Russell v. Geyer 4 Mo. 384

Russell v. Geyer and others.

1. A judgment by confession before a elk. of the cir. court, is legal and the statute which authorises Such judg-ts. is constitutional.

2. The circuit ct. cannot make such judgments, its judgments, and thereby alter the time when their lien would commence.'

3. . Where an attorney directs an execution to issue, contrary to the instructions of his client, and the sheriff sells property under the execution, it is sot necessary, in order to affect the purchaser at the sheriff’s sale, to prove him informed of the fraud of the atty.

4. The atty. for pltfs. in execution, purchases the property at sheriff’s sale, professing at the time to act as agent for Iris clients, and with a vidw to the payment of their Cxees. — lie holds the property for 6 or 3 months, to give the def. in execution time to pay off the execu’s. and with a promise in that event, to reeonvey to def. — finally the def. failing to make any tender, he sells the property at public auction, to satisfy the demands of his clients.-

Hold, that there being no evidence of fraud, on the part of the atty. aiising from gross inadequacy of price or otherwise, cither at the sheriff’s sale or the sale at auction, he is not to be considered as a trustee for the benefit of the dof’s. creditors, and the purchasor takes a good legal "and equitable title.

5. Atty, for plaintiffs in execution, purchased at sheriff’s sale, and after some months sold to A. in order to raise the money due his clients. A. gave his bond to def. in execution, to convey the property to him, in consideration of certain sums paid down and other sums to be paid at specified times, conditioned to be void in case of a failure to pay at the time; — def. failing to raise the money? applied to B. who advanced it for him, and took a conveyance to himself, and gave a similar bond to def. — Again tailing to raise the necessary sums, to entitle himself to a conveyance, the def. applied to G. and at his request, B. conveys to C. who gives def. a written promise, that on the payment of a specified sum on a day fixed, he would convey to him. —Held, after the lapseof the time fixed on, the def has no claim in equity for a specific performance of the contract, and consequently, his creditors have none.

statementof the-

On the 13th July 1827, Russell filed his bill against the four first defendants; and at the next November term the circuit court, he filed an amended bill, making Lindell *385a party; before hearing, the bill was dismissed as to Collier —after hearing, the bill of the complainant was dismissed, and to reverse the decree of the circuit court, the com-comes into this court.

The bill charges that Geyer being seized in fee of two 0f ground, situated in the city of St. Louis, and being indebted to one Rufus Easton, in the sum of two thousand, six hundred and sixty-one dollars and ninety-nine cents, upon three several promissory notes; made to said Easton a mortgage deed for the said lots of ground, on the 27th day of September, A. D. 1821, to secure to said Easton the payment of the principal sum of money due on said notes, as well as the interest; and that on the 4th day of January 1825, Easton in consideration of the sum of eleven hundred and ten dollars, transferred to the complainant all his interest in said mortgage and notes. On the 10th June 1822, the said lots were sold to said Wash at sheriff’s sale, for the sum of one hundred and ten dollars and fifty cents. At the time the lot was sold to Wash there were executions in the hands of the sheriff issued on seven judgments, each of which had been levied on the property sold: 1st, Bryan and Bryan v. Henry S. Geyer, confessed in vacation before the clerk, on the 3rd January 1821, for $755, 78; and on 13th March 1822, ordered by the court to be entered as a judgment of the court of the April term 1821. 2nd, Dent v. Geyer, confessed in vacation, 3rd January 1821, for $420, ordered by the court on 13th March 1822, to be entered as a judgment of the court,' of the April term of the year 1821. 3rd, Turner v. Geyer, confessed in vacation, 6th March 1821, for $1266, 94, ordered by the court, on the 18th October 1821, tobe entered as a judgment of the term of April, for the year 1821. 4th, Carr v. Geyer, rendered 4th Sept. 1821, for $176, 37. 5th, Chenier v. Geyer, 18th Sept. 1821, for $477, 65. 6th, Jamison v. Geyer, rendered 16th October 1821, for $116, 25. 7th, Foster v. Geyer, rendered 6th Feb. 1822, for $171, 674.

Geyer’s mortgage deed to Easton, executed as above stated, on 27th September 1821, was recorded on 14th November 1821. The bill charges, that at the time of the sale of the lots by tire sheriff to Wash, they were worth nine thousand dollars. On the 31st March 1823, Wash for the consideration of $1500, sold to Ferguson, one of the defendants, the same lots. The bill further charges, that Wash purchasing the said property, acted as the agent of the said Ferguson, who owned or pretended to own said judgment and execution of said Turner *386Qgatnst said Geyer; and also as agent or trustee oí said Geyer; and that as agent or trustee of said Geyer and Ferguson, Wash conveyed the said property to said Ferguson; and that it was agreed between said Geyer and Ferguson, before the sale took place, that said Wash should purchase said property for their benefit, and that when Wash purchased the said property and when he conveyed it to Ferguson, it was agreed between Geyer and Ferguson, that if Geyer should pay to Ferguson the sum of fifteen hundred dollars within a certain time thereafter, the property should belong absolutely ro Geyer.

