for full value, raises an equity for the party claiming under such contract, that prevails over the legal rights of creditors. If a contract be as well established, it imposes the same moral and equitable obligation to perform it when verbally made, as if made in writing, and the legal effect of the terms of the agreement will be the same, in the one case, as in the other. Courts of equity have properly required, that every agreement should be clearly and explicitly established, before it will lend its aid to enforce it. G. held a mortgage on real estate, the first incumbrance; she was prevailed on to agree that it should he postponed in favor of individuals, who were expected to loan the mortgagor a further sum of, &c. to pay off and discharge liens on his estate and other debts; on condition that she should receive as additional security, a mortgage on her mortgagor’s negroes. Two persons had promised to loan the amount on receiving mortgages, to which hers should be postponed; and it was expected by all that the required sum would be raised on these terms. The deeds were prepared, as well the mortgages to the persons who were to loan the money, as the mortgage to G. on the negroes. A mortgage to one of the persons who was to loan a part of the money, was also prepared and executed by G. and her mortgagor; but the other who had agreed to loan the balance declined doing so, and the amount W'as not pirocured. Held, that G. had performed the condition on her part, so far as to be entitled to specific execution of the agreement, to give her a mortgage on the negroes to the extent of the sum borrowed. In a court of law, a party claiming under a contract must claim according to its terms. If he venture to speculate on a contingency, over which he has no control, he must abide the issue ; and if the event does not occur, as he has assumed, the contract is at an end. But even at law, if one party be prevented by the other from performing the contract, he can recover from that other, by showing a performance of as much as it was permitted him to perform, and a readiness to perform the residue. The rule in equity is much more broad, and permits a party specifically to enforce a contract, who has performed so much of it as to incur loss, if he is in no default for not performing the residue. Another creditor of the mortgagor, participating in the arrangement by which G’s first lien was to be waived, and her debt further secured by the lien on his negroes, finding that his claim would be postponed for many years, required of the mortgagor, who agreed, that he should likewise have a security on the negroes. Held, that the terms of this agreement were neither vague nor uncertain. An existing creditor demanding specific security for his debt, and obtaining the promise of the debtor to comply, is to be considered in a court of equity, as favorably as a creditor, who at the moment of becoming a creditor, obtains a pledge for a specific security. The existence of a debt at law is a consideration for an express promise, equivalent to the advance of an equal amount for the transfer of property, and ought to be a sufficient basis in equity on which to rest an agreement, fair in all other respects, and will sustain an agreement by a debtor to give a specific lien to a creditor. "When a case is before tbe court on the motion to dissolve an injunction, and on bill and answer, the answers are to be taken as true, so far as they affect the interests of the defendants respectively making them, and so far as they are responsive to the bill; and the statements of the bill are to be received as true, so far as they are not denied. It is proper as a general rule, very rarely, if ever, to be departed from, that an injunction bond should be required, when an application is allowed that delays the recovery or receipt of money, or which lessens or in any respect endangers any existing securities, or renders liable to loss thereby, any money, profits, or property, which the adverse party is by injunction prevented from receiving or enjoying. Where a judgment creditor had sued out execution, and levied it apon the personal property of the defendant, who afterwards applied for relief under the insolvent laws, and a trustee was duly appointed, upon a bill filed by ■ other creditors of the insolvent claiming a specific lien by way of mortgage on such property, and the insolvent’s trustee, for an injunction to arrest the sale of the property by the sheriff. Held, that the complainants were entitled to such injunction, but that a bond should have been filed and approved before it issued. In general, where an injunction issues without bond, the defendants may petition for an order of court, requiring bond to be given by a reasonable period, or on default, to have the injunction dissolved. But when the answers have come in, and they show on their face a case for a perpetual injunction, and the continuance of the writ was not dependent upon a question of law or fact to be established, it would be wholly unnecessary to require a bond.

