
    The Farmers’ Bank of Virginia et al. vs. George L. Douglass et al.
    It seems that while, as a general rule, when a mortgage is executed to secure the renewal of a debt due, no. farther indulgence should be granted than the usual time of collecting debts by due course of law, yet there may perhaps be circumstances, in which it would not be fraudulent to stipulate for greater delay; as where the debts are large, and the property conveyed large, and where also the personal exertions of the debtor are also relied on as one means of payment; yet in such case no more property must be conveyed than is reasonably sufficient to secure the payment of the debt.
    The mortgaging of property the use of which involves its consumption, is an evidence of fraud, not indeed conclusive, but of much weight; and unless it be explained satisfactorily, it must cause the condemnation of the instrument; and imposes the burthen of establishing this explanation upon those claiming under the instrument; and when the right to use such perishable property is also reserved in the mortgage itself, it is fraudulent upon its face.
    A debtor who had in 1838 executed a mortgage on part of his property to secure his principal creditor in the payment of instalments, the last of which was due in 1841, and who had refused to execute another mortgage on the rest of his property to the same creditor when applied to for it, in the year 1839 executed his two notes for part of the sum due to his creditor, one of which was to become due in 1842, and the other in 1844, and procured a friend to become surety on them, and executed a mortgage on the residue of his property, except his watch and pencil, to indemnify his surety against their payment, and by this second mortgage conveyed, besides land and ne-groes, seventy-five mules, two horses, two carriages, one pair of gray horses, one hundred and fifty head of cattle, twelve yoke of oxen, six wagons, two water carts, one hundred and seventy ploughs, five hundred hogs, fifteen thousand bushels of corn, two hundred stacks of fodder, seven thousand bushels of potatoes, and all his household and kitchen furniture, and farming utensils ; and stipulated in the mortgage that he could use so much of these articles as would be necessary for the support of the property; held, that the second mortgage was fraudulent and void on its face.
    -While a man in failing- circumstances has the right to sel 1 his property, if unencumbered, and apply the proceeds to the payment of preferred creditors, yet such sale must be free from fraud, and for a full and adequate consideration ; and however great suspicion may be thrown around the sale, if it come up to these requisites it may overcome the presumptions against it.
    The declarations of a vendor, made previous to the sale, are evidence against the vendee, provided he have notice of them, and his purchase in other respects be objectionable ; this notice need not be established by positive proof; it may be inferred from circumstances ; and the use to which the deed is applied tends to show the intent with which it was made.
    The fact that a vendee agrees to pay a full price for the property he purchases, is a circumstance which tends to repel an inference of fraud from other circumstances, and to show that the transaction was fair ; yet if a purchaser knows, when he takes his deed, that the object of the grantor is to defraud creditors, the deed is void, though he may give a full consideration.
    It seems that in a purchase of property worth nearly two hundred thousand dollars, for which the vendee agreed to pay certain debts of the vendor, which were liens on the property, amounting to about thirteen thousand dollars less than the value of the property (though the evidence as to the value of the property was contradictory), leaving the general creditors of the vendor unpaid, and nothing to pay them with, the difierence between the amount of the debts and the value of the property, would not, of itself, cause the sale to be set aside.
    A debtor, in embarrassed circumstances, residing in Mississippi, who was possessed of about two hundred thousand dollars’ worth of property, and had mortgaged part of it to secure one hundred and fifty thousand dollars of debt, in instalments, to a preferred creditor ; and subsequently executed on all the rest of his property, except his watch and pencil, a mortgage to secure a surety against loss upon two instalments of this already preferred debt, which second mortgage was fraudulent on its face, in conveying property consumable in the use ; after this, fearing lest his equity of redemption in the mortgaged premises would be sold under some trivial execution against him, he sent to Kentucky for his brother-in-law, and sold to him the entire property covered by both mortgages, for the consideration that his brother-in-law would pay the incumbrances on the property, which were nearly if not quite equal to the value of the property ; after this sale to his brother-in-law, judgments were rendered against the debtor, executions on which were levied on the property embraced in the second and fraudulent mortgage ; the brother-in-law filed a bill in equity to enjoin the sale under the levy ; the court reviewed at length all the circumstances attendant upon the sale to the brother-in-law, both for and against its fairness, on the one hand, the fraudulent character of the second mortgage, the expressed determination of the debtor to make some conveyance to save his property ; the conveyance of his whole estate, the subsequent retention by him of it for two years, the relation between the parties, the knowledge on the part of the vendee of the embarrassed condition of the vendor, the strong probability that he knew of the vendor’s intent in making the sale, the fact that his undertaking was to pay only the liens already subsisting on the property, and that he was specially written for to become the purchaser ; on the other hand, the fact that the price agreed to be paid was very nearly if not fully the value of the estate ; and the opinion of a witness who was thoroughly familiar with all the transactions of the parties, being the preferred creditor, that the sale was fair and 'honest; the court gave no opinion as to whether the sale to the brother-in-law was fraudulent in fact on his part; but held, that the brother-in-law was not a bona fide purchaser for value without notice of the fraud of his vendor, the debtor ; he had assumed the payment of debts purporting to be already incumbrances on the property, secured in part by a fraudulent mortgage, had paid ne money, nor given any obligation to the mortgage creditors; and stood in the position exactly of his vendor; and the sale being fraudulent as to the latter, was fraudulent as to him also.
    Nor in such case would it make any difference that the vendee had subsequently executed his notes to the assignees of the creditor preferred by the mortgages, payable in instalments, for the amount of their respective debts, the -assignees retaining the original mortgages for their security ; the rights of She judgment creditors could not be affected thereby; the vendee, having notice -of the fraud of the vendor, stood as the representative both of the rights and liabilities of the vendor; and the property was subject to the judgment creditors as if no sale had been made.
    Where- a mortgage is made to secure a creditor, and the intention on the part of the mortgagor, in the execution of the mortgage,’ is fraudulent, the innocence of the creditor of any evil design will not aid the mortgage.
    The assignee of a mortgage, which is fraudulent on its face on the part of the mortgagor and mortgagee, stands in no better position than the creditor .secured by the mortgage ; he takes it subject to all equities between mortgagor and mortgagee, and subject to all conditions imposed by law.
    
    
      Notice of a deed is notice of its contents ; and where a deed is referred to in another deed, the vendee in the latter deed is affected with notice of the contents of the deed referred to in it; so where a deed refers to a mortgage, the vendee has notice of all the conditions and exceptions in the mortgage, and is bound to make all necessary inquiries as to other deeds to which it refers.
    
    Where a debtor had executed a mortgage fraudulent on its face, and fraudulent in fact, to secure a surety on his note to a bond fide creditor, and the debtor subsequently sold his equity of redemption in the property thus mortgaged; it was held, that the property in the hands of this vendee was subject to judgments rendered since the sale to him, against his vendor ; the mortgage was fraudulent as to creditors, though valid as between the parties ; and was thus equivalent to a mortgage, in which the condition was inserted at length, that the property mortgaged should be first subject to any judgments which might thereafter be rendered against the mortgagor; and the purchaser of the equity of redemption, buying it with the knowledge of the fraudulent character of this mortgage, took it subject to the same liabilities and conditions that it would have been subject to had it remained in the hands of the vendor.
    
    Where a vendee has notice of a fraud in fact, committed by his vendor, before payment of the purchase money, it will be sufficient to bind him ; and if the circumstances are such as to put him on inquiry, it will amount in law to notice.
    
    On appeal from the superior court of chancery; Hon. Robert H. Buckner, chancellor.
    George L. Douglass filed his bill, in which he states, that on the 6th of March, 1838, the defendant, Thomas Hudnall, being indebted to the firm of N. & J. Dick <fc Co. in the sum of $ 175,-0S1-72, gave his promissory notes therefor in the following amounts, viz.: Two notes dated the 15th November, 1837, each for $ 11,510-42; the one due the 1st November, 1838, the other due the 1st December, 1838, and five notes dated the 1st February, 1838; the first due the 1st February, 1840, for $20,725-85; the second due the 1st February, 1841, for $28,569-81; the third due the 1st February, 1842, for $30,412-17; the fourth due the 1st February 1843, for $32,255 ; the fifth due the 1st February, 1844, for $34,098-53.
    That on the 6th March, 1838, Hudnall gave to N. & J. Dick & Co. a mortgage to secure said notes, on the land and negroes mentioned in the mortgage, and which is exhibited and marked A. That afterwards Hudnall, in discharge of two of said notes, and further to secure and protect the said N. & J. Dick & Co., executed two other notes to them for a like amount, with James B. Slade surety thereto; one for $30,412-17, due 1st February, 1842; the'other for $34,098’63, due 1st February, 1844. That Hudnall, to indemnify and protect the payment of the said two last-mentioned notes, and save harmless the said Slade, his surety, on the 10th November, 1839, executed another mortgage to said Slade, also exhibited and marked B, on other lands and negroes. This second mortgage is in these words:
    