On the 31st day of March 1823, being the same day that Wash conveyed the property to Ferguson; he (Ferguson) made to Geyer a deed of defeasance, stating that whereas Ferguson had that day, sold and agreed to convey to said Geyer, the property above mentioned; in consideration whereof, Geyer had paid to him the sum of nine hundred dollars; and had agreed to pay him the further sum of three thousand, six hundred dollars at several times as mentioned in his deed; therefore Ferguson did agree with Geyer, that so soon as the said sum of money should be paid as was mentioned in the deed, he, Ferguson, would convey the said property to Geyer. The bill charges, that the sale of the property under execution, was fraudulently contrived by Wash and Geyer, to prevent the creditors of Geyer from collecting what he owed them. That Carr having received from another source, a part of what Geyer owed him, ordered his execution to be returned; and that Chenier denied he had given any authority, to issue his execution. On 28th November 1826, Russell obtained against Geyer a judgment in the circuit court for the amount due on the notes made by him to Easton, and assigned by Easton to Russell, as above mentioned. The bill also alleges, that Geyer is greatly embarrassed and has no visible property on which the money due the complainant can be made, except the property above mentioned. That Wash on 20th April 1825, conveyed said property to one George Collier, in furtherance of the intention originally manifested by Ferguson to protect the said property from Geyer’s cred- . itors, for the sum of four thousand five hundred dollars; and that Collier as the complainant, was informed and believed, made to Geyer a deed, by which he agreed, in consideration that Geyer would pay to him, at certain times therein mentioned, the said sum of four thousand, five hundred dollars; and for other considerations, that he, Collier, would convey the said property to some per*387son for the benefit of the .wife of Geyer; that the deed from Wash to Collier, was made with the assent and pri-vity of Geyex', in order to embarrass the title to the property, and prevent the creditors of Geyer from ascertaining the true situation of the title.

Wash, in his answer, states that he was attorney the Bryans and for Dent, and obtained for them the judgments as stated in the bill, — admits that he purchased the property sold on execution, for the sum of money in the bill mentioned; that he purchased it as agent for his said clients, and not as agent for Ferguson or for any other person than his said-clients — admits that on the day of sale, he did say that unless persons interested in preventing a sacriffice of the property would satisfy the executions of which he had the control, as attorney as aforesaid, the law must take its course, he having no discretionary powers. That he frequently remarked to' the persons standing around at, the time of sale, and making enquiries about the property, that he had no wish or intention to purchase the property, but that he meant to bid for it, and buy it for his clients, or make it bring money enough to pay what was due to them; and that in the event of his being compelled to buy it he would gladly receive the amount of his clients’ judgments in some short time, say fifty or sixty days, and would thereupon reconvey to Geyer, or any other person he might name, in trust for the benefit of the other creditors. No agreement however, was entered into either with Geyer or any other person; and he does not recollect ever having conversed or communicated with Ferguson, upon the subject before the sheriff’s sale. He states, that instead of waiting fifty or sixty days, as ho had promised, he waited six or eight months on Geyer for the amount of Bryans’ and Dent’s judgment to be paid to him, and being informed by Geyer, that he had made repeated efforts to raise the money, without success, the respondent determined to sell it, in order to raise the sums to be remitted to his clients and accordingly did sell, after haying advertised it for fifteen or twenty days; that it was sold at the auction room of Wm. Ii. Savage, in St. Louis, and that Ferguson became the purchaser, for the sum of fifteen hundred dollars; that the sale to Ferguson was absolute, but that afterwards, finding that Ferguson was not very well pleased with his purchase, he became interested in the purchase of one half thereof. ' After Wash had been admitted to an interest in the purchase, Ferguson informed him that Geyer had made proposals to purchase the *388property from him, upon such terms as are set forth in the deed made by Ferguson to Geyer, which is made an exhibit in this bill. Wash conveyed to Ferguson — Geyer being unable to redeem the land according to contract, with the assent of Wash and Ferguson, etFected a sale of the property to George Collier, who'paid to Wash and Ferguson, what was due them from Geyer, and Wash then made a deed to Collier for the said property, at the instance and request of Geyer. At the time the respondent made the deed to Collier, it was his belief that the legal title yet remained in him. When the deed from the respondent to Ferguson was executed, the contract with Geyer for the repurchase of his property had just been .concluded, and it was the understanding of the respondent, that the said deed was not to be put on record until it should be seen whether the contract with Geyer would be complied with. He denies all collusion with Geyer and Ferguson or with either' of them, to defraud the creditors of Geyer. He denies all knowledge of the complainant’s mortgage at the time of the sheriff’s sale. The respondent knows nothing of the authority on which the executions of Carr and Chenier .were issued; he denies any agreement with Ferguson and Geyer or with either of- them, respecting the repurchase of this land, other than that above mentioned, to wit: fifty or sixty days for the money to be paid him for his clients;1 he knows of no interest that Smith and Ferguson had in Turner’s judgment; he had heard they held it, but how it was. acquired, he knows not; — he does not know whether Ferguson had the control of any of the other judgments, and denies that he ever asserted, or that any other person within his knowledge did represent that the property was to be purchased for the benefit of Geyer’s creditors by the respondent, or that the same was encumbered, and that incumbrancers only coul d safely buy, or that he made any other representation^ of a character calculated to injure the sale of the said property.

