Headnotes
On the 25th of August 1827, a deed of trust was made to four trustees of the second part, for the benefit of certain cestuis que trust of the third part, conveying land, slaves and personal property, and also a growing crop of tobacco and corn, subject to such disposition as the trustees might find it necessary to make of the crop for the payment of any money due from the grantor (who was an attorney at law) to his clients. The deed was only executed by the grantor, and upon his acknowledgment was admitted to record. Two of the trustees expressly declined to act. On the 26th of November 1827, another deed was made by the same grantor to the two other trustees, conveying all the slaves mentioned in the deed of August 1827, as well as some others, and also the crop of tobacco, to secure to a party money advanced by him to pay off executions which had been levied upon the slave property mentioned in the first deed, one of which ■ executions was for a debt due to a client, of greater amount than the value of the tobacco crop. The proceeds of the property conveyed by this deed are applied according to its provisions. It does not appear that the deed’of August 1827 was made on previous consultation with, or received the subsequent ratification of, the creditors or trustees named therein, or that any claim was asserted under it until October 1832; when a bill is filed by a party not named in that deed, and, for aught that appears, not known until then as one embraced by the description of client creditor, asking a decree against the cestui que trust in the deed of November 1827 for the value of the tobacco crop. Held that the plaintiff has no title to the relief sought.—Per Stanard, J. The deed of August 1827, being, when the deed of November 1827 was made, without the sanction of assent or ratification, could not in that predicament be any shield of the property against the levy of executions of creditors, nor any effectual impediment to the bona fide conveyance of the property by the grantor for valuable consideration.
A suit for alimony being brought by a wife against her husband, who has deserted her and left the commonwealth, and a sum of money being obtained for her by her attorney at law by a compromise of that suit, held that on a bill in equity, in the name of the feme by her next friend, against the attorney for the money so obtained by him, a decree may be rendered for the same, although the husband be no party to the suit. 59 r j
. In a suit brought in the name of a feme by her next friend, a decree in her favour being reversed, and the bill ordered to be dismissed as to the appellant, he will recover his costs, both in the appellate court and the court below, as well against the next friend as against the feme.
Case in which a bill against two defendants being dismissed as to one, the costs decreed to be paid to him by the plaintiff, were decreed to be paid to the plaintiff by the other defendant.
Summary
On the 25th of August 1827, a deed was made purporting to be between Daniel A. Wilson of the first part, George Booker, William M. Thornton, William F. Randolph and Samuel C. Anderson of the second part, and John V. Wilcox, William R. Johnson, John W. Nash, John Hughes and Allen Wilson of the third part, whereby, after reciting that the said Daniel A. Wilson was indebted to Wilcox by bond and to Johnson by bond, that Nash, Hughes and Allen Wilson stood bound as sureties for him in another bond, and that Allen Wilson was his endorser on a note, it was witnessed that the said Daniel A. Wilson conveyed unto Booker, Thornton, Randolph and Anderson, the tract of land in Cumberland on which he then resided, and sundry slaves and other personal property. Then came the following clause: “also my growing crop of tobacco and corn, subject to the deduction of the overseer’s part, and subject to such disposition as the said Booker, Thornton, Randolph and Anderson may find it necessary to make of the said crop for the payment of any money due from me to the clients for whom I may have collected money, which money is to be first paid out of my part of said growing crop.” The habendum was to Booker, Thornton, Randolph and Anderson, of the “ land and premises with its appurtenances, rents, profits, growing crops (with the reservations aforesaid) and future crops, together with the aforesaid slaves with the future increase of the females of the same^ and all other personal property hereby conveyed.” And the conveyance was declared to be upon trust that Booker, Thornton, Randolph and Anderson should permit the said Daniel A. Wilson to remain in possession of the property, applying the crops of each year, to the payment of the debts secured or intended to be secured by the deed, “ except so much as may be necessary for the support of the family and support of the plantation and payment of overseer, until the creditors and securities aforesaid, or some one of them, shall require;” and then upon trust that they, or any one or more of them, should advertise the land and premises, crop on hand at the time, slaves with their increase, stock with its increase, and other personal property, and sell the same for cash, and out of the proceeds arising from the sale, first pay the expenses of executing the trust, next pay the debts mentioned in the recital of the deed, in a certain prescribed order, and then pay the balance to the said Daniel A. Wilson. This deed was executed only by Daniel A. Wilson. On the 27th of August 1S27, it was acknowledged by him in the court of Cumberland county, and admitted to record.