      “ This indenture made and entered into this 10th day of November, in the year of our Lord one thousand eight hundred and thirty-nine, between Thomas Hudnall of the first part, and James B. Slade of the second part, both of the county of Madison, and of the state of Mississippi, witnesseth, that whereas the said party of the first part now is, and hath been for a long space of time justly indebted to Messrs. N. <fc J. Dick & Co. of the city of New Orleans, in divers large sums of money, and hath executed them his several promissory notes for the same, and among them two notes, the one for thirty-thousand four hundred and twelve dollars and seventeen cents, payable at the Union Bank of Louisiana, on or before the 1st day of February, 1842, the other for thirty-four thousand ninety-eight dollars and sixty-five cents, payable at the Union Bank of Louisiana on or before the 1st day of February, 1844; and whereas, the said Hudnall, with the said Slade as his security and joint drawer, hath this day executed to the said N. & J. Dick & Co., in lieu of, and in full satisfaction and payment of, the aforesaid notes, his two-other notes of like sums, and payable at the same times and place; and whereas the said Hudnall is anxious fully to secure and indemnify the said Slade agaiust all liabilities and losses, which he might by any means sustain, by reason of his becoming joint drawer with the said Hudnall aforesaid: now, therefore, in consideration of the premises, and for the further consideration of one dollar to the said Hudnall, by the said Slade in hand paid, at and before the signing, sealing, and delivering of these presents, the receipt whereof is hereby acknowledged, and from which the said Slade, his heirs, administrators, and executors, and assigns are hereby fully discharged, hath this day granted, bargained, and sold, aliened, released, conveyed, and confirmed, and doth hereby grant, bargain, and sell, alien, release, convey and confirm unto the said Slade, his heirs, executors, and administrators forever, the following tract or parcel of land, lying and being in the county of Madison, and state aforesaid, and described on the plats of survey of Choctaw district, as section thirty-six, north-east quarter of section twenty-five, , half of north-east quarter of section thirty-five, all in township nine of range one; west, section thirty-one, west half of south-west corner of section thirty-two; west half of south-east quarter, north-east quarter, south half of east half of north-west quarter of section thirty, all in township' nine of range one, east; also east half of north-east quarter of section thirty-five, of township ten, of range one, west; one thousand nine hundred and fifty acres, and sixty-seven hundredths of an acre; also the following slaves for life, together with their natural increase, to wit, (here follows the list of slaves by name amounting to one hundred and twenty in number); also seventy-five mules (75), two horses, two carriages, and one pair of gray horses, one hundred and fifty head of horned cattle, twelve yoke of oxen, six wagons, two water carts, one hundred and seventy ploughs assorted, five hundred head of hogs, fifteen thousand bushels of corn, two hundred stacks of fodder, seven thousand bushels of potatoes, five beds, bedsteads and furniture, all the household and kitchen furniture, cooking and farming utensils of every description, now in possession of said Hudnall. To have and to hold the aforesaid bargained and sold lands, together with the aforesaid slaves for life, and their natural increase, and the aforesaid last mentioned goods and chattels, which have been this day delivered to said Slade, together with all, and singular, the rights, and privileges, and appurtenances thereunto belonging, or in any wise appertaining, to the said Slade, his heirs, executors,' administrators, and assigns forever, and to his, and their only proper use, benefit, and behoof: and the said Hudnall, for himself, his heirs, &c., doth hereby covenant to, and with the said Slade, his heirs, &c., that they and each of them shall, and will forever warrant and defend the title to the aforesaid tract or parcel of land, as also the title to the said slaves for life,' against himself, his heirs, &c. and also against all and every other person or parties, claim or claims whatsoever, in law or equity ; and the said Hudnall, for himself, his heirs, &c., doth hereby covenant with said Slade, his heirs, &c., that he is seized of, and fully entitled to the inheritance in fee simple of said lands hereby bargained and sold, and the same may lawfully convey; and the said Hudnall, for himself, his heirs, &c., doth hereby covenant with the said Slade, his heirs, &c., that the aforesaid bargained and sold land are free from all liens, charges, and incumbrances whatever. Provided always, and it is hereby declared, that the true intent and meaning of these presents are, and is, that if the said Hud-nall shall well and truly pay off, and satisfy the said sum of money, in the said notes above set forth and described, when they respectively become due, and shall fully acquit and discharge the said Slade, of and from all liability for, and on account of his joint signature of said notes with said Hudnall; then, and in that case, the above and foregoing conveyance to be null and void, to all intents and purposes, otherwise to remain in full force and virtue; and it is hereby declared, that until default made by said Hudnall in the payment of the said sums of money aforesaid, he shall remain in possession of said bargained and sold land, and of said slaves; and for their sustenance and support may use so much of the corn, &c., as may be necessary for that purpose, and may retain also so much of the stock, utensils, &c., as may be necessary to the cultivation of said land. B,ut upon default of payment by said Hudnall, as aforesaid, the said Slade may enter, and- possess, and enjoy the aforesaid bargained and sold lands, together with the slaves, and all other of the goods and chattels as may be then remaining upon the aforesaid premises.
    In witness whereof, the said parties have hereunto set their hands, and affixed their seals the day and date 'first above written. Thomas Hudnall, [seal.]
    James B. Slade, [seal.]
    Signed, sealed, and delivered in presence of S. R. Ewing.
    W. McBRIde.”
    The bill further states, that on the 18th December, 1839, Douglass became the purchaser of the property named in these mortgages, and other property subject to the mortgages, and assumed upon himself whatever might be due thereon, together with the sum of $24,000, mentioned in exhibit C, which is the deed from Hudnall to Douglass, for all the property, and states that this sum of $24,000 was paid by Douglass to Hudnall, as part of the consideration for the purchase of the property therein conveyed. This purchase was made with an understanding, that Douglass was to discharge all liens on said property, by judgment or otherwise, thus supposed to amount to $40,000, or $50,000, and Douglass took the deed therefor, exhibit C. That after the execution of these mortgages, N. & J. Dick & Go. transferred said notes to the defendants, the Merchants’ Bank of New Orleans, and the Union Bank of Tennessee, in payment of, or as collateral security for, debts due by them to said banks.
    That the debt of Hudnall on said mortgages was estimated at the time of the purchase at about $134,000, payments having been made thereon by Hudnall, as per exhibit D.
    That on the 9th December, 1840, Douglass made an arrangement with the Merchants’ Bank of New Orleans, to secure the payment of the notes transferred to that bank, as aforesaid, as per exhibit E; and on the 16th February, 1841, he made a like arrangement with the Union Bank of Tennesee, to secure them in the amount of Hudnall’s notes, transferred to said bank, as per exhibit F, (these being the notes on which Slade is surety,) and executed his several notes to the Union Bank of Tennessee for $67,760-00. This sum includes a sum of $6,000, advanced at the time by the bank to Douglass, above and apart from the mortgage debt; and the time of payment of so much of the debt as pertained to the mortgage, was extended in annual instalments, from the 1st February, 1845, (except $1,000 due 1st February, 1844,) to 1st February, 1851, as appears by exhibit F.
    That on the 19th December, 1839, Douglass did assume, in writing to N. & J. Dick & Co., the liabilities of Slade as surety of Hudnall, as per exhibit G, “ upon said Slade’s transferring to him in due form the benefit of said mortgage.” That after said purchase, Douglass, not having arranged his business at Louisville, Kentucky, so as to be able to live on the property, appointed said Hudnall his agent, by power of attorney, to manage the same and retain possession for him, as per exhibit H.
    That in addition to the debts due on said mortgages, there were divers large sums of money due on judgments, which were liens on said property, and were to be paid by Douglass, supposed to amount to $40,000 or $50,000, which have been paid either wholly or in part by Douglass, and the balance assumed by him. That he assumed the payment of a judgment to the United States, amounting to $18,473-32; that he has paid, in full of judgment, Jackson v. Allan and others, which was a lien on the property, $1,767-17; that he has paid on decree in chancery, which was a lien on the property, $2,822-13; whole amount, $23,062-62; that he has to pay to N. & J. Dick & Co., for moneys advanced to take up liens on said property, $5,384,54, and $1,698-25, amounting to $7,082-79. That there are other claims which he does not believe to be liens on said property, amounting to $11,164-66.
    That in the year 1841, Douglass moved upon said property so purchased by him, and took possession and remained in possession, till disturbed therein by the property being levied on, under the executions enjoined in this cause.
    That on the 26th May, 1841, Richard Christmas, suing for the use of the defendants, the Farmers’ Bank of Virginia, and the Bank of Virginia, recovered a judgment at law against Hudnall for $16,250-88 aud costs, and that defendant, William McBride, on the 22d November, 1841, recovered judgment at law against said Hudnall for $2,170-82 and costs; which judgments have been sued to execution, and the same levied on certain negro slaves, part of the same negro slaves embraced fin the two aforesaid mortgages, and conveyed by Hudnall to Douglass, subject thereto.
    That if said slaves are sold, irreparable injury will be done him. That they are all necessary for him in the cultivation of his plantation, and their loss could not be compensated to him in their value in damages.
    The prayer is for a perpetual injunction from proceeding on said judgments against said slaves levied upon, and for general relief.
    The answers of the Bank of Virginia, and Farmers’ Bank of Virginia, and William McBride, admit the execution of the mortgage to N. & J. Dick & Co. in March, 1838, as stated in the bill; that on the 10th November, 1839, Hudnall executed his notes with Slade as surety, for the sums, and due at the times, stated in the bill; and that on the 10th November, 1839, Hudnall executed to Slade the mortgage, exhibit B, mentioned in the bill, but deny that it was the object or intention of Hudnall in making said mortgage, further to secure the debt of Dick & Co.; and aver that said mortgage was made for the pretended purpose of securing Slade for his liability as surety for Hudnall on said note$, but in truth for the purpose of enabling Hudnall to hold and enjoy the property conveyed in said mortgage to his own use and benefit, with intent to hinder, delay and defraud his creditors of their just debts; that at the time of making exhibit B, Hudnall was indebted to insolvency; that suits were then pending against him for a heavy amount of money; that by the instigation of H. R. W. Hill and the collusion of Slade, said two notes were made; and then for the pretended purpose of securing Slade thereon, Hudnall executed to Slade said mortgage B, covering all his property of every kind in Mississippi, not already conveyed by exhibit A, for the purpose of placing said property beyond the reach of said judgments when rendered; that Hill, in order to induce Slade to become a party to the arrangement, assured him that he should not be held responsible on said notes by Dick & Co.
    