The answer of Geyer, admits his indebtedness to Eas-ton, and themorgtgage as stated -in the bill; the assignment of khe mortgage &c. to the complainant by Easton —the judgment subsequently obtained by the complain-' ant &c. — the sale by the sheriff — the purchase by Wash, and.sale’by Wash to Ferguson, aré all admitted: he denies any knowledge that Wash was agent in the purchase for Ferguson, but believed that he acted solely as. agent for his clients, William P. Bryafi and Timothy M. Bryan and Frederick Dent, judgment creditors of the respon*389dent; but. he positively denies that Wash in the purchase or saR of the lots of land, acted either as agent or trustee for him. lie admits the contract with Ferguson as set out in the deed from Ferguson to him and exhibited in the bill, but denies any other contract, agreement or uncjersj;an¿ing? between himself and Ferguson; and denies that this agreement was made to deceive or defraud his creditors in any manner. He denies that the judgment of Turner against him had been previously paid; on the contrary, the whole amount thereof was previously to this contract unpaid, and it had been assigned to John Smith and said Ferguson, then doing business under the firm of Smith and Ferguson, and the amount of said sum was included in the sum exacted by said Ferguson in the agreement between him and the respondent, and the whole amount thereof, was charged by said Smith to Ferguson, in the settlement of their co-partnership account, as the respondent is informed and believes. He admits Carr’s judgment was satisfied, but does not know whether Chenier’s execution was authorised by him, but says that Chenier’s attorney, who had control of the execution, was present at the sale, and pressing it in order to have Chenier’s judgment satisfied. He admits the sale to Collier by Wash, at his instance, as stated by Wash; and states Collier’s agreement to reconvey to him on the repayment of the purchase money, at times in Collier’s bond specified, but denies any contract with Collier calculated to hinder or defraud his creditors. He denies that he has any knowledge of the extent of Collier’s information of the situation of the title to the property sold, but says that he had heard Wash state to Collier, that the deed from him to Ferguson had not been recorded and would be delivered up to be recorded; that he at the time did not know that the deed was recorded. He denies having said any thing about liens at the Sheriff’s sale or that he knows of any thing said by others. He does not know whether Ferguson had the control of any of the judgments other than that of Turner nor what consideration he paid for it.

Collier came in and answered and the bill was dismissed as to him.

The complainant with leave amended bis bill making Lindell a defendant and charging him with receiving a conveyance from Collier, Wash or Geyer and with a knowledge of the complainants previous claim and requiring him to answer, stating on what terms he purchased, on what securities he relied for the reimbursement *390of his money, if the title should prove bad, what understanding between him and Geyer &c. and if he had not made complainant an oiler of compromise.

Lindell answering says, that he had heard that Geyer executed a mortgage &c., as in the original bill set out G and that it was assigned to the complainant, that said mortgaged pi-operty was sold as stated in the bill and that Wash became the purchaser and conveyed to Furgerson, and that said Wash afterwards also conveyed the same property to Collier, and that said Collier has"conveyed the same lot and premises (to respondent) that he is ignorant of the particulars and circumstances of the said several sales except that made to himself, and does not know of his own knowledge what were the considerations or • reasons of the said several transfers and sales, but has heard and believes, that said sales were all honestly and fairly made for the considerations expressed in the deeds and denies all knowledge of any contract other than 'those expressed in the deeds referred to in the bill. He admits that Geyer did assign to him the writing called in the bill a defeasance executed by Ferguson to Geyer for the purchase of said lot. That in making his contract for said lot he negociated principally but not entirely with Geyer,'and paid said Collier for said lot thirty eight hundred dollars, that he gave permission to Geyer to reside on the lot till the first day of May in the year 1828 as his tenant and at a lent to be paid by Geyer, and that he also gave Geyer a promise in writing that if he should on or before the said day last mentioned pay the respondent the sum of thirty eight hundred dollars and the amount of rent then due, the respondent would then reconvey the said lot to him, and denies any other agreement with Geyer, and denies ever having made to complainant an offer of either directly or indirectly.