Appeal from the equity side of Prince George’s County Court. The appeal in this case is from an order passed on consideration of bill and answers, dissolving an injunction, which had been granted on the bill, to stay a sale of negroes, under executions issued out of that court, on judgments recovered against the defendant, Robert Ghiselin, in favor of other defendants. The bill which was filed on the 11th Nov., 1846, states, that a certain Robert Ghiselin, is, and at the date of the transactions hereinafter particularly detailed, was largely indebted unto your orator Thomas, and especially in the sum of $6000 on his promissory note, for that sum, dated on the 24th February, 1844, as by said note, marked A, and filed as part of this bill will appear; which said debt was chiefly for monies advanced by your orator Thomas, to pay judgments against the said Robert. That the said Robert was, and yet is indebted unto your oratrix Margaret, in the sum of $10,000, besides interest, which was secured by a mortgage of said Robert's real estate, now recorded amongst the land records of said county; and a copy whereof, to be marked B, your orators propose hereafter to file as part of this bill. And that the said Robert was, and yet is indebted unto divers other persons, in large sums of money, which are secured by judgments, entered up in Prince George's county court against him. That sometime in the spring of 1845, the said Robert proposed to borrow from certain Thomas Edmonson and John Glenn, the sum of $15,000, with which he proposed to pay off and discharge the liens on his estate, other than his debt due to your oratrix Margaret; and also to retire certain paper, on which your orator was liable, as endorser, and accepted for him. To effect this object, it was necessary that the incumbrance held by your oratrix Margaret, should he postponed in favor of the individuals who were expected to make such advances; and your oratrix Margaret, who is the mother of the said Robert, was therefore prevailed to agree, to waive or postpone her said incumbrance for such purpose, on condition, that she should receive an additional security, by way of mortgage of the said Robert's negroes. And your orator Thomas, who was privy to, and participating in the arrangements aforesaid, finding that payment of any part of his large claim would necessarily be postponed for many years, required, and upon his requisition, the said Robert agreed, that your orator should likewise have a security and indemnity upon said negroes. And your orator Thomas, therefore, at the request of the said Robert, prepared first, the draft of a mortgage, from the said Robert to the said Edmonson, to secure payment of the sum of seven thousand dollars, or thereabouts, in which your oratrix Margaret was to unite as a party, for the purpose of waiving her aforesaid incumbrance, in favor of the said Edmonson. In the next place, a draft of a like mortgage, from the said Robert to the said Glenn, to secure the payment of the sum of eight thousand dollars, or thereabouts, on which a like agreement was to be made by your oratrix Margaret, for postponing her lien in favor of said Glenn. And lastly, by a draft of a bill of sale, by said Robert to your orators, of his stock of negroes, to secure their claims as aforesaid. That the draft first within described, is now in possession of said Robert; that the second is now in the office of the clerk of Prince George’s county, deposited for record, and having been executed, under the circumstances hereinafter detailed; and the last was lately re-delivered by said Robert to your orator, and is marked C, and filed as part of this bill; and your orators pray leave to file a copy of the deed, from said Robert to said Glenn, as a part also of this bill. That at the time of making the aforesaid agreement, and of preparing the drafts aforesaid, they had no notice whatever of the insolvency of the said Robert, nor any reason for believing that he was in fact insolvent, or designed or contemplated an application for the benefit of the insolvent laws; and consequently, there was not, and could not have been any intention on the part of any of the parties, to give an undue and improper preference to your orators. On the contrary, the said Robert assured them, (and they believed said assurances,) that his debts did not exceed the sum of $40,000, whilst his property, if sold at any time, would yield $60,000 at the least; and it was from their confidence in the truth of such statements and assurances, that your oratrix Margaret consented to waive her lien as aforesaid; and your orator Thomas failed to require a more available security. • And your orator's further charge, that at' the time of the agreement aforesaid, the only security held by your orator Thomas, consisted of a claim, or part of a claim, assigned by one Robert Bowie to the said Robert Ghiselin, to reimburse monies, which the said Ghiselin had been, before that time, compelled to pay, as surety for the said Bowie, to •extent of two thousand dollars, or thereabouts; and which monies had been borrowed by the said Ghiselin, from your orator Thomas; and it had been therefore agreed, between the said Ghiselin and your orator Thomas, that the proceeds of said claim, when collected, should be paid over to your said orator Thomas, in payment of so much of his claim against the said Ghiselin; and in confident reliance on the said agreement, your orator Thomas consented, that the judgment which had been recovered against the said Ghiselin as surety for said Bowie, and on which the payment aforesaid was made, should be entered satisfied. And your orators further charge, that the aforesaid drafts, as soon as prepared, were delivered to the said Robert, with the distinctly