#### *John M. Cooper and Wife and others vs. John Day.*

In general, the statements of a bill are not evidence against the plaintiff; where, however, he has sworn to the bill, they are evidence against him.

Trust deed set up, as against the trustee and against his answer, on evidence of the contents, and that the trustee had had possession of the deed, and had acted under it.

*Cestui que trusts*who have vested interests, though not the right of immediate enjoyment, may maintain a bill to have the trusts of the deed declared, and the trustee removed for misconduct.

A trustee who failed *to*have the trust deed recorded, and *to give*notice thereof to a purchaser of the land, held liable to the *cestui que trusts*for the value of the land.

If a trustee raises a grossly unreasonable claim to the-trust property, in open defiance of his *cestui que trusts,*and in direct violation of his obligations, this is such misconduct as authorizes his removal from office.

A trustee who purchases slaves included in the trust deed, cannot set up the want of registration in opposition to the claims of the *cestui que trusts.*

*Before*Johnston, Ch. *at Edgefield, June,*1843.

The Chancellor. The defence adopted in this case renders it necessary to go back to the case of *Hancock vs. Day,*
      ***
      **and I do not knowUhat I can explain the circumstances better than by repeating in the first instance a greater part of *the statement*of that case, contained in my decree of 1839.

The original bill in that case was filed the 20th of February, 1838, by Nancy, Simon, and William J. Hancock, infants suing by Benjamin R.. Tillman, their guardian, against Martin H. Day.

It stated, that on the 12th February, 1828, Simon Hancock, Sr. since deceased, conveyed by deed, to his wife, Elizabeth, and to the plaintiffs, his children, in equal undivided shares, a certain tract of land, in said deed described, containing 400 acres. That the said Elizabeth, after the death of the grantor, intermarried with one David Gurganus, with whom she afterwards united in conveying her undivided fourth part of said land to the defendant, Martin H. Day, who had, thereupon, taken possession of the entire tract, and had, thenceforth, had the use and occupation thereof. That the plaintiffs were desirous that the same should *27be divided or sold, and that the said Martin H. should account to them for the rents and profits thereof, whilst in his possession. The bill prayed for a writ of partition, in order to a sale or division of the land, and for an account of the rents and profits.

To this bill, Martin H. Day put in his answer, in which he admitted that he was tenant in common with the plaintiffs, in the said tract of land, in the manner set forth in the bill; and stated that he had no objection to the partition or sale prayed for.

On the 28th of May, 1838, the plaintiffs filed their bill, by way of amendment to the original bill, and made John Day an additional defendant.

They stated in the amendment, that in the same deed whereby Simon Hancock, Sr. conveyed the said tract of land to his wife and children as aforesaid, he conveyed to his said wife Elizabeth, two slaves, Will and Ned, his stock of cattle, horses and hogs, and all the rest of his goods- and chattels of every description, expept six slaves, Bob, Louisa, and Rebecca, with the three children of Rebecca, Winny, William and Basil, and certain other property therein set forth, which he gave to the plaintiffs, to be divided among them, together with their shares of said land, when the youngest of the said plaintiffs should arrive at eighteen years of age.

The plaintiffs then proceeded to state, that since the filing of the original bill, they jiad been informed that their mother, the said Elizabeth, did, on the 6th day of May, 1829, before her marriage to the said David Gurganus, but in contemplation of said marriage, execute a deed of trust to the said John Day, the father of his co-defendant, Martin H. Day, whereby she conveyed to the said John all the real and personal property which had been conveyed to her, as aforesaid, by her late husband, Simon Hancock, Senr. and constituted him trustee thereof; and moreover, invested the said John, by said deed, with power to control, manage and dispose of the same at his discretion, until her youngest son, the plaintiff, Wm. J. Hancock, should arrive at eighteen years of age, when the said property was to be equally divided among the plaintiffs.

