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Walker v. Brungard et al. all the property conveyed by the deed would not repay the debt due for what Brungard had paid out, and that Thomas F. Walker was utterly insolvent. The bill prays that the trustees may be compelled to make Brungard a deed, or that others may be appointed to carry out the design of the deed of trust; that an account might be ordered of what was due hy Walker to Brungard, and a decree rendered accordingly.
A pro confesso was taken on service of process, and a decree made in accordance with the prayer of the bill, with reference to the trustees; afterwards, on the day of — Thomas F. Walker, by petition, prayed the decree pro confesso to be set aside, which was done; and on the 17th of June, 1840, he filed his answer, in which he admits the execution of the deed of trust; admits that Brungard was his accommodation indorser, and had paid large sums on account thereof. He denies exhibit B to the bill to be a true statement of the accounts between the parties, and states his inability at that time, in view of their complication, to render a full account, but proposes to do it by a cross-bill for account. He admits the sale by the trustees of the trust property set up in the bill, and the purchase by Brungard, and the demand of deed, and his forbidding its execution, on the ground that nothing was due to Brungard, and because he discovered that Brungard was fraudulently pretending, that he was purchasing the property for the purposes of the trust, and thereby deterring others from bidding, while, after purchasing, he was converting it to his own use, without making provision for the trust debts; that the property bid in by Brungard was worth ten times as much as he bid it in for; and Brungard was fraudulently attempting to appropriate it to his own debts, leaving those of Walker unpaid ; that this sale was one of many which Brungard had brought about, with positive assurances of an intention to resell for the benefit of the trust, which he never did.
He admits the depreciation in value of the property, but contends it is still a sufficient indemnity for the debts to be secured, and denies that most of the notes, &c. are valueless. He admits the use of a small portion of the trust property, and the sale of
Walker v. Brungard et al.
a negro girl embraced in the deed, but justifies that sale, on the ground, that the negro was Mrs. Walker's, his wife's, and was inserted in the deed for Mrs. Walker's benefit, and with the agreement on the part of Brungard, that she should be so appropriated; that he did not believe Brungard would lose more than he had already lost by his indorsements, as he was utterly insolvent.
He admits his own insolvency, which he insists was brought about by his being induced to make the deed of trust, and Brungard's conduct in its administration.
On the 23d of December, A. D. 1840, Thomas F. Walker filed his cross-bill in the case, in which he states that Brungard had received $20,000 from the trust fund, which he had failed and refused to account for, of which exhibit 50 was a statement; that the deed marked exhibit 51, (which was a deed from Lewis and Walker, the trustees to George Brungard, to lots fifty-five and fifty-six, in Vicksburg, made on the 14th day of January, A. D. 1839, reciting a consideration of $2000, and a public sale under the provisions of the original deed of trust of Thomas F. Walker,) was made on consideration, and for the sole purpose, of Brungard's executing a mortgage on it to the Union Bank, to raise money on to pay the trust debts, but instead of doing so, with the intent to defraud Thomas F. Walker, had had it sold by the sheriff to pay his own debts; that exhibit 52 was the deed of the sheriff to Brungard, for the tract of land conveyed in the original deed of trust; (this deed is dated the 14th day of May, A. D. 1838, and recites, that the execution on which the sale of the land of Mr. Walker's took place, was returnable to May, 1838, and issued on a judgment rendered in May, 1837, -on which Walker was bondsman in a forthcoming bond, - and that George Brungard was the purchaser of the property for the sum of $3140. The rest of the deed is in the ordinary form.) That this land was bought by Brungard under an agreement to apply the proceeds of its sale, after being reimbursed its purchase-money, to the purposes of the original trust, which he had failed to do, and that he both claimed the land and charged for its cost.
Walker v. Brungard et al. Exhibit 53 is an original letter from George Brungard to Mr. Walker, written after the sale of the land, in which he says: "My sole purpose in purchasing it, was for the purpose of the more speedily to relieve my indorsements on your paper, and give you all the benefit of its after sale."
That while the legal title to lots fifty-five and fifty-six was in Brungard, he sold to John Salmon part thereof for $6000, on the 31st day of January, 1839, and had fraudulently applied the proceeds to his own use.
That exhibit 55 was the deed of the sheriff of Warren county to R. C. Stockton, to lots fifty-five and fifty-six, and the tract of land sold to Brungard by the sheriff, on the 14th day of May, 1838. This deed is dated September 16, 1839, and recites judgments against George Brungard in favor of the Commercial and Railroad Bank, for $1878, rendered in May, 1838; one in favor of Fellows, Read & Co., for the sum of $2738.86, on the 9th of May, 1839; one in favor of Parish & Co., for the sum of $2242, of same date; and another in favor of Parish & Co., for $1884.89, upon which executions against Brungard and his security, on the forthcoming bonds issued, were levied on the lots mentioned, and the land, for which Stockton bid $1960, and the deed was made accordingly.
