#### Ambler and Others v. D. Warwick & Co.

March, 1829.

(Absent Coalteb, J.)

Deeds of Trust — Remedy of Creditor Where Debtor Sells Property Conveyed* — Case at Bar. — M. by deed of trust conveyed (inter alia) 20 slaves to a trustee, to secure a debt due to W. & Co. payable twelve months after date of the deed: Within the year, M. sold one of the slaves to A. two to B. one to O. and one to R. who alleged that M. sold at request and by authority of W. & Co. When the debt fell due, all the rest of trust subject was sold, and the proceeds fell far short of the debt due W. & Co. W. & Co. brought suit in chancery against M. the purchasers of the five slaves, and the trustee; denying M.’s authority to sell the five slaves; praying a foreclosure of the equity of redemption thereof, and that the purchasers be decreed to deliver them up to be sold under the deed of trust. Held, that, though W. & Co. might have brought actions at law in the trustee’s name, to recover the slaves of the respective purchasers, yet their case was properly relievable in equity.

The house of D. Warwick & Co. and D. Warwick individually, exhibited their bill in the superiour court of chancery of Richmond, against Ambler, Robertson, Burton, Chilton, Winfree, Morris in his own right, and Morris & Mitchell, merchants and partners, setting forth this case:

*On the 12th November 1818, Warwick & Co. having made advances to Morris & Mitchell, to the amount of 8847 dollars, and agreeing to make farther advances to them, to an amount not exceeding 12000 dollars more, upon a stipulated security for re-payment of the sums so advanced and to be advanced, Morris executed a deed, dated the same day, conveying to Winfree, four tracts of land in Campbell, a lot in Lynchburg, and twenty slaves, upon trust, that if Morris & Mitchell should fail, on or before the 12th November 1819, to reimburse to Warwick & Co. all the money advanced, or tobe advanced to them, in pursuance of the arrangement, the trustee should then, at the request of either party, proceed to sell the trust subject for cash, to satisfy the debt. Warwick & Co. made the additional advances to Morris & Mitchell, as they had agreed to do ; and on the 12th November 1819, Morris & Mitchell were indebted to them, on that account, 193S2 dollars, with some arrears of interest. Warwick & Co. thereupon, required the trustee, Winfree, to make sale of the trust subject, under the deed of trust; and he, accordingly, in December 1819, sold all of it (except five slaves) and D. Warwick was the purchaser. The net proceeds of the sales, amounted only to 11924 dollars, leaving a balance of 7428 dollars due Warwick & Co. D. Warwick accounted with the house of Warwick & Co. for the above sum of 11924 dollars, upon this understanding, that if the *75title of any part of the property he had bought at the trustee’s sale, should fail, his partners should make restitution to him of the value of the *property*he should thus lose. No conveyance of the property bought by D. Warwick at the trustee’s sale, had as yet been executed by the trustee ; and it was doubtful whether it could properly be executed ; Morris having hinted objections to the sale, sometimes denying the amount of the debt claimed by Warwick & Co. and insisting that their claim, if fairly liquidated, did not amount io as much as 11924 dollars, and sometimes questioning the regularity of the sale, as not having conformed with the provisions of the deed of trust; and, therefore, *Wiafree, the trusfee, was reluctant to complete the execution of his trust, by conveying the subject to the purchaser, without the sanction of a court of equity. And thus the accounts between Warwick & Co. and Morris & Mitchell, remained to be adjusted, and the accounts between D. Warwick and Warwick & Co. in the actual state of things, could not be adjusted. As to the five slaves, not sold at the trustee’s sale ; they were in Morris’s possession, and were his property, at the time he executed the deed of trust ; hut, at the date of the trustee’s sale, one of them was in the possession of Ambler ; one, in the possession of Robertson ; two, in the possession of Burton ; and one, in the possession of Chilton : these slaves had been demanded by the trustee, of the respective holders of them, and they had refused to deliver them ; sometimes pretending they purchased the property of Morris, (who had no right to sell 'them); and sometimes, that Warwick & Co. had no just claim on Morris & Mitchell, which the sale of these slaves was necessary to satisfy. Winfree, the trustee, who alone could maintain actions at law for the slaves, declined to bring such actions or meddle in the controversy. Morris and Mitchell were insolvent ; and the slaves in question was the only subject, out of which Warwick & Co. could hope farther satisfaction of the balance due them. The bill, therefore, prayed, that Morris might disclose the particulars of the titles of the property he had mortgaged by the deed of trust, and which had been sold by the trustee, in order that the same might be examined and ascertained ; that the accounts between Warwick & Co. and Morris & Mitchell (if the latter denied the balance claimed by the former, or if the proofs which should be adduced should not shew satisfactorily the true state of them) might be settled before a commissioner ; that 1he sale made by the trustee might be confirmed, and he decreed to convey the property by him sold, to D. Warwick, the purchaser ; that Ambler, Robertson, Burton and Chilton might, respectively, disclose the particulars of their claim to the slaves they held ; when, how, from whom, they acquired ^possession of them, and if they purchased them, the prices they paid ; render an account of the profits of them ; be decreed to deliver them to the trustee, or to the proper officer of the court, to be sold under the deed of trust, and the proceeds applied to the debt thereby secured ; and general relief.

