Mahorner v. Harrison.

of his letters he said, as soon as the negroes come out, he would get Albert (his brother), and Foote to examine with him the several places he had bought, and advise which was the best to put the negroes on; he was in favor of the Noxubee place. Here was a clear indication that the place he might put the negroes on was to be Hooe's. That the title might be in his name, does not seem to have been an obstacle. At this time the Noxubee place contained one hundred and sixty acres; he afterwards added to it.

In December, 1834, Hooe came to this country to attend the land sales at Columbus. Harrison attended with him, and being better acquainted with the land, purchased largely for him around the Noxubee place. Thus it seems that Hooe was but carrying out his plan of a large place. Harrison did not then inform him that he claimed as his own the land before purchased on the Noxubee.

After Hooe left the country, Harrison continued for several years to live on the place, and was regarded by every body as agent. But after a few years had elapsed, he advised that an agent should be sent out from Virginia to take charge of the place; and accordingly one was sent, to whom he delivered an unqualified possession, without making claim to any of the land. This, to be sure, is not conclusive against him, but it is a circumstance entitled to much weight.

It seems that Hooe instituted suit, in Alabama, for the land claimed by respondent there. In his answer to the bill, Harrison admits that he received money to be invested in land, but insists that it was invested in Mississippi. It should be remembered that part of his right in Alabama was acquired by virtue of a pre-emption in favor of Hooe. So far as that is concerned, the title, the legal title we mean, must have been in Hooe; and yet it only proves what we have said, that their combined efforts were directed to secure a place for Harrison as the first object. The form of the title was regarded as an immaterial matter. If, as his answer states, he had invested money in Mississippi for Hooe, he should be able to designate the place. True, he says in his answer here that he purchased in Octibbeha county. He

Mahorner v. Harrison.

purchased but a small quantity there, and that too in his own name; and besides, Hooe had given his preference to the Noxubee place. He wished to be near Harrison; the Octibbeha lands were at some distance. He had been explicit in his direction that part of the Noxubee place should be purchased for him. After his hands were placed there, he approved of the selection, and treated it as his own, when he was here. In this place we may notice a circumstance entitled to some weight, as disclosed by the testimony of Foote. When about to leave this country, Hooe rode out in company with Harrison and the witness to select a building spot. The two differed somewhat in their views as to the location. Hooe observed, I do not know that you should have choice in a site for my house, for I thought you intended to take the Prarie place (the Alabama tract). Harrison said he did not know whether he was to have all the Prarie place; to which Hooe replied that he intended to give him a good landed estate. Here was a distinct claim, an act of ownership by Hooe, and an acquiescence by Harrison. This proves, moreover, that Harrison considered his right as very much a matter at Hooe's discretion. His letters of a late date indicate the same thing. He spoke of a rumor that was in circulation that Hooe did not intend to do as much for him as he had been induced to expect. Against such a determination he remonstrated, and urged the justice of his claim, as arising from the labor and trouble he had bestowed in acquiring the land. This is inconsistent with his present pretensions.

The foregoing are not a tithe of the circumstances which lead us to believe that if the purer intentions of the parties had prevailed, and they had settled their respective rights before any rupture of feelings took place, the land in Alabama would have been assigned to Harrison, and the Noxubee place to Hooe.

Much reliance has been placed on a settlement made between the parties, in which Harrison surrendered certain land titles, taking therefor a receipt. This is entitled to but little weight. Hooe was evidently much dissatisfied, and said he would not submit to such a settlement. He did not receive the titles surrendered in full discharge, and is therefore not concluded.

Mahorner v. Harrison.

There is one of the quarter sections in dispute, which it is said stands upon a different ground, to wit, the south-east quarter of thirty-three. That was purchased by Harrison in his own name, and, as he alleges, with his own money, in the year 1835, after Hooe had left the state. The answer states that respondent wrote to Hooe for the money to purchase this land, but it was not sent in time, and Williams, being determined to sell, respondent purchased, paying one half cash, which he borrowed of B. A. Harrison, as appears by his deposition, and for the other half gave his note, which he paid out of his crop of that year. We learn something of this transaction from Harrison's letter of the 17th of May, 1835. In that he mentions a memorandum left by Hooe, as authorizing him only to sound Williams on the subject of the purchase. It seems, then, that there was no definite instruction to purchase. On the envelope he says that Williams had informed him of the sale of a little field over the river, a small part of the land. He agreed, if Williams could get it back, to take the whole at five dollars per acre, to which Williams acceded, half cash, and the balance in March thereafter. He says to Hooe, "I would like you to say whether I must buy it, provided he cannot get back the nine acres fraction." He also expressed fears that Hooe would not like the arrangement, and says, "Should it be the case, I'll take the purchase, if perfected, on myself individually; your memorandum did not say purchase, but the mania for land has increased since your departure, which actuates me to purchase." He further says, "If I take Williams's land, I'll have to get money of Albert until I can make some other arrangements." In a letter of the 10th of June, he says, "I don't know exactly what to do about the money of Albert," and speaks of waiting to hear from Hooe on the subject. And he also says, "Shall I give Albert an order on you, or pay him myself?" We may here add, that the transaction as to the Williams land, throws additional light on the subject of the Noxubee place, and proves that Hooe was regarded as the true owner.

