#### *Gibson’s Heirs v. Jones and Others.

April, 1834,

Richmond.

(Absent Brooke, J.)

Deed of Trust — Setting Aside Sale — Amount Due l n-certain.* — Real estate is conveyed to trustees to secure payment of a debt; after the death of the debtor, the trustees proceed to sell the trust subject, to pay the amount claimed by the creditor ; It appears, that the lust amount of debt depends *144on accounts not yet settled, arid so trie amount due is unascertained, and there is reason to believe the amount claimed by the creditor was not all due to him : Held, this is a valid objection to the sale made by the trustees, upon a bill in equity filed by the heirs of the debtor to set aside the sale.

Same — Due Advertisement of Sale — Onus Probandi.†— Sale made by trustee under a deed of trust to secure a debt, is impeached by the heirs of the debtor, in equity, on the ground that the trustee did not make due advertisement of the sale, in pursuance of the deed of trust: Held, unless such advertisement was made, the sale Is Irregular, and the burden of proof that due advertisement was made, rests on the parties insisting on the sale.

This was an appeal from a decree of the superiour court of chancery of Richmond.

By deed dated the 13th September 1810, Martha Gibson leased to Joel Jones, all her lands, slaves, stock &c. in Prince Edward, *145part of which lands she held as dower of her deceased husband’s estate, and 97 acres of which she held in fee, in consideration that Jones should advance her £200. without interest, and maintain her; the least to commence Christmas 1810, and to continue for the term of two years, and from year to year, till the £200. should be returned. And it was covenanted that at the end of the term of two years, Mrs. Gibson should return Jones the £200. without interest, and that he should restore to her the lands, in like good farming order as he should receive them, with the slaves and their increase, and also the stock and plantation utensils, either in kind or in value, and the same quantity of corn and fodder which he should receive; and as it was apprehended bjr the parties, that Mrs. Gibson might not find it convenient to refund the £200. during her life, *the deed mortgaged to Jones the 97 acres of land which she held in fee, to secure the debt, with interest after the lease should expire.

By another deed, dated the 27th June 1811, Mrs. Gibson conveyed the same 97 acres of land to Samuel and Arthur Jones, trustees, upon trust, that if she should fail to pay the debt of £200. when due, according to the provisions of the deed of September 1810, then the trustees, being thereto required by Joel Jones, should sell the land at public auction on the premises for cash (having advertised the time and place of sale, for twenty days before the sale, at such public places, near the land, as' to the trustees should seem be^t), and out of the proceeds, pay Joel Jones the debt of £200. with interest, according to the agreement in the deed of September 1810.

Mrs. Gibson died in or about the month of October 1811.

And by deed dated the 23rd January 1813, the trustees, Samuel and Arthur Jones, sold and conveyed to Joel Jones, the creditor, 59 acres of the mortgaged land, for £189. 4. 11. The trustees stated in this deed, that they had proceeded to make the sale, agreeably to the provisions of the deed of trust, under which they acted. Joel Jones, afterwards, sold the land to Thomas Read.

The bill was exhibited in .February 1813, by Robert Gibson and others, heirs at law of Martha Gibson, against Samuel and Arthur Jones, the trustees, Joel Jones, the, creditor, and Read his vendee, alleging, that Joel Jones held all the property let to him by the deed of September 1810, as tenant, for two years, and never accounted for the rents and profits, or for the stock or the corn (250 barrels) which he had received ; that the sale was made by the trustees, when in truth nothing was due to Joel Jones; that they had no right to make the sale; that they made the sale without due advertisement thereof, according to the provisions of the deed of trust of June 1811; that it was a private sale; and that, thus, the property was sacrificed by the sale to Joel Jones, and that, when in truth nothing was due to him; and the object of the bill was to set aside that sale of the trustees to Joel Jones.

*Joel Jones answered, and denied that he held the property let by the deed of September 1810, for the term of two years; he said, he surrendered it all to the administrator of Mrs. Gibson, in the latter part of the year 1811 or beginning of 1812, having made but one crop; that he delivered all the stock and plantation utensils to the administrator, except what had died, or been consumed in the use; that he also returned 40 barrels of corn to the administrator, which was all he had received; that the debt of £200. was justly due to him when the sale was made; that the sale was a public one, and Mrs. Gibson’s administrator was a bidder at it, and the lana was sold at its full value; and he supposed the sale had been duly advertised.