expressed understanding amongst the parties aforesaid, that whenever, and so soon as your oratrix Margaret should execute the mortgage and agreement aforesaid, the said Robert should and would execute the aforesaid bill of sale; so that they might be, at one and at the same time deposited for record. And your orators further show, that the completion of the agreement and arrangement aforesaid, was delayed from time to time, because of various circumstances connected with the title of the said Robert, until in or about the month of September, 1845, at which time, misfortunes, which had most unexpectedly involved several of his friends, admonished your orator Thomas, of the impropriety of suffering his large claim to remain unsecured; and he therefore addressed himself to the said Robert, urging his right to a sufficient and available security, for payment of his aforesaid claim; and in return, he received from the said Robert a letter marked D, and filed as part of this bill; wherein the said Robert expresses his belief, that he would be able to settle his affairs; and promises, and engages, in case he should be disappointed in this expectation, to secure your orator Thomas amply. At this moment, your said orator had no notice of the insolvency of the said Robert, or of the extent of his liabilities; and being a brother-in-law of said Robert, could not do otherwise than acquiesce in the wish expressed by the said Robert, that your said orator would allow some further time for making a settlement of his affairs. But your orator confidently expected, that so soon as the said Robert should have accomplished his proposed arrangements, or should have discovered his inability to effect them, he would have prepared and sent to your said orator the security he had promised; and in this expectation and confidence, shortly after the receipt of said letter, he permitted the said Robert to receive the money collected on the assignment, made by Robert Bowie as aforesaid, and appropriate the same to the payment of judgments outstanding against him, and to enter up satisfaction of said judgments. And your orator Thomas further avers, that lately, and after the negotiations of the said Robert, for raising money as aforesaid, had entirely failed, he again applied to the said Robert to make unto him the promised security; but the said Robert now alleged, that he was insolvent, and contemplating, as probable, an application for the benefit of the insolvent laws, any security given to your said orator as aforesaid, would be an undue and improper preference; and since that time, the said Robert has applied for the benefit of the insolvent laws, and your said orator has been appointed his trustee, and has bonded as such. But your orator charges, that at the times of the aforesaid oral and written agreements, between the said Robert and your orator Thomas, there was no law to prevent the giving of security, at the solicitation of a creditor; and that your orator, by relinquishing his right, to receive a large sum of money on account, and in faith of the agreement aforesaid, is purchaser of the benefit thereof, for a valuable consideration, and that down to the time of the application of said money, and for months thereafter, he had no notice whatever of the insolvent circumstances of said Robert; and did not imagine it was, or would become necessary for him to seek relief from the insolvent laws. Now, your orator herewith exhibits a statement of his claim for money due him, marked E, and prays the same may be taken as part of this bill. He is unable at this moment, to prepare a schedule of his liabilities, for the said Robert; but will do so in the progress of this suit. And your oratrix Margaret, further charges, that shortly after the agreement aforesaid, first herein before mentioned, and the preparation of the drafts aforesaid, the said Robert presented to your oratrix Margaret, the draft secondly within mentioned, being the draft intended for the benefit of the said Glenn, and desired your oratrix to execute and acknowledge the same, which your oratrix accordingly did, and the same has been placed in the oifice for record, and herewith your oratrix files a copy, marked F, and prays it may be taken as part of this bill. Your oratrix avers, that at the time of executing and acknowledging said deed, she verily believed, and chiefly from the fact, that it was in the hand-writing of your orator Thomas, and one of the very drafts prepared by him as aforesaid, that it was to be made under the agreement aforesaid, and bad no doubt that the said Robert, (who is her eldest child, and to whom she has at all times entrusted the management of her affairs,) would have immediately executed, and placed on the record a bill of sale of his stock of negroes, to your orators as aforesaid, and from her very great confidence in him, has always believed it was so executed until within a very few days last past, when she discovered it had not been done. Your orators have no doubt, that the failure of said Robert to execute said bill of sale, proceeded from his hope, that he would succeed in procuring the balance of the sum required, to relieve him from embarrassment, and his belief, that it would be in time to execute the said bill of sale thereafter; and they are advised, that they cannot be injured by his delay as aforesaid, but that they are purchasers for a valuable consideration, and