      Admit that on the 18th December, 1839, Hudnall executed to Douglass exhibit O, embracing all the property in exhibits A and B, but charge that said conveyance was fraudulent and void, and made in furtherance of Hudnall’s object to hinder, delay and defraud his creditors, and cover up his property, for his own use and benefit; that after making exhibit B, Hudnall, fearing that the property was not entirely beyond the reach of his creditors, that his equity of redemption therein might be sold, and he thereby be put out of possession and use of the property and proceeds of the crops to be grown thereon, caused Douglass, his wife’s brother, to come from Louisville, Kentucky, where he resided, to the residence of Hudnall, and then and there made over to him all his remaining interest in said property. Deny th(at at the time of executing said conveyance, Douglass had assumed, or that he intended to assume, the payment of the debts mentioned in exhibits A and B; that said consideration was merely colorable, and inserted to give apparent fairness to the transaction; that no money was paid at the time, nor satisfaction or security given for the same.
    Charge, that whatever moneys Douglass has been compelled to pay in consequence of the transaction, have been repaid long since the conveyance of the aforesaid property to him, and out of the proceeds of said property and crops, which have been worth a large amount of money, far exceeding the amount alleged to have been paid by him since said conveyance.
    Defendants deny that if said slaves are sold, irreparable injury will be done him, and that their loss cannot be compensated to him in damages, and charge that they possess no peculiar value to Douglass, he never having had any knowledge of, connection, with, or possession of, them, until about the time they were levied on, he having resided in Kentucky, and the slaves in this state. They are not family slaves, nor attached to him by having rendered him any signal service, or by long acquaintance or peculiar qualities, but are valuable to him merely as operatives, the loss of which can at all times be compensated in damages.
    They admit the execution of the power of attorney marked exhibit H, but charge that it is but part of the fraudulent arrangement by which the property was to be secured to the use and benefit of said Hudnall, and Avas made for the following reasons, viz: Douglass would quickly return to Kentucky, and intended to continue to reside there, and Hudnall’s continuance in possession might excite suspicion, and induce his creditors to levy upon the property; it was advisable for complainant to make a power of attorney to Hudnall, giving him power to meet all emergencies of the case, and thereupon said exhibit H was drawn by H. R. W. Hill; and in order to give the appearance of honesty and fairness to the act, the extraordinary precaution was taken to have the same formally proved and recorded. They deny that it Avas the real or avowed object of the act to authorize Hudnall to retain possession of the property; nor was it eAer contemplated but that Hudnall should remain in possession and have the benefit of said property, that having been the real object of the arrangement from its inception to its consummation.
    They charge, that soon after this, Douglass left Hudnall’s residence and returned to his residence in Kentucky, and continued to reside there till the fall of 1841, about the time these defendants levied on the property; that during all this period Hudnall remained in possession of said property and daily use of it, and exercised the same acts of control and ownership of the same, that he had done previous to Nov. 1839, and spoke of it as his property. In the mean time Douglass exercised no acts of control over the same, so far as Avas apparent to the community, such as the bond fide proprietor of so immense an estate would naturally take.
    Defendants charge, that at the time of the conveyance by Hud-nall, it was not Douglass’s intention to assume the debts in the deed mentioned ; that several months afterwards he was advised that by the terms of said deed and his acceptance of it, he had rendered himself liable for them, and that in order to save himself from the difficulties in which his efforts to aid his brother-in-law, Hudnall, in a fraudulent conveyance, had involved him, he was under the necessity of claiming the property as his own, and therefore he entered into the arrangements with the banks of Tennessee and New-Orleans; and the more effectually to conceal the fraud of the transaction appearing by HudnalPs remaining in possession, he left his residence in Kentucky, removed to this state and took up his residence jointly with Hudnall in Dec. 1841, on the property in controversy, and so continued till the property was levied upon in _the premises; shortly after which, Hudnall quit the premises, carrying off about thirty of the negroes, which he -treated as his.own property.
    Charge, that at at the time of the alleged sale to Douglass, he was wholly unable as to means or property to purchase property to such an amount as that set up; that exhibits A, B and C embrace and convey all the property of every kind of Hud-nalPs, except a house and lot in Nashville, Tennessee, which soon afterwards he also conveyed away; that at the time the mortgage to Slade and the deed to complainant were made, Rachel Hudnall, the wife of Thomas Hudnall, and Douglass’s sister, was living with Hudnall. on the property conveyed, a healthy young woman about thirty years of age, and the omission in said mortgage and deed to relinquish the dower of Mrs. Hudnall, was by the special agreement of Hudnall and Doug-l.ass.'
    Answer of the Union Bank of Tennessee, states: That on the 15th July, 1840, N. & J. Dick & Co. beinlg liable and indebted to this bank in a very large amount of money, for the purpose of discharging the same so far as the notes mentioned in the mortgage to Slade would go, (after deducting a credit of $14,510-80 on one of said Slade’s notes,) on that day assigned to this bank said two notes named in the mortgage to Slade, with the above stated credit, and at the same time assigned to the bank the said mortgage, being exhibit B in the bill. Said assignment of said notes and mortgage was taken by this bank in full satisfaction and discharge of N. & J. Dick & Co.’s debts and liabilities to this bank, after deducting the said credit, without any notice of any fraud or unfairness in the execution of the mortgage, and for a full and valuable consideration actually paid at the time, and rvithout notice of any conflicting claim to the property. H. R. W. Hill, who conducted the transaction, assured the bank, and “declared most solemnly, that the property included in the mortgage was unencumbered when the mortgage was executed; that the mortgage had been executed in good faith and for a just debt, and that the whole transaction as between N. & J. Dick & Co. and Thomas Hudnall, was at the date of the mortgage as it appeared on its face,” and had undergone no change since, except the payment of $ 14,5I0’80 above stated. Under these circumstances, and no other, was the assignment of said notes and mortgage taken. The assignment was taken as absolute payment of so much of the liabilities of Dick & Co., and the evidences of their debts surrendered up to them. The bank, therefore, claims to be a purchaser of the property included in the mortgage, without notice, for full and valuable consideration actually paid, and prays to be protected as if they had pleaded the same.
    Admits that Douglass, on the 16th of Feb. 1841, entered into an agreement with the bank 'to secure her in the amount of the notes of Hudnall and Slade, which agreement was carried into effect by executing his notes and mortgage, and by the advance of this bank of $5,085 in cash to him, in New-Orleans funds, which notes and mortgage the bank now holds and expects to enforce when they respectively arrive at maturity. All this took place long before the filing of this bill, or before the bank heard of his being about to be disturbed in the property. The first the bank heard of claims against the property for Hudnall’s debts, was “ after Douglass had been in possession of said property, under his contract with the bank,” when the bank was written to by him, that the property had been levied upon by Hud-nall’s creditors, and asking the bank’s aid in furnishing the necessary security to prevent the sale of the property in execution. Having thus for the first time learned that the mortgage was impeached, the bank immediately sent to Mississippi an agent, with full power to provide security, &c., to protect the property.
    Admits, that at the time the said agreement was entered into between the bank and Douglass, he informed the bank that he had purchased said property in the mortgage to Slade, for Hnd-nall, subject to said mortgage, and “that it was his object to acquire the full title to said property, by entering into an arrangement for the payment of the mortgage debt.” The bank was pleased “ when he proposed to assume upon himself the payment of the mortgage debt; because the said property being situated jn Mississippi, and the said mortgage being held by a bank, and the payment of said notes, the payment of which are provided for in said mortgage, having yet a considerable time to run before they became due, the bank believed that Douglass, by uniting in himself both the equity of redemption and the title conveyed by the mortgage, would have every possible inducement to take care of the property, and make it productive;” that it would be more expedient to have his assumpsit, as additional security of the mortgage debt, still retaining the lien of the mortgage, and get his additional responsibility, than to wait until the mortgage debt became due, and then abide the delay incident to foreclosure and a credit sale.
    That the assignment of the notes and mortgage by Dick & Co. to this bank was but a part of a transaction between them, by which Dick & Co. settled a debt to a much larger amount than the amount of the debts in the Slade mortgage; that the bank had to accede to or reject the proposition of Dick & Co. as a whole, to settle this large debt, of which the matter in controversy was but part; and in consideration of N. &. J. Dick & Co.’s doubtful circumstances, the bank accepted the whole proposition.
    This answer prays to be made a cross-bill against both Douglass and the defendants, particularly the plaintiffs in execution enjoined. The only charge made here is, “ that said defendants were encouraged (in taking the property in execution) by the hope that the requisite security could not be given to prevent the sale,” and “ that the property would thus be placed in such a situation as not to be recovered by the bank.”
    The prayer is for such decree as the nature of the case made out will warrant, against all or any portion of the defendants, and especially prays, that the plaintiffs in execution be perpetually enjoined from levying on or selling any portion of the property named in the mortgage ; prays an account to be taken for injury done the property, loss of its use by being levied on, and expense incurred in protecting it, and a decree for compensation; and also a prayer for general relief.
    The joint'answer of Thomas Hudnall and H. R. W. Hill for N. & J. Dick & Co., made May 6, 1842, admits all the statements of the bill, and most particularly alleges that they have no hesitation in stating that the transaction (the mortgage and conveyance to Douglass) was fair, honest, and open, free from all fraud or'design to cover up the property for the benefit of Hudnall, or to hinder, delay, or defraud his creditors.
    The testimony of H. R. W. Hill, one of the defendants, was taken by order of the court, and read in the cause without objection, by the agreement of the counsel of both sides. He states that he is a member of the firm of N. & J. Dick & Co., and was on the 6th of March, 1838, acquainted with the circumstances of the mortgage from Hudnall to N. & J. Dick & Co., dated 6th March, 1S38. Cannot say what the property was worth at the time, but did not consider it full security for the debt. Does not believe the property mentioned in said mortgage could have been sold on the 10th of November, 1839, for $50,000 in cash. Was largely engaged, from March, 1838, to November, 1839, in collecting debts. Also took large amounts of property, which depreciated very much, land in particular, which declined to almost nothing in comparison with previous estimates of its value.
    He proceeds thus : “ On my return to Mississippi in the fall of 1839, with my partner, James Dick, we ascertained Capt. Hudnall had heavy suits against him, which would take the property from Hudnall that was not secured in our mortgage, from the labor of which we had ever relied upon, as the means of reducing the debt we held against Hudnall; in the absence of such labor, we did not consider our debt at all secure. It was determined at once that I should promptly endeavor to get an additional mortgage on the balance of Hudnall’s property; which, after great exertions and much anxiety, I got him to agree to give the mortgage in question. I did not wish or ask for Dr. Slade to become the security. I wanted the mortgage to be made directly, to secure N. <fc J. Dick & Co., which Capt. Hudnall declined; but made it as it now appears.
    “ As far as I was interested, it was a fair and honest transaction, to secure a large debt due the firm that 1 was a member, which was not secured as it then stood. As to the delay or defraud other creditors, was not the le.ast of my intention or object. I used as an argument to Hudnall, in addition to my claims, that executions would take his property for debts he was security for; and that he could not pay his own debts. I was staying at Capt. Hudnall’s with my family during the time, and was, as I then believed, well acquainted with the whole transaction of the mortgage.
    
      “ I was present at the sale of the property to Douglass by Hudnall, on the 18th of December, 1839. After the mortgage was given, Capt. Hudnall, from some cause, became very anxious to sell out his whole possessions, and frequently offered them to me, which I declined. He was informed, and I believe advised by some person, that the equity of redemption could be sold for any trivial execution, and he was of the opinion he could and would be dispossessed, and all hope of saving, ultimately, his property, would be lost. Fearing such difficulty, I was'endeavoring to protect him against such debts, and proposed to purchase, and did so, about $ 18,000 worth of his negroes, and was to pay that amount of his debts. During this period, he informed me he thought he could prevail upon George L. Douglass, of Louisville, to buy the estate. I encouraged the sale. He wrote, as I understood, to Mr. Douglass, who came down while I was there; when the whole of Mr. HudnalPs affairs was looked into by Mr. Douglass, who is a shrewd business man; and the conclusion he came to, as well as myself, was that Hudnall’s liabilities were greater than the value of his estate.
    “This information appeared to shock Capt. Hudnall very much, as he had got himself to believe that his negroes were worth double as much as any other person’s; and he had believed that he could pay every debt he owed in the world out of the property. From the best information that Mr. Douglass could get, he ascertained the amount that the property was liable for; which was, first to pay Hudnall’s notes transferred to the Merchants’ Bank of New Orleans, for the use of the United States Bank, which amounted to about $68,000, by N. & J. Dick & Co., and the two mortgaged notes in the mortgage to Slade for $64,610-80, which notes we transferred to the Union Bank of Tennessee, after crediting them for about $14,510-80, settled with me by Douglass. There were sundry other conditional liabilities that had not been ascertained, as it was security on debts, which there was some reliance on the principals in the cases to pay. These debts, and the consideration of $24,000, was to be in consideration for the whole property, as set forth in the mortgages above spoken of. The above payment was made by George L. Douglass, ratifying and giving bills of sale for the $18,000, or about that, worth of negroes I had contracted with Hudnall for, and $600 or more that Haley & McDowell had contracted for from Hudnall; to which neither of us had any title until after the purchase, of the property by Douglass, and he gave us bills of sale for the whole consideration; which sums were to be paid for Thomas Hudnall’s debts. These sums and liabilities I considered more than the property was worth at the., time, if all had to be paid in money; but knowing the solvency and ability of George L. Douglass, and the resources he had, I was extremely anxious for him to make the purchase; and assured him that the debt we were interested in should be extended to his own time in reason; and other inducements, the probability of working out the property with my aid, largely, as I thought, contributed to his determination to buy the property. The sale was finally consummated, and the deed was made.
    “ I was present during many conversations between Hudnall and Douglass, and never at any time believed or suspected that it was any thing but a fair, plain sale and delivery of the property for its full value. After the sale was passed, Douglass said he would have to return to Kentucky. Capt. Hudnall agreed to stay and superintend the property; and, at my suggestion, Douglass made Capt. Hudnall a power of attorney, to attend to his interest and the property, a rule I have found necessary to protect my property when absent out of the state, t
    “ I was present when Mr. McBride came to write the deed, and of course heard what passed. The consideration was explained, and the consideration of $24,000 was paid by Douglass in liquidation of HudnalPs debts, by the sale of that amount of negroes, out of those purchased from Hudnall. To enable biin to sell after his purchase, and his assuming all the debts due to my firm, I released the mortgage to that amount of the property for that purpose. The consideration was not nominal, but a positive payment.
    “As I before stated, I never wanted Dr. Slade’s personal security. My object was to get the mortgage security on HudnalPs property. I do not recollect of ever having such conversation in the question before the parties, beyond assuring Slade that when he transferred the mortgage to me, it was all I wanted. After George L. Douglass made the purchase of the property, Dr. Slade became uneasy from some cause about his liabilities for Hudnall, and was at the time much displeased at Capt. Hudnall, but finally they became on better terms. It was after this event, when Douglass got possession of the property, that I considered my debts entirely safe by Douglass’s assumpsit. I was, and professed a willingness to release Dr. Slade ; and upon receipt of the letter on file marked (G) 1 gave Dr. Slade a letter, when he complied I would give him a release. When I passed the notes of Slade and Hudnall to the Union Bank of Tennessee, I did so with a full understanding upon Slade’s transferring the mortgage for the benefit of the notes, he, Slade, was to be released, and not held liable beyond the security on the property. The letter marked (G) was received by me the day it was written; as well as I recollect, I gave George L. Douglass the letter marked (G) or filed it with my answer to his bill. It is as follows :
    ‘Livingston, Miss. 'Dec. 19, 1839.
    'N. & J. Dick & Co.
    ‘Gentlemen: — I will assume Dr. James B. Slade’s responsibilities on two notes of Thomas Hudnall to you, which Slade indorsed, and in consideration of which, said Hudnall mortgaged certain lands and personal properties to him, upon said Slade’s transferring to me in due form the benefit of said mortgage. Geo. L. Douglass.’
    “The power of attorney was written with no other object but to guard Douglass’s interest in his absence, which (my) experience had frequently shown the necessity of having. It was not written with any view to defraud in any way, or to cover the property. I considered, from what had passed in the sale, that Hud-nall had no privilege or interest, only what was conferred on him in the power, and that was for, Douglass’s own benefit.
    “After Mr. Geo. L. Douglass arrived in Mississippi, and began to talk seriously of buying the property, a list of all the negroes was made out; he was on the plantation; he appeared to speak of different negroes and their character with a familiarity, so as to convince me that he understood their value. He was with the negroes, and among them; he was on the plantation, and must have a knowledge. According to my estimate of the value of property, his views generally exceeded mine. Pie gave it a more thorough examination than ever I did under similar purchases, and I thought him very precise and particular. How often he had been on the place, I do not know, but he often spoke of previous visits, both he and the family.
    “I have known Douglass by character a long time. He has been considered a very safe, prudent mah, prosperous in business, with friends of great resources. I would at any time, since 1839, have sold him property to the value of Hudnall’s estate, upon his own credit, with a lien upon it, without being the least uneasy. In a word, I have always, since my knowledge of him, had entire confidence in his integrity and ability to comply with what he would promise.
    “Mr. Hudnall shipped his cotton, with some few exceptions, to N. & J. Dick & Co., and was, at the time of the sale to Douglass, doing business with the house. After the purchase of the property by Douglass, he (Douglass) changed his business to Ward, Moffit & Co. of New Orleans.
    
