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Walker v. Brungard et al. The main object of the trust deed was to secure Brungard from loss or damage by reason of any execution being levied. If the alleged want of protest and notice clearly discharged Brungard from his indorsements, then the trust property, so far as Brungard was concerned, would stand released from the trust; but if Brungard's liability remained, notwithstanding the want of protest and notice, the trust ought to stand as security to him according to the terms of the deed.
It may be well questioned whether Brungard is discharged. He being secured for his indorsements, it seems that he cannot successfully avail himself of a defence on account of defect of protest, or want of notice.
Accepting an assignment before maturity of a note of all the maker's property, as collateral security for indorsements, will be a waiver of notice, although it was of less value than the amount of the indorsements. Bond v. Farnham, 5 Mass. 170; Mechanics' Bunk v. Griswold, 7 Wend. 165; Barton v. Baker, 1 S. & R. 334.
The next subject of consideration is the negro woman named Elmira, mentioned in the trust deed.
This negro appears to have been the separate property of Mrs. Walker. Mr. Lewis states that she was bought of him by Mrs. Walker, and paid for with her own money. John F. Walker states, that the slave Elmira was included in the trust to prevent creditors from attaching her, and forcing Mrs. Walker to replevy her. This does not appear to have been the object of the trust deed; it recites that the object was to secure Brungard against liability for his indorsements.
Being the separate property of Mrs. Walker, the question is, whether a feme covert owning separate property may not convey the same to secure the contracts of her husband, by uniting with him in the conveyance and acknowledging the deed on privy examination. This Mrs. Walker has done, and in my opinion thereby subjected the negro girl to the purposes of the trust deed alike with the other property.
A question has been raised, as to how far Brungard is chargeable with the stock of goods he received from the trustees as part
Walker 0. Brungard et al. of the trust fund. Whether three thousand dollars, the invoice price, or the amount he realized on them.
We have already seen that Brungard's relation to the trustees, in connection with the management of the trust fund, was that of agent. Unless it were shown that some gross mismanagement existed in the sale of the goods, or the collection of the money, the amount actually realized is the rule of his accountability.
The last and remaining point to be considered, is the question of the removal of the trustees.
On this subject the trust deed provides, that in case the said William R. Lewis and John F. Walker shall not be deemed suitable and sufficient to act as trustees by the said George Brungard, so that the said George Brungard shall wish to remove them at any time before the said trust shall be fully executed and performed, or otherwise determined, it shall and may be lawful to and for the said George Brungard and Thomas F. Walker to nominate and appoint some other fit and proper person or persons to be a new trustee or trustees.
The correct construction of the trust deed, in my opinion, accords to Brungard the power of removal whenever he shall deem them unsuitable to execute the trust. On his application, therefore, for that purpose, I have no difficulty in declaring it to be my duty to remove the trustees.
The new trustee or trustees are to be nominated and appointed by the agreement of Brungard and Walker. In case they agree, I will appoint the person or persons they may unite in recommending; but if they do not agree, I will endeavor to appoint some fit and proper person or persons to execute the residue of the trust.
The exceptions to the report of Mr. Commissioner Foute are sustained, the account taken overruled and recommitted to the same commissioner, with instructions to retake and state an account in accordance with the views contained in the foregoing opinion, being careful to state the actual amount of loss which Brungard has sustained by actual payments upon his indorsements for Walker; how far he has been reimbursed by the sale of property and receipts of money from the trust fund, and
Walker v. Brungard et al. what are now his outstanding liabilities on his said indorsements those that are in judgment, those that are in suit, and those upon which no suit has been instituted against him.
George S. Yerger, for appellant,
After briefly referring to the pleadings, contended, that in no case where there is a doubt or suspicion of unfairness, or in which a most clear and palpable case is not made out by the proof, will equity enforce a specific performance. Cited 2 Story, Eq. $ 769, 770.
He further contended, that where there are several co-defendants in equity, and pro confessos are taken against some, and the others answer and show that complainant is not entitled to relief, the court will dismiss the bill as to all. Clason v. Morris, 10 Johns. Rep. 524.
Mr. Yerger made a lengthy argument upon the facts of the case, and cited 3 Yerg. Rep. ; 4 Paige, R. 9-14; 1 Ib. 128, and authorities therein cited.
George L. Potter, on same side,
Filed a written brief, in which he reviewed the case at great length, arguing the several points presented by the record, and earnestly contending that the decree of the chancellor was erroneous and should be reversed. It would be impossible, by any abridgment of Mr. Potter's argument, to do any thing like justice to it; hence it is not attempted by the reporter. The following authorities were cited by him : 1 Lomax, Exrs. 301; Byington v. Wood, 1 Paige, 145; Methodist Episcopal Church v. Jaques, 3 Johns. Ch. 81; 2 Smith's Chan. Prac. 164.
