Hunt v. Daniel 6 J.J. Marsh. 398, 29 Ky. 398

Chief Justice Robertson,

delivered the opinion of the court.

Thomas H. Pindall, being indebted to James Morrison upwards of ‡7,000, gave him a deed *399of trust, in 1815, on notes which he held on Thomas J. Garret, and on other property, to secure the payment of the debt.

On the 9th of November, 1816, Thomas J. Garret, to secure the debt which he owed to Pindail, executed, in trust to Charles Wilkins, Lewis Sanders, and John T. Mason, a deed for several slaves.and tracts of land and other estate. This deed was acknowledged and recorded in November, 1816, in the clerk’s office of Fayette, and admitted to record, on the certificate of the clerk of Fayette, in the clerk’s office of Montgomery county, in the same month.

Garret lived in Montgomery and retained the possession of the slaves.

On the 18th of November, 1818, Pindail having agreed to transfer to John W. Hunt, his debt on Garret, in part payment of a large debt which he owed to Hunt, exceeding $20,000, a release was executed by Pindall’s trustees,and himself to Garret, for Hunt’s benefit, of all the property conveyed by the deed of 1816; and thereupon, at the same time, Hunt took from Garret some property, and his individual notes for a part of the debt thus assumed by him, and agreed to take his notes with security for the remainder, which was $3,500, to be paid in seven annual instalments of §500 each, with interest from the date of the notes; and in consideration thereof, released Garret from his liability under the deed of 1816, and that of Nov. 1818.

Before the consummation of this contract between Hunt and Garret, Hunt had received the following letter, dated,November 6th, 1818.

“Mr. John W. Hunt:

Sir, — Mr. Thos. J Garret applied to us to enter his security with some other persons, for the payment of $500 a year for seven years; should the other gentlemen refuse to join with us as security, we will, at any time, join in with Mr. Garret as his security to you for that amount to be paid as above stated, with interest,

Respectfully,.your obt. serv’ts,

EDW’D. STOCKTON.

JOHN MASON.”

*400This letter Hunt retained, and seven notes were £Dnwn, according to the contract, bearing date 18th 1818, and delivered to Garret to procure the signatures of Stockton and Mason,(and)any of the others who liad been mentioned, as sureties, if any of them should be willing to become bound.

Afterwards, these notes were signed and acknowledged by Garret, Edwd. Stockton, John Mason and Henry Daniel, and delivered to Hunt.

To indemnify his sureties, Garret, on the 14th of August, 1813, conveyed lo S. D. Everet, in trust for their benefit, some of the slaves' which had been included in the deed of 181G; and lands, lots, a brown horse, household and kitchen furniture, &c.

It is represented, that there is a prior claim to some of these slaves, stated to have originated as follows:

In Sept. 1818, Jas, Morrison, with the assent of Pin-dall, had agreed to take from Garret, certain slaves, and to give Pindall a credit for the amount which he should allow for them, and for which Pindall agreed to give Garret a credit. And accordingly, sometime in' Sept. 1818, C. Banks, then of Mountsterling, who had been selected for that purpose, having reported bis estimate of the value of the slaves, Morrison acquiesced in the valuation; and thereupon,it was a-grecd between him and Garret, that the slaves were bis property, but that Garret might retain them for a stipulated term, on hire also fixed by «Banks. Among these slaves, are those afterwards included in the deed of trust to Everet.

In 1820, Morrison sued Garret in detinue for the' slaves, Garret having refused to surrender them.

This suit was removed to Bourbon and continued until 1823, when Morrison having died, it was revived in the name of Henry Clay, as his executor, who,in May 1824-, pending the suit,filed a bill in chancery against Garret, Everet, Mason, Stockton and Daniel, to restrain them from removing any of the slaves beyond the jurisdiction of the court. The court granted a restraining order, in pursuance of which, the slaves were taken by the sheriff of Montgomery, and hired out in June, 1824.

*401Clay obtained a judgment in the action of detinue for all the slaves, except Tom Hunt, who is not included in the deed of trust to Everet.

., After this judgment was rendered, Daniel, Everet, Mason and Stockton, filed their answer to the bill which had been filed by Clay, and made it a cross bill against Clay, Hunt and others. In this, they allege, that the deed of trust to them was “bona fide* and valid, and that the pretended contract of sale by Garret to Morrison, was fraudulentas to them, because Garret had continued in the possession after the date of the contract. They also allege, that they never heard of this sale, until after the date of the deed of trust for their benefit, in August, 18lJ; and that Hunt and Garret induced them to become Garret’s sureties, by false and fraudulent representations to them, that there was no lien or incumbrance ori the slaves.

Daniel also, for himself alone, avers, that wheti Garret presented the notes to hirii for his signature, he refused to sign them until he could see Hunt and ascertain from him, whether the Slaves vvefe Unencumbered; that shortly afterwards, Hunt catne td Mountsterling and assured him that he had no lien on the slaves, and that he knew of no Claim to them,- ei-fceptthat of Garret, whereupon; he signed the notes.

He then charges, that Hunt did know of Morrison’s claim, and fraudulently concealed it.

They all affirm, that they would not have signed the notes, if they had known of Morrison’s claim; They pray for a decree setting aside the claim of Morrison’s executor, and subjecting the slaves to the payment of the notes to Hunt, or for a dec'ree enjoining, as to them, the enforcement of the notes by Hunt.

Hunt having obtained judgment on five of tbé notes, Daniel, Mason and Stockton, prayed that the judgments should be enjoined. The injunctions hav-' ing been granted, Hunt answered; He denies the allegations of fraud; denies that he knew of Morris son’s claim when Daniel or the other sureties signed the notes, and denies, that he ever made any othef statement to Daniel, Mason or Stockton; than that kt' *402had no claim to the slaves. He also denies the jurisdiction of the court.