      “Mr. Douglass gave very special attention to that part of his business in New Orleans, by superintending sales, and arranging his liabilities assumed for the original purchase of the property. I knew of his taking great interest in selecting overseers, having consulted with me frequently on the subject, and finally employed those for 1842 I recommended. He also visited Nashville, on the business'relating to his purchase, and, as far as came to my knowledge, I have known few men who have been more devoted in their attention to all matters relating to the overseership of the property in question.
    “I have known Thomas HudnaU personally since 1836. I have considered him a visionary man in nearly all his schemes, very sanguine, without consistency, and often contradictory and whimsical.
    “Hudnall had uncommon attachment to the property sold to Douglass.
    “Hudnall’s notes, in exhibit E, were transferred by N. &■ J. Dick & Co. to the Merchants’ Bank of New Orleans in 1838, as well as I recollect, for a full and valuable consideration, with the mortgage security. -The notes in exhibit F (Hudnall’s and Slade’s in the mortgage of 10th November, 1839,) were transferred to the Union Bank of Tennessee in the summer of 1840, for a full and valuable consideration, with all the mortgage security, which I represented to the bank.as being a fair valid transaction; and, at the time, I had not the remotest idea that the validity of the mortgage (of 10th November, 1839,) would ever be questioned. And so well satisfied was the bank of the security of the debt, that they (the bank) released me, and received the paper without recourse on me in law or equity; and they could not have had any grounds at that time to believe it would ever be called in question. Geo. L. Douglass executed his notes to both the Merchants’ Bank of New Orleans, for the United States Bank, who had become the owner of Hudnall’s paper; also to the Union Bank of Tennessee, for the -full amount of all the notes in exhibits E and F.
    “It was understood between Douglass and Hudnall, at the time of the purchase, that the judgments and liens on the property were to be paid by Douglass. An estimate was made out; but to what extent had, or would be paid by others, was uncertain. It was believed at the time, the judgment of the United States did not bind the property. There was an old lien for purchase money on part of the land, mentioned, and various executions in the hands of the marshal against Hudnall for security debts! I have no memorandum or data, to come at the precise amount. I do not know the reason why this consideration was not'put in the deed.
    “ At the time of the sale, I did not consider that judgment (in favor of United States against Hudnall,) as binding on the property, having, previous to its being confessed, obtained the mortgage to Slade. And I was also of the opinion that the time and stay given on the judgment, would release the property; but it appeared, upon investigation, from some cause not known to me, the mortgage was not recorded until after the judgment was rendered. The judgment alluded to, was the one I most dreaded, which made me use the exertions I did, to get further security on the debt due N. & J. Dick & Co. I have been informed, and believe, that Douglass has paid the larger portion of this judgment, and has to pay the balance shortly, or during the winter. This judgment was that much more, Douglass had to pay, than I understood to be in consideration of the purchase money.
    “N. & J. Dick & Co. paid executions that bound the property of Hudnall, for about the sum of $5,384-54, which sum Geo. L. Douglass assumed to pay the firm of N. & J. Dick & Co., which sum was assumed as a part of the consideration money, though not expressed in the deed, which is part of the liability of said Hudnall, that I before alluded to, as a part of the consideration to be paid for the property.
    “I have often seen the negroes, and did at the time know their number, (L e., such as would rate as field hands, left to complainant, of those sold by Hudnall to him, after he had sold enough to raise the $24,000, the consideration in the deed.) I do not now recollect that number, but believe about one hundred and seven hands.
    
      “ The value of the negroes at that time, (Dec. 18, 1839,) making Union Bank of Mississippi the standard, was worth about $1200 to $1500 a pair for about such negroes! In the spring following, when bank notes of Mississippi banks ceased to pass, and Louisiana money became the standard of money, they would not have sold for more than $1000 per round, and if sold for cash, would have been difficult to sell. There was also about 3400 acres of land; the value very' uncertain, as there was a great quantity offered in the market, and I do not think it could have been sold, the entire tract, for more than five or six dollars per acre. Such property, sold on long time, would have brought fifty per cent, nearly, if not quite, on these prices.
    “Since the property was sold to Mr. Douglass, I have had nothing to do with the sales of the crop, consequently, cannot say what is the proceeds; but from the bad crops made in the section of the country, and the depressed price of cotton, I should say that the crops would not pay much, if any, over the interest on the whole debt to N. & J. Dick & Co. and current expenses. To pay the debts incurred by the purchase, it would require other means to be brought to the aid, which Mr. Douglass said he would bring from resources he had at Louisville, and mentioned a valuable property there that he would sell to release in part of the debt.
    “ I do not consider myself interested in the suit. I transferred the notes without recourse on me, the bank relying upon the mortgage given to Dr. Slade, and the assumpsit of Geo. L. Douglass in the purchase of Hudnall’s property. In said mortgage there were no other notes, only those transferred to the Union Bank of Tennessee.
    “ Geo. L. Douglass was to pay his sister, (Mrs. Hudnall,) for a release of dower; but the price, I do not believe, was specifically agreed upon, but my understanding that it was to be in property at some future time. The dower was not released at the time of sale. I do not recollect the reasons given. But my own opinion, the reason why it was not agreed upon, the involvements over the property were in a situation that Douglass did not know what to give, and he was willing to arrange the matter after-wards with his sister.
    
      “ I considered, at the time of sale, that the whole transaction was one of fairness and honesty entered into between the parties. I have no hesitation in saying, the consideration agreed upon to be paid by Douglass, was the full value of the property. I have also stated that the debt assumed by Douglass in the purchase to N. & J. Dick & Co., has been satisfactorily arranged since by Douglass. As to what were the secret intentions of complainants, Douglass and Hudnall, to commit a fraud upon others, I cannot say; if there was such a conspiracy, it was very cautiously kept from my knowledge, as I never even suspected it.
    “Previous to the commencement of this suit, Geo. L. Douglass was looking for a river plantation, to remove a part of his hands, which he appeared very anxious to do, after he purchased the property of Capt. Hudnall. I also heard him say that he intended, if he could pay the debts he had incurred by the purchase, he intended to settle some of the negroes on his sister for a.support. When I was settling the debt assumed by Geo. L. Douglass to N. & J. Dick & Co. on account of Capt. Hudnall, I gave near $5000 in the transaction for Mrs. Hudnall’s benefit, to be allowed her, when Geo. L. Douglass might deem it proper, to be paid in such house servants as she might want. The object, as I understood from Capt. Hudnall and Mr. Douglass, in taking the negroes to Vicksburg, was to get a place on the river' to make cotton; the right and title of the property remaining in Douglass, and the proceeds of the labor of the negroes was to help pay the debt created in the purchase of the property. From what I heard Mr. Douglass say, and from what I know of the man, I should have believed him the last man that would run property and to try and evade the law. The most of the . negroes alluded to are now in Geo. L. Douglass, and the balance I know to be under'his control.”
    Robert J. Ward testified that he knew Douglass, who, in the fall of 1839, as well as at all other times, stood high in Louisville as a man of integrity and business habits; his ability to meet all engagements he might make, was unquestioned. He would have been considered a safe bidder for any property sold in Louisville in 1839 on a credit, with or without a lien for the purchase money. Understood in the fall of 1839, that Hud-nalfs property had to be sold, owing to his involvements: and Douglass frequently conferred with deponent on the subject of purchasing the same. He shipped to Ward, Moffit & Co. the crops of cotton raised on the plantation bought of Hudnall in the years 1840 and 1841. Sales were rendered to him, and deponent never doubted his being the real owner of said plantation and crops. Douglass often visited New Orleans, attending to sale of cotton and purchase of plantation supplies. When he was not there, if they were ordered, they were of course charged to him, as in other cases when such things are ordered by an overseer or manager. He has always been remarkable for his attention to whatever he undertook, and his zeal and industry were manifested in regard to whatever concerned the plantation. He bought bagging and rope and other supplies of Ward & Moffit of Louisville, which they shipped to the plantation; a large portion of these supplies were paid for by complainant in Louisville, he declining to draw on the proceeds of his cotton. Does not know whether those purchased in New Orleans were paid for by proceeds of cotton, or from other resources. He frequently remitted money from his store at Vicksburg. Is not acquainted with Thomas Hudnall. Hudnall never visited the house of Ward, Moffitt & Co. in New Orleans, nor does he remember that he ever transacted any business with them when he acted as agent for Douglass. The house paid him no money, either on his own account or as agent for Douglass. ,
    
    The sale by Hudnall to Douglass was the subject of negotiation for some months. Douglass often conferred with this deponent in regard to it, and this deponent, from all the facts, never for a moment doubted the reality of the sale, or that he was the bona fide owner of the property.
    In .1841, Douglass determined to buy land on or near the Mississippi river, with a view to remove his negroes from Madison county, but this intention was defeated, as this deponent was informed, by an arrest of some kind, of a part of the negroes by some of the parties to this suit. Douglass gave as reasons for resigning the post-office in Louisville, that he wished to give his individual attention to his plantation in Mississippi, and often consulted this deponent as to the management of the farm, propriety of removing his negroes to Mississippi river to the bottom lands. Ward, Moffit & Co. accepted his draft for $9000, which they would not have done if they had entertained any doubt that complainant was the real owner of the property.
    
      Cross examined. — Supplies were shipped to complainant’s plantation as to other customers, and Ward, Moffit & Co., of course, doing his business, expected to receive his crops of cotton.
    Does not know whether all the cotton raised on the plantation in 1840 and 1841, was shipped to Ward, Moffit & Co. t From September, 1840 to April, 1841, they received four hundred and ninety-eight bales marked G. L. D. From October, 1841, to December, 1842, they received one hundred and sixty-four bales, marked G. L. D., and one hundred and sixty-eight bales marked R. D. Thinks it proper to state that it is usual when the same person owns two farms, to mark the cotton from each differently, and such was the reason assigned by complainant for having two marks on his cotton, there being, as he stated, two plantations, the initials on one representing his own, and on the other his wife’s name.
    John A. Vanu testified, that he was salesman of Reaughs & Douglass in Louisville. Douglass was said to be worth $60 or $70,000. Knows nothing about it of his own knowledge, or of the state of his personal affairs, or whether he was in debt for his property or not. Knows nothing of his personal liabilities at that time, December, 1839. The store of Reaughs & Douglass was said to be largely in debt in the east for goods. Did not hear of Mr Douglass’s removal to the south in January, 1840; thinks he was considered a permanent resident.
    T. S. Bell states in substance, that Douglass was one of the most upright, solvent, and praiseworthy men in Louisville Ky., and that James M. Campbell is one of the basest.
    Duncan Manzey gives complainant a fair character, and states things derogatory of Campbell as having transpired in the post-office while Campbell was post-master. A. T. Heth and J. N. Halburt, two of Campbell’s clerks, and witnesses for Douglass in this cause, boarded with deponent, and he derived his information from them.
    James Guthrie has known Douglass for near twenty years. He studied law in deponent’s office, .and their acquaintance and relations have been of the most intimate and friendly character. Considered him a prudent and safe man in 1839, and prosperous. Would have considered him a good purchaser of real estate in Louisville in 1839, on a credit, a lien being retained for the purchase money. Has understood that he derived large profits from a mail contract in 1838 and 1839.
    
