#### *Spencer v. Ford.

March, 1843,

Richmond.

(Absent Brooke and Allen, J.)

Deed of Trust to Secure Creditors—Assent or Ratification.*—On the 25th of August 1827, a deed of trust was made to four trustees of the second part, for the benefit of certain cestuis que trust of the third part, conveying land, slaves and personal property, and also a growing crop of tobacco and corn, subject to such disposition as the trustees might find it necessary to make of the crop for the payment of any money due from the grantor (who was an attorney at law) to his clients. The deed was only executed by the grantor, and upon his acknowledgment was admitted to record. Two of the trustees expressly declined to act. On the 26th of November 1827, another deed was made by the same grantor to the two other trustees, conveying all the slaves mentioned in the deed of August 1827, as well as some others, and also the crop of tobacco, to secure to a party money advanced by him to pay off executions which had been levied upon the slave property mentioned in the first deed, one of which executions was for a debt due to a client, of greater amount than the value of the tobacco crop. The proceeds of the property conveyed by this deed are applied according to its provisions. It does not appear that the deed of August 1827 was made on previous consultation with, or received the subsequent ratification of, the creditors or trustees named therein, or that any claim was asserted under it until October 1832; when a bill is filed by a party not named in that deed, and, for aught that appears, not known until then as one embraced by the description of client creditor, asking a decree against the cestui que trust in the deed of November 1827 for the value of the tobacco crop. Held that the plaintiff has no title to the relief sought.—Per Stanard, J. The deed of August 1827, being, when the deed of November 1827 was made, without the sanction of assent or ratification, could not in that predicament be any shield of the property against the levy of executions of creditors, nor any effectual impediment to the bona fide conveyance of the property by the grantor for valuable consideraation.

Alimony†—Party to Suit—Husband.—A suit for alimony being brought by a wife against her husband, who has deserted her and left the commonwealth, and a sum of money being obtained for her by her attorney at law by a compromise of that suit, held that on a bill in equity, in the name *of the feme by her next friend, against the .attorney for the money so obtained by him, a decree may be rendered for the same, although the husband be no party to the suit.

*415Costs*—Liability of Feme and Next Friend for.—In a ] suit brought in the name of a feme by her next , friend, a decree in her favour being reversed, ] and the bill ordered to be dismissed as to the ; appellant, he will recover his costs, both in the *\*appellate court and the court below, as well against the next friend as against the feme.

Same Successive Liability for Costs.—Case in which a bill against two defendants being dismissed as to one, the costs decreed to be paid to him by the plaintiff, were decreed to be paid to the plaintiff by the other defendant.

On the 25th of August 1827, a deed was made purporting to be between Daniel A. Wilson of the first part, George Booker, William M. Thornton, William F. Randolph and Samuel C. Anderson of the second part, and John V. Wilcox, William R. Johnson, John W. Nash, John Hughes and Allen Wilson of the third part, whereby, after reciting that the said Daniel A. Wilson was indebted to Wilcox by bond and to Johnson by bond, that Nash, Hughes and *\*Allen Wilson stood bound as sureties for him in another bond, and that Allen Wilson was his endorser on a note, it was witnessed that the said Daniel A. Wilson conveyed unto Booker, Thornton, Randolph and Anderson, the tract of land in Cumberland on which he then resided, and sundry slaves and other personal jroperty. Then came the following clause: “also my growing crop of tobacco and corn, subject to the deduction of the overseer’s part, and subject to such disposition as the said Booker, Thornton, Randolph and Anderson may find it necessary to make of the said crop for the payment of any money due from me to the clients for whom I may have collected money, which moneys is to be first paid out of my part of said growing crop.” The habendum was to Booker, Thornton, Randolph and Anderson, of the “land and premises with its appurtenances, rents, profits, growing crops (with the reservations aforesaid) and future crops, together with the aforesaid slaves with the future increase of the ^females of the same, and all other personal property hereby conveyed.” And the conveyance was declared to be upon trust that Booker, Thornton, Randolph and Anderson should permit the said Daniel A. Wilson to remain in possession of the property, applying the crops of each year to the payment of the debts secured or intended to be secured *by the*deed, 1 *‘except so much*as may be necessary for the support of the family and support of the plantation and payment of overseer, until the creditors and securities aforesaid, or some one of them, shall require;” and then upon trust that they, or any one or more of them, should advertise the land and premises, crop on hand at the time, slaves with their increase, stock with its increase, and other personal property, and sell the same for cash, and out of the proceeds arising from the sale, first pay the expenses of executing the trust, next pay the debts mentioned in the recital of the deed, in a certain prescribed order, and then pay the balance to the said Daniel A. Wilson. This deed was executed only by Daniel A. Wilson. On the 27th of August 1827, it was acknowledged by him in the court of Cumberland county, and admitted to record.