Ferguson in his answer states, that he was a partner of J. Smith under the firm of Smith & Ferguson; that he left St. Louis in the beginning of the month of December, 1821, at which time neither the firm nor he himself, had any connexion with Geyer, except that Geyer might have been a common customer, sometimes a little in debt to them, and again not so at all. Of Geyer’s circumstances he knew nothing, except that it was commonly supposed he was embarrassed. He remained absent from St. Louis till October 1822, when he returned and found that his partner Smith, had during his absence, as he believed, in order to relieve Geyer and his family from the pressure of an execution, on the judgment of said Turner *391in the bill mentioned, and under which Geyer’s goods had-been seized and advertised to be sold, purchased and taken an assignment of said Turner’s judgment; he is unable to say whether Geyer was indebted to the firm on any _ other account; but knowing that Wash, in order to se-cure ^he ciaims of certain persons, had purchased the real estafe in the bill mentioned at sheriff’s sale, and believing that Geyer had no means of discharging his said debt to Smith and Ferguson, he may have had and probably had frequent conversations with said Wash, and with said Geyer, respecting the practicability of adopting some course by which the claims represented by said Wash, and that of Smith and Ferguson, might be satisfied out of said property, and said Geyer at the same time, be enabled to satisfy, in whole or in part, the claims of his other creditors. He has examined Wash’s answer and asks that it may be taken as a part of his own; and believes that the facts therein stated, are true and correct, with one immaterial exception, to be by him hereafter stated. He did as in the bill is stated and also, by Wash, purchase the real estate at public sale from Wash, for the sum of fifteen hundred dollars, but expressly denies that he did so with any design to defraud Geyer’s 'creditors, or for Geyer’s benefit, or for any other purpose than to secure the debts due as aforesaid, from said Geyer to Smith and Ferguson, assignees of Turner’s judgment, and whatever else, if any thing he might have owed them; and denies that he had any interest in any other judgment against Geyer, unless it may have been in favor of Smith and Ferguson, and denies that until his return to St. Louis in October 1822, he had any knowledge of the mortgage to Easton, or of the assignment thereof to the complainant, or of the existence of any of the -said judgments-against Geyer, but is unable to say how soon after his return, he acquricd the knowledge of these matters.

The exception to the correctness of Wash’s answer, is-that he believes, that the deed from Wash to him was immediately after its execution, handed by him in the presence or with the knowledge of Wash, to be recorded, although he doubts not that the circumstance may have escaped the recollection of said Wash; and that on the 11th day of July 1828, he and his wife, executed and acknowledged a deed to Collier for the property. He denies all. unlawful combination &c.

Much evidence is preserved in the bill of exceptions. Alexander McAlister, a witness, deposes, that as administrator, he had a demand against Geyer, and would have *392advanced the money, due to the clients of Wash, and accordingly spoke to Wash, perhaps the day after the sale, and desired to know of him, “what the- agreement was, between the creditors of Geyer and himself, in relation to the payment of certain judgments against Geyer, un~ der his control? observing to him that he had understood that an agreement did exist for the benefit of junior creditors; and that Wash, so far as he could recollect, gave him no satisfaction.” Same witness, also stated that he then applied to Ferguson, offering to pay him the amount he had paid Wash, and his own claim, and that Ferguson answered that he was about to make a sale of the property to Geyer and if Geyer did not make the purchase he would let the witness have it.

Several witnesses testff 'A to the value of the lot and buildings thereon; some mui- m;.; it seven or eight thousand dollars, all agreeing that the price of property was then very low in St. Louis and that great sacrifices were made at sheriffs sales. One witness thought that it would not then sell at sheriff’s sale, for more than $¡2,500; and another, that it might perhaps have sold for $3000 or for ‡3,-500 — this witness who about that time, was, as he states, deputy sheriff, and made most of the sales, stated that when the executions under which property was sold, amounted to the value, or nearly to the value of the property; ’ t was frequently sold for very inconsiderable sums, 1 •"avise', as he believed, the persons present expected the f tea! iffs in the executions, would bid the full amount of then' executions. The same witness stated that the property in question at the time his deposition was /taken, was worth $7000, but does not think that any f cash sale could have been madé in the summer of the year i 822, for more than $3,500 or at most, $4000.

The bill being dismissed as to Collier, his deposition was taken and his statements contained in it, correspond with his answer.

John Smith testifies, that he became security for Geyer, to borrow money to prevent his house and lot from being - sold under Turner’s judgment; Turner was paid and he thinks the judgment was assigned to him individually, and paid by him out of Ms own individual funds. Some time after, he and Ferguson were about dissolving their partnership, it became then necessary that the amount against Geyer should be paid, and he thinks he informed both Geyer and Ferguson so. The property was sold, the witness being at Philadelphia; he says Ferauson was his agent in his absence; he presumes he gave him leave *393t0 issue execution on Turner’s judgment. On his return home, he entered satisfaction on that judgment against Geyer, at Ferguson’s request; and the books of the firm show that Ferguson was charged with $1064, 33, being the amount of the judgment and interest against Geyer ^ tQ ¿ate 0f the transfer.

Chenier testifies that he did not order out execution on his judgment; and Carr states, that he having received a part of the judgment in his favor, ordered the execution to be returned. .