      Cross examination. — Has no particular knowledge of Douglass’s circumstances and property and solvency in 1839. Thinks he has understood his profits from the mail contract were from $20,000 to $30,000.
    J. Eliot and Andrew T. Heth knew Douglass, and considered him a man of integrity and solvent in 1839. Has known James M. Campbell for ten years; he was removed from office for peculation and dishonesty; since he was turned out, he has not generally borne a good character for integrity, truth, and honesty.
    C. M. Straders. — Douglass was a partner with deponent and others in a mail contract by steam-boats between Louisville and New Orleans; his interest began 5th of November, 1837, with the contract, and ended 1st of January, 1840. Knows something of his business with the Reaughs; has advised him not to advance them money, or to let them know he had any. Knows he could have advanced them money in 1839, &c. He left about the 26th day of November, 1839, for the south, and did not return.until early in January following. He was in the south when his appointment as post-master at Louisville was announced, and he hesitated on his return about accepting the office; and deponent does not believe it would have been his interest to accept, only for his business with the Reaughs; believes he could have raised $24,000 in Louisville in the fall of 1839, if it had been important- for him to do so. He believes Hiram Reaugh is considered a man of integrity and truth.
    Edward P. Johnson, or James Thompson and deponent, were the other parties in the mail contract. Douglass’s interest was something less than one fourth; he transferred his interest for the future to S. M. Straders without consideration. Mr. James Thompson and deponent took his interest for the past at what it would pay on winding up. Complainant received for his interest in the contract and steam-boats about $>-, together with his salary during the period he was concerned. Supposes that in 1839 he could have paid his debts, supported his family, and had something left. Did not understand that when he left in the fall of 1839 for the south, he had any business except that about the mail service.
    Lemuel Doughton is acquainted with the circumstances under which some of the negroes were sent to Yicksburg early in 1842. Witness’s understanding was, that Mr. Douglass wished to rest a part of the plantation by pasturing it, and he could make as much or more by cultivating the good lands with the hands left on the place, than to keep the whole of thorn there; twenty-three hands, including a small girl, were sent to Vicksburg; sixteen of the negroes then sent to Vicksburg returned to the plantantion in Madison county, and are at work there as regular hands. After these negroes were sent to Vicksburg, there were enough left to cultivate all the land which ought to have been cultivated.
    Was not in this country in December, 1839; became a citizen of the state in 1840, in December. Plis acquaintance with the property began in the fall of 1842, and is at this time overseer for Douglass.
    John T. Cameron, under certain circumstances, rvould have given such power of attorney as Douglass gave Hudnall. Does not consider it absolutely necessary to record it; the only benefit of doing so, would be to preserve it, if the original was lost.
    
      Cross-examined by defendant’s counsel.
    Does not recollect of any instance of persons residing out of the state and owning a plantation of negroes therein, or being absent from the state, giving such a power of attorney, and having the same recorded, except one given by N. & J. Dick & Co., signed N. & J. Dick & Co. by H. R. W. Hill, and was executed by H. R. W. Hill. The records of witness’s office have been frequently called into the circuit court and magistrates’ courts, to be read in evidence in cases of the trial of the right of property, in which he (Hill) was engaged. Has heard him charged with being implicated in such fraudulent conveyances.
    There are on record in his office, powers of attorney from citizens of this state to other citizens, as full and extensive as that given by complainant to Hudnall. Would most assuredly give full faith and credit to any statements made by H. R. W. Hill, in evidence under oath before a court of justice, in a case where he was not interested.
    John M. Rutherford. — Douglass went south in November, 1839, and returned 5th or 6th of January, 1840. Has frequently opened and read the private letters of Thomas Hudnall addressed to Douglass during his absence from Louisville. The said Hudnall, he feels well assured, had no knowledge of his opening letters written by him to complainant. They were strictly private. Witness never saw any thing in them that would have led him to suppose that complainant was not the bona fide owner of the plantation in Madison county, Miss., sold by Hudnall to him. Nothing fell under witness’s observation that would have led him to suppose so. From witness’s intimate and confidential knowledge of Douglass’s business, thinks it most probable that he would have known it, if he were only the colorable owner of said property. Is brother-in-law of Douglass.
    The depositions of one or two other witnesses were taken to prove the character of Douglass, and of James M. Campbell, who was a witness for defendant. This was all the complainant’s proof.
    On the part of the defendants, L. P. Walker testified, from his own knowledge of his (Hudnall’s) business, which was accurate, he considered him insolvent. That there were at that time suits for a large amount pending against him, both in the federal and state courts; cannot specify the amount for which suits were pending, but knows them to have been for a large sum, say $20,000, or $30,000, on his own account and as surety for others. He had frequent conversations with Hudnall in 1839, particularly in the summer and fall, with reference to his pecuniary difficulties, and often heard him express a wish to save his property, if possible, from execution. Indeed Hudnall often consulted him about the propriety of a conveyance for that purpose, urging, as an excuse therefor, the course of others less embarrassed than himself. During the time of these consultations, and after these expressions, Hudnall made a mortgage to James B. Slade. Does not remember distinctly its date; knows that it was in the fall of 1839; thinks in November; and in the same fall, and in quick succession, he made a conveyance to George L. Douglass; that he had many conversations with Hudnall previous to the 10th of November, 1839, in relation to Hudnall’s making mortgages, or other conveyances of his property, and the object aimed at was the protection of his property from legal process. He often mentioned George L- Douglass as a person to whom he might convey with safety; stated tb him (witness), that Douglass had been written to, and was looked for ; and soon after this information, Douglass came, and made the arrangement, as witness was informed by Hudnall; and believes the same to be true. Hudnall told witness he was advised to the course he pursued by H. R. W. Hill. Hill was in the country in the fall of 1839, spending his time with his family, at Hudnall’s; that he had conversations with Hudnall shortly subsequént to the mortgage to Slade, and from those conversations, witness drew the inference, indeed he thinks Hudnall so expressed himself, that the inducement for making the mortgage to Slade was to shield his property from the judgment of several large debts, and more particularly security debts; cannot recollect the precise time the conversations occurred, but recollects distinctly that conversations of. a similar import occurred, both before and after the time of the execution of the mortgage to Slade; that he had frequent conversations with Hudnall, both before and after the conveyance to Douglass. In those previous to the conveyance to Douglass, he expressed great apprehension that his possessory interest in the property mortgaged to Slade was still unsafe, and asked the witness (not professionally), but as a friend, if his equity of redemption could be sold under process from a court of law. Witness said it could. Hudnall then expressed a desire to prevent this if possible, and said that he would write to Douglass, and convey to him absolutely, with the private understanding between the parties, that it was for the purpose above mentioned. Whether Hudnall wrote or not he could not say, but it was not long after this that Douglass came out, and the conveyance made accordingly; Hudnall telling the witness after the conveyance had been made, that his object, as stated to him previous thereto, and as witness represents it above, had been consummated by the conveyance; that these communications made to the witness were serious and private, made always in the yard ; Hudnall seeming to be unwilling even that his wife should hear them; that both before and after the conveyance to Douglass, Hudnall informed witness that by that conveyance he would be enabled to retain possession of the property, and that such was the understanding between Douglass and himself; in other words, whether his own or not, witness does not recollect, but certainly fairly indicating his meaning, that the conveyance was used for the purpose of cloaking his property.
    He knows well the state of Hudnall’s feelings towards N. & J. Dick & Co. in 1839; had frequent conversations with him about his debt to them; recollects distinctly his speaking harshly of H. R. W. Hill of that firm, because he (Hill) wished, in addition to security already given by mortgage in the spring of 1838, other protection for his debt; recollects distinctly Hud-nall said he would not give it either directly or indirectly; he expressed doubts of the honesty of Hill’s intentions, and intimated more than once that it was Hill’s object to ruin him; that Hudnall informed him, both before and after the conveyance to Douglass, that it was not contemplated, either by him or Douglass, that he (Hudnall) should ever give up the possession to Douglass; he was in 1839, and is now the son-in-law of Hud-nall, and Douglass is Hudnall’s brother-in-law.
    John Simmons states, that he has no knowledge of the purposes for which the mortgage to Slade was made, except from the statements of Hudnall himself; has heard Hudnall say, that by reason of the advice of McBride, the mortgage was not recorded for three months, during which time judgment was obtained in favor of the United States aga'inst him for §20,000; he also sjated to witness, that the object of the mortgage was to defeat the collection of the debt on which said judgment was rendered; was present when the deed from Hudnall to complainant was made ; the complainant at that time lived in Louisville, Kentucky ; about the 1st of November, 1841, he moved his family and house servants to this state; Hudnall, and complainant are brothers-in-law, Hudnall having married the complainant’s sister; Hudnall’s wife was living with him at that time, and at the house at the time said deed was executed, and from appearance, about twenty-eight, or thirty years of age; he was one of the subscribing witnesses to said deed; saw no money paid, nor security, or notes given, nor did he hear any thing said about complainant assuming the debts of Hud-nall ; was not present during the writing of the deed, but came in about the signing of it; heard nothing said by either of them, at that time, as to what debts were to be paid; at the time of the execution of the deed, (Hudnall to Douglass,) nothing was said to witness about the intention of the parties; has never heard complainant say any thing but what the sale was genuine; has heard Hudnall state repeatedly, that he (Hudnall) was to remain on the farm and have the management of it; the proceeds of which were to go to the payment of the debts to N. <fc J. Dick &> Co., and the judgments which bound said property; whatever property was left after the payment of said debts, avas to be divided between Douglass and Hudnall; and that the titles to the half of the property going to Hudnall were to be made to the wife of Hudnall, as Hudnall owed so many security debts, that he could not hold said property in his own name ; Hudnall also stated to witness, that complainant was to have the management of the financial concerns, and receive the proceeds of the crops, and that the cotton was to be marked in the name of complainant,' and that complainant was to come down every year and attend to the sale of the cotton, and the payment of the debts; has heard Hudnall say that he was done paying debts, and that he never intended to pay any other debt than the debt to N. & J. Dick & Co.; that he had sold the right of redemption on his property to complainant for the purpose of preventing other claims from coming in after paying the debts secured by the mortgage. This he has stated at several times to witness, but all since the sale to Douglass, the complainant; these declarations were made since the conveyance, and Douglass not being present: saw the power of attorney from Douglass to Hudnall drawn up, but cannot say positively whether he subscribed the same or not. It was drawn up by H. R. W. Hill, immediately after the execution of the deed from Hudnall to complainant, and at the same interview; I understood the object of that power of attorney to be, to give Hudnall the power to employ overseers, or turn them oif if they did not suit, and to superintend the business in the complainant’s absence, and to give bond to protect the property until the complainant should come down, in the event it should be interfered with. Hill was present at the making of the deed and power of attorney, during the time witness was there, and, as usual in such cases, he had much to say about the matter. He (Hill) told witness, on the day after the papers were signed, that he had all Hudnall’s property bound for his debt, as well as all Douglass’s property, whatever it might be, from the manner in which the deed was drawn. Hudnall remained on the place, and the property remained there also, and appeared to be under his control, until Douglass moved down, some time about the 1st of November, 1841; Hudnall left the plantation some time in February, 1842; saw no material change in the management of the plantation after December, 1839 ; has frequently heard Hudnall call it his own property, and thinks he has often heard him call it the property of Douglass; when Hudnall left the property embraced in the deed to Douglass, he took with him some thirty negroes, little and big, part of the same negroes embraced in the deed; Is not positive Hudnall took them, but saw them, in his possession in Vicksburg, and he was hiring them out; does not consider the negroes worth more to Douglass than a valuable lot of field hands, and he could be compensated in money for them.
    Hudnall employed an overseer or two, and turned them off, and employed others in their places; does not know of any other contracts he made, which were necessary to carry on the plantation on which he resided in 1839. From the quantity of land in cultivation, supposes the crops raised by Hudnall, in 1839 and 1840, might be six hundred bales for each year. Hudnall further stated to witness in conversation, that Douglass was post-master in Louisville, Ky., and doing a good business, and if he quit all that, and came here for the purpose of attending to the business, that he ought to have half that was saved, after paying the debts.
    Mr. Hudnall stated to witness, that, some time in May last, he had sent up to Nashville a carriage and horses, the carriage driver and his wife, and some five or six other negroes, principally the house servants, from the place where he resided. Witness has not seen said negroes on said plantation since Hudnall’s statements to him. Has only been to the plantation once since, and then not in the house. Saw the carriage driver about the 1st of May in the possession of Hudnall at Vicksburg, and has not seen him since. Heard Douglass say that he and Hudnall could not agree about the management of the property, and he had air idea of letting Hudnall' have some twenty or twenty-five hands, and take them on the Mississippi river and work them, and the proceeds of their labor was to go to the payment of debts mentioned in the mortgage. Hudnall said that they could not get along very well together, and that he would agree to leave the plantation if Douglass would let him take twenty or twenty-five working hands, and the children belonging to the families, and carry them on the Mississippi river, and to take the proceeds of their labor to himself. Hudnall has frequently importuned witness to take Douglass’s place in the matter, and let him (Hudnall) remain upon the place, and have .the management of it; that by so doing, he (Hudnall) thought, he and witness could pay the debts in the mortgage mentioned, and save a part of the property. Douglass has several times expressed a wish to sell the property in the deed, conveyed to him by Hudnall. Since the above conversation with Hudnall and Douglass, witness has seen about twenty working hands, and the children of the families, at Vicksburg, in the possession of Hudnall. W itness is the son-in-law of Hudnall, was tolerably intimate with Hudnall in 1840, and quite so in 1841.
    