*\*In October 1827, sundry executions against Daniel A. Wilson were delivered to the sheriff of Cumberland county; to wit, a fi. fa. in favour of P. T. Southall, a fi. fa. in favour of Thornton & Carrington, a venditioni exponas in favour of Miller & Andrew, and a fi. fa. in favour of Danghorne & Scruggs. And' there seem to have been others in favour of George Booker and of Gather. The greater part, if not the whole of the slave property mentioned in the deed of August 1827, was levied upon under these executions. William B. Hob-son, the deputy sheriff of Cumberland, deposed (in the suit herein after mentioned) I that he levied the executions, and considered the property subject to them as amply sufficient to pay them all; but the property levied on *was not sold, in consequence of an arrangement entered into between dr. John Spencer and Daniel A. Wilson, wherebj’ Spencer assumed the payment of them all himself. Several of the executions were returned with endorsements by the creditors, shewing that they were satisfied; and some of the endorsements stated that they were satisfied by Spencer’s executing his bonds to the execution creditors.

On the 26th of November 1827, a deed was made between Daniel A. Wilson of the first part, William M. Thornton and Samuel C, Anderson of the second part, and dr. John rSpencer of the third part, whereby, after reciting that Wilson was indebted to Spencer in the sum of 4203 dollars 9 cents, due on demand, by bond of that date, Wilson conveyed to Thornton and Anderson sundry slaves (being all those mentioned in the deed of August 1827, as well as some others) “and also the crop of tobacco which the said Wilson now has on hand, being the crop of the present year,” upon trust that Thornton and Anderson, when required by Spencer, should sell the slaves, or so many as would, with the then proceeds of the crop of tobacco, be sufficient to pay the costs of carrying the deed into effect and to discharge the debt and interest, upon such a credit as would make the proceeds payable on the 25th of December 1828. This deed was executed by Wilson and Spencer, and on the day of its date was acknowledged by Wilson in the court of Cumberland county and admitted to record.

On the 25th of October 1823, Nancy Ford, bjr James Muse her next friend, commenced a suit in chancery in the circuit court of Cumberland, against the parties to this deed. The bill set forth, that in the year--■ she employed Daniel A. Wilson, as an attorney at law, to prosecute a suit in her behalf in the county *416court of Cumberland, against her husband Hezekiah Ford of the state of Alabama, for alimony. That such proceedings were adopted by Wilson, that he obtained for her (by compromise, *as she is informed) the sum of 1000 dollars, the whole of which he, as her attorney, received. That, of the 1000 dollars, he accounted to her only for 250 dollars, leaving the balance of 750 dollars still due. That the matter thus remained until some time in the year 1827, when Wilson, finding himself ruinously involved, and desiring to secure to his clients all money he had collected for them as an attorney and had not paid over to them, made the deed of the 25th of August 1827, whereby he conveyed his then growing crop of tobacco and corn, deducting the overseer’s part, in trust for the express and exclusive purpose of paying to clients any money which he had collected for them and had not paid over to them. That the complainant is informed and believes, and therefore charges, that her own debt of 750 dollars was the only one standing in that condition, and not otherwise secured; and consequently the crops * aforesaid, with the reservation aforesaid, were in fact and in truth conveyed by the deed aforesaid for her exclusive advantage and benefit. That Booker and Randolph expressly declined to act as trustees in the execution of the deed; and before Thornton and Anderson were required to execute it, Wilson, combining and confederating with Spencer to injure and defraud the complainant and to deprive her of the security aforesaid, made the deed of the 26th of November 1827, whereby he conveyed to the said Thornton and Anderson a large amount of other property, together with the crop of tobacco aforesaid, for the payment of a large debt due Spencer from Wilson. That the crops of corn and tobacco were matured, and the complainant does not know what became of the corn ; but she charges that by arrangement between Wilson and Spencer, without the knowledge of the complainant or of Thornton and Anderson, the crop of tobacco was shipped to Richmond, and the proceeds, amounting to about 600 dollars, were received by Spencer under colour of *his deed, and applied by him in satisfaction of his debt, in violation of the complainant’s rights. The bill prayed that Spencer might be compelled to pay over to the complainant the sum of 600 dollars, with interest, in part satisfaction of her debt, and that Wilson might be required to pay her the balance.