as such, are now entitled to full indemnity, out of the stock of negroes agreed to be conveyed to them as aforesaid. And your orator Thomas further charges, that before the application of the said Robert for the benefit of the insolvent laws, and before your said orator had any notice whatever, of the execution of the deed from the said Robert and your oratrix Margaret, to the said Glenn, he prepared the draft of a bill in equity, to be laid before your Honors, claiming for himself, as sole complainant, the benefit of the aforesaid agreements, and laid the same before eminent counsel, residing in the city of Baltimore, for advice; and by said counsel, was advised to file the same in this court; but before said application, conversing with a friend who had far better opportunities of knowing the extent of the said Robert’s pecuniary embarrassments, on the subject of said claim, he was assured that your orator Thomas’ loss could not exceed one thousand dollars; and to save such sum, his said friend, and your said orator, both concluded it was not expedient, under the circumstances, to insist on his equities aforesaid. And your said orator was the more readily induced to act on this suggestion, as he believed he would have the opportunity of prosecuting his claim for a priority, on the distribution of the proceeds of sales in insolvency, in case it should turn out that the deficiency in the value of the estate should prove greater than was anticipated. And your orator Thomas admits, on several occasions he had stated, that he would not litigate his aforesaid claim in equity, against the general creditors of the said Robert, many of whom were his personal and intimate friends, in order to save a thousand dollars, or such sum; and he avers, he is yet unwilling to prosecute a claim to any priority over said creditors, for the sake of one, or even two thousand dollars; but that he has been induced to depart from his aforesaid intention, to withhold his claim until the estate was about to be distributed in insolvency, from his conviction, that the loss to the general creditors must be far greater than was originally anticipated ; and that their losses are to be aggravated by the efforts now making by judgment creditors of the said Robert, to force a sale of his negroes, under executions. And furthermore, your said orator now has great reason to apprehend, and verily fears, that the security of your oratrix Margaret is endangered by the execution of the mortgage of the said Robert and Margaret, to the said Glenn, and the failure of the said Glenn to place the said mortgage on record, until within a few weeks, last past; and being the son-in-law of said Margaret, and having been influential in prevailing on her to assent to the arrangements proposed, for relief of said Robert, he has deemed it his duty to make a timely effort to vindicate her claims; and he is advised, that a failure on his part, to claim the benefit of an agreement, made for their common security, whilst he was asserting her right to the benefit thereof, would have an unfavorable influence on a future application, on his part, to enforce the same, for her protection. But now, so may it please your Honors, certain creditors of the said Robert, that is to say, Michael B. Carroll, Thomas Holland, 8fc., John Glenn, John W. Walker, John Edward Bird, and the President, Directors and Company of the Farmers Bank of Maryland, having recovered or purchased up judgments against him, as by short copies thereof, marked G, and filed as part of this bill, appears, have issued their executions, and seized said negroes, or some of them, and are now about to have them sold for their judgments, as aforesaid. Whereas, your orators arc advised, that by force of the appointment and qualification of a trustee, for the benefit of the creditors of said Robert, the said executions were so far superseded as to vest the property and possession of said negroes in the said trustee, to be sold by him; and your orators hereby consent, that said trustee may sell and dispose of said negroes, and that the proceeds of such sales may be disposed of by your Honors in equity, or in insolvency, according to the just rights of all the claimants thereof; or, if this cannot be done, then your orators insist upon their equity, to a specific performance of the aforesaid agreement, and a consequent sale of said negroes, or such part thereof as may be necessary, for satisfaction of their aforesaid claims; or, in the event, that said judgment creditors have, in the estimation of this court, acquired any priority over said orators, then they insist that they ought to be entitled to the benefit of the liens of said judgments, as against all other property of said Robert. To the end therefore, that the defendants hereto, may answer the several matters and things herein before charged; and that your orators may have such relief in the premises as their case may require, and in the mean time, that the said judgment creditors may be enjoined from all further proceedings on their executions aforesaid, against the aforesaid negroes; may it please your Honors to grant unto your orators the writ of injunction against the said Michael B. Carroll, fyc. fyc., John Qlenn, and the President, Directors and Company of the Farmers Bank of Maryland, commanding and strictly enjoining and restraining them, and every of them, from proceeding further