How this Williams place was ultimately paid for, we are not otherwise informed than by the answer. The difficulty is

Berryman v. Sullivan et al.

attempted to be obviated by showing Hooe made a remittance on the receipt of Harrison's letter, which was not received in time. The answer admits that he did forward a draft, which was, however, handed back to him in Virginia, but again returned to Harrison, accompanied by a general expression, "you may have use for it." It is certain that Harrison intended to make the purchase for Hooe, if he should elect to take it. It is probable, moreover, that Hooe considered himself entitled to it; though it is not very certain that he ever refunded the money as a specific payment for that piece of land. As to this quarter section, it seems difficult to say that the trust had been established. The payment or advance of money must precede the purchase; a subsequent payment will not do to raise a resulting trust when the trust is denied. Botsford v. Burr, 2 Johns. Ch. R. 405; 3 Paige, Rep. 390; 2 Story, Eq. Jur. § 1201. Decree reversed, and decree ordered for complainant.

JAMES S. BERRYMAN V. MARY SULLIVAN Et al.

The bill alleged that a debt which the complainant, an attaching creditor, sought to reach, was claimed by a third party, under an assignment which was a mere cloak to hide the real ownership, which still remained in the assignor; the assignee denied the fraud, and asserted that the assignment was bond fide, to secure him as indorser for the assignor, and to secure other debts : Held, that the answer being responsive to the bill, and the proof not being sufficient to overthrow it, the bill must be dismissed. And in such case it is not incumbent upon the assignee to set forth the particulars of his liability as indorser, to secure which the debt has been assigned; the bill not being filed for a settlement of accounts between the assignor and assignee, but directed simply to the fraud in the assignment; the court would not entertain the question whether the indorser was under liability yet or not, the bill not having been filed with such object, nor the proof taken for such purpose.

S., a creditor of Y. & M., filed his bill against them and B. & H., alleging that B. had a judgment in this state against H., which was really the property of M., and that B. and M. were non-residents, and sought to subject

Berryman v. Sullivan et al.

H.'s debt to the payment of his claim against Y. & M.; B. answered, denying that his judgment against H. was M.'s property, but stated it had been assigned to him by M., to secure him as indorser for M., and also to secure other enumerated debts, including one due by M. to Y., M.'s codebtor to S.; to secure which debts, also, other property had been assigned to him (B.) by M., which other property had been sold and produced sufficient nearly to pay off those debts: Held, that before S. could claim the appropriation of the judgment against H., to the satisfaction of Y. & M.'s debt to him, on the ground that M. had assigned it to B. in part to secure Y., he must show that the debt from M. to Y. was still subsisting, and was not among the debts paid by the sale of the property assigned to B. None but a creditor having a judgment in this state can attack a deed of trust as fraudulent, with the view of having the property conveyed by it, subjected to the creditor's demand; not even though the parties to the deed of trust are non-residents, and the bill be a creditor's foreign attachment bill; nor will it aid the creditor that he has a judgment on his demand in the state where the parties to the deed of trust reside.

In error from the superior court of chancery; Hon. Stephen Cocke, chancellor.

The bill, filed October 7, 1844, states that the complainants, Mary Sullivan, James W. Sullivan, and William Bryan, obtained judgment in Fayette county, Kentucky, against the defendants, Thomas Young and Eben Milton, for $871.88, on the 19th of September, 1843, and makes a record of the judgment exhibit A. That W. and R. Ferriday & Co. being indebted to Young & Milton, or Milton, in consideration and payment thereof, assigned a judgment against the defendant, Thomas P. Hardaway, for $3449.35, in Warren county, Mississippi, to the defendant J. S. Berryman, nominally, but in reality to Young & Milton, or Milton, and for their or his use; the assignment to Berryman being a fraud to cloak the real ownership of the judgment. That the defendant, Thomas A. Marshall, had, as attorney at law of Ferriday & Co., collected part of this judgment against Hardaway, and had the proceeds of the residue in possession. That Young & Milton and Berryman were non-residents indebted to complainants, and Hardaway and Marshall resident defendants with effects. The prayer is in the ordinary form for injunction and payment out of the attached debt, &c.