The answer of Spencer stated, that in 1827 Wilson applied to him and others hereinafter named, to aid him in procuring from Archer Taylor of Richmond an advancement of money upon the faith of his (Wilson’s) then crop of tobacco, in order to discharge executions, then in the hands of the sheriff of Cumberland, in favour of George Booker and Miller & Andrew against Wilson. That the respondent and William M. Thornton, Allen Wilson and John W. Wilson, (the persons alluded to above,) consented to aid the said Daniel A. Wilson, and did procure from the said Taylor an advancement of 700 dollars upon the faith *of*the said crop of tobacco. That after-wards the respondent consented to become liable for the whole of the executions then in the hands of the sheriff of Cumberland against Wilson, upon condition that the money to be received from Taylor should be applied as aforesaid, and that Wilson should give respondent a deed of trust on the property on which the executions had been levied, and include in the deed a debt of 600 dollars due to the respondent from Wilson, and that the property so conveyed should be sold on a credit till the 25th of December 1828. That the respondent did not receive the sum of 700 dollars advanced by Taylor, but the same came to the hands of Thornton, and was by him paid to Booker and Miller & Andrew, in discharge of their executions.* That the only reason why the crop of tobacco was included in the deed of trust was, that it was alleged to be worth more than the 700 dollars, *and it was intended the balance should be appropriated, as directed by the deed, in discharge of the debt therein specified. That Taylor received from the crop of tobacco, after deducting expenses, only the sum of 558 dollars 20 cents, which was applied to the credit of the 700 dollars advanced by him. That the debt due to Cather and paid by respondent, amounting to 1339 dollars 5 cents, was money which Wilson in his character of attorney had received for Cather, as respondent has heard and believes; and that the sum of about 60 dollars, part of the debt due to respondent, was also of that character. The respondent further state's that the whole of the transactions between Wilson and him were without any notice of the complainant’s claim. He requires from the complainant full proof of her debt, and that it belongs to the class described in the deed of the 25th of August 1827 under the general denomination of clients’ debts. If it shall be found to belong to that class, he states that he has heard, and therefore charges, that Wilson, by agreement with the plaintiff, was to have a third or a fourth of whatever he received. He states that the whole of the property conveyed by the deed of November 1827 has been disposed of, and leaves due and unpaid a large balance of his debt, to wit, 900 dollars or thereabouts ; and that the avails of the crop of tobacco were disposed of long before he had any notice of the plaintiff’s claim. He objects to the claim of the complainant, that there is no evidence accompanying the deed of the 25th of August 1827, that she accepted it, and consented to abide by its stipulations. And he insists that the said deed created no lien whatever upon *417the tobacco in favour of that class of claims described in said deed as clients’ debts.

As to all the defendants except Spencer, the bill was taken for confessed. *Wilson, whose deposition was taken by leave of court, proved that he commenced suit for mts. Ford, and made a compromise under which he received 1000 dollars, which was subject to an abatement of one fourth for his interest, according to the understanding when he was employed. He stated that he considered the amount thus due from him, to be due to her as a client, and intended to provide for its payment in that clause of the deed of August 1827, in which he mentioned his crop of tobacco as at the disposition of the trustees for the payment of any money due from him to clients. The debt to Cather as surviving partner was, he said, also a debt originally due to Lynch & Cather as clients. He was unable to say what was the number of barrels of corn made from the crop growing on the plantation in August 1827, nor how much was consumed upon the plantation, nor to whom it was sold.

An order was made directing the defendants Thornton and Anderson to render before a commissioner an account of the funds that might have come to their hands under the deed of November 1827.

The record contained an account in these words: “Dr. John Spencer in account with William M. Thornton and Samuel C. Anderson, trustees for Daniel A. Wilson. 1828, Dec’r 25. To cash paid dr. John Spencer, on account of Daniel A. Wilson’s bond secured in the deed of trust dated 26th November 1827, by the sale of the property contained in the said deed, with the exception of the crop of tobacco, $2957.” Accompanying this account was a report of the commissioner, stating that he had been furnished with this item as the amount of money paid Spencer by the trustees in the deed of November 1827, from the proceeds of all the property therein contained, “except the crop of tobacco, which the said Spencer sold, and received the money arising therefrom himself.” *On the 16th of November 1835, the cause was heard. The entry was, that it came on to be heard on the bill, answer of the defendant Spencer, the exhibits filed, and depositions of witnesses, (not mentioning the report of the commissioner). And the decree was, that Spencer pay to the plaintiff 500 dollars, with interest from the 25th of August 1827 till paid, and her costs of suit.