Ambler, Robertson, Burton and Chilton, in their answers, stated, that they purchased

the slaves, by them respectively held, of Robert Morris, early in the year 1819, and set forth the prices they gave for them: they alleged, that Morris was authorised and requested by Warwick & Co. to make sale of these slaves, and to remit the proceeds of sales to them ; and that Morris did accordingly remit all the proceeds of the sales to them. And Chilton said, that he knew nothing of the state of accounts, between Warwick & Co. and Morris & Mitchell; and, so far as his rights were affected, he required full proof on that head.

Morris, in his answer,- also affirmed, that Warwick & Co. authorised and requested him to make the sales of the slaves which he had sold, and to remit the proceeds of such sales to them ; and that they were so remitted. He declared, that he never denied the justice of the debt claimed by Warwick & Co. or questioned the regularity of the sale, made by the trustee, Winfree ; and as to the title of the property conveyed by the deed of trust, and sold by the trustee to D. Warwick, he said, the title papers were on record, and any one might procure copies of them who would pay the cost.

The trustee, Winfree, and the house of Morris & Mitchell, did not answer: as to them, the bill was taken pro confesso.

The trustee, Winfree, was examined as a witness. He did not say, and he was not asked, whether he declined (as is stated in the bill) to bring suits at law, or to allow such suits to be brought in his name, to recover the slaves held by Ambler, Robertson, Burton and Chilton.

*The chancellor’s decree, (inter alia) directed Ambler, Robertson, Burton and Chilton, to deliver to the marshal of the court, the slaves which they had respectively bought of Morris, to be sold to satisfy the debt secured by the deed of trust to Warwick & Co. and to render accounts of the profits thereof. And those defendants appealed to this court.

The question, on the merits, was, Whether, in fact, Warwick & Co. authorised Morris to make sale of the five slaves which he sold to Ambler, Robertson, Burton and Chilton, and to remit the proceeds of sales to them, and whether Morris made such remitment? *And*upon this^ question of fact, there was a good deal of evidence ; and it was earnestly argued by counsel. But the only question of law in the cause, was a question of jurisdiction : Whether this was a case properly relievable in equity?

Nicholas and Johnson for the appellants.

The real object of the bill was, to try the title of the appellants to the slaves they had respectively purchased : and, obviously, the counsel, who drew the bill, felt the difficulty of the question of jurisdiction ; and to sustain the jurisdiction of the court, carefully and skilfully introduced a variety of allegations, on subjects never controverted, and not material to the question of title in the appellants. The claim of the appellants is purely legal, and adversary, not merely to the equitable claim of Warwick *&*Co. but to the legal claim of their trustee : they claim several titles, by several purchases, each holding an adversary possession, the right whereof might and ought to have been tried in an action of detinue against each, in his, *76own county. It was oppressive, to drag the appellants from distant parts of the state, into an inconvenient and expensive forum.

As to the refusal of the trustee to bring actions at law, there is no proof, and indeed, no attempt to prove, that he did refuse: he does not say so, in his deposition, and no question was asked him about it: nor was the taking of the *bill pro confesso as to him, an admission of the fact, so far as the other parties were concerned. And if he had refused, Warwick & Co. would have been justified in using his name in actions at law ; or he would have been compelled, by a court of equity, to bring the actions.

There is no analogy between this case, and that of a mortgagee, who, seeking to foreclose, brings before the court the mortgagor and the purchasers of the equity of redemption ; because, though the mortgagee have the legal title, and may recover in ejectment, that recovery will only be the foundation of a suit in equity to redeem. The mortgagee can never sell without the aid of a court of equity. His claim is'substan tially a claim for money, and can be asserted no where but in equity. So, the claim of the mortgagor and of those who purchase the equity of redemption is purely equitable. The matters in controversy, therefore, between the mortgagor^r those claiming the equity of redemption, and the mortgagee, can only be finally settled in a court of equity. But, in the case at bar, the whole question between Warwick *& Co.*and the purchasers of the slaves, might have been settled, without going into equity. The suits at law would have decided, whether the trustee, or the purchasers, were entitled to the slaves; if the purchasers, there was an end of the controversy ; if the trustee, then he might have proceeded to sell, without the aid of the court of equity. The bare possibility that the purchasers might have gone into a court of equity to redeem, could not justify Warwick & Co. in going there, by anticipation, especially in a case where the purchasers never claimed an equity of redemption, and where it is manifest, that the value of all the slaves was not equal to one third of the remaining debt.