That the plaintiffs had frequently, through their guardian, applied to the said John Day to produce the said trust deed, in order to ascertain their interests under it; but he declared the said deed was lost or mislaid. The plaintiffs stated, however, .that *28on the 10th of October, 1834, the said *John*Day, as their *next*friend and guardian *ad litem,*filed a bill against the said David Gurganus, to restrain him from removing their property from this State, and for other purposes, of which bill they made an exhibit. That in that bill reference was made to a copy of said trust deed, as' therewith filed as exhibit B. But that the plaintiffs were informed no such exhibit was, in fact, filed. Nevertheless, in confirmation of the fact that such a deed was executed, the plaintiffs craved reference to the said bill, so filed by the said John Day, wherein he described the said deed, in terms corresponding to those employed by the plaintiffs.

They insisted that the terms of the deed must operate to destroy the conveyance from Gurganus and wife to Martin H. Day, set forth in their original bill, or to restrict said Martin’s interest thereunder, to a mere use of Mrs. Gurganus’s share of the land until the plaintiff, Vm. J. Hancock, should attain the age of eighteen years; the said Martin, as they further alleged, having had notice of the trust 'deed, before his purchase.

The prayer of the bill was, that the said John and Martin H. Day should answer the same ; that they should *“*exhibit the trust deed, if in their power;” and that Martin should answer particularly *“*whether before or at the time of his purchase of Mrs. Gurganus’s share of said land, he did not know of the existence of said trust deed.” There was a prayer, also, for general, but none for particular, relief.

A writ of partition, which had been awarded on the original bill and answer, was returned at this stage of the pleadings, with a recommendation that the land should be sold on a credit; which return was confirmed by order of Chancellor Harper — ■ which order provided, however, that the proceeds of the sale should be subject to the further order of the court. The land was sold accordingly for $3,800.

Subsequently to this, answers were put in by both defendants.

John Day, answering, said, that he did prosecute the suit referred to in the bill, as next friend of the plaintiffs, against Gurganus and his wife, but that his sole purpose in said suit was to secure the negroes specifically given to the plaintiffs by the deed of their father, Simon Hancock, and not to interfere with the negroes and other property given by said deed to Mrs. Gurganus, formerly Mrs. Hancock; and that no further proceeding was had in the said suit, after the negroes specifically given to the plaintiffs were given up to this respondent. *29Respondent did draw a deed of trust from the said Mrs. Gurga-nus to himself, as trustee, before her intermarriage with Gurga-nus ; which (unskilfully drawn,) was intended to secure the property given by Simon Hancock to his children, from the improvident control and management of said Gurganus; it being supposed by Mrs. Gurganus and the respondent, when the said trust deed was drawn, that by virtue of the deed of Simon Hancock, Mrs. Hancock, afterwards Gurganus, was entitled to the management and profits of the real and personal property given to her children, until the youngest should attain the age of eighteen years ; and the respondent submitted that nothing inconsistent with this could be fairly deduced from the statements in his bill against Gurganus; and that any seeming contrariety might be explained by his want of skill in the forms of proceedings. He admitted that plaintiffs’s guardian did once apply to him for said trust deed, and that he answered that it was lost or mislaid; and so the fact was. Respondent placed the said trust deed in the hands of his counsel, Mr. Bauskett, about the time of filing his bill against Gurganus; and, if it was returned to him by his counsel, of which he was not certain, he could not find it among his papers ; it was not in his possession or control, nor had it been wilfully placed beyond his control, to avoid any consequences that might grow out of it, affecting him.

He submitted that he had been improperly made a party to that suit, (the one in which he was answering,) as no *relief*was sought against him, and no discovery sought from him of facts not within the knowledge of plaintiffs or their guardian; and he was joined unnecessarily for other ends. He closed his answer by stating that “the said trust deed was not registered; and, it is submitted, has no -legal efficacy.”

Martin H. Day, in his answer, said, that he was an innocent purchaser, for valuable consideration, (to wit: for the sum of eight hundred dollars,) of the share of David Gurganus and wife, in the land described in the bill, without notice of any trust affecting said share in said land. He had, indeed, heard, before his purchase, of the existence of a trust deed to his father, executed by Mrs. Gurganus, but he never had understood that said deed in any way affected the share of Gurganus and wife in said land; on the contrary, he had always understood and believed, that the said deed of trust embraced only the shares of the children of Simon Hancock, as specifically given *30by the deed of said Simon, together with the interest that Mrs. Gurganus might have in the profits of the children’s shares, before the youngest child attained eighteen years of age. He submitted, that as said trust deed was not recorded, and he had never had any express notice of it, he was in no wise bound by its provisions.