with their aforesaid executions, until the further order of this court. And also, the writ of subpoena to the said Robert Ghiselin and Michael B. Carroll, §'c. . Exhibit A, is the original promissory note of Robert Ghiselin to Alexander, dated 24th February, 1844, for $6,000, with interest. Exhibit B, is a copy of the mortgage from Robert Ghiselin to Margaret A. Ghiselin, dated 25th November, 1834, of all the mortgagor’s real estate, to secure the payment of ten thousand dollars, with interest. Exhibit C, referred to in the aforegoing bill:— Whereas, Robert Ghiselin, by his certain indenture of mortgage, dated on the 25th of November, 1834, did convey unto Margaret Ann Ghiselin, of said county, certain real estate in said county, in order to secure to her the payment of the sum of ten thousand dollars, current money, and interest as in said indenture is more fully expressed. And whereas, the said Margaret Ann Ghiselin, at the instance and request of the said Robert Ghiselin, hath agreed to waive her priority of lien on said premises in favor of certain Thomas Edmonson and John Glenn, and to enable him the better to secure the payment of large sums of money now due and owing from him unto them. And whereas, the said Robert Ghiselin is also indebted unto Thomas S. Alexander, in the sum of six thousand dollars, current money, besides interest on the promissory note of said Robert Ghiselin, for said sum, dated on the twenty-fourth day of February, in the year eighteen hundred and forty-four. And the said Thomas S. Alexander is also liable as endorser of promissory notes of the said Ghiselin, discounted at The Farmers Bank of Maryland, for his accommodation. Now, know all men by these presents, that the said Robert Ghiselin, for the purpose of securing, in the first place, unto the said Margaret Ann Ghiselin, the payment of the sum of money so as aforesaid due and owing unto her, and interest thereon. And secondly, unto the said Thomas S. Alexander the payment of the sum of money, so as aforesaid due and owing unto him, and interest thereon. And also, lastly, to indemnify the said Alexander against all, and all manner of liabilities which he may have heretofore assumed, or hereafter may assume, on account of the said Robert Ghiselin, and in consideration of the sum of one dollar, current money, to him in hand paid by the said Margaret Ann Ghiselin and Thomas S. Alexander, at or before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, hath granted, bargained and sold, and by these presents doth grant, bargain and sell unto the said Margaret Ann Ghiselin and Thomas S. Alexander, their executors, administrators and assigns, all and singular the negro slaves of him, the said Robert Ghiselin, and now in their possession, with their and every of their increase, to have and to hold the aforesaid negroes, with their increase unto, and to the use of the said Margaret Ann Ghiselin and Thomas S. Alexander, their executors, administrators and assigns; provided, nevertheless, that if the said Robert Ghiselin, his executors or administrators, shall well and truly pay unto the said Margaret Ann Ghiselin, her executors, administrators or assigns, the aforesaid sum of ten thousand dollars, current money, with interest thereon, according to the tenor and effect of the indenture of mortgage herein before recited, and shall also, whenever he or they shall be thereto hereafter required, well and truly pay unto the said Thomas S. Alexander, his executors, administrators or assigns, the aforesaid sum of six thousand dollars, with interest thereon from the date of said note; and indemnify the said Alexander, his executors and administrators, from all damage on account of his liabilities assumed, or hereafter to be assumed, for and on account of the said Robert Ghiselin, then these presents and every thing herein contained shall be void, and of none effect. In witness whereof the said Robert Ghiselin hath hereto set his hand and seal, this - day of June, in the year eighteen hundred and forty-five. This paper was not executed by R. G. Exhibit D, referred to in the aforegoing bill:— October 3rd, 1845. Dear Sir,—Having intended up, I delayed answering your letter received some days since, as I thought we could talk the subject over, and I could express myself more fully than by letter. The subject has indeed been most harrowing to my feelings, particularly as I find you feel some apprehensions about the safety of my debt to you. I do not anticipate any immediate executions against my property, and do hope yet to force Robert Bowie to do something for me. I shall adopt a plan which I feel confident will do it. You shall certainly be made secure, when I find that I shall fail to make my negotiation; but a bill of sale to you at this time, while this matter is still open, would prove most ruinous to me, otherwise I should not hesitate a moment about it. You should however feel easy about it; for my property at but a moderate price would far exceed my debts. This however we can talk about when I see you. I hope you will not express to any one at present, any apprehension about my failing in my negotiation, otherwise it might, hasten executions, which I have assurances will be delayed until I can do something. Our love to all. Yours truly, Rob’t Ghiselin. To Thomas S. Alexander, Esq., Baltimore. Exhibit E, is the account of' the claim of the complainant, Alexander against