No evidence was given to prove that either of the defendants connived at issuing any execution, over which he had no lawful control, or used any improper conduct, to prevent the property from selling at the best price; nor to prove that Wash and Ferguson were jointly concerned in the purchase, or that Wash purchased as Geyer’s agent:

J. Spalding for appellant.

First position for appellant. 1. The sheriff’s sale to Wash and deed thereunder, ought to be set aside and held of no effect. Because, the exns. of the Bryans, of Dent and of Turnei’, were not merely irregular, but wholly void, and no exns. inasmuch as they issued, on a confession before the clerk, in vacation. — Constitution of Missouri, page 53, article 5; 1 Missouri decisions, pages 56 and 512; Laws, 1st session, Missouri assembly, page 44, sec. 14; Geyer’s Digest, page 248, sec. 17. And that liens commence on the day of the rendition of judgments see Geyer’s Digest, 264, sec. 59, and also 267, sec. 66,\ and laws Miss. Leg. 1st sess. page 93, so that there could'' be no relation back; Bryans’ and Dent’s judgments were under former. The subsequent entry of judgments in those cases in court, was a waiver of the judgments before clerk, if the latter would otherwise have had the force of judgments.

The officers of court, had no right to issue or enforce executions for the collection of fees — Geyer’s Dig. 266, as to form of exn. Ib. 197, as to fees &c., also Miss, laws, 1821-2, page 62, as respecting fees; from all of which it appears that no fees could be collected, but those of the party; and therefore, officers had no control of the executions — 2 Tidd, 977 and 1027. These remarks apply chiefly to the three first executions; as to the execution of Carr, it was ordered by pltf. to be returned without sale and the officer had no right to proceed on it. As to Chenier’s exn., which is the fifth, it appears from Chenier’s *394testimony, that he knew nothing of the execution; and there is no proof that any. other person had any thing to do with it; but the officer, except in the answer of Geyer, which says a third person, not the attorney, un • dertook the control of it; and if what is stated in that answer is material, it cannot be evidence on the issue between the complainant and the other defendants. The judgments of Jamison and Foster, which are the 6th and. 7th, were rendered subsequent to the date of the mortgage, and of course imposed no lien as against the mortgage. As to the Turner judgment, it may be farther remarked, that the levy of the execution on the chattels of Geyer, and then the release of them, without the consent of the other creditors interested in the lot, must be considered an equitable discharge of that judgment. — 2 Ld. Raymond, 1072; 2 Bac. 720. If deft’s, goods are seized on exn. the def. is discharged. It appears therefore, that in this sheriff’s sale, the sheriff advertised to sell on judgments that did not exist, on exns. which were void and no exns.; on judgments which were antedated as endorsed on the executions which he held; that he proceeded for costs, without the authority, and against the order of the plaintiffs in some of the executions; how could those interested, particularly subsequent incum-brancers, be expected to bid? The owner of the mortgage, according to the sheriff, would.have had to pay about $3000, on the judgments of Bryans, Dent and Turner, in addition to Carr’s and Chenier’s; whereas in reality, he was bound to pay only Carr’s and Chenier’s judgments, in order to obtain the property as security for his debt and advances. We say that under all these circumstances, that the sale ought to be set aside by a court of equity, and refer to the following authorities as similar or analogous cases — 6 J. C. R. 411; 3 J. C. R. 332; 1 J. C. R. 402; Sugden on vendors, 18; 7 Monroe, 612 and also 7 Monroe 478. If the court would interfere, provided the purchaser Wash only were interested, then they cannot refuse to interfere in the present condition of the property: as all concerned had notice, or what is in equity equivalent, and therefore are considered as having no better equity than the'first purchaser Wash, and are chargable with all equity against Wash. — 2 Fonblanque, 151; whatever is sufficient to put a party on inquiry, is sufficient notice in equity, — 16 Vesey, 250, possession in another person is such notice. — 2 Mad. 323, notice before money paid or deed executed, is sufficient. — Sugden vendors, 532 —7 J. C.R. 65, notice before payment sufficient; and 1 *395Atk. 384, notice after payment and before deed executed? sufficient — 8 Wheaton, 474. Furthermore, Collier and Lindell, each of them bought a mere equity, and of course at their peril, subject to all other equities — 7 Cranch, 48; 2 J. C. R. 608, and Collier bought of .Wash, there being of hash’s deed to Ferguson — 1 L C. R. 574-5, and if the deed had not been recorded, yet Collier knew that such deed had been executed, and therefore, that the title was in Ferguson, although the deed might have been destroyed. — 1 J. C. R. 422, the defendant Ferguson, not sufficiently denying notice, it is tobe presumed. — 3 J. C. R. 345,' 1 J. C. R. 575, if notice not denied fully and explicitly, it is admitted.

