
    Waggener v. Dyer.
    August, 1840,
    Lewisburg.
    (Absent Cabeei, and Parker, J.)
    Pretense Titles — What Conveyance Unaffected by Statute against Taking or Conveying — Case at Bar. —Land sold under a trust deed made to secure tbe payment of a debt, is purchased by and conveyed to tbe creditor and cestui cue trust, and he is in possession thereof, but under circumstances which entitle the debtor to redeem: another creditor procures from the debtor a conveyance of the land, absolute in form, but intended as a mortgage: Held, the last conveyance is not affected by the statute against buying and selling pretensed titles, and the creditor who claims under it shall be entertained in equity, in a suit to set aside the sale under the trust deed, and to have a resale of the land.
    Bonds — Covenant That Creditor Will Not Sue Surety-Competency of Such Surety as Witness. — One of two sureties in a joint and several obligation for the payment of money, having received from the creditor a covenant that he shall never be sued thereon, is a competent witness for such creditor, in a suit brought by him as mortgagee of the debtor’s land, to set aside a sale and conveyance of the land to third persons, under a prior deed of trust executed by the debtor.
    Appeal from an interlocutory decree of the circuit superior court of Mason County, pronounced on the 18th of April 1835, in a suit in chancery in which the appel-lee *Zebulon Dyer was plaintiff, and the appellant William Waggener and others were defendants. The facts of the case appearing by the record were as follows—
    By an obligation dated the 4th of August 1824, James, Andrew and Edmund Wag-gener bound themselves jointly and severally to pay to Zebulon Dyer 736 dollars 57 cents. By an obligation dated the 31st of May 1826, James and Andrew Waggener bound themselves jointly and severally to paj" to Dyer 300 dollars. And by an obligation dated the 6th of October 1828, James Waggener bound himself to pa3T to Dyer 111 dollars 50 cents. These obligations were given by James Waggener for money which he owed to Dyer, and in the first of them Andrew and Edmund Waggener, and in the second Andrew Waggener, were his sureties. At the time these debts were contracted, James Waggener owned little property besides his farm ; which was one fourth of a tract. of land in Mason county on the Ohio river, called Waggener’s bottom, containing upwards of 4000 acres.
    On the 20th of January 1826, James Wag-gener gave his note to his nephew William Waggener for the payment of 1620 dollars 25 cents on the 20th of January 1827, with interest from the date, and executed a deed of trust on his land to secure its payment, which authorized the trustee, in default of payment, to sell the land at public auction for cash, after advertising the time and place of sale for sixtj’ days at the door of Mason courthouse and in some newspaper most convenient to Mason county. This deed was duly recorded in May 1826. The debt secured by the deed being unpaid, William Waggener, not long after the time for payment had elapsed, .caused the land to be set up for sale by John D. Eewis the trustee named in the deed. There was some sort of proof that the sale was advertised in a newspaper printed at Chilicothe in the state of Ohio, *and at the door of Mason courthouse, but it did not appear for what length of time previous to the sale. The property was struck out to William Waggener at the price of 1000 dollars, which was the only bid. The land was at that time worth much more; its cash value being variously estimated by the witnesses at from 1500 to 7000 dollars. William Wag-gener declared, before the sale, on the day of the sale, and after the sale, that he wanted the land for his own security merely, — that he would hold it or dispose of it for that purpose only, and after satis-fj7ing his debt, the residue should belong to his uncle James and his family. The trustee conveyed the land to William Wag-gener by deed dated the 2d of July 1827. William permitted his uncle to retain possession of a part of the land till the fall of 1828, when he turned him out.
    On the 2d of September 1828, William Waggetier executed a deed of trust upon the land to secure a debt of 500 dollars to Henderson & Smith, payable the 2d of September 1829; and on the 4th of February 1829, he executed another deed of trust on the land to secure a debt of 991 dollars 37 cents to Andrew Lewis, payable the 1st of February 1830.
    In the spring of 1829, William Waggener wrote to Dyer, that he would convey the land to him, if he would pay the amount which James Waggener owed him, William : and he sent £>3rer a similar message soon after by Andrew Waggener. who went to Pendleton, the county of Dyer’s residence, on a visit in May 1829. Dyer •replied that he would come to Ma.son between the 1st and 15th of September, to pay him the money according to his proposition. Dyer arrived on the 15th of September: but in the mean time William Waggener had sold to one Henry Capehart a part of the land, at the price of 1800 dollars, and though he had not made the conveyance when Dyer arrived, he made it on the day after.