R. G. Exhibit F, is the mortgage from Robert Ghiselin to John Glenn, dated 10th June, 1845, of his real estate; to secure the payment to Glenn of $8056,30, with interest. Margaret Ann Ghiselin unites in this mortgage, for the purpose of waiving “her priority of lien on the aforesaid premises, in favor of the said John Glenn.” The injunction was accordingly ordered and issued, and being served on the sheriff, the negroes were delivered over to the complainant, Alexander, as insolvent trustee. The separate answer of Robert Ghiselin to the bill of complaint of Margaret A. Ghiselin and Thomas S. Alexander. This respondent, now, &c., for answer, says: that it is true, he was at, or about the time slated in said bill of complaint, largely indebted to the complainant, Alexander, and to the amount stated by him, a large part of which indebtedness was created by borrowing money, to pay off judgments against the respondent; and he also admits his indebtedness to Margaret A. Ghiselin, the other complainant; and he also admits his indebtedness to various other persons, by judgments, as stated in said bill. Further answering, he admits, that in the spring of 1845, he proposed to borrow of Thomas Edmonson and John Glenn, the sum of fifteen thousand dollars, to pay ofF all the judgments against him, and the mortgage held by Farmers Bank of Maryland, of which he did procure from said John Glenn, upwards of eight thousand dollars; and this respondent admits, that he proposed to said Margaret A. Ghiselin, that if she would agree to postpone her lien upon his lands, so as to enable him to raise said money, he would give her as additional security for her debt, a lien on said negroes; and he further admits, that the said Alexander proposed, and this respondent agreed, to give him also a lien on his negroes, as security for his debt, after such fifteen thousand dollars should be raised and received as aforesaid; but he denies that he ever agreed to give such mortgage to the prejudice of the then existing judgment creditors, because it was understood by complainants, as well as respondent, that these were to be first provided for, from said sums of money; and he admits, that the various papers, as stated by said complainants, were prepared by said Alexander, at the request of said respondent, and sent to said respondent for execution; two of them only were executed, that is, the mortgage to Glenn, and the mortgage to Edmonson, the mortgage to Glenn only having been delivered, the other was cancelled, the said Edmonson not having advanced the amount which the respondent expected td receive from him. And this respondent admits, that said papers, except the mortgage to Glenn, always remained in his possession, until written for last fall, by said Alexander, when the paper prepared as a mortgage to himself, and which was not executed by said respondent, was returned to him by said respondent. And he freely admits, that when these transactions occurred, he had no intention, or expectation of being or becoming an insolvent debtor, but really believed himself able to pay all his debts. He further admits, that said Alexander held as his only security for his debt, a claim on. Robert Bowie, as stated in said bill, the proceeds of which claim were afterwards appropriated by the respondent, as stated in said bill; and he further states, that he does not recollect, that there was any understanding, that said papers should all be executed at the same time; although he does remember, that no mortgage was to be made to his mother, or said Alexander, until the mortgage to Glenn and Edmonson were first made, in order to pay off the said judgments. This respondent further answering, admits, that having received from said Alexander a letter, dated September, 1845, which has been mislaid, he wrote the reply thereto, filed in the said bill. He admits the final application for security; as alleged in said bill, and his refusal to make the same; and he also admits his application for the benefit of the insolvent laws, and the appointment of said Alexander as his trustee; and he admits the levy of execution, as stated in said bill. The joint and several answers of Henry J. Harrison, John W. Walker, and others, stated, that they are judgment creditors of the defendant, the said Robert Ghiselin, for the several and respective amounts, shewn and indicated by short copies of said judgments, filed with the said complainants’ bill, marked exhibit G; that some of their said judgments were recovered in eighteen hundred and forty-three and four, as appears from said exhibit; no part of which has been paid them by the said Robert Ghiselin, but the whole amount thereof is still due and unpaid, that they issued executions on said judgments, respectively, returnable to the April term of Prince George’s county court, eighteen hundred and forty-six; but they were not levied upon the property of the said Robert; that executions of fieri facias were renewed thereon, and were issued from said court on the 28th July, 1846. And all of them were levied upon the negroes and personal property of the said Robert, as stated by the complainants, on the 29th July, 1846, long before the application of the said Robert Ghiselin for the benefit of the insolvent law of the State, which application was not made until the day of October last past. These respondents admit, that the said Robert Ghiselin has petitioned for