Second position for appellant. 2. But if the court refuse to set aside the sheriff’s deed to Wash, on the ground of the irregularity and injustice of it: yet Wash must be held as a trustee, invested with the legal title, first to satisfy Bryans’ and Dent’s judgments, and then to the use of Geyer and his creditors, or rather of his creditors. 1st he was trustee by express agreement — see his answer and Geyer’s; also Fergusons adopting Wash’s, and the depositions of Simonds, Dent, McAlister and Smith. 2. Being attorney in two exns., he was of necessity trustee — 4 J. C. R. 118, an attorney cannot buy to his own use under exns. controlled by him — 5 J. C. R. 44, as to an atty’s. right to use his knowledge to speculate. 3. Ferguson had notice, as before shown, and therefore stood only in Wash’s shoes; andas trustee; 4 J. C. R. 138, as to a formal trust. 4 J. C. R. 118, same doctrine, as to implied trust: and 1 J. C. R. 575, and this too though consideration paid. 1 Cranch, 100, a purchaser with notice of an equity, is trustee to the extent of that equity. 1 Peters, 309, as to the notice charging purchaser as trustee. 4. If the creditors of Geyer, were even ignorant that Wash held the property in trust, yet might avail themselves of it afterwards — 3 J. C. R. 261; 4 J. C. R. 136. 5. Consent of the cestui que trusts (the creditors) was necessary to divest the trust, (4 J. C. R. 138) or decree of court. Even Geyer gave no consent to the sale to Ferguson, and if he acquiesced, it was because they had him in their power. 2 J. C. R. 100, lands held m pledge, are never sold but by decree; chattels may be. 6. Lindell and Collier had notice, or what is equivalent, as before shown. The deed from Ferguson to Lindell, places the latter in no better situation, being made pendente lite. — 2 Fonblanque, 153 note and 1 J. C. R. 575-6, as to the rule of notice from lis pendens. — > *396?. Trustees, agents, exers. &e. generally those in nature of trustees cannot speculate on cestui qüe trusts or trust property- — 2 J. C. R. 30, as to general doctrine, 2 J. G. R. 252, that persons interested' have a light of course to have sale set aside. A case somewhat analogous, for the trustee sold at public sale arid was concerned in the purchase: such persons cannot»act for their own. benefit — 1 J. C. R. 27,394; 4 J. C. R. 303; 1 Mad. 110, 111. No such person can speculate in buying, in incum-brances — 2 Mad. 151; 2 Atk, 54: 5,J. C. R. 514, they are allowed only what they paid. 8.. Considering the defendants as trustees, then the claims, they have to be allowed them, are Bryans’, Dent’s and Turner’s judgments, which have-been paid up by Geyer, viz: $1200 to Wash and ‡1000 to Collier, who advanced that and more too to Wash and Ferguson — Turner’s judgment is to be taken at one half (see Smith’s deposition) 'this calcution, is on the ground that those judgments had a preference. 9. If the court are of opinion that Ferguson is not chargeable with notice, then the decree must be given against Wash for the money, inasmuch as the lot has gone beyond the reach of the court — 3 J. C. R. 344; 2 J. C. R. 116, 117: 1 J. C. R. 394 and 620. ('~

Third position. 3. But the transaction may be considered as a mortgage. Wash in the first instance was mortgagee, holding the legal title, subject to redemption and having acquired it for the express purpose of securing certain debts. Ferguson also, after the legal title was conveyed to him, maybe considered in the same light — 2 J. C. R. 189: 2 Vernon*, 83, an absolute deed, and defea-sance executed afterwards: held a mortgage — 4 J. C. R. 167, parole proof that absolute deed- was meant as a security for money: it is a mortgage — 6 J. C. R. 417: 7 J. C. R. 40, to same purpose, and that any agreement to change its character afterwards is void — Powell on mortgages, 117, 118, 119: 1 Vernon 138, Exton v. Greaves, is a case very much to the point — 7. Monroe, 478, Yoder &c. v. Atterburn, page 480, the doctrine is laid down, as to purchaser at sheriff’s sale, with right of redeeming,— that it is a mortgage.

Fourth. 4. As to the amount to be paid if the property is redeemable as a mortgage or trust, or in nature of either. 1. Geyer has paid $2,200, .'which more than satisfies Wash’s and Ferguson’s claims. 2. In addition to above, Ferguson and Wash received enough to make the sqm $4,500: a part of this was’ raised on Wash’s covenant, to be sure, but this gives to Wash no equity, *397for Ui’st he had conveyed the title to Ferguson, and it was in Ferguson even though the deed were destroyed.— See 1 J. C. R. 422: so that Wash acted in his own wrong and on his own risk. 2. He was originally a trustee or in nature of trustee, and knew all the circumstances; and ^ money was borrowed by Geyer, and Wash was only his security; which he was tempted to become, because he was to share in the money raised. 3. Collier’s' advance was in reality a loan: and he stipulated lor usurious interest (see depositions) this is to be lopped off, if he be considered as having a prior equity to complainants.

Fifth. Y. Complainant has a judgment at law for the same debt secured by the mortgage, on which execution has been issued and levied — 2 J. C. R. 296: 4 J. C. R. 671, 682, 687: 5 J. C.R. 280, that a creditor in sucha situation has a preference — 2gJ C. R. 144, shows that when a creditor has done this, he can inquire into the disposition of his debtors property.

Sixth. VI. The complainant’s mortgage, is however, the oldest lien and binds the property. — See authorities above, 1 Fonblanque, 320: 2 J. C. R. 608, show that the oldest equity has a preference. 1 Brown, 352, a case in point, showing that when the legal estate is outstanding, any person advancing money on the property relies entirely on the honor of the seller, as all prior equities must have a preference. — 2 P. Williams, 495: sess. acts 1820, page 22, makes void a deed in law or equity, if grantor has made a previous deed: this act remained in force till 4, July 1825, and Wash’s deed to Collier, is dated April 1825, and is of course embraced by that act — 2 Atkins 64; 3 P. Williams, 250 — to the effect that Russell is not volunteer.