Clay, in his answer, affirms the legality of Morrison’s purchase of the slaves, and also denies the jurisdiction of the court.

Garret and two of the trustees answered-, but it is not necessary to state any thing more in relation to their answers, than that they were filed.

The cross bill was taken for confessed against Pin-dalland Wilkins.

On the final hearing, th'. original bill was dismissed; and on the cross bill against Hunt, the circuit court decreed, that Hunt’s judgments should be perpetually enjoined as to Daniel, Mason and Stockton, and that they should be released and exonerated as sureties in the other two notes, on which judgments had not been obtained.

To reverse this decree, Hunt has appealed to this court.

The principal, and only allowable object of the original bill, was to secure the slaves until after the trial of the action of detinue. This end having been-accomplished, it was right to dismiss the bill after the judgment at law had been obtained. Clay has acquiesced in the decree; therefore, it will be unnecessary to take further notice of the dismission of the bill.

The complainants in the cross bill, have not complained that there was no decre in their favor against Clay. They have, as a matter of course, acquiesced. They had no just cause for complaint. Their answer in the nature of a cross bill was not filed until after the trial in the action of detinue. There was then no necessity for an answer. The bill was then, for any legitimate purpose, “functus officio. It is true, that there was a prayer in it for a nullification of the deed of trust to Everet. But this prayer was not only unnecessary and incautious, but inadmissible. If Morrison’s purchase were legal and valid, it was not material, whether the deed of trust to Everet was so or not, because the deed of trust was subsequent to the sale to Morrison. If Morrison’s claim were *403not good as between him and the complainants in the -cross bill the deed of trust for their benefit, was not affected by that claim. If they had been in sion of the slaves, the remedy of Morrison’s executor against them was legal.

But they were not in possession, and pending a suit at law against Garret who was in possession, the chancellor should not have entertained a bill against Daniel and his colleagues, for the purpose of trying, in equity, whether they had any available title to the same slaves.

As to Hunt, the cross bill may be considered as an original, and taking it in this attitude, the court had a right to award the injunction and hear the cause.

But the record will not sustain the decree which the circuit court rendered against Hunt.

So much of the decre as exonerates Mason and Stockton from their liability as sureties in the seven bonds, is without the semblance of proof to justify it.

They did not allege nor prove that Hunt induced them to become responsible to him as the sureties of Garret,- nor have they intimated that he made any false representation to them, or withheld from them any thing which it was his duty to disclose to them. They have complained that Garret deceived them; and they have suggested, that Garret, at Hunt’s instance,presented the notes to them for theirsignatures. So far as they are concerned, there is no pretext for implicating Hunt in any fraud direct or indirect, orin any act or omission which could affect the validity of their obligation as Garret’s sureties. Not only is there no allegation nor proof against Hunt, as between him and them, but there is strong and conclusive negative proof in his favor, which it would be difficult for them to resist. At the instance of Garret, and without Hunt’s solicitation, or knowledge, (so far as any thing appears in the record,) they had consented to become bound with Garret.

By their letter of the 6th Nov. 1818, they notified Blunt of this, their determination. He had not then made his contract with Pindall and Garret; nor had Pindall and his trustees then released to Garret the property which he had conveyed to them in 1816. *404gut upon the receipt of this letter, the contract was completed; the property was released to Garret, and on the faith of the letter, Hunt released Garret from liability to him, in consequence of the release for his benefit by Pindall and the trustees. Mason and Stockton had not asked Hunt whether he had any claim to the slaves; nor whether he knew of any lien upon them. He had no claim on them, nor interest in them at the date of their letter. All the claim he ever had he derived from the release on the 18th November, 18l8, which was the result of a contract induced, in some degree, if not altogether, by the letter, find the benefits of which he surrendered in consideration, in part, of the promise of which the letter assured him. This letter, therefore, would bind Mason and Stockton, even if they bad never signed the notes. They attempted to prove by Garret, that when they signed the notes, there was some understanding that they were, not to be bound, unless Daniel should also, sign them. This, Garret docs not satisfactorily establish. But if it had been certainly proved, it could not benefit them. Their promise to Hunt intimated no such condition or qualification; on the contrary, the letter assured him that they would be bound whether any other person should, agree, to become responsible with them or not. They, therefore, had no right to annex any condition to their obligation when they signed the notes; it was too late to retreat; they had gone beyond the “locus penitentio.” Besides, there is no allegation in the bill, which would authorize the proof which they attempted to extract froni Garret; and proof without allegation, is as in-9s- allegation without proof. Moreover, if they had both alleged and proved the condition, and it had been shewn undeniably, that Daniel should not remain bound, the chancellor should nqt relieve them, for two reasons:

fraqf without allnefféciaal as allegation without

1st. The objection to their liability on the bonds would be purely technical and legal, and should have been pleaded at law.

There is no proof, that there was any fraud prac. ficed on them in the execution of the notes.

|d; When, after they had permitted judgments to. *405be rendered on the notes, they appeal to the conscience of the chancellor for justice, he will require them to do justice; and will see whether they had curredany equitable liability; and, therefore, because they had, by their letter, promised to become bound alone, and because Hunt had made his contract and surrendered available rights, on the faith of that promise; the chancellor should refuse to release them; but should let the law take its course, and exact that which the parties were bound in equity and conscience to perform.

The decree, therefore, in favor of Mason and Stock-ion, is manifestly erroneous.

