
    *Thurmond v. Woods’ Ex’or.
    September Term, 1876,
    Staunton.
    Deeds of Trust. — in August 1868 B conveyed to T land and slaves, in trust to secure a debt due by two bonds to R. The land was the land of B’s wife S, and he had but a life estate in it; and in September 1858 B and wife conveyed the land to T in trust, that B and wife should hold the land until the personal property conveyed by the first deed was sold to satisfy the debt; and if the sale of that property should not raise a sufficient sum to pay the debt, then T, upon the request of R or his assigns, should sell, &c. R transferred the debt to M, and, on the request of M, T advertised the sale of the slaves and land to be made in February 1860. On the day of the sale, T, on the request of B and his wife S, induced W, the uncle of S, to pay the debt; and T gave him a receipt, in which he stated that on receipt of the money M would assign the debts and deeds of trust to W. B died in 1862, and W died in 1869. having- the "bonds and deeds of trust In his possession, but not having obtained the assignment from M. His executor. G. afterwards obtained it, and on his request T sold the land, the slaves having been freed by the results of the war. Hstn:
    1. Same-Sale under. — By the assignment, G, the executor of W, had the right to require that the trust should be enforced by a sale of the property.
    2. Same — Same.—The land is liable for the debt, though the slaves had been freed, and therefore could not be first sold.
    3. Same — Same.—The failure to sell the slaves having been at the request and for the benefit of S, she cannot set up the loss of the slaves as security for the debt, to prevent the sale of the land.
    4. Same — Sureties.—As against the creditor of B. S cannot be regarded as the surety of her husband, or as a mere guarantor for the payment of the debt; and as against the creditor she can claim none of the rights of mere surety or guarantor.
    5. Same. — The proofs in the cause do not show that W paid the debt intending to secure the property for S and her child.
    *By deed bearing- date the 23rd day of August 1858, Maurice A. Brown conveyed to Thomas H. Tutwiler two tracts of land lying in the county of .Nelson, and eight slaves, in trust, to secure the payment of $6,600, due by two bonds payable on demand to Robert Richardson. In September 1858, Brown, and Sarah, his wife, conveyed the same lands to Tutwiler to secure the same debt. These lands were in fact the property of the wife, and Brown had but a life estate in them; and the second deed was upon the trust that Brown and wife should hold the lands until all the personal property conveyed by the first deed was sold to satisfy the debt; and that if the sale of the personal property conveyed in the first deed should not raise a sufficient sum to pay the debt, then Tutwiler, upon the request of Richardson, or his assignee, in writing, should sell, &c.
    Richardson transferred the two bonds secured by the said deeds to S. O. Moon; and Brown having sold three of the slaves, and paid $4,000 of the debt, by the direction of Moon, Tutwiler advertised the sale of the slaves and the land, to be sold on the 19th of December 1859, and at the request of the parties postponed the sale until the 20th of February 1860. • ^
    On the day fixed for the sale of the slaves and land, at the request of Brown and his wife, Tutwiler urged Mr. James Woods, the uncle of Mrs. Brown, a man of wealth, and without wife or children, to pay the debt, and take an assignment of the bonds and deeds of trust. This Woods refused at first to do; but upon Lhe assurance of Tutwiler that Moon would make the assignment, he consented to do it, and gave to Tutwiler a draft for the amount, including the trustee’s commission and expenses, and received from ‘ him a receipt for the draft, which1 when paid was to be payment *in full for transfer and assignment of the two bonds executed by Brown to Richardson, and by him assigned to Moon; the balance due on them being $3,335.40; and as soon as said draft was paid Moon was to assign the said bonds, and the deeds to secure them, to the said James Woods, but’ without any recourse whatever against him.
    Maurice Brown died insolvent in May 1862; and in February 1863 Mrs. Brown married Elisha G. Thurmond; and previous to the marriage she conveyed her property in trust for her separate use.
    James Woods lived until 1869, and then died, having the bonds and deeds of trust in his possession; but not having obtained an assignment of them from Moon. In 1870 Garrett W. Martin, his executor, obtained from Moon the assignment of them to himself, as executor of Woods; and in October 1873, at his instance, the trustee, Tutwiler, sold the land conveyed by the deeds, for the purpose óf discharging this debt.
    In December 1873, Mrs. Thurmond, suing by her next friend, instituted her suit in equity in the circuit court of Nelson county against James Woods’ executor, Tutwiler, Bryant, the purchaser of the land. Moon’s executor and others, for the purpose of vacating the sale of the land, and having the assignment vacated and the debts declared satisfied. She insisted, first, that Woods paid the debt to Moon for the purpose of relieving her land for the benefit of herself and her children, and it was never his purpose to enforce the trust; second, that her land was by the terms of the second deed only to be sold after the slaves had been sold, and had proved insufficient to pay the debt; that she and her land stood only in the position of a surety or guarantor of the debt, and Woods having permitted the slaves to be lost to the trust by their ^emancipation, he had lost his remedy against her land.
    Woods’ executor answered, denying that Woods intended by paying the debt, to release it or settle it upon the plaintiff; and he insisted that he had postponed the enforcement of the trust upon the slaves for her benefit and with her concurrence.
    A number of witnesses were examined by both the plaintiff and the defendants, and the evidence appears sufficiently from the opinion of the court. And the cause came on to be heard upon the 19th of December 1874, when the court held, that the land was subject to pay the debts to secure which it had been conveyed in trust; but not for the trustee’s commissions on a sale which he did not make. The bill was therefore dismissed so far as it sought to cancel said deeds and set aside the sale to Bryant; but there was a decree against Bryant for the balance of the purchase money after satisfying Woods’ estate the amount he had paid to Tutwiler, the trustee, after deducting the commissions, with interest from the date of payment. And thereupon Mrs. Thurmond applied to a judge of this court for an appeal; which was allowed.
    Whitehead, for the appellant.
    Wm. J. Robertson and Southall, for the appellees.
   Christian, J.,

delivered the opinion of the court.