B. Allen for the same:

The sheriff’s sale to Wash passed no title. Reasons: The executions in favor of Bryan and Bryan, and of Dent, were nullities, being issued on the confessions before the clerk in vacation. The judgments on which they were issued, were liens only from the time of confirmation, 13, March 1822, subsequent to the mortgage. — Seeaetof 1822,in force 1, March 1822, p. 93,sec. 61 —the decision in Missouri Reports notwithstanding, p. 512, see same, p. 512 and 56: con. of Missouri, art. 13, sec. 17 and art. 5, sec. 1. The execution in favor‘of Turner was a nullity for the same cause; the judgt. on which it issued was a lien only from the return day of the term of its entry, 3rd Monday of Aug. 1831 — see Geyer’s Dig.p. 264, sec. 59, but then see ib. p. 267 sec. *39866, where it says the sheriff’s deed shall only pass such interest as deft, had at the time of judgt: rendered. The execution in favor of Carr, was ordered to be returned by plaintiff before the sale. — See acts óf 1804, p; 23, 24: Geyer’s Dig. p. 260, sec. 48, 50, 51;p. 265,sec.61: p. 256,.sec. 35 and p. 197: sec. 18, 19, acts of 2nd Sep. 1 Gent Assy. p. 67, which repeals above sec. 18,19, p. 4, of acts of 1820 and 372 of Geyer’s Dig. The sale under, the execution in favor of Chenier, (admitting it to be good, which it was not, being without authority of pltf. Seep. 44 of acts of 1820; andp. Í22 of Geyer’s Dig.) alone or jointly with the one in favor of Carr, cannot be valid: because the sale appears to have been conducted under a mistake and that brought .about by the def.— Wash’ a lawyer and agent of the parties whose interests were'advanced by the sale, and by the representations made, in representing the judgts. in favor of Bryan and Bryan, and of Dent, to be the oldest liens, and the executions on them to be first satisfied: these are such circumstances, as to render the sale unfair, and to induce a court of equity to say the title did not pass by the sale to Wash. If the sale be set aside for these reasons, the property should be exposed to sale, to satisfy the liens on it at that date according to their priority: except Carr and Chenier, which are satisfied. Ferguson, if a purchaser with notice, cannot complain; and if without notice, (but he expressly takes Wash’s right, subject to' all its impurity and defects, —see the deed) he can only be interested to the amount of what he bid at auction, ‡1500, of which he has been paid one half by Wash," and the remaining half can be a lien on the property, and thus equity done to all — for Collier relied on the warranty of Wash, and Lindell was a purchaser with notice, or may avail himself of the warranty in the deed from Wash to Collier. If the sale to Wash be good, he is to be considered a trustee. The purchase was not absolute for his own benefit, but was in trust for the respective interests of the parties to the execution; and the defendant or his assignee had the right to redeem; Wash was the attorney, and agent of the pltffs. Bryans and Dent or his asse. Gilman &c. — :See Howell v. Baker, 4 Johns, ch. Rep. 118: ex-parteHughes, 6 Yesey, 617: exparte Lacey id. 625; Lister v.Lister, id. 631, Wormley v. Wormley; 8 Wheaton 421, exparte James; 8 Vesey, 337;Devoue v. Fanning; 2 Johns, ch. Rep. 252. Ferguson coming into possession of the trust property with notice of the trust is chargeable as trustee; and is bound with respect to that property *399to the execution of the trust. — See Howell v. Baker, 4 Johns, ch. Rep. 118, Wormley v. Wormley; 8 Wheat, Shepperd v. McEvers: 4 Jons. ch. Rep. 236; 2 Mad. ch. 125; 1 Schoale and Lefroy, 262; 1 Peter’s Rep. 309, Daniels v. Davidson; e6 Yesey, 249. If Ferguson was not afpected with notice at the time of the sale, he was before the purchase money was paid, which is sufficient: the mere security of it does not avail, it must be actually paid. — See Wormley v. Wormley, 8 Wheat. 421; 7 Joh. ch. Rep. 65. If it be considered a trust, the sale was a violation of the trust. It was made without notice to Geyer, without his consent and during his absence from the place; (it is not shown what was done with the over-plus, arising at auction sale,) the terms of its execution were not prescribed, and Wash acted with bad faith in making the sale. — 4 John’s, ch. Rep. 186. The complt. being the assignee and. judgt. creditor of Geyer, is entitled to the aid of chancery in subjecting this trust property, as held by Wash, to the satisfaction of his demand, or in other words to redeem it. — Howell v. Baker, 4 John, ch. Rep. 118, Hendricks v. Robinson et al; 2 John. ch. Rep. 283, Brinkenhorf et al v. Brown et al: 4 John’s, ch. Rep. 671, recognised in Williams v. Brown et al. id. 682, McDermott et al v. Strong et al: id. 687, Spaden v. Had-den; 5 John’s, ch. Rep. 280, same case 20: John. Rep. 554, Davoue v. Fanning: 2 John. ch. Rep. 