The defendant Read answered, that he: had purchased the land from Joel Jones, without notice of any defect in or objection to the title; but he admitted, that he had, subsequently, heard of the plaintiff’s claim, and had, on that account, withheld part of the purchase money.

The trustees, Samuel and Arthur Jones, - never answered.

Depositions were taken and filed, to prove that there were few people at the sale made by the trustees, and that the land sold low: that Mrs. Gibson made 140 barrels of corn the year Jones took possession as her tenant: and that Jones, during the year he held, made 200 bushels of wheat, about 18,000 pounds of passed tobacco, which he sold at 40s. per cwt. and 4000 pounds refused tobacco, and 250 barrels of indian corn. And the plaintiffs exhibited the inventory and appraisement of Mrs. Gibson’s estate, in which no grain was mentioned, and the settlement of her administrator’s accounts, in which none was accounted for.

The cause was set for hearing as to the defendant Joel Jones only. Yet upon a hearing of the cause, generally, (as it seemed,) the chancellor, — being of opinion, that, for aught that appeared, there was no reasonable objection to the trustees’ sale of the land, since it appeared by their deed of conveyance to Joel Jones the purchaser, that they had proceeded in the sale agreeably lo the provisions of the deed of trust under which they acted, and being further of opinion, *tha,t the plaintiffs, as heirs of Mrs. Gibson, were not entitled to an account of any of Joel Jones’s transactions as her tenant, since the right to such account belonged to her personal representative, — therefore, dismissed the bill with costs. The plaintiffs applied by petition to this court, for an appeal from the decree, which was allowed.

The cause was argued here, by Johnson for the appellants, and the attorney general for the appellees,

upon the following objections, taken by the former, to the proceedings and decree: 1. That the cause was heard before it was matured for a hearing. 2. That, under the circumstances of the contract evidenced by the first conveyance to the creditor by way of mortgage, namely, the deed of September 1810, and considering the unsettled state of the accounts, the trustees had no authority to sell under the deed of trust of June 1811, without directions from a court of chancery. 3. That the sale made by the trustees ought not to have been sustained, without proof that it was made upon due advertisement, especially as the trustees *146had not put in an answer. And 4. that an account ought to have been directed, to ascertain whether any thing, and what amount was justly due to the defendant Joel Jones.

*

 Deeds of Trust — Setting Aside Sale — Cloud on Title, —In Rossett v. Fisher, 11 Gratt. 492, 502, the grantor in a deed of trust had, at the time the deed was made, but an eaultable title to the land conyeyed, though he was entitled to the legal title. The trustee, In pursuance of authority conferred upon him by the trust deed, sold the property for one-fourth itsyalue without getting the legal title; and the principal creditor secured by the deed became the purchaser. Moncure, J., delivering the opinion of the court, said: “Whatever might have been, the rights of a *bona flile*purchaser without notice at such a sale, as to which I express no opinion, I ink that the creditor being the purchaser under *144the circumstances before stated, the debtor has lost none of his rights by the sale, but is entitled to have it set aside and the property resold, if necessary, for the purposes of the trust. See *Gibson's Heirs v.*Jones, 5 *Leigh*370; Breckenridge v. Auld, 1 Rob. R. 148; Dabney, etc., v. Green, 4 Hen. *&*Munf. *101;*Lord Cranstown v. Johnston, 3 Ves. jr. R. 170.”

To the point that a sale by a trustee in a deed of trust, while Impediments are resting on the property, will be set aside by a court of equity, the principal case Is cited, among others in Spencer v. Lee, 19 W. Va. 188. See further on this subject, *foot-note to*Lane v. Tidball, Gilm. 132; *foot-note*to Rossett v. Fisher, 11 Gratt. 492 ; monographic *note on*“Deeds of Trust” appended to Cadwallader v. Mason, Wythe 188.

To the point that a court of equity will interpose with more reluctance after a sale is made than when it is applied to in the first instance and before the sale is actually made, the principal case is cited in Morriss v. Virginia, etc., Co., 90 Va. 375, 18 S. E. Rep. 843; *foot-note*to Hughes v. Caldwell, 11 Leigh 342.