      Cross-examined by George L. Douglass, complainant.
    Whenever the subject was mentioned by Douglass, witness understood him as claiming ownership of said property. The plantations of witness and Douglass join, and they live about a mile and a half apart; is as well acquainted with the property sold by Hudnall to him, as he could be not to own it. There were in 1840 and 1841 about sixty hands on each plantation. There was nothing said to him by Hudnall or Douglass at the time the deed was made by Hudnall to complainant, as to complainant having assumed the debt of Hudnall to N. & J. Dick & Co. But Hill told witness that Douglass had assumed, or was to assume, the debts.
    In 1840 there was a fair crop raised, and the place was well managed. In 1841 both places were badly managed, and would not have given satisfaction to witness if he had owned them, and a short crop was made. In this year, supposes there were about three hundred and fifty, or three hundred and seventy bales cotton made on both places, it being a bad crop year. In 1840, about six hundred bales. If witness had bought Hud-nall’s property, knowing his various embarrassments and incum-brances hanging over it in December, 1839, and urgent business had called witness from the state for a considerable time, he would have thought it discreet and prudent to have appointed some-one his agent, with full power to protect his rights and interest, and manage the property in his absence. Thinks complainant visited his plantation twice in 1840; don’t recollect the precise times; thinks in the spring or early in the fall. On the 10th of November, 1839, (date of mortgage to Slade,) considers the property mentioned in the mortgage of March, 1838, worth $73,700 in cash, estimating the land at a certain price, and the negroes at a certain price each. Estimates the property, in mortgage to Slade, on the 10th of November, 1839, at $94,000. Witness has no doubt, from what he has heard, that Hill was instrumental in helping to procure the mortgage from Hudnall to Slade. His impression is, that Hill’s object was more fully to secure the debts to N. & J. Dick & Co, Witness would say the property mentioned in mortgages A and B, was depreciating in price at the time of the sale to Douglass, by reason of the pressure of the times. The time was so short from the making the mortgage to Slade to the 19th of December, 1839, that the property could not have depreciated much, but the probability is, that it was not worth quite as much. Douglass has since offered to witness, that if witnes's would take complainant’s place, in every respect in the matter, and release him from all responsibility, that Douglass would lose $10,000; thinks he was in earnest; that in relation to Hudnall’s attachment to the property, there is no doubt but he was more attached to it than any man witness ever saw. Thinks the property in the first mortgage was not sufficient to secure the debt to N. & J. Dick & Co. When Hudnall spoke of the division of the property, his calculation was that it would take seven or eight years to pay off the debts for which he was bound with the crops. Has heard Hudnall say, just before he left here in May, 1842, that he must look out for an overseer’s birth somewhere, and begin the world anew. Witness heard him apply to one or two now in Jackson for such a situation. The negroes witness saw in Vicksburg were returned to Douglass, except those sent to Nashville. Says he heard Douglass talk of buying land on the river, and removing part of the force to it. Witness understood he was absent for that purpose in part when the levy of executions in favor of McBride and others was made. It is not customary for persons residing out of this state, and owning property here, to make powers of attorney to their superintendents here, giving them power to attend to all their business generally without restriction, and to have such instruments formally proved and recorded. Hudnall was very much attached to his property. If he had sold it, and it had been taken away from him, witness does not believe he would have claimed it. Judging from HudnalFs conversation, witness says Hudnall was not willing to give further security for the debt to N. So J. Dick & Co., secured by mortgage of March, 1838. Does not believe Hudnall would have made another mortgage expressly to secure that debt further. Property sold in the fall of 1839, on a credit of two, three, and four years, would have netted the vendor twenty-five per cent, more than if sold for cash.
    WilliamS. Rayner. — Hudnall was largely indebted in the fall of 1839, and to insolvency, including security debts. Was sued for large amounts in the United States court at Jackson, and circuit court of Madison, at the November term, 1839, of those courts. Hudnall told witness that he had sold every thing that he possessed in this state to complainant, except his watch and pencil. Has no knowledge of the purposes for which the mortgage to Slade rvas made and the deed to Douglass, except what witness derived from Hudnall and Slade, and that since the mortgage was made. So soon as witness. learned that the property had been mortgaged to Dr. Slade, and before the making of the deed to complainant, witness went over to see Capt. Hudnall about a debt Hudnall'owed him; Hudnall then informed witness, that he had sold all his property; but he said all his home debts, as he termed them, should be paid, and witness might rest satisfied. Witness told Hudnall he did not like such satisfaction as that, when Hudnall acknowledged at the time he had nothing, and was unable to pay. Hudnall then remarked to witness, “ you know my situation,” or something like that; “my wife must be provided for.” It was witness’s understanding, from the interview, that Hudnall had made a beneficial arrangement for his wife, after securing the debt to N. So J. Dick So Co. Witness then came home to Dr. Slade at Livingston, who told witness his debt should be paid. Witness gave up the note to Slade, and he managed to have it paid through H. R. W. Hill, who accepted Hudnall’s draft, to whom Hudnall conveyed his cotton that year.
    Dr. Slade stated to witness, that one object of this mortgage was to prevent the payment of the debt to the United States transferred by the Brandon Bank, and in suit at Jackson, when the mortgage was made. Hudnall had frequently stated to witness, that McBride had ruined him in giving his advice, that it was not necessary to record the mortgage in less than three months, thus letting in said judgment, which he stated was one of the objects of this mortgage to defeat. Hudnall never said much to witness about the sale to Douglass; means the circumstances and objects of the sale; but has frequently stated to witness that he had his property so fixed, that his security debts could not hurt him, and that he never intended to pay any of them. Thinks this was after the sale to Douglass. It was witness’s understanding, from frequent conversations with Hudnall in relation to the mortgage and conveyance to complainant, that his principal object in the mortgage and sale was, to place his property beyond the reach of his security debts. He said he wanted to give his own debts the preference, and he wished to pay every just debt he owed. All the conversations, in regard to the sale to complainant, were made after said sale, but the conversation in relation to providing for his wife, took place before said sale to Douglass.
    Witness resided generally from the fall of 1839 to December, 1841, at or near Livingston, Mississippi. Hudnall remained in possession of the property mentioned in the deed to Douglass during the year 1840 and 1841, and, so far as witness knew, exercised the same control and management over the property as formerly. Thinks he never saw Mr. Douglass on said plantation. Witness has passed through and by said plantation frequently ; and was at the house some four or five times during the two years 1840 and 1841. Saw some of the negroes embraced in the deed from Hudnall to complainant, in Hudnall’s possession at Big Black, and also at Vicksburg, in February, 1842. The defendant, Slade, informed witness, some time in 1840, that from the best information he could get, Hudnall intended to run off the property, or at least he feared so; that he had a spy or spies there to inform him in case any attempt was made. Slade asked witness, as a friend, if he would assist in stopping the property in case the attempt should be made. Witness told him he would do so, and Slade told witness to hold himself in readiness; that he, Slade, did not know what moment he might call on him. Thinks this was in the summer or fall of 1840.
    Never heard Hudnall speak of the conveyance but once in Douglass’s presence, and in that conversation Hudnall disclaimed all interest in the property conveyed to complainant. This was some time in the winter of 1841 -1842. Thinks Hudnall had a more loose and irregular way of doing business than is usual with men possessed of so much property as he had. Thinks him wild and visionary in his schemes, frequently, in regard to paying off his debts ; but still believes him a man of good sense, and able to manage his own matters. His character at some times did seem strange and inconsistent, but always having an eye single to his interest. He was considered one of the best practical planters in the state. Don’t think that Hudnall is a man who would pay all his .debts if his means were sufficient, at this time. Believes he was once an honest man, and would have done it while in prosperity. By dishonest, witness means refusing to pay any of his own just debts. Thinks this change in his principles took place since or about the time he made the mortgage to Slade. Has frequently heard Hud-nall say he had sold all his property to Douglass. He never stated that there was any reservation at the time of sale. Has seen complainant frequently at Livingston since 1839, and the plantation is about a mile from town. Hudnall always represented himself as the agent of complainant; while transacting business on the plantation sold to complainant in witness’s presence.
    Slade has told witness he was to be discharged by Hill from the notes to N. &• J. Dick & Co. Had this conversation with Slade in the summer of 1840. Slade informed me, in the same conversation, that Hill had not discharged him; although he had Hill’s promise to do so, he doubted his ability to discharge him, as the notes had been transferred; he was very uneasy about it, and fearful he would suffer.
    Thaddeus Elmore. — Was overseer on the plantation occupied by Hudnall near Livingston, Madison county, Mississippi,' from the beginning of 1839, until December, 1840. Hudnall employed him. He was not paid his wages during 1839, for services rendered in that year. On the 19th day of December, 1840, called on Hudnall. He said he could not pay witness, without he could get cotton from Mr. Douglass. He got the cotton, and weighed it out to him, out of the crop raised in 1840. For his services in 1840, Douglass paid him in money. Applied to Hudnall, at the end of 1839, for his wages for that year. Hudnall said he could not then pay them, but that they should be paid out of the first cotton that was picked of the crop of 1840. Hudnall employed witness all the time, and witness looked to him all the while to pay him. Hudnall employed witness in October, 1839, for the year 1840. Witness did not know there was any change of persons to whom he was to look for his wages for that year, until about the month of August or September, 1840. Thinks Mr. Hudnall at that time informed him that Mr. Douglass would have to pay him his wages for the year 1840; that was the first time witness learned there was any change of persons, to whom he was to look for his pay. Found Hudnall in possession of the property when he went there, and left him in possession. So far as witness knows, Hudnall exercised ownership and control over it. In the presence of witness, Hudnall always called the property his, and acted in the same way he had done before, so far as witness knew. Was on the premises about the 18th of December, 1839, and saw Douglass there. Witness did not see Douglass exercising any acts of control or ownership, when he was on the place; to his knowledge, he did not give any directions as to the management of it. Witness considered him a visitor, and considered Hudnall as the owner of the property. Does not know how long Hudnall remained in possession of the property after witness left there. Hudnall left the neighborhood of Livingston in February, 1842. There were over 600 bales of cotton raised on the plantation in 1839, and in 1840, about 600 bales. Witness marked the bales by Mr. HudnalFs order, and sent them to shipping places. Witness saw some preparations to move the property in September or October, 1840; but as to removing the negroes, does not know. Hudnall had some things put up to move off, consisting of some bacon, clothes, trace chains; nothing else that witness knows of. Thinks the preparations were made for the purpose and with the intention of removing the negroes from the premises; believes he was going off the place, but cannot say how far he was going to move. The ne-groes levied on in the executions in this cause, were of no more value to-complainant than his other field hands on the place; they were worth no more than their value in money. Thinks that some time in October, 1840, Hudnall had the negroes witness had the management of, all called out one morning, and they were examined by some stranger; and Mr. Hudnall picked out some twenty or thirty of the best hands, and the stranger examiued the balance. Witness did not understand from the parties, that they were about making a trade; they said nothing to him about it. The stranger examined the negroes particularly. Thought at the time, from the conduct of the parties, and from all he saw at the time, that a trade was going on between them about the negroes. Douglass supplied the plantation in 1840 with rope, bagging, shoes, clothes, and other plantation supplies; heard Hudnall say so, and the rope and bagging were marked in Douglass’s name.
    William Prewitt. — He is acquainted with Hudnall, who lived, from the beginning of 1839, to the latter part of 1841, on the plantation near Livingston, Madison county, Mississippi, occupied by him before 1839. During that period of time, witness lived about three miles and a half from Hudnall’s residence; their fields adjoined; he and Hudnall frequently met, whilst with their hands. Was often at Hudnall’s house, and had a fair opportunity of judging of Hudnall’s situation and conduct in regard to said property. Hudnall remained in possession of said property during the years 1840 and 1841. Witness saw no change in his conduct towards said property, from what it had formerly been. Hudnall remained in possession, and went on as he had done before. So far as was apparent to the neighborhood, there was no change in the ownership and control of the property, from what it had been for several years prior to 1840. All the change he saw, was an occasional change of overseers. Is acquainted with the manner in which owners of plantations in this state, and living out of it, conduct and manage them, from many instances personally known. Never knew or heard of persons thus owning property, giving such a power of attorney, so proved and recorded, as that from Douglass, to Hudnall; or any power of attorney, proved and recorded. Is acquainted with the property mentioned in the deed from Hudnall to Douglass. Judging from prices at that time, the land was worth $12 or $15 per acre; negro men, from $800 to $1000 in cash, and were selling at that price; negro women, from $500 to $700, on an average; and children, too small to work, from $ 150 to $200, on an average. The other personal property, besides the negroes, was worth about $23,000 in cash. Thinks there were about 160 working hands, and thought them first rate.
    