In October 1827, sundry executions against Daniel A. Wilson were delivered to the sheriff of Cumberland county; to wit, a fi. fa. in favour of P. T. Southall, a fi. fa. in favour of Thornton f Carrington, a venditioni exponas in favour of Miller f Andrew, and a fi. fa. in favour of Langhorne Sf Scruggs. And there seem to have been others in favour of George Booker and of Cather. The greater part, if not the whole of the slave property mentioned in the deed of August 1827, was levied upon under these executions. William B. Dob-son, the deputy sheriff’of Cumberland, deposed (in the suit herein after mentioned) that he levied the executions, and considered the property subject to them as amply sufficient to pay them all; but the property levied on was not sold, in consequence of an arrangement en-1 . tered into between dr. John Spencer and Daniel A. Wilson, whereby Spencer assumed the payment of them all himself. Several of the executions were returned with endorsements by the creditors, shewing that they were satisfied; and some of the endorsements stated that they were satisfied by Spencer's executing his bonds to the execution creditors.
On the 26th of November 1827, a deed was made between Daniel A. Wilson of the first part, William M. Thornton and Samuel C. Anderson of the second part, and dr. John Spencer of the third part, whereby, after reciting that Wilson was indebted to Spencer in the sum of 4203 dollars 9 cents, due on demand, by bond of that date, Wilson conveyed to Thornton and Anderson sundry slaves (being all those mentioned in the deed of August 1827, as well as some others) “ and also the crop of tobacco which the said Wilson now has on hand, being the crop of the present year,” upon trust that Thornton and Anderson, when required by Spencer, should sell the slaves, or so many as would, with the net proceeds of the crop of tobacco, be sufficient to pay the costs of carrying the deed into effect and to discharge the debt and interest, upon such a credit as would make the proceeds payable on the 25th of December 1828. This deed was executed by Wilson and Spencer, and on the day of its date was acknowledged by Wilson in the court of Cumberland county and admitted to record.
On the 25th of October 1832, Nancy Ford, by James Muse her next friend, commenced a suit in chancery in the circuit court of Cumberland, against the parties to this deed. The bill set forth, that in the year-she employed Daniel A. Wilson, as an attorney at law, to prosecute a suit in her behalf in the county court of Cumberland, against her husband Hezeldah Ford of the state of Alabama, for alimony. That such proceedings were adopted by Wilson, that he obtained for her (by compromise, as she is informed) the sum of 1000 dollars, the whole of which he, as her attorney, received. That, of the 1000 dollars, he accounted to her only for 250 dollars, leaving the balance of 750 dollars still due. That the matter thus remained until some time in the year 1827, when Wilson, finding himself ruinously involved, and desiring to secure to his clients all money he had collected for them as an attorney and had not paid over to them, made the deed of the 25th of August 1827, whereby he conveyed his then growing crop of tobacco and corn, deducting the overseer’s part, in trust for the express and exclusive purpose of paying to clients any money which he had collected for them and had not paid over to them. That the complainant is informed and believes, and therefore charges, that her own debt of 750 dollars was the only one standing in that condition, and not otherwise secured; and consequently the crops aforesaid, with the reservation aforesaid, were in fact and in truth conveyed by the deed aforesaid for her exclusive advantage and benefit. That Booker and Randolph expressly declined to act as trustees in the execution of the deed; and before Thornton and Anderson were required to execute it, Wilson, combining and confederating with Spencer to injure and defraud the complainant and to deprive her of the security aforesaid, made the deed of the 26th of November 1827, whereby he conveyed to the said Thornton and Anderson a large amount of other property, together with the crop of tobacco aforesaid, for the payment of a large debt due Spencer from Wilson. That the crops of corn and tobacco were matured, and the complainant does not know what became of the corn ; but she charges that by arrangement between Wilson and Spencer, without the knowledge of the complainant or of Thornton and Anderson, the crop of tobacco was shipped to Richmond, and the proceeds, amounting to about 600 dollars, were received by Spencer under colour of his deed, and applied by him in satisfaction of his debt, in violation of the complainant’s rights. The bill prayed that Spencer might be compelled to pay over to the complainant the sum of 600 dollars, with interest, in part satisfaction of her debt, and that Wilson might be required to pay her the balance.