This is not a case, in which the court can take jurisdiction to prevent multiplicity of suits. For, though the title of Warwick & Co. to all the slaves be derived under one deed, yet the titles of the purchasers are derived under several purchases, and each depends in some degree on its own circumstances.

*And Johnson cited Bowyer v. Creigh, 3 Rand. 25 ; Randolph v. Kenney, Id. 394, and Stuart’s heirs v. Coalter, 4 Rand. 74, as directly in point, and decisive of the question.

Stanard, for appellees.

There are several grounds on which the jurisdiction of the court may be maintained.

The rights of Warwick & Co. were merely equitable; and, certainly, they could not, directly and in their own names, have asserted those rights any where but in equity. Creditors, claiming under a deed of trust conveying property to a trustee to secure debt, are so closely assimilated to creditors claiming under a mortgage, as to afford no just ground of discrimination as to their remedies. Their rights, to every substantial purpose, are exactly the same. The intervention of the trustee, indeed, exempts the creditor, in ordinary cases, from the necessity of asking the chancellor’s aid; but it does not deprive him of the right to ask such aid, if convenience dictate, or if his interest require, that course. The creditor secured by deed of trust, ought to be allowed to treat his security as a mere mortgage, if he will: no party, howsoever concerned, can be injured by his so treating it. There is no reason to apprehend, that such a cestui que trust will ever, unnecessarily'and wantonly, incur the expense and delay of a suit in chancery : if he should do so, the chancellor has it in his discretion to refuse him costs. And surely, they who purchase the subject pledged by a deed of trust, from the grantor, purchase only an equity of redemption ; an interest, of which equity alone can examine and determine the right and the extent, secure the enjoyment of it, or take it away, in whole or in part, according to circumstances. Had Ambler and the other purchasers from Morris, exhibited, against Warwick & Co. and their trustee, a bill to redeem, equity would doubtless have entertained that bill; and the converse of the proposition seems undeniable, that the bill exhibited by Warwick & Co. against them, to foreclose, ought to be entertained ; the bill of the one to foreclose, and of the other to redeem, ^properly presenting the same matters for adjudication, and matters peculiarly of equitable cognizance.

Warwick & Co. allege, in their bill, that Winfree, the trustee, declined to bring suits at law for the slaves in question; and the fact was not controverted by any of the defendants. Upon this ground, Warwick & Co. had a right to go into a court of equity, and claim, directly for themselves, their right to satisfaction out of the trust subject.

But, if the legal title of the subject had been vested in Warwick & Co. (as it would have been, had their security been, in its form, a mortgage instead of a deed of trust); or, if the trustee had been ready to bring suits at law ; or, if. Warwick & Co. might, without his consent, have brought such suits, in his name ; still they had a right to resort at once directly to a court of equity. They were incumbrancers, whose recovery of the subject in actions at law, would have left them exposed to the equities of the other parties, and to their suits in chancery to assert those equities. Their rights depended essentially on the state of their accounts with Morris & Mitchell, which the defendants, each and all, had a right to have examined and settled, and without the settlement of which their rights could not be concluded: no admission of Morris & Mitchell, as to the state of the accounts, could have bound the defendants who had purchased the slaves from Morris. And Warwick & Co. had a right to have the proceedings of the trustee under the deed of trust, fortified by permanent evidence of the regularity of them ; to have those proceedings, if regular, confirmed by the chancellor; and thus to avoid the hazard of trusting- to fugitive and precarious evidence of acts in pais, essential to the regularity of the proceedings, and the validity of the title acquired under them.