Daniel’s claim to relief against Hunt, has been placed on more solid ground than that ou which Mason and Stockton attempted to establish theirs. He alleged facts, which, as to him, gave the court jurisdiction, and entitled him to a perpetuation of the injunctions and to entire exoneration, if his allegations have been sufficiently proved. To justify the decree which was rendered in his favor, three things, however, must be established.

1st. That Morrison bad such a title to the slaves, as will enable his executor to hold them against the claim of Daniel’s trustee.

2d. That Hunt knew of Morrison’s right, and to induce Daniel, to sign the note, falsely represented to him, that be had no knowledge of any claim to the slaves.

3d. That the property conveyed to Everetin trust, is insufficient without the slaves, to indemnify Daniel, Mason and Stockton, as the sureties of Garret. These things are indispensable in equity, whatever might have been sufficient at law.

The first proposition has not been maintained. It seems, that Morrison’s right was neither investigated by the parlies, nor considered by the court, And all that we can now say about it,is, that there is nothing in the record which would authorise this court to decide (if it were necessary to express a judicial opinion,) that the validity of the claim under the deed to Ev-eret, is affected by the right to the slaves claimed by Morrison, and recovered by his executor from Garret.

*406The .judgment against Garret, is no evidence aSa>ns*' right of his sureties. They were not parties; and their title not only was not, but could not have been put in issue in the action of detinue against Garret. In that suit, Clay had a right to recover, if he proved a purchase of the slaves by Morrison from Garret, which, as between them, would be legal and binding. But the contract of purchase might have been good between the parties, and nevertheless void, as to subsequent purchasers from Garret.

The simple, fact, (had it been proved) that Morrison had purchased the slaves and left them with Garret, would not be sufficient to justify a decree against Hunt, even if the 2d and 3d propositions were well sustained.

But neither of these is, in our opinion, as well maintained as they should be.

Hunt positively denies that he knew of Morrison’s claim, that the claim is valid against himself or the sureties of Garret, and that he ever made any representation to Daniel about any other claim or lien on-the slaves than his own.

Two depositions only, are relied upon to prove Hunt’s notice of Morrison’s claim. Thomas Pindall swears that he had an impression (hat he told Hunt of Morrison’s purchase; but that his impression was derived by inferrencc from the fact, that he ought to have told him of it, and therefore that he did. The release, however, to Garret for Hunt’s, benefit, except such property as had been sold by the trustees, but has no allusion to the sale of the slaves by Garret, to Morrison! Moreover, it is perfectly reasonable and natural for an honest man to make the inference which Pindall has done, although the fact inferred had never occurred.

Wiliam Garret, the other witness, swears, that “as well as he now recollects, about the first-or middle of November, 1818, or the last of October in the year 1818, he was at the tavern of Capt. Banks in the town of Mountsterling, and John W. Hunt was there. He remembers, that said Hunt asked Capt. Banks, if he had valued the negroes, then in the possession of Thomas J. Garret, to James MorrisoD, deceased. Ele *407answered, that he had. The said Hunt, asked Capt. Banks at what’price, and Banks stated, as this defendant believes, upwards of $2,000.”

This deposition is not satisfactory, for several reasons:

1st. The witness is too indefinite as to time; why he should suppose that he heard the conversation, either about the first, or the middle of November, or the last of October, he has not stated. It would have been much better to have said “sometime in the fall of the year 1818.

2d. The witness, if he did not make a mistake as to the time, does not directly swear that Hunt had notice of Morrison’s purchase.

3d. It is far from being a necessary inference from' the facts stated by the witness, that Hunt had notice of Morrison’s purchase. He was negotiating with Garret, and therefore, might have been desirous to ascertain the value of the slaves. He might have heard that Banks had put an estimate upon them, at the request of Garret and Morrison, to effectuate some proposed contract between them, which was never consumated. The complainants in their cross-bill, state that Garret had assured them, that Morrison had not bought the slaves. May it not be equally probable that he made a similar asseveration to Hunt? If he did, then, especially as Garret still retained the use and possession of the slaves, Hunt might have supposed, that though the slaves had been valued for Morrison, he had not taken them by purchase.

4th. if Hunt knew that Morrison had made a contract of purchase, he might also have entertained the opinion that the sale would be void, as to" the creditors of Garret, or subsequent “tones fide'1 purchasers from him; and neither this deposition nor any thing else in the record shows, whether it was such a contract as would thus far be void.

The complainants in the cross bill, stated that they' had no knowledge of Morrison’s purchase before they signed the notes. They, or some of them, lived in Mountsterling where the slaves were, and where Garret and Banks both resided. And the fact that,, they had never heard of a sale to Morrison, diminish-' *408es the probability, that Hunt had a knowledge of its

We are inclined- to the opinion, therefore, that a just and reasonable interpretation of all the facts would not allow the court to decide that Hunt knew of Morrison’s having a right to the slaves when Daniel signed the notes. Hunt did not, it is true, take a lien on the slaves to secure his debt; But this fact-should not be considered as any evidence of his knowledge of any claim to them by Morrison; because he' did not take a lien on the other property which was released to Garret, for his benefit. He had made conditionally, (we presume) the contract with Garret, which was afterwards carried into effect, and whereby, he accepted Garret’s individual notes, certain' property, and the seven notes for $3,500, in satisfaction of his debt. We cannot infer any thing against him, as to the imputed notice, from the fact, that he' took no lien on the slaves.

Only two depositions were taken to prove that' Hunt represented to Daniel, that he knew of no’ other claim to the slaves, than that of Garret.