relief under the insolvent laws of the State, as stated by the complainants; and that the said Thomas S. Alexander has been appointed his trustee, and bonded as such; and received a conveyance of said insolvent’s properly as trustee; but these respondents are advised and insist, that his application for the benefit of the insolvent law, and the appointment and qualification of the said Alexander, as his trustee, does not supersede or suspend the executions of these respondents, which were issued and levied antecedently to the said application ; or in any manner interfere with or impair their right to proceed at law with their executions, and to reap the fruits thereof, by a sheriif’s sale of the negroes and property seized and levied upon as aforesaid. These respondents further answering, say, that they know nothing of the indebtedness of the said Robert Ghiselin, to the said complainants, or either of them; that they are ignorant of any arrangements or agreements, as stated in the complainants’ bill, between the said Robert Ghiselin and the complainants, or either of them, in regard to the securing their said mentioned debts, by conveyance in the nature of a bill of sale or mortgage, or in any other way; and they are advised and insist, that even if there were made between the said parties, any such agreements, promises and arrangements, they were secret and private contracts, assurances and agreements, that ought not to receive countenance in a court of equity, against bona fide creditors; and especially against creditors of the grade of these respondents, whose executions are actually levied before the filing of the complainants’ bill. These respondents further answering, say, that the collection of their said claims on judgment, and the management thereof, was committed to their respective attorneys; and they are informed by them and believe, and they therefore aver, that after said judgments became ripe for execution, they would have ordered executions thereon, with a view to enforce the collection of their debts, but for the repeated assurances of the said Robert, that the said John Glenn and Thomas S. Alexander were making arrangements in Baltimore for a loan for him, for about fifteen thousand dollars, with which their said judgments were to be first paid and satisfied; and in consequence of these assurances, and at the repeated requests of the said Robert, they forbore to press the recovery of their said debts. And your defendants state, that it was known to the said Thomas and Margaret, that the defendants were indulging the said Robert, under the belief and expectation that the said loan would be made, and their said debts paid thereby ; and these defendants aver, that this expectation alone prevented them from causing executions to be issued on their said judgments, and levied long before the time they were issued and levied, as aforesaid. And they also state, that their said counsel did not know that said negotiation had failed, until the month of July or August, 1846 ; but during all this time their said counsel believed, that the said negotiation would succeed, and the said debts be paid, as they had been so often assured. These respondents further answering, are advised and insist, that all of said agreements, contracts, arrangements and promises, mentioned in the said bill, as having been made and entered into between the said complainants, and the said Robert Ghiselin, about the securing of the debts of the said complainants, by conveyances, as mentioned therein, and all the other promises between the said parties stated in the said bill, if such were ever made and entered into, (and about all of which these respondents are totally ignorant,) are void and inoperative in law, the same not being in writing, under the statute of frauds and perjuries, which is pleaded to the same by these respondents, and relied upon to defend the same, and by way of defence. And these respondents jointly and severally plead, by way of defence to said promises, agreements and contracts, the statute of 29th Charles 2, chapter 3, commonly called the statute of frauds, and insist that the said promises and agreements are all void, under the said statute. These respondents further answering, state, that the said promises and agreements, if ever made to the said complainants by the said Robert, from the very terms of them, as appears from the complainants’ exhibit of a letter from the said Robert, and from the averments of the said bill, were entirely conditional and were not to have been carried into effect, unless the said Robert succeeded in raising a sum of money by a loan sufficient to relieve him from his embarrassments, and especially from these respondents’ judgments, and which he failed to do; the promises were therefore dependent upon a contingency which did not occur, and cannot be enforced even against the said Robert. These respondents further answering, insist that the complainants should have given an injunction bond, and they insist the injunction should not have been granted, without bond, in pursuance of the law, and as in duty bound they will ever pray, &c. The answer of John Glenn admitted, that the exhibit A, of complainants, is the promissory note of his co-defendant, Robert Ghiselin. He knows nothing of the other particulars of the claim of the complainant Alexander, against the said Robert, but refers to, and is willing to adopt