      Cross-examined. — Witness was not present at -the sale from Hudnall to Douglass; nor was he counselled by any of the parties about the same; nor does he know any thing of his Own knowledge of said sale, or the consideration to be paid, or actually paid, for said property. Witness was doing business in 1839, 1840 and 1841, for William Hardeman; was superintendent of a plantation for said Hardeman; does not know that Hudnall exercised more control of the said property, than witness did over that under his charge, or than he should have done for an absent owner. Does not know of any land of similar value of Hudnall’s sold about December, 1839, for cash. Has known land of same value in the same neighborhood, and at that time, given up in payment of debts at fourteen or fifteen dollars per acres. Saw negroes, field hands, sold about that time, both at public and private sale, for about the rates at which he has estimated the negroes mentioned in the deed from Hudnall to Douglass. If witness had bought a large property of land and negroes in Mississippi in December, 1839, against which judgments and executions might issue, and his business called him to a considerable distance from the state, and for a considerable length of time, witness would have thought it prudent to have given a power of attorney to some person, with authority to protect his interest and property in his absence. If witness had come to Mississippi and purchased property, and had gotten a bona fide title to it, he never should have thought of giving such a power of attorney as the one given by Douglass to Hudnall, or of having the same proved and recorded. Has never known any such power of attorney given by a person who had made a bona fide purchase of property in this state, and temporarily absent therefrom.
    Isaiah M. Simmons. —Is acquainted with defendant, Hudnall, who lived from commencement of 1836, till latter part of 1841, about half a mile from Livingston, Madison county, Mississippi. Witness lived at Livingston from 1836 nearly all the time to the present, and knew pretty well the conduct of Hudnall in the management of his property during that period. Hudnall was in possession of the property in the years 1840 and 1841, and was in possession of it previously. He exercised management of said property, but did not claim it. If witness had judged alone from the management of the property, aside from Hudnall’s declarations, he should have taken it to be Hudnall’s. So far as witness’s knowledge extends, Hudnall lived on the plantation, and used the property, in 1840 and 1841, as he had done before that time. Knows of Hudnall selling one or two loads of corn during that time at Livingston, and of his sending his market-wagon with marketing about once a week to Jackson, during, the most of that time, (1840 and 1841,) containing articles raised on the plantation, such as potatoes, butter and meal. Supposes the contents of the wagon to be worth fifteen, twenty or twenty-five dollars each trip. Had a claim, as constable, against Hudnall in the early part of 1841; some three or four dollars.
    
      Cross-examined. — Does not know that Hudnall exercised any greater control over the said property, than an active and efficient agent should have done in the owner’s absence. Taking his management, conduct and conversation, in relation to said property, would have considered him somewhat interested in it. Did not know of his selling any of the negroes or stock off the plantation, or of his buying any during the years 1840 and 1841. Dr. Edgar was the physician of the plantation at the time the corn was sent him; does not know whether Hudnall accounted with Douglass for the proceeds of the marketing or not. Witness never understood from Hudnall that he had sold the property to Douglass; Hudnall told witness that he did not own any property, when witness presented an order to him for payment in the fall of 1840.
    Stephen M. Old. — Knows Hudnall, who lived about three quarters of a mile from Livingston, Madison county, Mississippi, from commencement of 1839, till the latter part of 1841, at the same place where he had lived for several years previous. Witness was overseer for Hudnall during the years 1836 and 1837, and for two or three months in the latter part of 1838 or 1838, on the property where Hudnall lived, Witness lived at Livingston in 1839; in 1840, about three miles from Hudnall’s; a part of 1841, at Livingston; and the balance of that year was absent from the state. Had a very good opportunity, during that period, of observing the situation and conduct of Hudnall, in regard to the property in his possession, being frequently at his house during the year 1839, and living near him; was there frequently in 1840; only twice during the year 1841. Hudnall was in possession of the property during 1840 and 1841, which was owned and occupied by him previous to 1840, and exercised ownership over the same, so far as was apparent to the world by open actions. There was no difference in regard to his conduct and management of said property in 1840 and 1841, and his conduct and management of the same previously. Has seen Hudnall’s market cart going to Jackson frequently during the year 1840, with butter, eggs, meal, turkeys, spare ribs, and sometimes hams of bacon, each trip worth probably $15 or $20. Is not acquainted with the general customs of carrying on plantations by persons who own the same and live out of the state. Does not know of any such power of attorney having been given, as that from Douglass to Hudnall; never heard of one. Is acquainted with the property, real and personal, in Hudnall’s possession in 1839, and mentioned in the deed to Douglass of Dec. 18, 1839, now shown him. Had a very good opportunity of knowing all about the character and quality of said property, having lived there and managed it. The quality of the negroes generally was very good. There were one hundred and fifty-five effective working hands, including house servants, blacksmith and carpenter; seventy-four male working hands, eighty-one female, forty-five children; and were worth about December, 1839, about $103,100. The land was worth about $15 per acre, amounting-to $51,750. The property mentioned besides the land and negroes, was worth in cash about $28,265. The property in said deed, if sold on a credit of two and four years, would have brought 25 per cent, more than the value witness has put upon it. In valuing said property, he estimated men at $700, women, $550, children, $150.
    Cross-examined.— To the best of his knowledge, witness lived at Livingston in 1839, and in the latter part of that year was overseer for Hudnall on the Jenkins tract; don’t recollect the time he began to oversee, but left in December, 1839, before Christmas; does not know who preceded or succeeded him as overseer; Thaddeus Elmore was overseer on the place where Hudnall resided, while witness was on the Jenkins tract; does not know that Hudnall bought or sold negroes or stock while on the plantation in 1840 and 1841; does not know who bought rope, bagging and plantation supplies in 1840 and 1841; does not know of Hudnall’s buying such articles during those years; was not present at the sale by Hudnall to Douglass, nor was he consulted in relation thereto by any of the parties; knows nothing about the consideration paid, or assumed to be paid, for said property ; does not know whether Hudnall accounted to Douglass for the proceeds of marketing, or not; the wagon used in marketing was part of the property on the plantation; “ under certain circumstances, he would have made the power of attorney, and had the same recorded” ; does not know whether Hudnall held possession of the property in 1840 and 1841 as his own, or as agent for complainant; Hudnall said nothing to witness in relation to this matter; thinks it was generally known in the neighborhood that Hudnall had conveyed to Douglass; never saw Hudnall do any act, or knew of his doing any act in the management and control of said property in 1840 and 1841, which he should not have done, if acting as agent for complainant. Has estimated the other property sold by Hudnall to Douglass, besides the land and negroes, at the following prices : seventy-five mules, at $65 each; two carriages, at $1,000; one pair gray match horses, at $400; one hundred and fifty head cattle, at $5 per head, twelve yoke of oxen, at $40 per yoke; six wagons, at $100 each; one hundred and seventy ploughs, assorted, at $4 each; five hundred head hogs, at $2 each; fifteen thousand bushels corn, at $0,75 per bushel; two hundred stacks fodder, at $6 each; seven thousand bushels potatoes at 75 cents; five beds, bedsteads and furniture, at $45 each; and all the household and kitchen furniture and farming utensils, of every description, at $300; some of the mules were becoming aged, but some of them were worth $150, the price of $65 being an average. If such a power of attorney as that from Hudnall to Douglass were given to protect Douglass’s interest, should think it strange; never heard or knew of any thing of the sort.
    William P. Perkins. — Witness resided in December, 1839, near Livingston, Madison county, Mississippi; is well acquainted with H. R. W. Hill, John Simmons and William Pre-witt. Thinks choice field hands, half men and half women, would have sold at that time (December, 1839,) for $500 apiece under the hammer; and were intrinsically worth $600 apiece, on an average, in gold and silver. John Simmons and Wm. Prewitt are men of good judgment and capacity to value lands, negroes and other plantation property in Madison county, with which they are acquainted. Witness is one of the sureties of complainant on his injunction bond in this cause; became so at the request of H. R. W. Hill and William Hardeman; received a bond of indemnity from George Yerger, agent for Union Bank of Tennessee; received also a verbal assurance from Harry R. W. Hill, that if he sustained any damage from said surety-ship, that he (Hill) would be responsible for the loss. Considers Hill pledged to him for any loss he may sustain thereby, and justly bound to reimburse the same. Cotton was worth about $36 a bale in 1840, and about $32 in 1841.
    
      Cross-examined. — Hill, at the time he requested witness to go on the injunction bond, told witness he had every confidence in the integrity of Douglass. He also stated, that he (Hill) would go on the bond himself, but that he expected to be called on as a rvitness, which would invalidate his testimony.
    Thomas B. Hoover. — Was buying and selling negroes about December, 1839, and in the winter and spring of 1840, and saw them selling at sheriff’s and marshal’s sales in this (Madison) county; does not remember seeing any sold in December, 1839, but in February, 1840, likely field-hands men were selling at an average of $800; women about $600; thinks there was but little difference in the value of such property at that time, and in December, 1839; if any, it was worth more in the latter part of 1839. His estimate is based on Louisiana and Union Bank of Mississippi money, which at the time, with some Louisiana, Tennessee, Alabama, and Arkansas notes, constituted the chief circulation in Madison county; understood from inquiry that number one men rvere worth in New Orleans $1000. When negroes are high in New Orleans, they are high here. Witness has been engaged in selling several hundred negroes in Mississippi, and in 1839 and 1840 bought some twenty negroes.
    