Garret himself, in his deposition, states, that when' he presented the notes for signature, he exhibited the release by Pindali’s trustees to him for the benefit of Hunt; that Mason and Stockton signed the notes, but Daniel declined to sign them, until he could see Hunt; that afterwards, when Hunt came to Mount-sterling, Daniel enquired of him, (Hunt) “if there was any lien or incumbrance on the negroes.” “Mr. Hunt replied, there Was none to his knowledge. Mr. Daniel then requested Mr. Hunt to give him, a written release; Mr. Hunt replied, it was unnecessary, that he had no lien and knew of none upon the property, and referred them to the release which I had brought from Lexington, to show that the property Was released.

John McFarren, the other witness, swears, that iif the fall of 1818, or spring of 1819, he heard a conversation between Hunt and Daniel, in the presence1 of T. J. Garret, Mason and others, in which “Daniel1 refused to go security, unless some negroes, then in ther possession of T. J. Garret, were free from all kind! ©f embarrassment; for be stated, it was on the faitfe *409®f those negroes being an indemnity to him, that he would go said Garret’s security. The said Hunt replied, that the said negroes were released by Pin-dall’s trustees for his benefit, and that he gave up all right that he had to said negroes, and that he knew of no other claim on said negros; upon said representations, said Daniel agreed to go security.”

It is probable, and even almost certain, that the interview mentioned in each of these depositions, was the same. And we cannot give to this testimony the-full effect of overturning the answer of Hunt,for the following, among other reasons:

1st. There is not an exact and circumstantial coincidence in the statements of the two witnesses. It will be seen, by scrutinizing their depositions, that the discrepancy between them is as material, as that is between a]declaration by Hunt, that ha had no lien, and the declaration which either of the depositions attributes to him.

2d. Garret, however veracious, manifests some of that favorable disposition towards his sureties which is natural, and is perhaps most decidedly felt by those of the purest morality and honor.

It-might Have been easy for the witnesses not to observe the important difference between a declaration by Hunt, that he had no lien, and an assurance that he knew of no claim on the slaves; and the time, the place, (the street) and other circumstances of the conversation, render it very improbable, that either of the witnesses could recollect the precise words which either Daniel or Hunt employed.

3d. It is intrinsically improbable, that Daniel would have sought from Hunt information as to the condition of Garret’s estate, except so far as Hunt might have had a claim on it. Hunt lived in Lexington, Garret and Daniel resided in Mountsterling, and were, as we are authorised to believe,intimate acquaintances and cordial friends. Is it probable then, that Hunt would know more about Garret’s property and condition than Daniel did? or is it credible, that Daniel should be unwilling to confide in his own knowledge, and the assurancéá of his friend, but would be perfectly" *410willing to adventure on the opinion of Sunt, comparatively a stranger?

4th. But the release to Garret furnishes a clue to-the conversation and to Daniel’s object in seeking it. That instrument shewed on its face, that it was made for Hunt’s benefit; Garret had exhibited it to his friends, to assure them that the property had been released, and was then free from incumbrance, Daniel had a right to suppose, that it was not free, but would be subject to Hunt’s demand; as, therefore, he was solicited to become surety to Hunt fora part of that demand,it was natural and prudent to desire to ascertain from Hunt, whether he had or would insist on any lien on the property:

There was an obvious motive for an enquiry of Hunt for this purpose, and to this extent; but none whatever, for any other or further enquiry. And that this alone was Daniel’s object, is almost proved by Garret’s deposition. He swears, that Daniel en-quired of Hunt whether he had any lien, and when informed that he had not, and assured that he claimed nothing under the deed of release, Daniel proposed that Hunt should give him a release of his claim under the deed of release to Garret. It is evident, that such a release would alone have been perfectly satisfactory to him, and it appears that he was satisfied without it, after Hunt explained to him why he had no claim to the property. But if it had been clearly proved that Hunt assured Daniel that he knew of no claim to the slaves, this would not avail without proof of the “scienter.”

We feel authorised to doubt the accuracy of the verbal recollection of the witnesses, when they state that Hunt told Daniel that he neither had any lien himself, nor knew of any; and still more, to doubt whether (if such assurance were given by Hunt) it had, or was intended to have on Daniel any other or greater influence, than to satisfy him that Hunt would not put up any claim to the slaves.

Under all the circumstances, we cannot decide that Hunt has sworn falsely in his answer, and committed a fraud on Daniel; a different construction of the facts is more consistent with the rules of evidence and the principles of law; and is, therefore, in our opinion, more just and rational.

*411But lastly, it has not been shewn that Garret’s sureties have been, or are in any danger of being injured by any thing that Hunt said or did. They have shown that, if the slaves be the property of Morrison, the other estate secured to them by the deed of trust, would be insufficient for their indemnity; nor have they shown what disposition has been made of it, or any of it. If it be sufficient to indemnify them, then it would be immaterial whether Daniel was or was., not induced by Hunt to believe that the slaves were unincumbered. His only object must be supposed to have been to ascertain whether he could be made secure. If he be secure, he can ask no more. It would seem from the description of the property in the deed to Everet, that without the slaves, it ought to be enough to indemnify-those for whose benefit it was made; at least, we will not presume, that it is insufficient without any proof. Hunt might be the victim of injustice and of fraud Joo, if the decree were permitted to stand. He gave up a lien on Garret’s estate, on receiving notes with personal security.

The sureties in those notes, took a lien on the whole of Garret’s estate, for their indemnity; if they be now released, Hunt might be deprived of all redress. The property conveyed to Everet, may all have been sold and appropriated by Garret and his sureties.

Surely, if otherwise, the decree of the circuit court were sustainable, it was improvident to perpetuate the injunctions, without knowing what had been done with the property conveyed to Everet.