From this decree, on the petition of Spencer, an appeal was allowed.

G. N. Johnson for appellant.

I. The plaintiff, a married woman, could not maintain this suit; at least not without making her husband a party. The husband is a necessary party in every case in which the wife sues, whether at law or in equity. 2 Roper bn Property 268, 9; 1 Fonb. Eq. 100, note p.; Bingham on Infancy and Coverture 262; Bogget v. Frier &c.,. H East 301. Nor does the absence of the-husband from the commonwealth make any difference. Commonwealth v. Cutlins, 1 Mass. Rep. 116. He may still be made a party.

II. There is no proof whatever to charge the appellant with the proceeds of the tobacco. The report of the commissioner is no proof, because what is said by the commissioner on that subject was not required by the order of reference, and because the case was not heard upon the report.

III. The appellant had no notice of the plaintiff’s claim, and therefore could not be charged with her equity.

IV. The trustees may have had a discretion to apply the growing crop to pay the plaintiff or other clients. But if they had such discretion, it was not exercised: and then the crop was subject to the debts specified, or to the power of Wilson; and in either predicament the plaintiff had no right. Wilson might at least be dealt with in respect to the crop for the purpose of satisfying the debt due from him to his client Cather.

*V. If any decree could have been made in favour of the plaintiff, it could only have been for a ratable proportion of the net proceeds of the tobacco, regarding her and Cather as incumbrances upon the subject.

VI. No decree could have been made in favour of the plaintiff, until the trustees under the deed of August 1827 had been called upon to account for the corn crop; nor until a report of all liens in favour of clients had been made.

Taylor for appellee.

I. If there can be any case in which the husband need not be a party to a suit brought by the wife for her separate property, this must be deemed such a case; for here the subject of the suit had been previously recovered from the husband. There is no conceivable object to be attained by making him a party. The husband too is not within the commonwealth. Story’s Eq. PI. p. 64, ch. 3, # 63.

II. The court must intend that the cause was heard in the court below on the report. The account was deemed necessary, and was directed; and it must be intended that as an account was required, and there is a report in the record, that report was acted on by the court when the final decree was rendered.

III. The deed of August 1827 subjected the growing crops of tobacco and corn to client creditors: it is good as a security for such creditors, though they be not specially named.

IV. Spencer, in withdrawing the property from the sheriff, and providing payment of the executions, took a fund proved to be sufficient to pay the executions without the tobacco, and he must abide the consequences of the subsequent inadequacy of the property.

V. The appellant, having received the *418proceeds of the tobacco, ought to account to the appellee for the whole amount thereof. But for his intervention, the execution of Cather would have been satisfied without *the tobacco; and he has no equity, therefore, in respect to Cather’s claim, which entitles him to a ratable share of the proceeds of the tobacco.

VI. Nothing seems to be known of the corn crop by any of the parties, and the case should be disposed of as though it had not existed. It is manifest that an order directing an account of it would prove abortive.

G. N. Johnson in reply.

The husband cannot be dispensed with as a party by suggesting and shewing that he has no interest. That cannot be properly shewn in a case in which he is no party and is not heard. Bingh. on Infancy and Coverture 260. Notwithstanding what appears in this case, there might be other facts which, coupled with what appears, might shew the husband to be entitled to the money due from Wilson.

Of the act of the commissioner in making the report, no notice appears to have been given to Spencer.

The claim is under the deed of August 1827, and yet neither the trustees nor the cestuis que trust in that deed are made parties, nor any account of the trust claimed. The only notice chargeable to Spencer is notice of that deed; but this involves no notice of the claim of the appellee.

The power reserved to Wilson by that deed over the property and crops necessarily gave him the administration of the crops.

There is no proof that the property levied on was sufficient to pay the execution debts. We have nothing but the conjecture of the deputy sheriff, and this is rebutted by the actual sales. If there was such proof, Spencer is in nowise responsible for the loss.

If the appellee be entitled to any decree, it is against Wilson only.