*77Warwick & Co.’s resort to a court of equity, was proper, especially as against the appellants, to avoid circuity and multiplicity of suits. If they had resorted to the courts of law, they must have instituted, in the trustee’s name, four several actions of detinue or trover, against the four purchasers, * Ambler, Robertson, Burton and Chilton. In those actions, the defense now set up in equity, by the purchasers of the slaves, (for they all take exactly the same ground,) could not have availed them: I apprehend it is quite clear, that they could not, in the actions at law, ha,ve resisted the legal title of the trustee, on the ground, that the grantor had sold the slaves to them, at the request and by authority of the cestuis que trust. The recovery at law would have been as certain, as it would have been merely formal. And, then, each of the purchasers must either have abandoned his claim, or have exhibited his separate bill in equity, alleging his purchase from Morris, with all its circumstances, praying an examination thereof, and the protection of his equitable rights against the trustee’s judgment at law. The purchasers, might, too, in these bills, each, severally, have claimed to redeem that part of the trust subject which they had bought : and to that end, they might, each, have contested the justice or the amount of Warwick & Co.’s claim against Morris & Mitchell; they might, each, have contested the fairness or regularity of the trustee’s sale; they might, each, have insisted on a fair settlement of accounts, whereby Morris & Mitchell’s debt to Warwick & Co. might have been reduced, and on a re-sale of the trust subject which had been sold by the trustee, whereby the proceeds thereof might have been enhanced. Thus, after four suits at law, (which would have determined no real point in controversy, since the legal title of the trustee would not have been more certain after judgment than before), there would have been four suits in chancery ; and, in each of the latter, exactly the same matters would have been presented for examination and decision, which have been presented by the bill exhibited by Warwick & Co. and in each of those suits in chancery, too, all the parties whom Warwick & Co. have now con ven ted before the court, might and ought regularly to be made parties. Warwick & Co. therefore, had a right to bring all parties, by one suit, into that forum to which each and every party, if he persisted in his claim, must at last have ^resorted, convent-in g there every other party, in four suits at the least.

*

Equity Jurisdiction — Bill Aided by Other Pleadings.— When there Is an answer supported by evidence, though on its face the bill may not show a case proper for equity jurisdiction, and though the defendant has failed to demur, nevertheless the court must, at the hearing, consider not only whether the bill alone makes such a case, but also whether the bill, aided by the answer and the proofs taken together, makes a case proper for i nterposition of the jurisdictional powers peculiar to a court of equity. Graveley v. Graveley, 84 Va. 151, 4 S. E. Rep. 218, citing *Ambler v. Warwick,*1 *Leigh*196. To the same effect the principal case is cited in Salamone v. Keiley, 80 Va. 95*; foot-note*to Green v. Massie, 21 Gratt. 356.

Same. — The principal case is cited in Tabb v. Cabell, 17 Gratt. 175; Crawford v. Thurmond, 3 Leigh 88; Com. v. Drake. 81 Va. 316; Sheppards v. Turpin, 3 Gratt. 389, 390, 393.

BROOKE, President.

Several objections were made to the decree. The first, which meets us at the threshold of the cause, is the objection to the jurisdiction of the court : and, after a critical examination of the bill, I have not been able to perceive how it can be obviated.

Without inquiring, whether a foundation is well laid for the jurisdiction of the court, as regards the other defendants than the purchasers of the slaves (who alone have appealed from the decree), it may be remarked, that upon the evidence in the record, it appears to be merely colourable. The pretexts for the jurisdiction of the court, as regards the appellants, is still less to be countenanced.

One is, that the trustee declined suing at law ; that is, he was willing, that the appellees should proceed, either at law or in equity, as they should be advised. It is neither alleged in the bill, that be refused to sue at law, nor that he refused to permit the appellees to use his name. Such an allegation would have laid a better foundation for the jurisdiction of a court of equity, though it may be questioned, wheLher it would have been sufficient, as the appellees might have used the name of the trustee, and a court of law would not have permitted him to dismiss the suit, upon the plaintiffs’ indemnifying him against all costs.

Another ground is, that this is a proper case for a court of equity, to prevent a multiplicity of suits. But this is not tenable. The case does not come within the principle, on which courts of equity take jurisdiction to prevent the multiplicity of suits at law : it does not rest upon a right, which is in common, objected to by many persons whose pretensions are in all respects similar, and in controverting which, the decision for or against any of them, must turn on the same evidence ; as in the case of an exclusive claim to fish in a particular water ; a claim affecting the pretensions of many who may controvert it. Ror, though the appellants *are all purchasers from Morris, mediately or immediately,, they are so under variant circumstances, and at different times : they hold possession of the slaves severally, independently of, and adversely to, the claim both of Morris, and of the appellees under the deed of trust.

Nor can the case be likened to the case of mortgagor and mortgagee. The appellants holding adversely to the deed of trust, occupy '■an entirely different ground from that of a purchaser of mortgaged property. In the case of mortgagor and mortgagee, in whomever the legal title and possession of the mortgaged subject may be, the equity of redemption in the mortgagor or his assignee, follows it, and can only be foreclosed in a court of equity. Not so in the case of a sale of property under a deed of trust, in pursuance of the deed. In such case, there remains no equity of redemption any where. But the claim of the appellants is not under but against the deed of trust : it is strictly legal, as is that of the trustee under the deed of trust; audit ought only to be controverted in a court of law.

