Walker v. Brungard et al. tion; in it he says, that nearly all the claims transferred by Walker to Brungard, except those then (Dec. 2, 1840,) collected, were worthless; that Brungard used every energy to collect the debts, devoted himself to it; no individual to his business could have been more unwearyingly indefatigable than Brungard to Walker's; that he has read T. F. Walker's cross-bill, and from his knowledge of the transactions of the parties, acquits Brungard of all fraud; that he believes Brungard solvent when Walker made the deed of trust to him; that he is now insolvent, occasioned by being indorser for Mr. Walker. John J. Guion, concurs in the above. John B. Bemiss states, that he was the attorney for Anderson in the suits brought by Brungard and in the suit brought against Millikin by Anderson; that he believes Anderson in 1839 was insolvent; that he would not have paid the costs of the suits and damages, for the notes given up by Brungard when he compromised with Anderson. Thomas N. Pierce states, that he is a practising lawyer in Louisiana; he recites the history of the suit of Brungard against Anderson, and of Anderson against Millikin and the compromise, and says that at that time Anderson was insolvent. W. H. Paxton proves, that Brungard was obliged, in order to pay an execution against him, to sacrifice a set of silver ware, and a tract of 450 acres of land on the Mississippi river; this was after the sale by the trustees of the brick house and lot. Henry Poindexter, of the firm of Tate & Poindexter, on the 3d of Dec. 1840, files a statement of the notes given by him, which were given up in the compromise by Brungard, in which he states that all the parties thereto were insolvent, and none of the notes paid. Robert S. French testifies, that he was present at the second sale under the original deed of trust, which took place on the 18th of Feb. 1839; that he bought it for Brungard; that Brungard told him to make it bring enough to pay what he was in advance to the trust for on account of his indorsements; that Brungard told him he would use it to pay off his indorsement liabilities for Walker, and let Walker have the benefit of any Walker v. Brungard et al. surplus; that at the request of Brungard he wrote a deed to the property to him, and left it with W. R. Lewis, one of the trustees, who promised repeatedly to execute it, and get his cotrustee to do so; but they did not; that Lewis told him, Walker was opposed to his signing the deed because the property brought so small a sum. An agreement of counsel is on file that the affidavits taken in the case might be read as though regularly taken. Ferdinand Sims proves, that he is a brother of Mrs. Brungard; that the brick house and tract of land, by an arrangement between A. Burwell, himself and Stockton, made before the sale, was bought for the benefit of Mrs. Brungard; that he (witness) furnished Stockton the money to buy the property with, and was at the sale. That about the year previous to the execution of the deed of trust by Brungard and wife to Stockton, in Sept. 1839, he had urged Brungard to make arrangements to secure to his wife the property left to her by her uncle Edward Mitchell in Louisiana; that he urged this because he thought Brungard was likely to become involved, and he was anxious to save something for his sister; that Brungard at first and often refused, but at length in Sept. 1839 assented to it; and the deed of trust was made. Through Edward Mitchell's will, of which the witness was executor, Mrs. Brungard was entitled to $13,200, at least; that he had paid $6000 to Brungard prior to the settlement of Sept. 1839; that then $7252 was in his (witnes's) hands, due to Mrs. Brungard, none of which was ever paid to Brungard or reduced to his possession; she was also entitled to about $700, as a distributee of Edward Sims, of whose estate witness was also executor, which Brungard had never reduced to possession; that Stockton was selected as the trustee and legal adviser of Mrs. Brungard by his direction; that he was present at the sale of the land and house under execution against Brungard; Walker was present, and told bidders they would get no title. He also states, that to one who wanted it, the brick store would be worth $4000 or $5000, and the land fifteen or twenty dollars per acre. Robert L. Moore proves, that Tate & Poindexter, Fisher, Goodman, Wharton, Anderson and Shelton were insolvent in 1839, Walker v. Brungard et al. and continued so to this day; and Bookout reported to be insolvent since then. In 1836 and 1837, Brungard was reputed to be wealthy, now he is broke; property on Main street has depreciated very much in value, and the brick house is now worth about $1500. That he closed the legal business of Horace F. Blanchard, and found among his papers many notes, &c., left with him by Brungard, of which neither he or Blanchard ever collected and paid to Brungard any; a small amount collected from Cooper went to pay costs; the claims were all of bad character; some of them he gave up to John F. Walker; that the notes and accounts due Anderson, &c., were placed in Mr. Blanchard's hands for collection, and were generally worthless; not enough from them was collected to pay the fees due. Alexander M. Paxton testifies, that Tate, Poindexter, Fisher, Goodman, Wharton, Anderson, Bookout, and Moore were all insolvent in 1839, and are