Upon the whole, we are of opinion, that the circuit court erred in perpetuating the injunctions to the judgments at law, and in decreeing relief to any of the complainants in the cross bill.

The decree of the circuit court, perpetuating the injunctions, and exonerating Daniel, Mason and Stockton, from their liability as sureties for Garret to Hunt, is reversed, and the cause remanded, with instructions to dissolve the injunctions with damages, and to dismiss tbe original cross bill, against Hunt, and the amended cross bill with costs.

Daniel, Mason and Stockton, must pay to Hunt his costs in this court.

*412Petition for á re-heariug.

Benjamin Mills, as counsel for -the appellees,, presented the following petition for a re-hearing.

In presenting the petition for a re-bearing, which ,tho counsel for th.e appellees feel constrained to file, ¿hey will first nolice some assumption of facts m the opinion rendered, which are not warranted, as they conceive, by the record. This is not done as attempting to correct or criticise, but because conclusions built on these assumed facts, are drawn unfavorable to the appellees, which they conceive the real state of .the record will r.ot warrant.

It is said that Pindell agreed to transfer to Hunt bis debt which he, Pindell, held on Garrett, in part payment of a large debt which he owed to Hunt, exceed-: Wg-$20,000. We can find no evidence of such debt due to Hunt from Pindell, except in the answer of Hunt, and we protest against these affirmative facts being .taken as true, without any proof except this answer.

It is also alleged that -.the wh.ole estafe held by Pin-dell in trust from Garrett, was released to Garret for the benefit of Hunt. The only proof of this, is th.e release which releases all the estate except what had been previously sold, without stating what had been sojd.

Further, it is stated that “Hunt took from Garrett some property and his individual notes for a part of this debt thus assumed by him.” We do not find the least proof in the record, in any part, which allege^ that Hunt ever took any property from Garrett, except one brown horse to be hereafter noticed; nor do,eg it appear that Hunt ever took from Garrett an individual note for one cent; all this rests on Hunt’s an swer without proof, and that answer not in response to any charge of his adversary.

Again, it is stated that in consideration of these private or individual notes of Garrett, and the seven notes of $500 each, with surety, Hunt “released Garrett from his liability under the deed of 1816, and that of November 1818.” With due deference, we cannot find the least evidence in the cause, that Hunt Over released Garrett from any one of these deeds, except Hunt’s own story, and excepting also his parol declarations, to Daniel, thpt hg hac[ J?9 hen,' This *413allegation is repeated more than once in theqpinion. It is, again, said “that Hunt released Garrett from-all liability to him, in consequence of the release for his benefit by Pindell.” Also, that‘‘the' benefit o.f which (deed) he surrendered in consideration, in part,’of the promise which the letter (of Mason and Stockdon’) assured him. And again, “he (Hunt) gave up a lien on Garrett’s estate, on receiving notes with personal security.” And finally, “Hunt had made his contract and surrendered available rights on the faith of that promise, the chancellor should refuse to release them,”

Petition for a re‘hearing.

- This assumed fact, that Hunt had made his situation worse; that he was deluded by the acts or promises of the appellees, seems, throughout the opinion, a? constituting a valid consideration of the obligation of the sureties. We do contend it is gratuitous, and attaches to Hunt’s answer more credit than it is enti tled to-; and we do insist, that Hunt did not change his situation ip the least, or make a release of any thing, or surrender one available right.

The only thing which he had to release and which he might be supposed to lose, was the deed made by Pindell’s trustees, and Pindell himself, to Garrett, of this property for Hunt’s benefit. The legal title was in the trustees, Wilkins, Sanders and J. T. Blasón before that instrument was executed, and declares on its face, that “whereas the said Thomas Pindell is justly indebted to John W. Hunt, of Lexington, aforesaid in the sum of [blank] dollars, and upwards; and whereas the said Thomas H. Pindell is minded and desirous of assigning and conveying to the said John W. Hunt all and singular his right and title and equitable interest in the estate assigned to the parties thereto, of the first part, for the benefit of him, the said Thomas H. Pindell, and in order to carry such intention into effect, hath requested the parties hereunto pf the first part, to release, assign and transfer and convey to him, the said Thomas J. Garrett, party hereto of the second part, all and singular the estate,”’ &c. The instrument then progresses in conveying apd-releasing to Garrett the estate till it comes to the fyabendtirn) and it then proceeds to qualify and express the. tenure thus;

t ‘-‘To have, and to hold, all and singular the estate *414and effects of every kind sort and condition hereby-assigned, and transferred or mentioned so to be, unto the said party thereto of the second part, his heirs, executors, administrators and assigns forever, and all the hereditaments and appurtenances thereto appertaining, or in any wise belonging, upon trust and confidence, nevertheless, that the said party thereunto, of the second part, his heirs, executors or administrators shall and will immediately, after the execution and delivery of these presents upon the request and by the direction of the said Thomas H. Pindell, grant, assign,sell, transfer and convey by indenture directly executed unto the said John W. Hunt, any or all and every part and parcel of the estate and effects hereby released and conveyed or entitled so to be, with theap-purtenances thereunto belonging, or in any wise appertaining upon such consideration, and for such interests and purposes as he, the said Thomas II. Pin-dell shall request, and as shall not subject the party thereto of the first part, to any loss or responsibility whatever.”

Petition foe a. re-bearing.