The suggestion, that the appellants after a decision at law against them, might come into a court of equity, and shew that, though the slaves purchased by them were subject to the deed of trust, yet that there was olher property to satisfy the claim of the appellees, exclusive of the slaves so purchased, is not countenanced by the evidence in the record ;. and, if it were, it would be no ground, on which to compel the appellants to relinquish their right to a trial by jury and viva voce testimony, and to submit to the delays and costs of a court of equity. Nor have they lost their right to controvert the claim of the appellees in a court of law, by failing to insist on it by plea or in their answers ; it being the settled rule of the court, that if it appear from the face of the bill, that the *78matter thereof is not proper for a court of equity, it should be dismissed, even after answer filed, and though there be no plea to the jurisdiction. Pollard v. Patterson, 3 Hen. & Munf. 67.

*In this opinion of the President, the other judges at first concurred; and an order was accordingly entered, reversing the decree as to the appellants, dismissing the bill as to them, for defect of jurisdiction, and remanding the cause as to the other defendants. But, afterwards, Stanard moved the court to correct the decree, by adding, 1. that the dismission of the bill should be without prejudice to any actions at law, which should be brought to recover the slaves of the appellants, which Johnson agreed to; and 2. a provision inhibiting the appellants from pleading the act of limitations in bar of such actions at law (he cited Anon. 1 Vern. 73 ; 4 Bac. Abr. 481,) which Johnson earnestly resisted. And in the course of the conversation on thi's point, the court expressed its willingness .to re-consider the question of jurisdiction, and directed another argument of that point. It was accordingly argued again, by the same counsel, more elaborately than before, but the general topics of argument, advanced and insisted on, by the counsel on both sides, were essentially the same. The judges then delivered their opinions seriatim :

CARR, J.

My experience in courts, has convinced.me, that much mischief is done, by stretching the jurisdiction of equity beyond its proper limits, to take in particular cases, which seem to address themselves to our feelings of compassion, or- sense of justice. I have found too, that this jurisdiction will encroach, unless it be steadily watched ; for, in our anxiety to attain exact justice in the case immediately before us, we are apt to overlook remoter consequences, and to forget, that no decision which conforms to settled rules, can do so much mischief, as one which, though it may seem to fit the special case, violates and unsettles fixed rules and principles. This being the bent of my mind, I am sometimes, no doubt, carried too far the other way, by my anxiety to avoid this mischief: and this, I incline to think, was the fact in the case before us.

*To the proposition, that the creditor has the same right to the aid of equity, to execute a deed of trust, as to foreclose a mortgage, I can by no means assent. They are both securities for money : but the law of the contract, by which the parties have agreed to be governed, is materially different. The mortgagee must come into equity ; no other mode is given : but the cestui que trust has no such need. The parties have appointed a disinterested agent, who representing them both, is, in case of non-payment, empowered to act definitively on the subject; to sell the property, pay the debt, and return the excess to the debtor. His deed (if the proceeding has been fair) gives a perfect and irredeemable title to the purchaser. To hold, that, notwithstanding this contract, the creditor may, at will, and though no obstacle is raised to the execution by the trustee, draw the debtor into litigation, were to violate the agreement of the parties, and force a man to incur costs and charges, who is willing and anxious to comply with his undertaking, and deliver the property into the hands of the trustee. I cannot, therefore, on this ground, entertain the plaintiffs’ bill.

I consider the case made by the bill (so far as relates to the appellants) to be substantially this : that Morris executed to the plaintiffs a deed of trust of these slaves (inter alia) and that the appellants have, since the date of that deed, acquired possession of the slaves, in some way, from Morris ; and they are called on to say, how and when they acquired such possession. In answer, they state, that they purchased from Morris; give the particular dates of their purchases, which are after the execution of the deed; and put their defence on the ground, that Morris was authorised by the plaintiffs to sell the slaves, provided the proceeds were sent to them, and that they were so sent. If the bill had stated, that the defendants held the slaves by a claim paramount the deed of trust, I have no doubt it might have been demurred to : and, though not so stated by the bill, if it had appeared by plea or answer, that the defendants did not claim under Morris, but by adverse legal title, I think it would have shewn a *case not proper for relief in equity.' Of this kind was the case of Stuart v. Coalter. But it appears here, that the defendants all bought after Morris had executed the deed, and departed with the legal title. Of course, they acquired nothing but an equity; no title, which they could in any way vindicate at law. In the first argument, these features of the cause did not strike me ; especially, that this is not a claim adverse to the title of Morris, but an equity derived from him, after the execution of the deed. In this aspect of the case, I incline to think the jurisdiction of equity may be sustained ; particularly, when we consider the multiplicity of suits which will be saved by it; for if the plaintiffs be dismissed from this court, the trustee must bring four actions of detinue against the holders of the slaves, and each of these holders, may then file his bill againsl the other parties. Upon these grounds I am content to entertain the cause.

