H. J. and John McNeill v. . Flora Riddle

BoydisN, J. In this ease two objections are made to the recovery of the plaintiff's. 1. That the deed of the plaintiffs made by the trustee Cole, was made while the wife of the bargainor in the deed of trust was in actual possession, claiming adversely to all the world. The bargainor in the deed of trust continued in possession of the land until his death, after the commencement of this action, and this raises the question, whether the possession of .a bargainor in a deed of trust or that of his widow, after his death, as against the trustee or the purchaser at a sale under the trust, can be set up as adverse, and thereby defeat the operation of the deed, made by the trustee to the purchaser. As to its being the general rule, that such possession is not to be deemed adverse, is too well settled to require the citation of authorities. Rut in this case it is said, that as the wife before the death of her husband had bid off the land in controversy, under a sale by the sheriff, and taken a deed for the same, that this rendered his possession adverse without ever having surrendered the possession. How could this purchase and possession be adverse to the trustee or to the purchaser at his sale. No authority was cited for such a position an'd we are aware of none. 2.1 But the main question in the case turned upon the validity of the deed of trust, and it was urged with earnestness, that the deed of trust was fraudulent and void, for the reason that one of the debts mentioned in the trust, to wit: the bond for $300 to Seawell the constable, was usurious, for the reason that the original debt for’ which this bond was given was but $225, *294 and that $75 had been added to this debt under the following, circumstances ; to wit: the constable Seawell had in his hands for collection, claims of different creditors of Eiddle the bar-gainor in the trust, and had obtained judgment thereon, and had levied upon the land of Riddle, and that he agreed to release the said levies, and to include their claims in the deed of trust with the other creditors of Riddle, by his agreeing to give the constable $75, which sum was included in the bond for $300. And that the bond for the $300 having been given as above stated, was not only usurious but extortionate, and that it rendered the deed of trust absolutely void, although it was made to secure numerous other honest debts which had no connection with the bond for $300, to the constable Seawell, and His Honor was asked so to instruct the jury, which instruction His Honor declined to give, but stated to the jury, that if the lessors of the plaintiff were Iona fide purchasers for valuable consideration, and bought without knowledge of the agreement between Seawell and Riddle, then although that agreement was unlawful and was known to James N. Cole the trustee, yet the lessors of the plaintiff, acquired a good title by their purchase and deed. Rev. Code, ch. 50, sec. 5. It is true that in the ease of Shober v. Hauser, 4 D. & B. 91, this Court did decide that the deed of trust being taint ed with usury was absolutely void, and that no estate passed thereby. But in that case there was but a single debt, and consequently a deed made to a purchaser at a sale by the trustee, would pass no title, even to a bona fide purchaser, without notice. This decision was made in 1838. The Act of 1842, Rev. Code, ch. 50, sec. 5, referred to by his Honor below, changed the law as to purchasers without notice. In this case the sale was without notice to the purchasers, the lessors of the plaintiff, either of the alleged usury, or other unlawful consideration. In the case of Brannock v. Branock, 10 Ire. 428, decided in 1846, there were, as in our case, several debts due to different persons, some ¡of which were not tainted with. *295 usury, and which were in no wise connected with those that were. The present Chief Justice in delivering the opinion of the Court in that case says : “ The operation of the deed was to pass the legal estate, with a separate declaration of trust, for each of the debts therein enumerated. There can be no reason why the declaration of trust in reference to one debt, may not stand, and a declaration of trust in reference to another be held void. So if a deed contains a declaration of trust, in favor of several debts, one oí which is feigned, and there be no connection or combination between the creditors, to whom the trúe debts are due, and the grantor or person for whose benefit the feigned¡debt is inserted, there can be no reason’why the declaration of tr^erf^ in favor of the true debts may not stand, and the feign' la debt treated as nullity.” In our case the trust ine1' ued all the creditors of the bargainor, including that for which the land was sold by the sheriff and purchased by the defendant. So it will be seen that the case of Brannock v. Brannock fully sanctions the charge ©f his Honor without reference to the Act of 1842. There is no error. This will be certified. Pee Cubiam. .Judgment affirmed.