so still; that Brungard was in good pecuniary condition in 1839, since then insolvent, owing to his indorsements; Brungard made great sacrifices of property to pay debts which witness as attorney held against him; that the brick house has depreciated very much in value, and is now not worth $1000; that Walker had nothing to do with the claims which Brungard made sacrifices to pay. John M. Chilton states very much the same, with reference to the insolvency of all the parties to the notes given up by Brungard; that he was surety for Brungard to the Railroad Bank in large amounts, to relieve him from which Brungard gave up his dwelling house, and a large amount of claims due him in Arkansas, which have proved of but little value; that before 1839, Brungard's pecuniary condition was very good; since then he has become insolvent, growing out of the matters in connection with this suit, though what effect Brungard's dealings in Arkansas may have had on his solvency witness does not know; the value of the brick house not over $1000. Nelson F. Shelton, Sr. proves, that he is the uncle of Samuel Anderson and Nelson F. Shelton, Jr.; that he has known them from their infancy; in 1838 or early part of 1839, a writ was served on him by mistake for his nephew of the same name; Walker v. Brungard et al. that he knows well and has long known Anderson and Shelton's pecuniary condition; Anderson left Virginia in 1836 or 1837 not worth a dollar, and commenced merchandizing in Mississippi; he made nothing to witness's knowledge, and is now utterly insolvent, and took the benefit of the bankrupt law. Nelson F. Shelton came to Mississippi in 1838 under age, worth about $1500; he embarked in speculations with Anderson, and now they are both utterly insolvent; since 1839, no debt could be made out of either by suit, nor would he have given any thing for such claim. John J. Guion proves the insolvency of some of the parties on the notes given up by Walker; that he was surety for Brungard on forthcoming bonds for large amounts, who sacrificed property, and among the rest a valuable set of silver ware, to relieve him. Previous to 1839, Brungard was in good credit; the brick house has depreciated very much in value, and is now not worth $1000. Certificates of the bankruptcy of Samuel Anderson and various sheriff's returns of nulla bona in 1839, against the parties to the notes given up by Brungard to Anderson, are filed. The papers were first referred to Mr. Guernsey for an account, who presented one, exhibiting large balances against Brungard. Exceptions were filed to this, and the papers referred again to J. F. Foute, Esq., master commissioner, who on the 17th day of February, 1847, made a report, showing a balance due from Walker to Brungard of $10,087.55, which report was confirmed by the chancellor. On the 21st day of April, A. D. 1847, this cause having been previously submitted, the chancellor rendered a final decree, confirming the report of commissioner Foute, exhibiting a balance due from Walker to Brungard of $10,087.55, declaring the sale made by John F. Walker and William R. Lewis, the trustees, on the 18th day of February, A. D. 1839, to have been made in accordance with the provisions of the deed of trust made by Thomas F. Walker and wife, on the 15th day of January, 1838; removed the trustees, John F. Walker and W. R. Lewis, and appointed a trustee to convey to Brungard the property purchased by him at the sale made on the 18th day of February, Walker v. Brungard et al. 1839, as well as to take charge of and sell the balance of the property embraced in the deed of the 15th January, 1838, according to the provisions of said deed, and ordered the costs of the suit in chancery to be paid by Thomas F. Walker. From this decree Thomas F. Walker obtained an appeal to the high court of errors and appeals. The following is the opinion of the chancellor appealed from, viz.: By the CHANCELLOR: The counsel of the defendant, Thomas F. Walker, have not filed any abstract or brief. The defendants, John F. Walker and William R. Lewis, the trustees, are equally undefended. A. Burwell and William C. Smedes, solicitors for the complainant Brungard, have filed abstracts, briefs, and arguments at length, and investigated the case on behalf of their clients with great care. The defendant, Thomas F. Walker, has filed a brief and argu ment. Thus situated, I have found it necessary to look into the mass of paper connected with the whole case, and in the discharge of this duty have been compelled to devote much time and labor to its investigation. The cross-bill of Thomas F. Walker introduces new and different parties and interests, with distinct and independent matters. Had this been excepted to in the form of a demurrer, plea, or claim to object to the same on final hearing, I should have been disposed to keep out of consideration of the original bill, all matters which relate to the claims of Salmon and Mrs. Brungard, her agents and trustees; but as the whole cross-bill is answered in detail, and the answers relied upon, on final hearing, it is my duty to decide the whole case. The first thing which claims my attention is the trust deed from Thomas F. Walker to John F. Walker and William R. Lewis, in trust to secure George Brungard for his indorsements of Thomas F. Walker's paper. This provides, 1. That the trustees may sell or swap the lands and lots, or |