That this deed did not convey the unqualified estate to Garrett, is clear. That it was a trust in Garrett for the benefit of Hunt, is also manifest. That Gar--rett could become the trustee for his, Hunt’s, benefit is undeniable. That Hunt has,ever released this instrument to this day,or extinguished his interest therein by any writing competent to do it, is denied. That his parol declarations to Daniel, Stockton and Mason is the only attempt like it, is apparent from the whole record, even if every word of his answer is to be admitted. What then has he released, and what has he been induced to release? Nothing at all. He stands to deny with the right of this instrument, and he is in no worse situation than he was. The effect then, of this different statement of fact upon the interests of the appellees, can readily be perceived, and shall be made more apparent, when we come to consider the further merits of this decree now under review.

If this court is right in reversing the decree of the court below, and refusing to relieve these sureties from their obligation, still some justice ought to be done to them, and it is clear that they have a right to *415Some relief. In the first place Hunt is charged with having gotten from Garrett a brown horse, at the price of §200, being one included in the deed of trust from Garrett to Everett, for the benefit of these sureties. Hunt admits in his answer, that he has got such a brown horse from Garrett at that price, and says he has credited Garrett for it, and intimates that he has done it on some individual notes of Garrett, and yet he produces no such note, and does not shew that such exists. Now the deed of trust expressly includes a brown horse. It is admitted Hunt got such a one, but states that he does not know that it was included in the deed of trust. Now, as the deed claims one, and Hunt has got one of that description from Garrett, can the court presume that Garrett had two such horses? Certainly not. Butif such a presumption could.exist, it is destroyed by express proof, for Clifton Garrett expressly swears that his father had but one of that description in three years, and Hunt got him at §200,about the year 1820. Nothing then is more clear than that Hunt has got §200 of the mortgaged estate to secure the sureties, and that he has not, and refuses to give the sureties any credit, but disposes of it some other way, What relief has these three securities for this amount? Can they file another bill in chancery when they have expressly put the matter in issue in this suit and lost it? Can they bring detinue or trover, when they have tried the matter in chancery and lost it? That the chancellor has in this suit proper jurisdiction of this matter is clear, and shall be proved in another part of this petition. ^

Petition for a re-hearing.

But this is a small part of the injury suflfered by these sureties by this decree, even if they cannot be relieved from the bonds, they will lose the whole mortgaged estate. For it is contended with confidence, that this bill is constructed and fitted to subject the trust property; that the proper issue is made up on the bill, and that if there is a decree dismissing their bill, they not only lose the money due, but their indemnity also.

What doubt can there be of jurisdiction? None.' It is a case of trust. It is the peculiar duty of the chan» celior to impose it on a bill filed for that purpose. *416in case of an ordinary mortgage for indemnity, the mortgager need not wait,heis damnified; when in danger he may file his bill, and pray that the estate be sold to discharge the debt. It is not necessary that he pay first. In this deed of trust even that difficulty is' removed. It provides that (he estate shall be taken and sold, at the request of the sureties, to pay the debt. This cause of suit was therefore ripe and their bill was properly filed. They have also made the proper parties: Garrard, and Clay who as executor of Morrison claims part of the estate by purchase, which they charge to be inferior to their claim, (and) Hunt, who still holds his claim. In short, every necessary party is made. Besides, every necessary allegation is made, and every proper prayer requiring the estate to be sold for the benefit of Hunt’s debt. Now we care not what is the liability of the sureties, or how the bill was filed. It is a proper bill with full charges and prayers, and proper parties for a decree against the last estate, and yet the court dismiss that bill, and refuse relief, and leave them to bring another bill which is barred. What is more, the court relies on the fact that they have an indemnity, and that probably a good one, as a reason why they should not be released from their suretyship, and yet by an absolute dismission of the bill, refuse to give them the benefit of their indemnity, although they are here with proper parties, charges and prayers demanding it?

Petition for re-hearing. - a

The court seems to say that the dismission of Clay’s-original bill was proper. Beitso. According to repeated decisions that did not dismiss the cross bill made out in the answer of the defendants. That it may still remain and should be tried.

The court seems to doubt the jurisdiction of the chancellor over Clay’s bill. Be it so. If a complainant files a bill over which the chancellor has no jurisdiction, the defendant may set up, by way of cross-bill, legal demands, and have them tried.

But here the matter set up, as already shewn, is: equitable; a trust, the peculiar delight of the chancellor.

The court seems to say that Clay’s bill was func-tus officio, before it was answered. Be it so. Did that *417destroy the defendant’s right to answer, or deprive, them of the right of setting up matter by way of cross bill. But with due respect, it is not conceded that the bill was functus officio. True, the suit at law was tried, but the prayer to set aside the deed of trust to Everett, was still there. This court says improperly. But does it follow, that if a bill has improper matter in it, that is not to be answered? Besides, the question of cost, and all the dangers of a decree by default, was still to be guarded against. The bill of Clay was therefore properly answered, and the right of making the answer a cross bill cannot be disputed. The right to set up the deed of trust, and the fact that they have set it up and prayed a sale of the estate is equally undeniable.

Petition for a re-hearing.

What objection then is there to ¿’decree of foreclosure and sale of the whole? The only part disputed is that held by Clay, as executor of Morrison; and why can they not obtain a decree for that part? The court has refused relief against Hunt, because it is alleged that the appellees have not shewn that Clay has any valid claim. Of course it seems to follow, that these same appellees are entitled to subject the «state to their claims.

But the court say that these complainants in the cross bill, now appellees, “have not complained that there was no decree in their favor against Clay. Well they might not so complain. They were not complaining parties here. They were satisfied with the decree and sought to affirm it. They had obtained relief against Hunt, which rendered it unnecessary that they should enter any decree against Clay. That was left for Hunt to do. But what follows, if the decree is to be reversed? Why such decree is to be then rendered as ought to have been, and it really seems to be a clear proposition, that if no decree is to be had against Hunt, one ought to be had against Garrett; against the trust estate, and Morrison’s executor, as one of the claimants thereof, by an invalid title.