These were the pleadings in that case, so far as they are relevant to the present suit.

It was heard upon the pleadings and testimony taken in the cause in June, 1839. Before stating the decree then pronounced, it may be proper to observe, that the deed of Simon Hancock, sen. referred to, gives and grants “unto the said Elizabeth, my wife, and to the said Nancy, Simon and Wm. J. Hancock, my children, the following property, viz: — unto my wife, Elizabeth, her heirs, executors and administrators, I have given two negroes, Will and Ned, one hundred acres of land, together with my stock of horses, cattle, hogs, and all my other goods and chattels, of every description whatever, except what is hereafter mentioned.

“Secondly. Unto my three children, Nancy, Simon, and Wm. John Hancock, I have given, to the three jointly, (to be equally divided among them, when the youngest child arrives at the age of eighteen years,) my six negro slaves, viz: — Bob, Louisa, Rebecca, and her three children, Winriy, William and Basil, and their future increase ; one hundred acres of land to each of said children ; one horse, one cow, one feather bed; besides, to my daughter, I have given one set of silver table spoons; to have and to hold,” <fcc.

It was decreed, that by the terms of this deed the plaintiffs were entitled to have their shares of the land presently separated from their mother’s, although, by the express words of the instrument, they were not to subdivide their shares among themselves until March, 1845, when Wm. J. Hancock will have attained the age of eighteen years.

The bill was dismissed as against John Day, on the grounds, that no act of misconduct, on his part, was charged by the plaintiffs; that there was no prayer for specific relief against him, and none could be granted under the prayer for general relief, but what was warranted by the statements of the bill, and it contained no statement to warrant any. That the discovery sought from him was not pointed towards any relief required of him, but for the purpose of using it as evidence against Martin *31H. Day; blit for this purpose, it was unnecessary and inadmis-sable to exact a discovery from him. It amounted to the assertion of a right to implead a witness and obtain his evidence by answer. He might have been examined as a witness on the part of the plaintiffs; and, therefore, could not be compelled to discover; nor could his answer be read against his co-defendant. 2 Tern. 380. 3 P. Wms. 311, note H. 12 Tes. 361. 2 Wheat. 380.

As against Martin H. Day, so much of the bill as sought to avoid his purchase of Mrs. Gurganus’s share of the land was dismissed, upon the ground, that he had paid a full and valuable consideration without notice of the trust deed ; there being no proof whatever to establish its existence, except the recital of it in John Pay’s bill against Gurganus, and in a mortgage executed by John Day, Gurganus and wife, to one Cloud ; which, however conclusive upon John Day of the existence of the deed, and however strongly he might be bound by it for misconduct properly charged against him, was no evidence of *notice*of its provisions, or even its existence, against Martin.

The right of Martin to Mrs. Gurganus’s share of the land was established; a share of the proceeds of its sale being given in lieu of it.

After this decree was pronounced, Nancy Hancock, one of the plaintiffs, intermarried with John M. Cooper.

The bill in the present case was filed the 13th December, 1841, against John Day alone, by the said Cooper and wife, and by her two brothers, Simon and Wm. J. Hancock, who are still infants, and sue by their guardian, B. R. Tillman. It states, substantially, the foregoing facts. It repeats the statement made in the former cause, relating to the execution of the trust deed by Mrs. Hancock, before her intermarriage with Gurganus, and to the conveyance by Gurganus and wife, of the wife’s share of the land, to Martin H. Day ; which it alleges was executed after the trust was created, and accepted by John Day, and with his knowledge; and it adds, that at the time of the execution of the trust deed, Mrs. Hancock was in possession of the two negroes, Will and Ned, given her by her late husband’s deed, and that they thereby vested in the said John Day, as trustee. That by his acceptance of the trust it became his duty to preserve and protect the interest of the plaintiffs, his *cestui que trusts,*in the land and negroes covered by the trust deed, which duty he violated by gross negligence, in omitting to register the said deed, *32and allowing his son, the said Martin H. Day, to obtain an absolute conveyance from Gurganus and wife, of her fourth part of the land, without giving any notice of the deed previously executed by Mrs. Hancock to himself. The bill further states, that the defendant has the two slaves, Will and Ned, now in his possession, pretending to claim them in his own right, by virtue of a purchase which he alleges he has made, either directly from Gurganus and wife, or at some sale of them under a mortgage, executed by said Gurganus and wife, for a debt due by Gurganus to one John Cloud, which mortgage was given after the execution of the trust deed, and in which he joined as trustee, in violation of his duty.