Same — Amount Due Uncertain — Duty of Trustee. — A trustee in a deed of trust to secure debts is the agent of both parties and he should consult impartially the interest of each, and, when a sale of the trust subject becomes necessary, it is his duty to use every reasonable effort to secure the best price possible for the property. Thus, where the amount of the debt secured is uncertain, or there is a cloud hanging on the title, or any other impediment to a fair sale, he should apply to a court of equity to remove the impediment; and if he fails to do this, any party injured thereby has an unquestionable right to do so ; and this may be done notwithstanding the fact that the impediments in the way of a fair sale wáre known to the debtor at the time of the execution of the deed, and the removal of them before the time prescribed in the deed for the sale was impracticable, and could not therefore have been contemplated by him. The principal case is cited as authority for this proposition in Rossett v. Fisher, 11 Gratt. 499; Wash. A. & G. R. Co. v. Alex. & W. R. Co., 19 Gratt. 617; *foot-note*to Hogan v. Duke, 20 Gratt. 244; Spencer v. Lee, 19 W. Va. 188; *foot-note*to Wilkins v. Gordon, 11 Leigh 547 ; *foot-note*to Lane v. Tidball, Gilm. 130; Hartman v. Evans, 38 W. Va. 669, 18 S. E. Rep. 814.

See further, monographic *note*on “Deeds of Trust” appended to Cadwallader v. Mason, Wythe 188.

†

Same — Due Advertisement of Sale — Onus Probandl. —An allegation in a bill, by a grantor in a deed of trust, seeking to set aside a sale under the deed for Irregularity, “that he does not know whether the sale was advertised by the trustee in the manner required by the deed,” is' sufficient to put the purchaser and trustee upon the proof of due advertisement. And where the purchaser, in answer to such allegation, avers that the sale was duly advertised according to the requirements of the deed, this being an affirmative allegation, the onus is on the purchaser to prove it. Norman v. Hill, 2 Pat. & H. 676, 681, citing the principal case as authority.

But, in Dryden v. Stephens, 19 W. Va. 1, 15, it was held that where the party, who claims to be injured by a sale under a deed of trust, waits for nearly four years, before he files his bill to have it set aside, and in his bill charges, that the sale of the property was not advertised as .required by the trust deea, and this charge is denied by the answer of the trustee, and there is no proof as to the advertisement, and the rights of third parties have intervened, who for five years after the sale are not brought before the court, the *prima facie*presumption is, that the sale was advertised according to the requirements of the trust deed, which presumption is conclusive in the absence of proof to the contrary. Johnson, P„ in announcing the opinion of the court, after setting forth the facts and decision in the principal case, said : “This decision we approve ; but we cannot assent.to the broad doctrine stated by Judge Tucker in his dictum, that in every case and at any time, all a party, who is interested to have a deed from a. trustee cancelled, must do is to file his bill and charge, that the sale was not advertised according to the provisions of the trust deed ; and that when the defendant trustee answers denying this charge in the bill, and there is no other proof in the case on the point, the deed must be cancelled. If this is true, many land titles hang by a very slender thread Indeed. * * * I have been unable to find any authority that sustains the dictum of Judge Tucker, except in the case of Norman v. Hill, decided by the special court of appeals, 2 Patt. & H, 676, in which case the court founds its opinion on the dictum of Judge Tucker, and regards it as a decision of trie question binding upon triem ; and I have found no case precisely In point holding adversely thereto.”

In Burke v. Adair, 23 W. Va. 157, 160, after distinguishing trie principal case from the case at bar, and quoting with evident approval the excerpt set out above from Dryden v. Stephens, 19 W. Va. l, the court lays down the proposition, that, after a sale is. made by a trustee who has not only the authority to sell but the legal title also, and the trustee has, entirely completed his duties by making a deed for the land sold to the purchaser, then, in the absence of all proof to the contrary, it will be presumed, that he has done his duty by properly advertising the land before the sale.

In Fulton v. Johnson, 24 W. Va. 108, it was alleged by counsel that there is no presumption in favor of the regularity of a trustee’s sale, and Pollard v. Baylor, 4 Hen. & M. 223, Ross v. Norvell, 3 Munf. 170, and *Gibson v.*Jones, 5 *Leigh*370, were cited to sustain the allegation. But, in passing on the point, the court said : “These Virginia authorities have been considered by this court, some of them on more than one occasion. The conclusion reached by this, court is, that after a trustee has made a deed to the purchaser, and it has been recorded, it will be presumed, that It was made in accordance with the-terms and conditions of the deed of trust, and th at it was properly advertised. See Burke & Keatley v. Wm. Adair. Jr. 23 W. Va. 139.”

