Pinkard v. Ingersol

GOLDTHWAITE, J. 1. The equities of the several parties to this cause will be best ascertained by learning what were the rights of each growing out of the several deeds of trust, and how those which previously existed were thereby controlled. In doing this it will be unnecessary to advert to the point made, that the deeds to McDougald and Watson cannot be regarded as registered, in consequence of there being no proof beyond the acknowledgment of the grantor taken by the deputy clerk. That question was settled by the decision of Kemp v. Buckey, 7 Ala. Rep. 138, in the same way as here decided by the chancellor. 2. So far as the validity of the deed to McDougald was dependent on his assent to its provisions, that is clearly made out by his acceptance of the deed when it was executed. His answer to this point of the case is responsive to the bill which calls for a discovery as to this matter, and brings him within the influence of the principle alluded to in Elmes v. Sutherland, 7 Ala. Rep. 262, and settled in Hodge v. Wyatt, 10 Ib., 271. 3. The validity of the deed to Watson, if dependent on his consent, independent of the other creditors mentioned in it, would be established in the same manner; but the implication arising from this deed is, that the other creditors, as well as Watson, were required to assent to the delay of their several debts until the period stipulated for. There is no term in the deed to warrant the inference that Ingersol intended to secure one, in preference to another of those named, and as the delay of payment is the chief object of the deed, according to the principles declared in the cases just cited, the assent of all the creditors is essential. This is neither asserted nor shown — indeed the assent of some is expressly disproved. So far, then, as the rights of Watson and the other creditor, Jones, insisting on this deed, are based on it, nothing can be claimed. 4. If the cause stood alone on the deeds of trust, the entire property conveyed would be subject in the first place to the payment of the specified debts to McDougald, and the surplus to those due the complainant, but even then the difficulty would exist, whether the acceptance of this security [18] was not a waiver by the complainant of all of his claim against Ingersol, for the debt due from him and Underwood, which was not provided for by the trust. However doubtful this might have been, as a question of intention between the parties, it is put at rest by the subsequent agreements between the parties, with reference to the trust property, or portions of it. In the agreement between the complainant and In-gersol, under the date of 80th August, ’39, it is expressly stipulated that the delivery of twelve slaves at a particular time and place, with security for $4,000, to be paid at a future day, should extinguish the entire demand, so far as In-gersol was concerned. It is true, this agreement was only partially performed, by delivering-the slaves, but it is quite propable the existing deed of trust was then looked to as ample security for the future payment. As to the release by Watson and McDougald, of their lien on the slaves, which the agreement also stipulates for, Ingersol asserts the conveyance of the slaves was virtually assented to by them, and the subsequent agreement between all the parties of the 17th February, ’42, goes far to sustain his assertion. In this neither McDougald or Watson assert any claim to these twelve slaves, and it is evident from other parts of the case, they were not then present. They do assert, however, that the sale as advertised by the complainant’s trustee, shall take place as advertised by him, and it is scarcely possible he would advertise property for sale which his cestui que trust was already in possession of as owner. On the other hand, the agreement provides that all the property conveyed by the deeds of trust shall be sold — the lands first, and the slaves afterwards — but notwithstanding the generality of these expressions, it seems highly improbable the parties looked to the sale of the twelve slaves which Ingersol had previously conveyed to the complainant. This view is confirmed, in some degree, from the circumstance that the complainant is postponed as the last creditor to be satisfied, and the surplus remaining after the payment to him of $6,000, is to be paid to Ingersol — a matter entirely inconsistent with the fact that the complainant was then a creditor — if the slaves are excluded — of more than $12,000. We are left to grope in the dark, without the aid -of allegation or testimony on either side, to explain the [19] apparent inconsistencies of this agreement, but it is distinctly relied on by Ingersol, in his answers to the amended and cross bills, and the other parties have not thought proper to amend their bills, and thus elicit explanation. ■ They could not therefore complain if such a construction was given to this agreement as would make it consistent with the apparent justice of the case ,• and if the decree of the chancellor could admit of affirmance on this construction, it would be the one we should give to the agreement. It may be true, that the trustee was not the authorized agent of the complainant, to assent to this compromise, but the agreement appears as an exhibit, and we must presume it was so proved at the hearing, as the decretal entry states the cause as having been heard on the exhibits, as well as answers and proofs. Whatever the true construction of this agreement may be, it seems to us to control the entire cause. All the parties to it, as well as the other person provided for by it, had actual or colorable rights under the several deeds of trust, and the agreement can be considered in no other light than the ascertainment and adjustment between themselves of these rights. It does not appear to have been the fault of Ingersol, that the settlement on this basis did not take place, and therefore he is entitled to have it carried into effect. Neither of the other parties seem to insist on it, though from what has previously been said, it is apparent the only title of Watson to participate in the trust fund, arises out of this agreement. So, too, the title of the assignee of Jones’ notes, if resting on the deed only, would be defective, but under the agreement it is perfect. It will be seen that McDougald, by his cross-bill, asserts, that he is the assignee of these notes, and that a lien upon the land, for which they were given, was retained by the vendor’s withholding the legal titles at the time of sale, and transferring an equitable interest only by his title bond. There is no proof of these circumstances, and the facts of this bill are to be considered as denied. It is possible, a reference to the master might dispose of the difficulties in the way of a final decree, growing out of this defect, but as it is possible we may have mistaken the intention of the parties, in their agreement of February, ’42, and as that may possi-. [20] bly be modified by the production of the advertisement of the complainant’s trustee, which is there referred to, or even the agreement, reformed, if any important matter is omitted by mistake, &c., it would be proper to remand the cause— the reversal of the decree is a necessary consequence of what has been said — in order that further proceedings may be had, not inconsistent with this opinion; and that the agreement of the 17th February, 1842, may be established, and made the basis of the decree — subject, however, to an account and allowance of all payments subsequently made by Ingersol. Decree reversed and remanded for further proceedings, at the mutual costs of the complainant and McDougald, to be reimbursed from the sales of the property.