The court is of opinion that the contract of assignment made between Thomas H. Tutwiler, trustee, and James Woods in his lifetime, and the more formal assignment of O. S. Moon, after the death of James Woods, to Garrett W. Martin, his executor, transferring to him certain bonds executed by M. A. Brown *and his interest in two deeds of trust securing the payment of said bond,, conferred upon the executor, Garrett W. hiartin, the right to require of the trustee an execution of the trust, by making sale of the real estate conveyed by said deed of the — day of September 1858.

The court is further of opinion, that the loss of the slaves by the emancipation by the government of the United States, ought not to fall upon the estate of the said James Woods. The security for the said debt was both the land conveyed by said deed and the slaves conveyed by the deed of August 1858. The provisions of the deed of September 1858, requiring the personal estate conveyed by the deed of August 1858 to be sold, and the proceeds to be applied before the real estate should be offered for sale, was not a stipulation that the laud should in no event be sold until the slaves had first been disposed of. Such a construction would be to hold that if the slaves had died or had run away, or been sold by the grantor in whose possession they were left, the real estate could never be sold and the trust never executed. The loss of the slaves by emancipation is precisely the same thing to the creditor as their loss by death. It must fall on the grantor, in whose possession they became free, and not on the creditor. They were in part, and in part only, security for the debt, and as such security they have perished. But the debt remains unextinguished, and the land remains as security for its payment. The provision of the deed relied upon is not a stipulation that binds the trustee at all events to sell the personal property before he could sell the land; but the plain meaning of the provision is that whenever the trust was executed (which by the terms of the deed was to be done on the written request of the creditor ,or his ^assignee), then the trustee should sell the personal estate first, that is, the personal estate in existence at the time of the sale. If, when the trustee proceeded to execute the trust, he found the slaves were dead, or had run away, or had been sold by the grantor, or had been emancipated by the government, he could not of course execute the trust as to them; because it was simply impossible.

But this impossibility of selling the slaves certainly does not interpose any reason why the land should not be sold, because the deed required him to sell the slaves before he should sell the land. This would be to declare in effect that the slaves alone were pledged as security for the debt, when by the solemn deed of the parties the land is also dedicated to its payment. The very object of giving the second deed was to give a better security for the debt than the property conveyed in the first deed, which only conveyed the slaves and the life estate of Brown in the land. It is manifest that it was the dissatisfaction of the debtor with the security of the first deed that prompted the execution of the second. The construction insisted upon by the appellant’s counsel would defeat the manifest intention of the parties.

The court is further of opinion that the loss of the slaves, as a part of the security, was not occasioned by the postponement of the sale by the trustee. The sale advertised to take place on the 20th February 1860 was not prevented by any action of the creditor or of his assignee, but was postponed on account of the action of the appellant herself. It was done at her earnest and persistent request. It was done in her interest and for her benefit.

The trustee was present to make the sale at the time duly advertised. A crowd was then present, drawn *to the sale by the advertisement. The slaves were then present, and they were then slaves. They would undoubtedly then have been sold but for the earnest and active interference of the appellant and friends interceding in her interest.

She was greatly and naturally distressed that the debt had not been paid, and that the property must be sold. She made earnest and tearful appeals to her uncle, the appellee’s testator, to prevent the sale. He yielded to those appeals, and paid the debt secured by the deed, and thus the sale was prevented. The appellant ought not now to allege in a court of equity that the loss of the slaves was caused by a postponement of the sale, and that this loss should fall upon the estate of her uncle, who yielded to her earnest solicitation, and in her interest and for her benefit put an end to the sale. Nor should his failure to order an execution of the trust deed before his death, and before the emancipation of the slaves, now be urged as a reason why his estate should lose this debt so justly due him. Surely his benevolence to her, and his indulgence to her husband for many years, ought not to avail as a reason for casting the loss of the slaves upon his estate.

The court is further of opinion that there is no sufficient proof in the cause to show that James Woods, the uncle of the appellant, had ever made to her a gift of this debt due from her husband, or that he ever promised, with or without any consideration, that the trust created by the deeds, which were assigned to him with the debt, should never be executed. On the contrary, the court is of opinion that it is clearly proved that Woods did not voluntarily and without solicitation pay this debt, but that he hesitated long before he agreed to do so; at first positively refused, *and did not consent to do so until it was stipulated that the creditor should assign and transfer to him both the bond and the deed securing- it. It was only upon this express condition, stated in writing in the "body of the receipt for the money paid to the trustee, that he consented to take the place of the creditor and to stop the sale of the property. This paper was carefully filed away among his papers, and passed into the hands of his executor upon his death, who obtained from Moon, the creditor, a more formal assignment. Whatever may have been his intention at the time he paid the debt, with reference to settling this property upon his niece, that intention was never carried out. And at his death this debt with its securities was part of his estate, which, upon his death, passed to his executor; and it was the duty of that executor to collect the debt by enforcing the execution of the trust.

The court is further of opinion that in this controversy between her and the creditors of her husband the appellant cannot be regarded as the surety of her husband, or as a mere guarantor for the payment of the debt; and that as against them she can claim none of the rights of mere surety or guarantor. She united with her husband in conveying her land to a trustee for the payment of this debt. The deed was executed in the mode prescribed by the statute. There is no pretence that any fraud was practiced upon her, or that she did not know her rights, and fully understand the consequences of her act and deed.

The deed must now be held to be what it purports to be, and what the parties intended it to be, and the trust must be enforced as the terms of the deed and the law require.

Decree affirmed.  