GRREN, J.

Upon the first hearing of this cause, I concurred, without hesitation, in the opinion, that it did not present a fit case for the jurisdiction of a court of equity ; principally upon the grounds, that the parties had, by their contract, provided the means by which the appellees might enforce their rights, without a resort to that tribunal; and that there was no circumstance in the case, which presented such an obstacle to the assertion of those rights in the stipulated mode, as to make such a resort necessary or proper, particularly as against the purchasers under Morris, as to whom they might, even if the trustee was unwilling, have proceeded in his name at law, or if not, could have coerced him in equity, to the performance of his trust, without making those purchasers parties.

The second argument upon the point of jurisdiction has changed my opinion. Although I am not prepared to say, that every creditor by deed of trust, has, like every mortgagee, a right, at his pleasure, to call his debtor into a court of equity, the latter *79being under a necessity to resort there *for the purpose of foreclosing the equity of redemption, and enforcing a sale, while the former, in general, is under no such necessity for the attainment of either of those objects ; yet, I think, there are circumstances in this case, which support the jurisdiction. The deed of trust was made to secure a large debt then due, and farther advances stipulated to be made by the appellees to Morris & Mitchell. All the property (except the five slaves in question) had been sold by the trustee, a.nd its proceeds exceeded considerably the debt due at the date of the deed, but left a large balance on the account including the subsequent advances ; the amount of which had been adjusted between the appellees and Morris. The bill, after stating these facts, charges, that four of the slaves in question, -were in the possession of Ambler, Burton, and Chilton, respectively, and that the other was obtained from Morris, by the defendant Robertson ; that the plaintiffs are ignorant of the manner or terms, on which they acquired possession of the slaves, or the title under which they claim ; but that Morris was possessed of and entitled to the slaves, when he conveyed them by the deed of trust, and that the rights of those defendants are subordinate to those of the plaintiffs. All of those defendants rely upon the same defence in one particular : admitting, that they claimed under sales made by Morris, after the date of the deed, and before the settlement of the accounts between Morris and the plaintiffs, they insist, that the sales were made by Morris under the authority of one of the plaintiffs, and that he had remitted the proceeds to them. I pass by the suggestion in the bill, of a doubt as to the possible invalidity of Morris’s title to the property, sold and purchased by one of the plaintiffs, and the claim that, in such event, Morris & Mitchell would not be entitled to a credit for tbe amount of the sales, and thus the balance due to the plaintiffs would be increased : for the trustee sold only such tille as was vested in him by the deed ; and, consequently, the debtors are entitled to full credit for the amount of sales, whether the title was good or not. I pass by, also, the suggestion, that the trustee declined *to stte at law for the recovery of the slaves. These suggestions, if well founded, afford no ground of jurisdiction against the . purchasers from Morris. The other matter, is, I think, sufficient for that purpose.

The bill does not, indeed, expressly affirm, that the defendants, Ambler, Burton, Chilton and Robertson, claim under Morris, subsequent to the execution of the deed. If it had alleged, that they claimed paramount to Morris, that would of itself have puL an end to the jurisdiction : or, if it had been totally silent as to the character of their claim, and they had demurred, it might have presented a doubtful question. But it virtually affirms, that they claimed title, (if they claimed any) under Morris, subsequent to the date of the deed, by alleging, that he possessed and was entitled to the slaves at that time. And it appears, from their answers, not only that such was really the character of their claims, but that they were of such a nature, that they could only be asserted in a court of equity, aud also that they purchased under Morris, before the settlement of the accounts between him and the plaintiffs, which therefore (they say) did ryot bind them. The consequence of which is, that, if this bill was dismissed for want of jurisdiction, the plaintiffs would be driven to prosecute four several suits at law, in the name of the trustee, in which they would upon the matter in this record inevitably recover : and, then, each of the defendants claiming the slaves, would have a right to resort to a court of equity, to assert the equitable titles insisted on in their defence here, and also to call for a settlement of the accounts between the appellees and Morris & Mitchell, without being bound by the settlement already made between them. One of the defendants claims such a settlement in this cause : To prevent this multiplicity of suits, all depending upon the same facts, is, I think, a sufficient foundation for the jurisdiction of the court of chancery.