The answer of Spencer stated, that in 1827 Wilson applied to him and others hereinafter named, to aid him in procuring from Archer Taylor of Richmond an advancement of money upon the faith of his (Wilson’s) then crop of tobacco, in order to discharge executions, then in the hands of the sheriff of Cumberland, in favour of George Boolcer and Miller Andrew against Wilson. That the respondent and William M. Thornton, Allen Wilson and John W. Wilson, (the persons alluded to above,) consented to aid the said Daniel A. Wilson, and did procure from the said Taylor an advancement of 700 dollars upon the faith of the said crop of tobacco. That afterwards the respondent consented to become liable for the whole of the executions then in the hands of the sheriff of Cumberland against Wilson, upon condition that the money to be received from Taylor should be applied as aforesaid, and that Wilson should give respondent a deed of trust on the property on which the executions had been levied, and include in the deed a debt of 600 dollars due to the respondent from Wilson, and that the property so conveyed should be sold on a credit till the 25th of December 1828. That the respondent did not receive the sum of 700 dollars advanced by Taylor, but the same came to the hands of Thornton, and was by him paid to Boolcer and Miller 8f Andrew, in discharge of their executions.* That the only reason why the crop of tobacco was included in the deed of trust was, that it was alleged to be worth more than the 700 dollars, and it was intended the balance should be appropriated, as directed by the deed, in discharge of the debt therein specified. That Taylor received from the croP tobacco, after deducting expenses, only the sum of 558 dollars 20 cents, which was applied to the credit of the 700 dollars advanced by him. That the debt due to Cather and paid by respondent, amounting to 1339 dollars 5 cents, was money which Wilson in his character of attorney had received for Cather, as respondent has heard and believes; and that the sum of about 60 dollars, part of the debt due to respondent, was also of that character. The respondent further states that the whole of the transactions between Wilson and him were without any notice of the complainant’s claim. He requires from the complainant full proof of her debt, and that it belongs to the class described in the deed of the 25th of August 1827 under the general denomination of clients’ debts. If it shall be found to belong to that class, he states that he has heard, and therefore charges, that Wilson, by agreement with the plaintiff, was to have a third or a fourth of whatever he received. He states that the whole of the property conveyed by the deed of November 1827 has been disposed of, and leaves due and unpaid a large balance of his debt, to wit, 900 dollars or thereabouts; and that the avails of the crop of tobacco were disposed of long before he had any notice of the plaintiff’s claim. He objects to the claim of the complainant, that there is no evidence accompanying the deed of the 25th of August 1827, that she accepted it, and consented to abide by its stipulations. And he insists that the said deed created no lien whatever upon the tobacco in favour of that class of claims described in said deed as clients’ debts.
As to all the defendants except Spencer, the bill was taken for confessed.
Wilson, whose deposition was taken by leave of court, proved that he commenced suit for mrs. Ford, and made a compromise under which he received 1000 dollars, which was subject to an abatement of one fourth for his interest, according to the understanding when he was employed. He stated that he considered the amount thus due from him, to be due to her as a client, and intended to provide for its payment in that clause of the deed of August 1827, in which he mentioned his crop of tobacco as at the disposition of the trustees for the payment of any money due from him to clients. The debt to Gather as surviving partner was, he said, also a debt originally due to Lynch & Gather as clients. He was unable to say what was the number of barrels of corn made from the crop growing on the plantation in August 1S27, nor how much was consumed upon the plantation, nor to whom it was sold.
An order was made directing the defendants Thornton and Anderson to render before a commissioner an account of the funds that might have come to their hands under the deed of November 1827.
The record contained an account in these words: “Dr. John Spencer in account with William M. Thornton and Samuel C. Anderson, trustees for Daniel A. Wilson. 1S2S, Dec’r 25. To cash paid dr. John Spencer, on account of Daniel A. Wilson’s bond secured in the deed of trust dated 26th November 1827, by the sale of the property contained in the said deed, with the exception of the crop of tobacco, $2957.” Accompanying this account was a report of the commissioner, stating that he had been furnished with this item as the amount of money paid Spencer by the trustees in the deed of November 1827, from the proceeds of all the property therein contained, “except the crop of tobacco, which the said Spencer sold, and received the money arising therefrom himself.”
On the 16th of November 1835, the cause was heard. The entry was, that it came on to be heard on the bill, answer of the defendant Spencer, the exhibits filed, and. depositions of witnesses, (not mentioning the report of the commissioner). And the decree was, that Spencer pay to the plaintiff 500 dollars, with interest from the 25th of August 1827 till paid, and her costs of suit.
From this decree, on the petition of Spencer, an appeal was allowed.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
