#### *Gay v. Hancock and Others.

March, 1822.

Chancery Practice — Deed oi Trust — Injunction to Sale under — Adverse Claim.† — Where land is sold with general warranty, and a deed of trust given on *the*land itself, to secure the payment of the purchase money, If an adverse claim to the land is afterwards discovered, a court of equity will in-join the sale, under the trust deed, until such adverse claim is regularly decided.

This was an appeal from an order of the chancellor, of the Richmond district, dissolving an injunction obtained by the appellant against the appellees, to stop them from proceeding under a deed of trust. The case was this: Gay purchased of Hancock, a tract of land called Chester Hill, the purchase money to be paid by instalments. He took a deed with general warranty from Hancock, and gave a deed of trust on the land itself to secure the purchase money. After several instalments had been paid by the appellant Gay, he discovered that there was a claim to the land by the representatives of David Ross, and a suit then actually pending for the same. Gay aver-s in his bill, that he had no knowledge of the existence of such a suit, at the time of the purchase aforesaid. Hancock, on the contrary, asserts in his answer, that he gave Gay full information of the claim of Ross, and cautioned him not to proceed with the purchase, until he had satisfied himself respecting the validity .of the said claim. This assertion is not .supported by any other evidence. The notes, given for the remaining instalments, were assigned to Judith Nicholson, and protested for nonpayment when they became due. Whereupon, the trustees advertised the Chester Hill tract for sale. Gay applied for an injunction; which was refused by the chancellor, but granted by the judges of the court of appeals. Upon the coming in of the answers, the chancellor dissolved the injunction, and an appeal was taken to this court.

*The case was argued by O’Reilly, ' for the appellant, and Copland, for fhfi stnrw^Hp^Q

†

-Chancery Practice — Deed of Trust — Injunction to Sale under — Cloud on Title. — It is well settled that a sale of property under a deed of trust will be enjoined where any cloud rests on the title which would occasion a sacrifice at the sale. To this effect, the principal case is cited in Miller v. Argyle, 5 Leigh 467, 470; Beale v. Seiveley, 8 Leigh 675; Long v. Israel, 9 Leigh 568; Peers v. Barnett, 12 Gratt. 416; Faulkner v. Davis, 18 Gratt. 651, 662, and *footnote.*See further, monographic *note*on “Deeds of Trust” appended to Cadwallader v. Mason. Wythe 188; monographic *note*on “Injunctions” appended to Claytor v. Anthony, 15 Gratt. 518.

Same — Same—Cloud on Title — Duty of Trustee. — A trustee in a deed of trust is considered as the agent of hoth parties and bound to act impartially between them; and it is his duty to use every reasonable effort to sell the estate to the best advantage, and it is his duty to apply to a court of equity where -here is a cloud on the title, or where there is a doubt or uncertainty as to the amount to be raised, or as to prior incumbrances on the trust subject, or where there is a conflict between the creditors, or in any case in which the aid of a court of equity is necessary to remove impediments in the way of a fair execution of his trust; and if the trustee fail in this duty, any party injured by his default has an unquestionable right to do so. The principal case was cited to this effect in Muller v. Stone, 84 Va. 837, 6 S. E. Rep. 223; Bank of Washington v. Hupp, 10 Gratt. 53; Rossett v. Fisher, 11 Gratt. 499; Spencer v. Lee, 19 W. Va. 188; Hartman v. Evans, 38 W. Va. 679, 18 S. E. Rep. 814; *foot-note to*Lane v. Tidball, Gilm. 130; *foot-note*to Wilkins v. Gordon, 11 Leigh 547; *foot-note*to Hogan v. Duke, 20 Gratt. 244. See further, monographic *note*on “Deeds of Trust” appended to Cadwallader v. Mason, Wythe 188.

JUDGE BROOKE,

delivered the opinion of the court,* that it was error to dissolve the injunction, until the cloud, resting on the title in consequence of the *claim*of Ross, was removed. Therefore, it is decreed and ordered, that the order aforesaid be reversed and annulled; and that the injunction be re-instated, and the cause remanded to the court of chancery, to be further proceeded in.

*

Jtjdge Roane absent from indisposition.

*

JmoGE Roane absent from indisposition.