The only objection to this, is, that this ground of jurisdiction appears (in part) only from the answers ; and that according to the former decisions of this cqurt (Pollard v. *Patterson, 3 Hen. & Munf. 67), if the bill, do not shew sufficient matter to sustain the jurisdiction, it is not saved by the provision of our statute, that “after answer filed, and no plea in abatement to the jurisdiction of the court, no exception for want of jurisdiction shall ever afterwards be made.” 1 Rev. Code, ch. 66, $ 86. This statute was certainly intended to strengthen the jurisdiction of the courts of chancery, so that, if a bill state a case fit for that jurisdiction, and the facts be not denied, but some other matter which would destroy the jurisdiction appear after answer, in the course of the proceedings in the cause, it shall not abate the bill. And, upon the fair construction of the act, I think it may be said, that, if the bill do not present a case for the jurisdiction of the court, and other matter appear in the progress of the cause, which supplies the defect, the defendant, not having demurred to the bill, cannot object to the jurisdiction at the hearing: as, if the bill was for an account, without shewing that the accounts were of such a character as to give jurisdiction, and that appeared from the answer or proof.

It was insisted, that to maintain the jurisdiction in this case, would be in opposition to some of the former decisions of this court; Stuart v. Coalter, Bowyer v. Creigh, and Randolph v. Kinney.

In the first of those cases, a party having an equitable title to an undivided part of a tract of land, in common with another who had a legal Sitie to a part, filed a bill against several coterminous tenants, claiming adverse titles against the plaintiff, and those under whom he claimed, for the purpose of adjusting the boundaries, not in respect to one line only common to all, and depending upon the same evidence, but as to several depending upon different evidence. Here, all the parties claim under the same title, and their rights depend upon the same evidence. There, the defendants had legal rights which they could vindicate at law, and which they had a right to try there and there only. Here the defendants claim equitable rights, which cannot be discussed in a court of law.

*In Bowyer v. Creigh, also, the *80defendants claimed against the trustee and cestui que trust, and asserted a legal right against the deed, which they also were entitled to vindicate exclusively in a court of law. And, besides, the interference of a court of equity in such a case, would have counteracted the policy of the statute of frauds, and of the statute authorising a creditor to enforce the sale of property taken in execution of which the title is contested, by indemnifying the sheriff.

And, in Randolph v. Kinney, the plaintiff sought to reach parties upon the principle of substitution, through a long series, when the rights were intirely distinct, in a case in which there was no right of substitution whatever.

I do not see, tiiat the principles of any of those cases have any application to that under consideration.

CABEBB, J., concurred.

BROOKE, President.

On the merits of this case, I concur in the decree, which has been agreed upon by my brother judges. But I am not satisfied, that there is error in the former opinion of the court on the point of jurisdiction. If it were admitted, that a proper foundation is laid in the bill, for the jurisdictipn of the court, as against those defendants who have not appealed from the decree of the chancellor, it would not follow, that a proper ground is also laid for the jurisdiction, as regards the appellants. But, as that point has been argued, for the purpose (as was said) of laying a foundation for the jurisdiction as to the appellants also, I shall make some general remarks on it.

If (as was insisted ) a deed of trust was, in all respects, as regards the jurisdiction of the court, nothing more than a mortgage, it would be admitted, that, in every case, resort might be had to a court of equity, to adjust the rights of the parties under it. But they are essentially different. A mortgage is only an equitable security for the payment of money; and the moment the property in it is forfeited to the mortgagee, *by a failure to pay the money, and to comply with its terms, it exclusively belongs to equity, to relieve against it upon a bill to redeem, or to adjust the rights of the parties on a bill to foreclose. The mortgagor has an inherent equity in the contract itself, which it belongs to the court of equity, exclusively, to take cognizance of ; an equity, which follows the mortgage in whosever hands it may be. But it is not so in the case of a deed of trust. That is a legal security for the payment of money &c. recognized as such by statute law. The property in it, is not liable to forfeiture, in any event,_ as in the case of a mortgage. There is nothing in it against conscience, to give a court of equity jurisdiction. The trustee may sell the property in it, and execute the trust confided to him by the parties to it; and having done so, in pursuance of the deed, there is nothing for a court of equity to acton. Neither the debtor nor the creditor can come into the court, on the contract in the deed alone, as in the case of the mortgage. If either come into the court, it must be on ground foreign to the deed. Each party has a right to insist on the execution of the trust by the trustee. Having the legal title to the property, under the deed, his remedy to get possession of it is adequate at law ; or, on his declining to sue there, the cestui que trust may, in his name, recover the property at law, in order that it may be administered by the trustee, according to the terms of the deed.