The prayer of the bill is, that ’ the rights of the plaintiffs under the said trust deed may be declared; that the defendant may be decreed to account for his administration of the trust property, particularly that he may be ordered to account for the value of one-fourth of the said tract of land, which was lost to the plaintiffs in the former suit, by his fraud and negligence as trustee ; that he may be required to deliver up the said slaves, Will and Ned, and account for their hire; and that the trust may be transferred from him to a trustee to be appointed in his place; and for general relief. The bill also prays for a *ne*exeat, which it is unnecessary to notice further, the facts charged being sworn off, and there being no proof in contradiction to the answer.

The answer admits the execution of a trust deed, by Mrs. Hancock, conveying to the defendant all her interest in the management and profits of the property conveyed by her husband, Hancock, to her children; but denies that it conveyed, or was intended to convey, any portion of her specific share under her said husband’s deed ; or that he accepted any trust whatever, except in that sense ; or that he ever controlled or managed the property specifically given to Mrs. Hancock, afterwards Gurga-nus, by the deed of Hancock. The defendant admits that he gave no notice to Martin H. Day as to any trust affecting the land purchased by him from Gurganus and wife; being himself ignorant of the existence of any. He further states, that he bought the negroes, Will and Ned, from Gurganus and wife, for a full and fair price, under a like ignorance. He did, indeed, join them in mortgaging them to Cloud, but this was done merely to satisfy Cloud, who was his neighbor and friend; that he asserted no claim or control over said negroes, and *33he does not remember whether the mortgage was read to or by him.

He does not know what has become of the trust deed; and it is not in his power or possession.

He submits that it is, in fact, a marriage settlement; and that it is void for want of registration.

He submits, further, that inasmuch as the plaintiff, Win. J. Hancock, will not be eighteen years of age until March, 1845, the bill is prematurely filed.

That Gurganus and wife are materially interested in the suit, and should be made parties.

And that in the former suit of these plaintiffs, against Martin H. Day and himself, the same matters, at least so far as concerns the land, were stirred and decided against the plaintiffs; which decision he pleads in bar of the present bill.

It is a misconception that this bill is barred by the former adjudication. So far from the charges of this bill corresponding with those of the former bill, or their being adjudicated in that case, the former bill was dismissed, as against this defendant, upon the express ground that it contained no charges at all, against him.

Turning to the present bill, I can only repeat what I said in the decree of 1839, in reference to evidence then taken, and now, again, produced; that I think there is evidence enough to establish not only the execution of the trust deed, but its contents also, as against this defendant; and that there is proof of such misconduct on his part as should render him responsible for the trust property.

Of the execution of a trust deed ol some sort, and of the acceptance by the defendant of the trusts, whatever they were, there can be no doubt. So much is admitted ; and the principal questions contested here relate to the terms of the instrument, and the culpability of the defendant’s conduct, principally the former. There being no doubt here, that a proper foundation exists for the reception of secondary evidence of the contents of the paper, a good deal has been given. The bill sworn to and filed by the defendant against Gurganus on the 10th of October, 1834, is in evidence; in which, after acurately describing the deed from Simon Hancock to his wife and children, he states, *“*that Elizabeth Hancock, his (Simon’s,) widow, af-terwards, to wit: on or about the 6th of May, 1829, in contemplation of an intermarriage with the said David Gurganus, made *34and executed a deed of trust to your orator, John Day, with a view of protecting her property against any indiscretion of her intended husband, whereby she nominated your orator her trustee *of her real and -personal estate,”*(not a part of it,) *“ which had been given to her by her late husband*; and authorized your orator to contract and manage her business as her agent and trustee ; and, also, vested in him the right of disposing of said estate, by buying and selling, as he might think best, until her youngest son, John Hancock,” (Wm. J.) “should arrive to the age of eighteen years ; then the said estate was to be equally divided between the said three children, Nancy, Simon and John Hancock.”