252. No objection to redemption by Russell arises from the conveyance by Wash to Collier, beeause Collier loaned the-money on the covenant of Wash — 1 Fonb- Eq, 320, and cannot be considered as purchasing the property, (Wash had no title, he had conveyed to Ferguson,) but if a purchaser, he is only so in equity, and of the two equities Russell and Collier, the former has the preference, being prior in point of time — 1 Fonb. Eq. 320, qui prior in tempore est potior in jure, and this application of the maxim is not prevented by the conveyance of the legal estate from Ferguson to Collier, because when Collier purchased his equity, he had notice by the registry, of Russell’s equity — 1 Fonb. Eq. in notes, 320, that is sufficient notice which puts a party on enquiry. — Sug. on vendors, 532, and authorities there cited, — 2 Fonb. Eq. 151. Again, Collier should be postponed to Russell, because he is to be considered a purchaser with notice of Russell’s equity: and in this way, Wash had not the legal title, having conveyed it to Ferguson; of this conveyance, Collier had legal notice by the record; this was sufficient to put him on enquiry, and so amounts to notice *400- — Sag. on vendors, 532; his answer shews he took no pains to inform himself, relying on the covenant of Wash. Again, Collier acquired no interest by' the deed from Wash to him, it was void — áct of 6, Dec. 1821. In the same manner, Lindell is to be considered a purchaser, with notice of Russell’s equity,' — Sug. on vendors, Further, he is a purchaser with notice of the claim set up by Russell to this property. Again, he is only a purchaser in equity, and being subsequent in point of time to Russell or having no better claim than Collier, he is to be postponed to Russell. Again, the deed to him, passed no title, for Collier had none. The deed from Wash to Collier, passed no interest. — Act of 6, March 1821. Should Wash be considered a trustee, but Russell, not be entitled to redeem as against Collier and Lindell, yet he will be entitled to all the gain made by Wash, not by the auction sale merely, but by the sale'made to Collier.— Green v. Winter, 1J. ch. R. 27, Pailces'v. Alexander, id. 265(, Schieffelin v. Stuart; id. 620,'Moore v. Pickets,4 John. ch.Rep. 303: 8 Wheat, arguendo, 435, or Wash having sold the land contrary to his duty as trustee, is answerable for its value, not as it existed at the time of the sale, but at the time of the filing of the bill — Shepperd v. McEvans, 4 John’s, ch. Rep. 136, Hart v. Ten Eyck: 2 John’s, ch. Rep. 62; 3 John’s, ch. Rep. 343-4, as 'to the objection that the other creditors were not made parties, it may be answered, their claims are satisfied. — See also, the. authorities: Hendricks v. Robinson; 2 John’s, ch. Rep. 283, note to Wormley v. Wormley, 8 Wheat. 451, anon. 2. Atk. 14, Cooper’s eq. plead. 289, Jones v. Jones: 3 Atk. Ill; 2 Mad.ch. 320,173. Collier bought the property under an agreement with Geyer to permit him to redeem) this made it a mortgage — 7 John’s, ch. Rep. 40, l Powell on mortgages; 116 and 118; — .and 119 — 1 Vernon 138, 1 John’s, ch. Rep. 594: 4th id. .167, 6th id. 417— Lindell was a purchaser of Collier, with notice of Geyer’s right to redeem — see Collier’s deposition. Wash the purchaser at sheriff’s sale, by his conduct, deterred others from bidding: hence the sale is. not binding and will be set aside. — Sugden on vendors, 18 and notes. No objection arises from the conveyance to Ferguson, he being a purchaser with notice of the conduct of Wash: nor to Collier, nór Lindell, they being purchasers, with notice of Russell’s equity; but if the sale cannot be set aside, in consequence of these conveyances, Wash must answer the consequences of Iris conduct,' to the value of the property, either at the time of the sale or of the filing of the bill.

*401Opinion of the court-

H. R. Gamble for defendants.

I submit, 1st. That Wash was not a trustee, by reason of any express agreement, and that he could not make himself trustee for the benefit of others, against the interest of his clients. 2nd. That there were no circumstances, from which the court can imply a trust. 3rd. That if a trust could be implied, it must be of such character, as is consistent with the rights of Wash’s clients; and therefore, a sale would be necessary to secure their rights, and such sale was made to Ferguson. If Wash was not trustee, the bill must be dismissed; and so also, if he was trustee, with power to sell for his clients’ benefit. 4. If he was trustee, Ferguson was not a trustee: because he had not notice of Wash’s character. 5. That the deed exhibit, D. No. 4, is an agreement that cannot be enforced, and has been entirely waived. 6. That Collier was substituted for Ferguson, and Lmdell for Collier, so that the title is in Lindell, free from the complt’s. speculation in a dead mortgage.