Whether, independently of the deed of trust, a proper ground for the jurisdiction of the court, be alleged in the bill, as to those defendants who have not appealed, it is not necessary, for the reason before stated, to examine : the inquiry is, have the appellees stated in their bill, any ground of jurisdiction as against the appellants? As regards them, the appellees come into the court of equity, to assert their legal right under the deed of trust, to the slaves in their possession ; that is, they come into the court of equity, to-assert the legal rights of the trustee ; which is the same thing, since they might assert the legal right of the trustee *at law. There is nothing in the bill, which shews that the remedy at law was inadequate : for if it were admitted, that on the contract contained in the deed of trust, there is ground for the jurisdiction of the court of equity, as to the parties to it and those claiming under it, the appellants cannot be affected by it; they are strangers to the deed,, had no notice of it, and do not claim under it. This is conceded in the admission, that if the appellees be not relieved in a court of equity, on their bill in this case, they will be barred by the act of limitations at law, unless, there be a reservation in the decree.

The allegation in the bill, that the appellants purchased the slaves in question of Morris the debtor, and that he had possession of them and title to them when he executed the deed of trust, lays no foundation for the jurisdiction of a court of equity ; as, if true, it might have been proved at law, as well as in equity. And if this be the only ground, a demurrer would have been fatal to the bill. The inference from these facts, that the appellants, after judgments at law against them would have an equity which they might assert in a court of equity, is not enough : it ought to have been directly charged in the-bill, as the court will not take jurisdiction by inference. And if it were, the answer is, that such an equity is not under the deed of trust, but is founded on the general principles of the court, and .might or might not be asserted, according to circumstances: it ought not to deprive the appellants of a trial at law on viva voce testimony: it ought to have no-influence on t-he question of jurisdiction. Nor will the answers of the appellants help the case stated in the bill, though a part of the defence relied on, be only proper in a court of equity. The jurisdiction of the court depends on the character of the bill, and on the construction of the provision of the statute, 1 Rev. Code, ch. 66, §86. The construction of the statute has been given by this court in the case of Pollard v. Patterson. In that case, the jurisdiction was held to depend on the bill only ; nothing was said of the answers ; and, *though Pollard, in his answer, virtually admitted the jurisdiction,. by offering to substitute other seventy-five thousand acres of land, for the lands of the plaintiff, which he had sold to Morris by mistake, the court took no notice of the *81answer, and dismissed the bill for the want of jurisdiction.

The other ground taken in the argument, that the court will take jurisdiction. to avoid a multiplicity of suits, I think more questionable. Though it is virtually alleged in the bill, that the appellants claim title to the slaves in question under Morris, by purchase subsequent to the execution of the deed of trust, that is no part of their title, but belongs to the pretensions of the appellees. Possession stands for the right, both at law and in equity, until a better right be shewn : so emphatically, indeed, that five years adversary possession of slaves will prevail over the right of the true owner, even though he again get possession. Property in slaves passes by delivery of possession only, except in the cases of deeds of gift, mortgages, deeds of trust and wills, under neither of which do the appellants claim. The possession of each of the appellants is foreign to the possession of the others : they have no common interest in any respect : the trial of the right of one, cannot affect the right of the others: not claiming under the deed of trust, they do not claim from one common source. Their case, then, does not fall within the principle, on which courts of equity take jurisdiction to avoid a multiplicity of suits.

Looking to the bill only, (as was done in the case of Pollard v. Patterson) there is nothing in it to warrant the jurisdiction of the court. . In that case, Pollard, in his answer, offered an equitable compromise for the injury he had done the plaintiff, by selling his lands to Morris by mistake; but the court disregarded it. If the answer is to come in, before the question of jurisdiction arises, no demurrer to the bill can be sustained. To put the jurisdiction of the court, on the ground of a failure to demur to the bill before answer filed, were to abandon the correct construction of the 86th section of the chancery law, and to overrule the case of Pollard v. Patterson.

*1 arn still, therefore, of the opinion, that the bill ought to be dismissed as to the appellants, and the cause remanded as to the parties who have not appealed.

The majority of the court, sustaining the jurisdiction, proceeded to consider the proofs, touching the controverted questions of fact, and reversed the chancellor’s decree upon the merits : dismissed the bill, as to the appellants, Ambler, Burton and Robertson : and remanded the cause to the court of chancery, as to the appellant Chilton, and the defendants who had not appealed from the decree; as to these, for further proceedings generally ; and, as to Chilton, that an issue might be directed to ascertain the true state of his case, in one particular, which the proofs then in the cause left in doubt.