    *Before Capehart’s purchase, it was known to William Waggener and others that James Waggener talked of bringing suit to set aside the sale to William ; and that fact was communicated to Capehart before his purchase. Capehart, however, determined to run the risk, and accepted a deed from William Waggener with special warranty only. He paid 300 dollars of his purchase money in a horse; 500 dollars in discharge of Henderson & Smith’s incumbrance; and the remaining 1000 dollars by discharging the incum-brance of Andrew Lewis above mentioned, which was effected, in pursuance of an arrangement between William Waggener, Capehart, Lewis, and Alexander and Samuel M’Culloch, creditors of Lewis, by Capehart giving to the M’Cullochs his two bonds for 500 dollars each, payable in August 1830 and August 1831, with a deed of trust on the land he had bought of William Waggener, and the M’Cullochs allowing to Lewis a credit for the same amount. Capehart’s deed to secure the payment of his bonds to the M’Cullochs is dated the 16th of September 1829, and conveys the land to John M’Culloch as trustee.
    On the 9th of November 1829, James Waggener and wife executed a conveyance of the same 1000 acres of land to Dyer, which was recorded in February 1830. The deed is in form an absolute deed to Dyer in fee simple, with general warranty, but its intention, according to the declarations and acts of the parties to it, was to confer upon Dyer a security for his debt, and for this purpose to invest him with James Waggener’s right to redeem the land in possession of William Waggener and Cape-hart.
    Accordingly, in April 1830 Dyer commenced this suit in the late superior court of chancery for the Clarksburg district, and in May 1830 filed his bill, making James Waggener, William Waggener and Henry Capehart defendants; setting forth his claims upon *James, the fraudulent conduct of William, the irregularity of the sale to him, the gross inadequacy of the price, his declarations which shewed that he held as a trustee for James, his sale to Capehart, who had notice of the trust, and James’s conveyance by way of mortgage to the plaintiff. The bill alleged also that the debt of James to William Waggener had been greatly reduced. It sought an account of that debt, and of the rents and profits of the land since William’s purchase, and a sale of the la,nd for the payment of the plaintiff’s debt."
    The answer of James Waggener corresponds in its statement of facts with the bill.
    The answer of William Waggener admits some payments made to him by James; admits that his bid of 1000 dollars was the only bid; denies that he made any declarations before the sale, that he would purchase and hold the land as a mere security for his debt, but admits that he informed James, and perhaps others, after the sale, that he did not want the land, — that all he wanted was his money; and declares that his own necessities and want of money induced him to have the land sold by his trustee, and afterwards to sell part of it to Capehart. He denies the alleged inade-quacjr of price, but admits that he sold part of it to Capehart for 1800 dollars.
    Capehart, by his answer, objects that the plaintiff claims under a deed which is void by the statute prohibiting the purchase of pretensed titles. He declares that he was a purchaser from William Wag-gener for valuable consideration, without notice of any equity or claim of either James Waggener or the plaintiff against William; but insists that if he could be affected with such notice, yet having paid off the incumbrances created by William on the land, he became clothed with all the rights and substituted in the room of the creditors whose debts he discharged.
    *The cause having been regularly transferred to the circuit superior court of law and chancery for Mason county, Alexander and Samuel M’Culloch, in September 1832, filed a petition setting forth their interest as incumbrancers of part of the land under the deed from Cape-hart to their trustee John M’Culloch, and asking to be made parties. An amended bill was accordingly filed, making them and their said trustee defendants: whereupon they filed their answer, declaring that they acquired their incumbrance fairly, and without any knowledge or notice of the equitable claims preferred in the bill.
    Among the depositions for the plaintiff, that of Andrew Waggener was of primary importance. This deponent being asked whether he had any interest in the contro-versj7, responded that he had none as he believed, and produced an instrument under the hand and seal of Dyer, dated the 25th of February 1833, by which Dyer, reciting the two obligations wherein the deponent was bound as the surety of James Wag-gener, covenanted that he should never be sued upon them, and that no attempt should ever be made to enforce the collection of the same, or of either of them, from him by any process of law. This instrument was returned and filed with the deposition, the defendants by their counsel objecting to its being copied. They excepted also to the • deposition on two grounds; 1st. that the witness was interested; 2dly, that the instrument produced by the witness was in effect a release, and the plaintiff therefore had no longer anj7 claim.
    The cause being heard the 18th of April 1835, the court overruled the exceptions to the deposition of Andrew Waggener, directed the land in the bill mentioned to be sold at public auction upon a credit of one, two and three years, after advertisement in the manner prescribed by the decree, and ordered several .accounts to be taken by its commissioner; to wit, an account of *the rents and profits of the land since the date of the deed to William Waggener, with an account of the value of the permanent improvements put upon the land by William Waggener and Henry Capehart; and accounts of the debts due from James Waggener' to the plaintiff, and from James Waggener to William, and of the mortgage debt of the M’Cullochs.
    On the petition of William Waggener, an appeal was allowed him from the decree.
    Fisher and W. A. Harrison for appellant.
    C. Johnson and G. N. Johnson for appel-lee.
    