This evidence was received upon the ground that the bill was sworn to and subscribed by the defendant Day ; his affidavit being “ that the matters and things contained in the foregoing bill are true, *to the*best of his knowledge, information or belief.” The statement which I have extracted is not made as matter of information and belief, but as of his own knowledge. It is true that generally a bill is not evidence against the plaintiff in the cause ; the statements being attributed to the counsel, and not to the party. But I have been in the habit of ruling, that any paper *signed*by a party, much more one *sworn*to by him, is good as *his*statement.

There is a singular coincidence between the fact stated in this bill and another piece of written evidence, also *subscribed*by the defendant. This consists of the mortgage of the 12th of February, 1833, by which the defendent joined Gruganus and wife in conveying the slaves Will and Ned (specifically given to her by her late husband’s deed,) to John Cloud, by way of securing a debt due to Cloud by Gurganus and wife. In this mortgage are the following passages :

*“*Whereas the said Elizabeth Gurganus did, in the year 1829, execute a deed of trust unto John Day, Esq. investing him with full legal power to take charge of, and act and transact for me and my children, viz : Nancy Hancock, Simon Hancock, and William J. Hancock; and whereas, being then about to marry the said David Gurganus, (which I have done,) and wishing to secure to me and my children, in named, the sure and perfect enjoyment, possession and management of the property *deeded to me and my children*by my husband, the said Simon Hancock, which will appear by reference to the Clerk’s office,” *&c. “*I did appoint and confide in the said John Day, Esq. as trustee. *35for that special use, and to act and transact with said property for us, as he might deem best to our interests,” (fee. “ Now, we, David Gurganus, Elizabeth Gurganus, and John Day, trustee, the better to secure,” (fee. “ Do firmly pledge and mortgage unto the said John Cloud, his heirs and assigns, two negro slaves, to wit: *Ned and Will, being part of the property given by Simon Hancock, deceased, unto his said wife, the in■ named Elizabeth Hancock*and her heirs, and *subsequently transfered by her to the said John Day, Esq. in trust, as trustee for the use expressed.”*&c.

Now, we have for proof of the execution of the instrument, the admission of the defendant, in his former answer, that he drew it; and his statement in the mortgage to Cloud of its actual execution; which statement he subsequently confirmed by oath in his bill against Gurganus ; so I think there are to be found indices pointing to its terms so directly as to leave no reasonable doubt what they were.

There is no accounting for the errors and absurdities of men, but if this defendant sought to convince Mr. Cloud, (as he states) of the fact, that he had no claim to, or authority over, the two slaves Will and Ned, it seems to me he adopted a very illogical method in the statement that they had been transferred to him as trustee. I confess my conclusion is the other way. There may be a bare possibility that the statement was made with that view. The reasonable probability is that the statement was made, not because it was false, but because it was true. It appears by the evidence, that the defendant was in possession of the instrument a little over a year afterwards, and the inference is natural, that it was at this time, and had been all along, in his possession, as it should have been. Would it not have been a surer method to quiet the suspicions of Mr. Cloud, to have shown him the deed *1*If the fact was as stated in the defendant’s answer, could it not have been proved by Cloud ? Under these circumstances, I cannot persuade myself to disbelieve the intrinsic evidence of the transaction. Then, the defendant having possession of the trust deed, is it to be supposed that his memory, (at least,) as to its contents, was not consulted on this occasion ? Now, if the representation of its contents, set forth in the mortgage, had materially varied from the information we have from other quarters, upon the same subject, we might have some suspicion of a mistake. But we find there is no substantial discrepancy. The mortgage was evidently not drawn by an expert hand. *36It tells its story rudely but faithfully. It sketches the outlines, and depicts the substance of the thing intended to be represented. There is no detail, no finish, but there is no misconceiving the picture. We are informed that the subject matter of the deed was not, as represented in the answer, the mere right of managing the children’s shares, and their profits, but the whole body of property given by Hancock to his wife and children'; and to put it beyond doubt that Mrs. Hancock’s specific share Was included and actually conveyed, the two slaves, Will and Ned, are said to be part of the property given by her former husband to her, and subsequently transferred by her to the defendant, as trustee. Then, the purpose of the conveyance,, extending to the whole property, is distinctly stated; to secure it for the mother and children, against the improvidence of Gurganus ; and it is said, in general terms, that the use conformed to this purpose ; and that a liberal power, with the right to exercise his discretion (within the trust, of course.) was given to the trustee, *ato act and*transact” for the benefit of the *cestui que trusts.*