the answer of the said Robert, so far as it relates to the origin, amount and condition of said claim. This defendant also admits, that the said Robert was and is indebted unto the complainant Margaret, in the sum of ten thousand dollars, with interest; the payment whereof is secured by mortgage, as is more fully stated in said bill. He also admits, that the said Robert was indebted unto the Farmers Bank of Maryland, in the sum of four thousand dollars, and interest on a mortgage, which conStituted the first incumbrance on his lands; and also to divers other persons, on judgments recovered against him, and being so indebted, the said Robert, in the spring of the year eighteen hundred and forty-five, applied to this defendant, to procure for him a loan of fifteen thousand dollars, to be applied to the discharge of all the incumbrances on his lands, other than the mortgage of the complainant Margaret, his mother. That this defendant examined into the state of affairs of the said Robert, because convinced that fifteen thousand dollars was sufficient to relieve the said Robert, as aforesaid. And therefore agreed to advance the sum of eight thousand dollars, and entered into a treaty with one Thomas Edmonson, for an advance by him of the remaining seven thousand dollars. But the said Edmonson, and this defendant, required as a condition, on which their advances were to be made, as aforesaid, that the complainant Margaret should agree to waive or postpone the lien of her incumbrance in their favor; and it became necessary to call in the assistance of the complainant Alexander, her son-in-law, to explain the circumstance to her, with its probable consequences. And through his intervention, it was agreed, as this defendant heard at the time, both from the said Alexander. and the said Robert, that the said Margaret should waive the lien of her mortgage to the above mentioned extent, and in consideration thereof, should receive an additional security, by mortgage of the negroes of the said Robert. This defendant cannot undertake to answer, whether he had or not any notice of any proposed security to be given to the said Alexander. But it was understood at the time, by all parties, that the requisite instruments of writing, were to be prepared by the said Alexander; and confiding in the information given him at the time, and since, by the said Robert, he has no doubt, and admits, that the instruments described in the bill, as intended for the security of this defendant, of the said Edmonson, and of the complainants, were prepared, as is stated in the bill, he refers to the answer of Robert Ghiselin, which he makes part of this, whether the said Alexander was, by agreement as aforesaid, to receive the security, which the last described instrument professes to give him. And this defendant admits, that it was understood and expected by him, and he supposed by all the parties, that the aforesaid mortgages would have been executed and delivered as soon as they were prepared; and that when the said Margaret parted from her lien on the real estate, she was at once to have received the additional security, proposed to be given by mortgage, of the said Robertas negroes. And this defendant, in fact, did shortly thereafter receive the mortgage to himself, as is slated in said bill; and did thereupon advance the sum of money therein mentioned, which was applied in payment of judgments and other claims. That the said Edmonson declined to advance the money promised by him, because of an outstanding judgment, recovered against the said Robert, as surety of one Robert Bowie, and after many delays the negotiation with him was broken off. This defendant further admits, that the complainants’ exhibit D, is in the hand-writing of the said Robert, and was written by him at the time, and under the circumstances mentioned in said bill. This defendant has been informed by the said Robert, and therefore admits, that at the time of the original agreement, the said Alexander held an assignment made by one Robert Bowie, to the said Robert Ghiselin; and that in reliance on the security, to be acquired under the proposed arrangement, he permitted the said Ghiselin to receive and apply the money arising on said assignment, to the payment of judgments against him. This defendant admits, that throughout the year 1845, and until the summer of the year 1846, the said Robert was believed to be solvent, and able to pay his debts. He further says, that at the last mentioned date, he had reason to suspect the insolvency of the said Robert, and therefore caused writs of fieri facias issued on judgments held by him, as stated in the bill, and that the same were laid on the negro slaves of the said Robert; and this defendant is advised and insists, that by reason of the levy aforesaid, he has acquired a lien on said negroes, which is to be preferred to the claims of the complainants in said bill; and he further relies and insists on the defences afforded by the statute of frauds, as a complete bar to the relief prayed by said bill, and prays that the injunction heretofore granted on said bill, may be dissolved, and he may be dismissed with costs, &c. The cause was then submitted on a motion made by defendants, for a dissolution of the injunction, and by an order, dated 23rd April, 1847, the court (Key, A. J.) dissolved the injunction. The complainants appealed from this order of dissolution.