But the court has said, that, considering the bill of the appellees as an original bill, “there should have been no decree against Clay, because the complainants did not shew that they were entitled to a decree against him.” The counsel for complainant cannot *418gee why, if their bill teas original, they were not entf-tled to a decree against Clay. Their bill evidently has a doable aspect. If Clay has a claim they' attack it, and if valid, they charge Hunt with knowing and concealing it, and therefore pray to be released from him, in which event they have no need of indemnity. Bat on the contrary, if Morrison’s executor has no claim, then they claim their indemnity, and ¿Act it be appropriated to the debt. This course is a common one, and if they are not to have a release from Hunt, it seems naturally to follow, that they are to have it out of the estate pledged. Besides, if the appellees have not complained about the decree, what follows, according to the uniform practice of the court on a •reversal, why every errror is to be noticed on every side, and the party who does not comp lain or assign -error, is entitled to. have his errors considered. Suppose the court below had dismissed the bill at first, and refused relief both against Hunt and the estate pledged, would not this court have been bound to reverse, to grant relief against one or the other? and yet this court is now doing the same thing that the court below did. It ought to be recollected that this is an appeal, and any party appealing brings all parties here and places them as they stood in the court below.

Petition fora re-hearing.

But we trust we have a pledge in the opinion which insures a decree against Morrison’s executor, if -we cannot get it against Hunt. It,is said, “it seems that Morrison’s right was neither investigated by the par•ties nor considered by the court. And all that we • can now say about it, is, that there is nothing in the record, which could authorize this court to decide, (if it were necessary to express a judicial opinion) that the validity of the claim under the deed to Everett is affected by the right to the slaves claimed by Morrison, and recovered by his executor, from Garrett.” Thus the court decides against us, because neither we, or Morrison’s executor, has shewn any valid claim acquired by Morrison. It seems then to follow,.that we are entitled to a decree for the very-slaves in question, and it is necessary that .this court should express a judicial opinion thereon.

But the first clause of this last sentence quoted from *419the opinion, contains an assumption not conceded ns, that is, that the claims of Morrison’s executor seems not to have been investigeted by the parties, nor sidered by tile court. No doubt it was considered by the court, and the court concluded that the claim was established, and on this fact predicated relief. There was an issue made up on this decree. The appellees attacked with all proper allegations, and' Morrison’s executor in his answer, sets it up and alleges its validity, and filed his record at law which proved a recovery. But say this court, that record does not prove the claim of Morrison’s executor a good one. Be it so. There is a deposition of Cuthburt Banks, filed with that record and read without, objection, which proves all about Morrison’s claim. That such a deposition filed in another record, is evidence unless objected fo;see Cox vs. Strode, IV. Bibb, 4. On this record and this deposition, no doubt Clay risked his case, and the court below decided the claim, and relieved the complainants in the cross bill, the sureties of Garrett, because that claim was a good one, and Hunt knew it and concealed it. But on the contrary, if this court shall overrule the case of Cox vs. Strode, or shall decide that tbe record at law and Bank’s deposition shews no title in Morrison j then it clearly follows, that the court ought to decree his executor to surrender the slaves, or account for their value. It does seem to the undersigned, one of the most clear propositions, that if the appellees have no right to relief against Hunt, they have against the estate pledged; that all the parties are here, and all issues formed for that purpose, and that this court, if it decides against us in one point, must go with us on the other.

Petition for a re'hearins"

But it is. not intended to yield, that the court ought to reverse the relief granted against Hunt. It is peculiarly disagreeable to the undersigned to discuss this point, because it turns chiefly on fact, and we well know that evidence will make an impression, frequently, on the mind of one man which cannot be impressed on the mind of another.

The court, however, has refused relief to Mason and Stockton on the grounds that their letter carried tnem beyond the locus peniientics and deceived Hunt, *420and compelled him to surrender available rights which he cannot regain, if they are relieved. It'is already shown that Hunt has released nothing and lost nothing. He holds to this hour unchanged, and unreleased by writing, (he deed of Pindell’s trustees to Garrett in trust for himself. The only plausible pretext for saying that the situation of that property is in any shape altered, is the existence of the deed of trust from Garrett to Everett; and what has that done? Has it subjected the property to any other debt except Hunt’s? It has not.' And Hunt himself has, and had the right of availing himself of this deed of trust from Garrett to Everett to indemnify the securities to Hunt’s debt, even without the. consent of those securelies. For we lay it down as a general position, that if a trust be created to secure a debt either directly or collaterally, the creditor, although he is no party to the deed of trust, and even knew not of it, may, whenever he discovers it, file his bill at once, avail himself of the trust, and subject the trust estate to his debt. Tin’s doctrine will be found sparsim in the indexes to Johnson’s Chy. Rep. under head of trust and trustees. Such also has been the decisioa of the Supreme court of the Nation.

Petition for a re-hearing.

It is also true, that if a principal debtor shall indemnify his sureties, the creditor, to whom all are bound, has a right to the trust fund and may appropriate it. This deed then, from Garrett to Everett for the benefit of those sureties, did not make Hunt’s case worse, or cause him to surrender any ‘‘available rights,” but enured to his benefit and made him more secure than ho was; and so far then, as Hunt relies on the ground that the letter of Stockton and Mason deceived him, or bound them, it utterly fails. There is i,e pretext for it. Their letter did not bind them. Hunt could not recover on it. They were never bound till they executed and delivered the notes.