Whether Mrs. Gurganus had power to invest the defendant with authority over the children’s shares, it is not material to inquire. He assumed the authority under lier deed, and cannot repudiate his responsibilities. Besides, this point is not in issue here. But emphatically, he became bound in relation to Mrs. Hancok’s share, for she had an undeniable right to convey that upon what terms she pleased.

In the mortgage we have general statements, by unskilful persons. But Mr. Bauskett drew the bill filed by the defendant against Gurganus. His recollection is that he drew it either from the original trust deed, or a copy of it furnished by the defendant. He thinks it was the original. This was between one and two years after the mortgage was drawn. In the mortgage the statement of the trust deed was incidental. Here the extent of the trustee’s title and authority was the direct question. Now, if that which was incidentally stated tallies, substantially, with the result of a direct investigation, there is little room for doubt that the truth has been stated in both instances.

What does the bill, which sets forth Mr. Bauskett’s construction of the deed, and was sworn to and subscribed by the defendant, contain *1*It states that the trust deed was executed from the identical motives stated in the mortgage. It diifers from that, perhaps, in restricting the subject matter to the property given to Mrs. Hancock; but that (as it clearly sets forth,) was conveyed *37to the defendant. The express trust declared, was that the defendant should manage the property until Wm. J. Hancock should attain 18 years of age, and then divide it equally among the three children. As a substitute for the power, quaintly expressed, to *act and transact,*we have the power of selling and disposing of the trust property, at discretion.

We are not, now. to enquire whether the deed embraced the children’s own shares. It certainly embraced Mrs. Hancock’s share. There is a striking coincidence throughout the recital in the mortgage and the statement in the bill; and when the former was general, as in stating that the trust was for the benefit of both mother and children, the latter tells us the particulars.

It is true that, upon being arrested, Gurganus gave up only the negroes originally belonging to the children, but it is not certain whether Will and Ned were then in his possession. Cloud had a mortgage of them, and it does not appear how the possession was.

If we resort to May’s evidence, which, although not impeached, seemed to be questioned, he says that the defendant drew Mr. Bauskett’s attention closely to the terms of the deed, by enquir-ing whether he was liable as trustee; and was assured that he was.

If, after looking at this body of evidence, there is any mind so constituted as to doubt what were the provisions of the trust deed, it must be because such a mind is not satisfied with the substance, but demands scrupulous exactness in every particular. If'must be remembered that we are endeavoring to ascertain the terms of a paper in the defendant’s possession, under which he twice acted, and the loss of which is not established. If there is any obscurity, who creates it? Why was not the deed registered? and why was it not produced? Under such circumstances it would not comport with a firm and manly administration of justice, to hesitate to act on reasonably satisfactory evidence, from a timid conjecture that the paper, if produced, might possibly, in some minute particular, differ from the representation given by the statement and the oath of him who had the custody of, and acted under it.

If I were to declare the trusts of this deed, át this stage of the case, I should say, that a trust resulted to Mrs. Hancock, particularly as to the land, until Wm. J. Hancock shall arrive at the age of 18 years, and that then the *corpus*should be divided among the plaintiífs. I speak of course of Mrs. Hancock’s speci*38fic share. As to the original share of the children, they are not now in question. If they were, they must necessarily, and for obvious reasons, obey a different rule, as to the time before Wm. J. shall attain the age of eighteen.

But, I think the trusts should not be declared until Mrs. Gur-ganus is made a party. I have stated what I conceive to be her interests.

But there are objections by the defendant, which, if sustained, go to the whole bill.

First, it is said the bill is filed before the rights of the plaintiffs have accrued. A right to the present enjoyment of the property has not accrued to them, but they have vested interests in it, and are entitled not only to have the trusts declared, but to have the defendant removed from his trust if he has misbehaved.