Smedes f. Marshall, for appellee, Brungard,
Filed a printed brief and argument of thirty pages, in which the facts of the case are shown with great minuteness and particularity, and the several points arising argued most elaborately. The testiniony, which is voluminous, was also fully reviewed. They contended that the testimony of the trustees, W. R. Lewis and John F. Walker, was,
1. Not to be believed because, 1st, contradicted by Brun
Walker v. Brungard et al. gard ; 2d, by other facts; 3d, appeared under suspicious circumstances; 4th, was positively disproved; and
2. Was incompetent,
1st. Because they are parties to the record, and as such would be inadmissible at common law. 1 Phil. Ev. 45; 1 Green, Ch. Ev. 475; 1 Gil. Ch. Ev. by Lofft, p. 223.
2d. Because they are estopped by the deed which they have given Brungard from controverting its provisions. 1 Greenl. Ev. 211; Ib. 204 - 222. Cited also 1 Phil. Ev., Cow. & Hill's Notes, n. 194; Ib. n. 964, and authorities cited; T'ribble v. Oldham, 5 J. J. Marshall, 144.
3d. As between the parties, fraud in the execution of the deed which tends to prove it no deed, alone can be shown. 1 Phil. Ev. n. 972; Ib. note 969. Creditors might assail the deed for fraud between the parties, as to the nature and extent of the consideration. 3 Ib. note 969, p. 1448; 1 Ib. text, 551; Roberts v. Roberts, 2 B. & A. 369; 1 Bl. Rep. 364; 1 Bro. Ch. C. 546; 1 Verm. R. 475; 6 Ves. 747 ; 2 Jac. & Walk. 391; 3 Bing. N. C. 684; 8 Johns. Rep. 147; Doug. 696; 2 Cowp. 790; 8 Term Rep. 575; 1 East, 98; 4 Greenl. 415; 11 Mass. R. 375. Parties and privies, however, shall not be heard to allege their own fraud, whether intended to affect creditors or others, as a ground for avoiding or varying a deed. 7 Gill & John. 132; 7 John. Rep. 161; Cro. Jac. 270; Yelv. 196; Brownlow, 348; Comb. 348; 1 Strange, 509; 2 Ib. 993; 4 Rand. 368; 8 Conn. 52; 15 Wend. R. 516; 9 Barn. & Cressw. 532; 3 Mason, 379, 388; 1 Bland's Ch. 32; Ib. 587; 1 Bay's Rep. 461; 1 Story's Eq. 295.
They contended that Mrs. Brungard was an innocent purchaser, without notice, for valuable consideration, of the property she claimed, if there be fraud on the part of the defendant in the execution, he having the legal title, and as such will be protected. Demarest v. Wynkoop, 3 John. Ch. Rep. 147; 2 Vern. 384; 1 Johns. Rep. 575; 4 Munford, 313. A mere suspicion of fraud, not notice to a purchaser. 2 Sugden, Vendors, 342. A vague report from strangers, not notice. Ib. 276; 3 Hen. & Mun. 114.
Walker v. Brungard et al. The property in controversy being purchased with the separate property of a feme covert, and sought in chancery to be subjected to her husband's liabilities, will be protected by the chancellor. If a husband seek the aid of a court of equity to subject the wife's property to himself, the court will force him to make provision for the wife. McKinstry v. Davis et ur., 3 Cow. 339. Much more so when the creditors of the husband seek the subjection. Udall v. Kenney, 3 Cow. 590; 5 Monroe, 340; 2 Vern. 494; 1 Peere Williams, 383, 459; 3 Ib. 202; 2 Johns. Ch. Rep. 206.
Brungard being the duly constituted agent of the parties with unlimited discretion, unless guilty of gross neglect or wilful fraud, will not be held liable even for an actual loss. Hamnon v. Cottle, 6 S. & R. Rep. 290; Dunlap's Paley's Agency, chap. 1, $ 2, n. a, and cases cited; Story on Con. 161.
4. Burwell, for Brungard,
In a printed brief and argument of twenty pages, insisted that the cross-bill of Walker ought to have been dismissed because it introduced new parties and new matter, and cited Story on Eq. Pl. 1, § 4, 10. He then reviewed at much length the questions presented upon the original bill, pro et con. and proofs ; contended that the allegations of the bill were not contradicted by the trustees; that the forfeiture of the conditions of the deed of trust justifies the sale made by the trustees on the 18th of Feb. 1839; that the refusal of the trustees to execute the provisions of the trust deed, demanded their removal, and the appointment of other masters in their stead. Cited 1 Cox, 159.
Mr. Burwell then reviewed the matters of account between Brungard and Walker, and insisted that Brungard could not be justly held liable for the amount of the notes of Anderson and others, surrendered up by him in Louisiana, as these notes were never of any value, the parties thereto being utterly insolvent. Cited Fitch v. Scott, 3 How. Rep. 314; 2 Stark. on Ev. 83.
That if Brungard promised Walker to give him the benefit of a resale of the 320 acres of land, sold by sheriff, but contended that the letter from Brungard to Walker did not amount to a