But the court seems to say that their allegations were wholly insufficient to entitle them to redress, or to admit the proof that they refused to be bound unless Daniel was. They charge expressly, that they knew (not)of Morrison’s purchase, and aver they never would have signed the notes had they known it. Now if Hunt knew it, as we hope to be able to shew, and *421yet concealed the fact, when he made use of this very release to induce them to become sureties, it is a fraud, for which they ought to be relieved; and ought to be compelled to take the trust estate, for we admit he is entitled to it, whether they are relieved from their obligation to him or not. They further charge, “that it was on the faith of the property then in possession of Garrett, and the representations of John W. Hunt, thereafter set out, that they were induced to go the security of Garrett to Hunt.” Here they state that they relied on this release to Garrett for the benefit of Hunt, and the possession of the slaves with Garrett; but they also add, “together with the representation of John W. Hunt,” in going security. They also charge, that Garrett brought the notes and the release from Lexington by the request of Hunt, to make those representatians to induce them to go security. They also go on to state that Hunt came to Mountsterling, and they heard him assure Daniel that the slaves were clear of incumbrance, and that from the representations of Garrettand Hunt, “they went security, supposing and believing that the estate was Garrett’s.” It is respectfully insisted that these charges, although general, are sufficient to let in the proof that they rested on Daniel, as he was skilled in law, and that they refused to be bound unless he was. But the court says, this only furnishes them with a technical defence ai law, that is an escrow, that they signed the notes not to be obligatory unless Daniel signed them. But could they have made use of this technical defence at law, after Daniel really did sign them? Certainly not. But it was important for them to show, under their general charges, that Daniel was induced to sign them by fraudulent representations, and concealment on the part of Hunt, which not only deluded Daniel, but them also, whereby they suffered their names to go on the notes to Hunt.

Petition for a re-hellrinS*

But the court concludes with a final argument, as if conclusive against relief, that it has not been shown what has become of the rest of the estate, even if the slaves are deducted, and that they will presume it sufficient. But how can the court presume it sufficient? It is expressly charged in the cross bill of the complainants, and not denied by Hunt, that altogeth*422er including the slaves it is not sufficient to pay thedebt: and yet the court presumes, against these uncontested allegations! But how can the court say that the rest] is not accounted for? It is expressly charged that the house and lot in town was sold for only |>1000, papen of the commonwealth, and that not paid, and that the land was sold, but the money could not be coerced from the purchaser, Spiller, because of other liens? Did not this account for the other property? But why complain, that the amount of this trust estate was not ascertained? Was it not before the court of competent jurisdiction with all necessary parties, so that the court below could take an account of it, and ascertain its value, and even cause it to be sold, and the value ascertained by sale? All this could be done, and its value was put in issue, and the proceedings of the chancellor could ascertain it, and was the proper mode of fixing its value, and yet the chancellor cries out, he cannot relieve, because the value is not ascertained.

Petition for a re-hearing.

If, however, the whole trust estate, or what is left, deducting the slaves, was doubly sufficient to make up the debt, if Hunt practised a fraud on the securities, it is denied that they would not be entitled to relief. They would be so entitled, and could not be compelled to pay up the debt and take the trust fund; but on the contrary, they ought to be relieved, and Hunt be compelled to take the trust fund.

In the case of McClanahan, Field, &c. vs. Chambers, Chambers became released as endorser to McClanahan & Co. I. Monroe, 43. by laches; butyet McClanahan, & Co. was entitled to the trust fund to secure the debt... In tne case of Trirnble and Garrett vs. Webb and Taylor, Trimble was amply indemnified as indorser for a debt, and yet was adjudged to be released at law, the indemnity notwithstanding, and that his creditor was entitled to the indemnity. See I. Mon. 100.

So here, these appellees would be entitled to their release notwithstanding their indemnity, and Hunt would not be in the deplorable state which the court supposes, but would be entitled to the trust fund.

The counsel for appellees will, for the present, *423'liere close his argument, and reserve other points for a supplemental petition, together with authorities.

Opinion after re-hearing.

Chief Justice Robertson,

delivered the opinion of the court.

Satisfied with the opinion as between Hunt and the appellees, and that it was sustained by the record, we overruled the petition for a re-hearing as to him-; but doubting as between the appellees and Morrison's executor, a re-hearing was granted as to them.

On a review of the case, we are disposed to think that the appellees had a right to prosecute their cross bill against Morrison’s executor. But no decree was rendered on the cross bill against Clay. His bill was •dismissed, but the cross bill against him was not dismissed, nor did the decree say any thing about it. On the return of the cause to the circuit court, it will become proper (as the decree against Hunt, is reversed) to dispose of the cross bill against Clay.

Whether Morrison’s purchase of the slaves should be deemed fraudulent by operation of law, so far as bona fide creditors or purchasers may be affected by it, or whether the appellees are such bona fide creditors or purchasers, or whether (if they may have an eventual right to appropriate to their indemnification the value of the slaves) they have shewn, or should be required to show, what disposition has been made of all the other property contained in the deed to them, and should be required first to subject that, are questions entitled to consideration, but which it would be premature now to decide, as the circuit court has never adjudicated upon the case between these parties; and, therefore, we shall not now instruct the circuit court what decree to render. When that court shall have made a decree between these parties, and not sooner, this court may determine the case and dispose of all the points which may be involved in it.

As the former mandate may be construed as concluding the case as between Clay and Daniel and others, it is modified so as to conform to the instructions now given.

Decree reversed, and the cause is now remanded? *424withínstruction9 to dismiss the cross bill against Hunt, and to proceed to decree on the cross bill as between Morrison’s executor, and Daniel, Mason, Stockton, Everett and Garret.

Wickliffe and Wooley, for appellant; Crittenden, Hog-gin, Triplett and Hanson, for appellees.