That Stockton bought in trust for George Brungard, but pretendingly for the use and secretly in trust for Mrs. Brungard, in whose name the property is listed for taxation ; that Stockton paid no money of his own, but paid that of George Brungard ; if not the money "belonging to the complainant arising from the trust fund.”
That Salmon was informed when he bought of Brungard of his fraudulent acquisition of title.
That Stockton was not present at the sheriff's sale, but A. Burwell, Brupgard's lawyer was, and bid for the property, and bought it in Stockton's name, at which time he (Thomas F. Walker) notified all present of the frauds of Brungard, and the claims of his creditors; which notice Mrs. Brungard through Stockton had also. That exhibit 56 was Brungard's receipt to Thomas F. Walker
Walker v. Brungard et al. for divers claims in the deed of trust named, amounting to $50,000, much of which had been collected by Brungard, and appropriated to his own use, and much lost by wilful neglect ; that Brungard, by his "positive folly and wickedness," lost $26,000 in the notes of Tate and Poindexter by an injudicious suit in Louisiana to recover them, in which as a compromise he gave up the notes.
That Brungard has had all the books and accounts mentioned in the trust against his (Walker's) consent; that he had applied to Brungard to deliver them to the trustees, who had refused: he offered his aid, but Brungard refused it; he asked for a sight of the books, but it was refused; and he refused to render any other account than that filed with the bill.
That Brungard has received large sums in rents from the property he bought, and also from the sale of part of it to Salmon, since his purchase at the sale under the deed of trust, which he had never accounted for.
That Lewis and John F. Walker are men of probity and honor, and anxious to discharge the duties of their trust properly; that Salmon, Brungard and wife, and Stockton may be made defendants; that Brungard, who designs to flee the country, may be made speedily to account, &c.; that judgments have not been rendered against Brungard for a greater sum than $15,000, on his indorsements, and that it is not likely, in consequence of the death of the notary who protested the notes, to be held liable for more, and therefore the bill prays that the property be discharged from the incumbrance of the deed of trust, that he (Thomas F. Walker) might make an arrangement with his creditors with it; that the deeds, exhibits fifty-one, fifty-two, and fifty-five, might be set aside, and the trustees reinvested with title, Brungard be made to account for all he had collected or lost of the trust fund, and for other relief.
Brungard filed his answer to this cross-bill on the 7th of January, 1842; in it he admitted that most of the trust property was placed in his bands, together with the trustees. He denied that he has untruly accounted for the trust fund, or fraudulently concealed any part of it, though he admits the reception of about
Walker v. Brungard et al. $300, unaccounted for, omitted by mistake. He denies that he is liable for the items claimed against him by Walker in his crossbill in exhibit 50 thereto, and answers each item seriatim. The first item was the sum of $6000, received from Salmon from the sale to Salmon of part of the trust property bought by Brungard from the trustees on the 14th of Jan. 1839. . He admits the sale to Salmon, but says the property belonged to him as his own; and the proceeds of sale were his own, and not part of the trust fund. The second item was $300, alleged to have been received of A. B. Reading, which he denies the reception of altogether, and calls for proof of it; so also item three. Item four of $300, he admits to be correct. So also the items of money received from Phillips & Blanchard, and files as exhibits (A 1) and (L), as proof of it. The item of the stock of goods he averred to be false; he admits the reception of the goods and their valuation at $3000; but says they only sold for $967, with which he has charged himself. He admits the reception of $221, for rent of plantation; but that he paid Walker the amount. He denies the charge of $20, premium on ice stock. He denies the charge of 89252, for the stock of goods, and 'files Walker's receipt, dated Feb. 23, 1837, for that sum, acknowledging full payment for the goods; which was made a year before the deed of trust was executed. The last item of $500, paid by Walker himself, he says may or may not be correct; it was Walker's own debt, and he is not liable for what Walker may pay upon it.
He denies that the sale under the deed of trust marked (51) was without consideration or void; he was then largely in advance to the trust fund; the property was sold by the trustees to pay him. The sale was on due advertisement, open and fair, and he the highest bidder. He denies that the sale was upon condition of getting money on a mortgage on it, through the Union Bank; something was said about the mortgage after, nothing before the sale. He has credited the debt due to him with the proceeds of sale. He admits that the property bought by hinn under the deed of trust has been sold under executions against him; these executions were against him at the time he bought the property, and he could not prevent the sale under