      
      Pretense Titles. — In Steed v. Baker, 18 Gratt. 387, it is said: “Tbe cases of Allen v. Smith, 1 Leigh 331, Ruffners v. Lewis, 7 Leigh 720, and Waggener v. Dyer, 11 Leigh 884, were cases of the sale and purchase of mere equitable rights; of purchasers made, not by I stranger voluntarily intervening in the controversies of others, but by creditors to save themselves from loss; and under the peculiar circumstances, were sustained.”
    
    
      
       Witnesses — Competency—Release.—The principal case is cited in foot-note to Mandeville v. Perry, 6 Call 78; Hewitt v. Adams. 1 Pat. & H. 37.
    
   TUCKER, P.

There is no legal question of interest in this case, except those which respect the propriety of reading Andrew Waggener’s deposition. He is one of two sureties in a bond to Dyer the appellee, and if Dyer succeeds in the cause, the debt will be thereby liquidated and discharged. To remove this objection, Dyer has executed to him a covenant not to sue him, which he produced at the taking of his deposition. Two questions are now made; 1st. Can the covenant be read without proof by the subscribing witness? This objection, if valid, comes too late. It ought to have been made when the paper was introduced, that the subscribing witness might be called. This was not done. The paper was admitted, the counsel for the defendants only objecting to its being copied, — meaning, I suppose, that the original must be filed. Independent of this, it seems to me that as Dj7er calls for the covenant, and avails himself of it to rehabilitate his witness, the proof of the subscribing witness was not necessary. Mandeville v. Perry, 6 Call 78. He could never afterwards be permitted to deny it, and if so, the witness would have the full benefit of its protection. 2. Did this covenant exonerate the witness? I think it did. It did not, it is true, discharge the cosurety, *becausea covenant not to sue one does not exonerate both. Ward v. Johnson, 6 Munf. 9; Dean v. Newhall, 8 T. R. 168; Wright’s adtn’r v. Stockton, 5 Leigh 153. But the covenant operated to protect Andrew Waggener forever from Dyer’s claim. It is contended, however, that he would be subject to the cosurety’s demand for contribution. I think not. By exonerating him, Dyer’s redress against Edmund Waggener the co-surety would be confined to one moiety of the debt. Could Edmund Waggener, if he had paid that moiety, demand that Andrew should reimburse him any part thereof? If each surety is to be considered, in respect to his cosureties, as a principal as to his aliquot part of the debt, and only surety to his cosureties for the balance, (see Ex parte Gifford, 6 Ves. 805; 1 Story’s Eq. 2 499, p. 477,) tnen it is clear that Edmund can have no claim upon Andrew. But if this be not a general rule, (see Theobald on Princ. & Surety, 267,) yet where a creditor, with a view to the purposes of justice and to have the benefit of a witness’s testimony, gives up the liability of the witness for one half his debt, no court of law or equity would recognize the claim of the other surety to defeat this reasonable arrangement by holding the witness responsible for the payment of a portion of his cosuret3r’s moiety. No wrong is done to him: for if, instead of being released, Andrew Waggener had paid his moiety, Edmund never could have demanded contribution for his aliquot part paid by himself. And as his rights are not impaiied, it would be unreasonable to make him partaker in equity of the benefit of a covenant which confessedly cannot avail him at law, and which equity will never carry bej7ond the intention of the parties. Kirby & wife v. Taylor &c., 6 Johns. C. R. 242.

Waggener was therefore a good witness; and reading his testimony, the merits are most clearlv- with the appellee. The objection as to the title being pretensed *cannot prevail. The cases of Allen &c. v. Smith, 1 Leigh 231, and Ruffners v. Lewis’s ex’ors et al., 7 Leigh 720, promulgate, I think, the true doctrine on this subject, on the authority of the opinions of learned english chancellors there cited. The present case is fully within the influence of them.

As to the objection that the priorities of the incumbrances are not settled, that is a matter of which, if it were as is contended, Waggener cannot complain, as he is the first incumbrancer.

On the whole, I think there is no error in the decree to the prejudice oí the appellant, and that it should be affirmed with costs.

PER CURIAM, Decree affirmed.  