See further monographic *note*on “Deeds of Trust”' appended to Cadwallader v. Mason, Wythe 188.

TUCKER, P.

The question in this case is, not what is to be the ultimate decree between these parties, but whether the bill has been properly dismissed?

That the case is not prepared for a final adjustment of the controversy, is obvious. The plaintiffs alleged, that at the time of the sale, the debt was discharged, or very nearly discharged; and the case exhibits strong reasons to believe, that they were entitled, in right of Mrs. Gibson, to large set-offs, at least; but the extent of them has not been ascertained. Again, the bill charged, that the sale of the trustees was made without advertisement, and called upon the trustees to answer to that allegation. They have not answered, nor has the fact of advertisement been proved. The onus as to proof was on the defendants, since the plaintiffs could not *prove a negative. We cannot, then, take the advertisement as proved; but on the other hand, we cannot take its existence as negatived,- because those who were conusant of that matter, are not before the court. Then, too, if we knew the amount due to the appellants, yet we do not know the amount retained by Read; for which amount, there can be no question, the plaintiffs will be entitled to a decree, if, upon a settlement with Jones, he shall prove to be in their debt. Por these and other reasons, that need not be multiplied, we cannot make an end of this cause here.

The real and only question, then, being whether the bill was properly dismissed, I have no difficulty whatever .in answering in the negative. Por the plaintiffs impeach the sale under the deed of trust, in two most important particulars.

The first is, that, in point of fact, the debt for which the sale was made had been paid, wholly or in part, and that the accounts in relation to the mortgage debt, were altogether unsettled and unliquidated. If this fact be established, the case of Lane & Brome v. Tidball, Gilm. 130, distinctly shews, that the trustees should not have proceeded to the sale of the trust subject. Indeed, an opinion has been entertained by able men, that a trustee ought not to proceed to sell, where the debtor dies; since by his death, the duty of redeeming, and the benefit of redemption, which were before blended in the same person, are now separated; the duty devolving on the executor, to whom it belongs to discharge the debts, and the benefit accruing to the heir, who has a right to demand of the executor, if he has assets, to relieve the trust subject from the incumbrance. Moreover, the heir, not being conusant of the debts, is unprepared to defend the estate from an unjust sacrifice. On these grounds, judge Coalter allowed an appeal when I was at the bar, though I am unable to say what became of it. Be this as it may, there appear, in this case, very clearly, to have been unliquidated credits, to which Mrs. Gibson was entitled. Por, 1st, the lease having been for two years, we must presume that Jones retained possession of the land of | which Mrs., Gibson held the fee, unless the surrender of it is proved, which has *not been done. 2ndly, The answer admits the receipt of various articles, when he took possession of the plantations, but he has proved the return of none except the negroes; for non constat, that the property mentioned in Mrs. G.’s appraisement was what he returned. Moreover, he admits he did not return all, for he says he did not return those articles which were lost by death, accident or decay. Now by the contract he was bound to return, in kind or in value, all the stock of every description, the plantation utensils of like value, and the same quantity of corn and fodder. 3rdly, as to the corn, he denies receiving more than 40 barrels, and says he returned that. But admitting the denial to tie the plaintiffs down to 40 barrels, unless they prove he received more, yet the fact that he returned it is affirmative matter, which he must prove. He has not proved it.

Without going into other details on the second point of objection to the sale, I shall remark, that the bill charges the sale to have been irregularly made, and without advertisement, by which a great sacrifice was produced. ' The answer does not allege, that there was an advertisement. The defendant took it for granted the proceedings were regular. It became him to prove, that they were so. The proof lay upon him, for he had the affirmative of the issue as to this point. The plaintiffs could not prove there was no advertisement. They made an effort to do it, by making the trustees parties; but their bill was dismissed, without the trustees having ever been brought before the court. Now, though a decree ought not to be reversed, for dismissing a bill, before mere formal parties are brought before the court, yet the trustees, in this case, are not mere formal parties. They are charged with a breach of trust, in failing to follow the directions of the trust deed, and in thereby producing a sacrifice of the property. They ought, therefore, to have been before the court, antecedent to a decree of dismission on the merits; though a failure to bring them before the court, after the proper rule, might indeed have well exposed the plaintiffs to a dismission for want of prosecution.

The decree is to be reversed, and the cause remanded to the court of chancery.