Another objection raises the question whether the trustee is liable for the loss of the land, occasioned by his neglect to register the deed, or by failure to give notice of it to his own son, when he took a conveyance of the land. I hold that if the trustee, after accepting, and especially after acting under, a trust, does or omits any act materially calculated to destroy the trust, or impair the interest of his *cestui que trusts,*and in so doing betrays either a corrupt motive or the want of that diligence which a man of ordinary prudence would exercise in relation to his own property or interests, he is responsible for the consequences that may ensue. I dismiss *from the*case all that the defendant has said, as to his misconstruction of the deed. He has proven no mistake; and this is an independent fact which he must substantiate. And then, I ask, would any man of ordinary prudence, his own property being at stake, have failed in either *of these*particulars *1 It*appears *that he knew of the*conveyance about to be made to his son, and gave no notice. He himself suggests, that a failure to record the deed nullified the trusts ; and yet he did not take that little step to preserve them. Then as to his setting up a title to the negroes, whether he bought *them of*Gurganus and *wife*and paid for them or not, (of which there is no proof,) is immaterial. He could not have bought them without notice. And I hold that if a trustee raises a grossly unreasonable claim to the trust property, in open defiance of his *cestui que trusts,*and in direct violation of his obligations, this is such misconduct as authorizes his removal from office.

Then, it is objected finally, that this deed is in fact a marriage *39deed or settlement, and is void, for want of recording. That it is so, whether considered as a marriage deed or as a landed conveyance, as to strangers without notice, and was rendered so by this defendant’s neglect, is precisely the complaint of the plaintiffs. That it was in part a conveyance of land, is evident. Whether it was a marriage deed, in the sense of the statutes, it is not necessary to determine, because, allowing it to be so, I have several times given it for my opinion, particularly in a case now pending in the Appeal Court, that no instrument is void, as between the parties, for want of registration. The parties to an instrument must necessarily have that notice which recording is intended to impart. This defendant was the grantee here. He drew the deed, and had notice in that way, also. And if we waive this last, and choose to consider him abstractly, as a trustee, and not a party, it has been decided that, as trustee, he shall not set up the want of registration in opposition to the deed under which he holds.

It is ordered, that a suitable receiver be appointed by the commissioner, with the concurrence of the plaintiffs, and that the defendant deliver said slaves, Will and Ned, to said receiver, to be held and hired out by him, until a trustee shall be appointed, as hereinafter provided for.

That the commissioner report a suitable person to act as trustee, in place of the defendant, when the trusts shall be declared, to whom the defendant shall account, in relation to the value of the land and the hire of the negroes Will and Ned, as the court shall order.

That Gurganus and wife be made parties to this suit, and that the present defendant do pay the costs of the suit up to this time.

All other questions reserved.

The defendant now moved the Court of Appeals to reverse the decree of the Chancellor, on the following grounds.

1. Because the trust deed was not produced, nor proved.

2. Because the trusts of said deed had exclusive reference to the estate, conveyed by Simon Hancock to his children by the deed of 12th February, 1828.

3. Because the defendant has not violated his duties as trustee, even if the trusts of said deed should be declared to extend to the estate conveyed to Mrs. Gurganus.

4. Because the bill filed by this defendant against Gurganus, *40and the testimony of Mr. Bauskett, his counsel, concerning the same, were not competent evidence.

5. Because the trust deed is void for want of registration.

6. Because the bill was prematurely filed, inasmuch as Wm. J. Hancock had not attained the age of 18 years.

*Wardlaw,*for the motion.

Griffin, contra.

*Curia, per*JohbtstoN, Ch.

This court is satisfied with *the*circuit decree, and the grounds upon which it was put by the Chancellor. It is conceded here that the defendant has purchased whatever rights Mrs. Gurganus may have had in the negroes Will and Ned, under the trust deed, and this renders it proper to explain that no such operation is to be given to the decree as to deprive the defendant of their possession, (in case Mrs. Gurganus shall be declared to have retained an interest in them,) until William J. Hancock shall attain 18 years of age, which will be in March, 1845. At that time he shall deliver them up.

No explanation is necessary in relation to the hire of the ne-groes. The decree directs no account on the subject, but simply indicates that the defendant may be accountable, as the court shall direct, in accordance with the trusts which it may declare.

With these explanations, it is unanimously ordered that the decree be affirmed.