*

Deed of Trust for Creditors—Previous Assent or Subsequent Ratification.—The principal case is cited in Zell Guano Co, v. Heatherly. 38 W. Va. 409, 18 S. E. Rep. 618. See monographic *note*on “Assignments for the Benefit of Creditors” appended to French v. Townes, 10 Gratt. 513.

Same—Same—Consultation with Creditors.—In Dance v. Seaman, 11 Gratt. 783, the court, in reference to the principal case, said: “In that case there were two deeds of trust, the first not appearing to have been made with the knowledge of, or to have been- ratified by, any creditor or trustee named therein; and under which no claim was asserted until the execution of the second deed, and the application of the proceeds thereunder; and then the claim was asserted by a creditor not named in the deed, or known to be a creditor. It was held that such creditor was not entitled to relief against the *cestui aue trust*in the last deed. The refusal of relief under such circumstances does not decide that a deed made without consultation with creditors, is for that reason fraudulent. Before any right or claim under the first deed was known or asserted, the property had been conveyed, and the proceeds applied to a fair creditor, against whom, under the circumstances, there was no j ust cause of reclamation.”

†

Alimony.—See monographic *note*on “Alimony” appended to Carr'v. Carr, 22 Gratt. 168.

*

Costs.—See monographic *note*on “Costs” appended to Jones y. Tatum, 19 Gratt. 720.

*

The sum of 4203 dollars 9 cents appeared to include the amount of the executions of Booker and Miller & Andrew, as well as the others, and also the 600 dollars.—Note in Original Edition.

STANARD, J.

Many objections have been urged against the decree. The greater part of them considered *in themselves, though well founded, would, while thej' require the reversal of the decree, make it proper to remand the case for further proceedings. If there be an objection reaching the title of the appellee to any relief against the appellant, it will be unnecessary to consider any order.

It does not appear that the deed of August 1827 was made on previous consultation with, or received the subsequent ratification of, any of the creditors or trustees named therein, or that any claim was asserted under it from its date until the claim asserted by this suit in October 1832, by a party not named in the deed, and, for aught that appears, not known until then as one embraced by the description of client creditor. In November 1822, when the deed was made conveying the crop of tobacco, among other property, to Thornton and Anderson in trust for the benefit of the appellant, the deed of August was without the sanction of such previous assent or subsequent ratification; and in that predicament it could be no shield of the property against the levy of executions of the creditors named therein, or other creditors, nor any effectual impediment to the bona fide conveyance by the grantor for valuable consideration. * In this view, the title under the deed of November 1827, which was such a conveyance, was paramount the claim asserted for the first time in 1832, under the hitherto dormant and inoperative conveyance of August 1827. But again, assume *that the deed of August 1827 was assented to by the trustees Thornton and Anderson: they, having the legal title, have by the deed of November 1827 dedicated this crop of tobacco to the payment of Spencer’s claim, without any notice to Spencer at least, and probably without any knowledge on their part, or the existence of the claim of the appellee; and the appellee, even if Thornton and Anderson could be made chargeable with this misapplication, could have no equity to pursue the fund into the hands, of Spencer, who in law and equity is entitled to retain what he has fairly obtained. And furthermore, as he held the claim of a client creditor to a larger amount than the fund, if the deed of August had been fully accepted and acted under by the trustees, and the said trustees, under the discretion given by the reservation in that deed, had (though the deed of November had' not been made) applied the fund to Cather’s claim, in ignorance of the existence of that of the appellee, no effectual reclamation could have been made of the fund from the hands of Cather.

In every view of this case, my opinion is that the appellee has no title to relief against the appellant.

She is entitled, however, to relief against the defendant Wilson, who is confessedly indebted to her in the sum of 500 dollars, with interest from the 25th of August 1827; and the court of equity was the proper forum for the recovery of that claim.

The other judges concurred with judge Stanard, in entering a decree in the following terms:

That the decree of the circuit court be reversed, and that the appellee and James *419Muse her next friend do pay unto the appellant his costs expended in the prosecution of his appeal. And this court proceeding to render such decree as the circuit court ought to have rendered, it is further decreed and ordered that the bill of the appellee be dismissed as to the appellant, and that *the appellee and James Muse her next friend do pay unto the said appellant his costs by him about his defence in the said circuit court expended. And it is further decreed and ordered that the said Daniel A. Wilson do pay unto the appellee 500 dollars, with interest thereon from the 25th of August 1827 till paid, and also her costs by her expended in the prosecution of her suit in the said circuit court, including in those costs, the costs of the said circuit court above decreed to be paid b3r her to the appellant.