      Cross-examined. — In 1839 and 1840 there were many other negroes sold at sheriff’s and marshal’s sales, the titles of rvhich were thought to be suspicious, and they went for a great deal less than the estimates he has put on property of this sort.
    Thomas Reaugh.— Became acquainted with Douglass in the fall of 1836, who then resided in Louisville, Kentucky, and he resided there until the fall or winter of 1841, when he removed to Mississippi; had no connection with Douglass in December, 1839. Witness, with his brother Hiram Reaugh, entered into co-partnership with said Douglass, under the firm of “ Reaughs & Douglass,” in the retail dry goods business in the city of Louisville, in February, 1837, which was dissolved in July or August, 1839; Douglass put into the concern $5000, and bis interest was one third; knows pretty well what real estate he held in Louisville in December, 1839; knows nothing of his private affairs ; considered his property at that time worth $20,000 or $30,000; doos not know what were his demands for money at that time ; nor what amount he could have raised; his credit was good, and he was concerned in a mail contract, by which it was supposed he was making money, but of that knows nothing; cannot say what he was worth after the payment of his debts and liabilities; the post-office in Louisville was considered by the citizens here as worth $4000 or $5000; he was not post-master in 1839, became so in the latter part of January, 1840; he said it was worth $2500 to $3000; had some knowledge of his style of living in 1837, 1838, 1839; supposes it would have cost him some $2000 per annum to support his family in the style in which they lived; knorvs nothing about whether complainant had $24,000 in December, 1839, about the time he left Louisville; .does not think he could have purchased property worth in cash $160,000 or $170,000 in December, 1839; is certain he could not if he had had to pay the money, nor does witness think he could have purchased that amount of property, unless he had paid some money down, and given additional security for a portion of the money, besides a lien on the property so purchased. So far as witness knows of any bids made by him for property in Louisvilíé, Kentucky, he was considered good, and could have purchased to the amount of $30,000 in one instance in witness’s knowledge, being the only bid witness knew of, made by him for property; a short time before the dissolution of the firm of “ Reaughs & Douglass,” they were hard pressed for money; borrowed in small sums, and had to pay usurious interest, as high as five per cent, per month. On the dissolution, the Reaughs gave complainant $5000 or $6000 for his interest in the concern ; when they wound up the business, found they had lost money, and made an assignment of the goods, debts, &c. due the firm; he afterwards bought the goods from the assignees, and assumed the payment of all the debts due the banks in Louisville, and a part of those due to the eastern creditors. He subsequently told witness that he had lost about $5000 by the sale of the goods purchased by him of the assignees.
    Hiram Reaugh. — Has known Douglass about twelve years; he has resided in Louisville,, Kentucky, since 1836, and his family have been here all the time. If he .has changed his residence witness does not know it. Has no knowledge of Douglass’s property and means in December, 1839, except what he derived from him. The firm of Reaughs & Douglass was largely indebted to the banks in Louisville, and to eastern creditors, and were under the necessity in 1839, and about the month of December, of borrowing money frequently to meet the demands upon them, and for these loans they paid from five to fifteen per cent, per month; Douglass declaring to witness at the time “ that he had no money, that he was broke and ruined, and could not raise any money, or render us any assistance.” Does not know what he was worth in December, 1839, after the payment of his debts and liabilities, further than what he told witness, as before stated. The post-office in Louisville was worth $3000; has heard him say that said office was worth about $2000; has heard him make thig statement both before and after he was appointed post-master. When he was about starting to Mississippi, he told witness that he had no money; that he had hardly enough to take him to Mississippi. If he had had the large sum of $24,000, thinks it was probable he should have known it. If he had that amount, he imposed on witness, and stated to him what was not true. Does not know whether he had the means to purchase property worth $160,000 or $170,000. When Douglass commenced business with witness and his brother, in 1837, complainant sold a house and lot to John Bustard of Louisville, for $5000, which sum he paid into the copartnership, and told witness that “ that was all the money he had, and that a few negroes and some household furniture was all he had left.” The firm of Reaughs & Douglass became hard pressed for money in 1838, and the pressure continued until the dissolution of the firm in 1839. The concern lost money.
    
      James M. Campbell. — Has known Douglass several years, more particularly since 1835. Witness has resided at Louisville, Kentucky, without intermission since 1827. States that Douglas s was under protest in several banks in Louisville, in the latter part of 1839, and in 1840; that the property he had in Louisville was all under lien for the purchase money; that the mail contract could not have been a money making business to him; after he was appointed post-master he built a very large house in Louisville, and was considered by the citizens a permanent resident there-; some time between January and April, 1840, he told witness he was protested in every bank in the city, and was willing to give up every thing, if he could be discharged of his debts. Some time during the day on which the depositions of the Reaughs were taken before witness as commissioner, while Douglass and himself were in his office by themselves, Douglass told him that he had not paid any money for Hudnall’s plantation in Mississippi; “ that he had paid out $24,000 on the plantation by the sale of about forty negroes belonging to Hudnall, or which he had purchased of Hudnall with the plantation.”
    Samuel S. Mark.— States that Douglass’s wife’s maiden name was Drucilla R. Rutherford. Witness ] was a member of his family for a greater part of the time, from the spring of 1839, and familiar with most of his business transactions up to March, 1843, and part of the time connected with him in business. Douglass purchased twice, and he thinks, three times, supplies for his Mississippi plantation, Madison county, out of other funds than those from the sale of cotton. Witness was merchandizing at Vicksburg in the early part of 1842; frequently observed the conduct of Thomas Hudnall towards some negroes claimed by Douglass; they were always admitted to be Douglass’s by Hudnall in presence of witness. Douglass came to Vicksburg the evening before the negroes reached, and told witness they were coming under the charge of Hudnall; he said he intended to put them on a plantation on the river, if he could rent or buy one ; requested witness to keep an eye on said negroes, and wrote to him from Jackson, that it had been intimated that Hudnall intended to remove said negroes, and if witness saw any disposition to that effect, to send them back to Madison county, to his plantation. Believes it was generally known in Vicksburg by persons acquainted with Douglass and Hudnall, that those negroes were there. There was no effort to conceal them while there. Heard Douglass and Hudnall say, Douglass was to get a place from Redding, which he was after-wards disappointed in getting. Douglass had all the negroes sent back to Madison, except five or six, who were sent to Nashville as servants to wait on Mrs. Hudnall. The negroes were kept in the town of Vicksburg for some time, and hired out from day to day to different persons, and then were removed to the opposite side of the river, where they chopped wood for some time, then brought back to Vicksburg, and permitted to work wherever they could get a job, until sent back to Madison county. Understood the negroes sent to Nashville were still the property of Douglass. In the fall of 1839, before complainant bought Hudnall’s property, considered him to be in prosperous circumstances.
    Much of the testimony taken for the defendants not being deemed relevant, has been omitted.
    On this state of pleading and proof, the chancellor perpetually enjoined the defendants from selling the property levied on under their execu tions, and they applealed.
    
      A. H. Handy, for appellants,
    made the following points.
    I. The mortgage to Slade is fraudulent and void as to Hud-nall’s creditors.
    II. The deed to Douglass is alike fraudulent and void.
    III. The Union Bank of Tennessee is not a purchaser and bond Jide, either in law or in fact.
    IV. The slaves are positively shown not to have been of such peculiar value to Douglass as to justify relief in equity.
    V. His title to them is not so free from doubt and suspicion as to entitle him to relief in equity.
    
      1. — 1. At the time the mortgage was made, Hudnall was insolvent, and heavy suits were pending against him.
    2. It clearly appears, that Hudnall’s object was not to give further security to Dick & Co., but to place his property beyond the reach of executions and to his own benefit. His declarations to Walker before the mortgage was made prove this, and this is competent evidence. 2 Phil. Ev. (Cow. & Hill’s notes,) 658.
    3. The mortgage stipulates for the possession and benefit of the property to Hudnall until the maturity of the notes, 1st of February, 1842, and 1st of February, 1844. This reservation of benefit is prima facie evidence of fraud, and this presumption stands unexplained here. Hyslop v. Clarke, 14 J. R. 458; Harris v. Sumner, 2 Pick. 129; Harney v. Pack, 4 S. & M. 229. This presumption is strengthened by the great length of time allowed, two years on one note and four on the other, the proceeds of the property being annually very large, (Mitchell v. Beal, 8 Yerg. 140;) and amounts to fraud in law.
    4. A large part of the property is corn, fodder, potatoes, and other rapidly decaying articles, the possession of which, as reserved in the mortgage for two and four years, was necessarily a consumption of them, and therefore inconsistent with the avowed purpose of the mortgage to secure the debt, at the same time that this property was placed beyond the reach of other creditors. Darwin v. Handley, 3 Yerg. 502; 4 lb. 541; supported by Robbins v. Parker, 3 Mete. 117; Richmond v. Curdup, Meigs, R. 581; lb. 533.
    5. It contains no relinquishment of the wife’s dower, a young healthy woman not over thirty years of age. The dower was relinquished in the mortgage of March, 1838; but not- being liable to execution sale, it was not necessary to the object of the .parties that it should be relinquished in this.
    The mortgage cannot be supported on the ground of preference of creditors, because, 1st, such was plainly not Hudnall’s intention, as Hill well knew and fully proves. 2d. Such preference is valid only where no benefit is reserved to the grantor. See authorities in point, 3 supra, and 20 J. R. 5. 3d. The property conveyed was excessive, the mortgage debt being $134,647-65, and the cash value of the property being about $189,000, and its value on such credit as was allowed in the mortgage, being about $231,000.
    6. It is fully proved by Hill himself, that he knew of Hud-nall’s fraudulent design; that Hudnall refused to give him further security by mortgage for his debt, and that he prevailed upon him to give this mortgage, using as an argument, “that executions would take his property for security debts.” He therefore not only admits that he had notice, but that he was the author of the fraud. Slade also admitted to Rayner that he was privy to Hudnall’s fraudulent purpose.
    II. — By the terms of the mortgage, Hudnall having the benefit and possession for a long time, and the profits being very large, and being advised, and fearing that his interest would be sold by executions, and that “all means of ultimately saving his property would be lost,” he determined to convey his remaining interest to his brother-in-law Douglass, who lived at Louisville, Kentucky. See testimony of Walker and Hill. The transaction is shown to be fraudulent by the following facts.
    1. The consideration on the face of the deed, is the assumpsit by Douglass of the mortgage debts, and his payment to Hudnall of $24,000 in cash, on the day of its date. As to the assump-sit, no evidence of it is shown except the letter addressed by Douglass to Dick <fc Co., and this is a mere proposition to assume,. containing a condition not proved to have been performed, the paper not even kept by Dick & Co., and bearing date the day after the date of the deed. It is impossible that such evidence of the assumpsit of so large a debt, could have satisfied Hill, if the transaction had been bona fide. But it is fully proved by Hill and Johnson, that the consideration of $24,000 paid by Douglass is false.
    2. The price claimed to have been paid by Douglass is grossly inadequate. The mortgage debt alleged to have been assumed, was $134,647-65, and the $24,000 was not paid by him. John Simmons and ffm. Prewitt estimate the land and negroes to have been worth about $167,700 in cash, and on such credit as was given on the notes, t'wenty-five per cent, more, nearly $42,000, making its credit value about $231,000, and this apart from the other property conveyed, valued at about $22,000. It is alleged that liens on the property, amounting to about $41,000, were part of the consideration. Still the value of the property greatly exceeds all this. But he cannot set up any other consideration than that stated in his deed. Hildreth v. Sands, 2 J. C. R. 43, and cases there cited; 4 Cow. 427.
    3. After the deed, there vtas no change of possession. For two years after the conveyance, Hudnall’s nearest neighbors saw no difference between his situation and conduct in regard to the property before and after the conveyance; the overseer on the place considered him the owner until August or September, 1840; about that time he was preparing to run off the negroes, and endeavoring to sell them to a stranger. About the same time he filed a bill in chancery in his own name, enjoining the levy of an unjust execution against him on the property, treating it as his own. In February, 1842, he took away some thirty of the negroes to Vicksburg, exercising ownership of them, hiring them out and receiving their hire. It is pretended that these negroes were sent away for the purpose of planting on the Mississippi river, under Hudnall’s management. But to this it is replied, 1st, that Douglass states in his bill that “all the slaves were necessary for the cultivation of his plantation” in Madison county, and yet directly after filing the bill, he sends away a considerable part of them. 2d. He has labored much to prove Hudnall a wild and visionary man, not worthy to be trusted with valuable property. 3d. Is it not strange that he should send the negroes away to plant, without having first provided a place for them to cultivate"? During- these two years, Douglass resided at Louisville, was part of the time post-master there, and was regarded by the citizens and his intimate friends as a permanent citizen there, and in 1840 built a fine house for his residence there.
    It is sufficient to prove the fraud to show that the possession was not changed, “ did not accompany and follow the deed; ” and unless that circumstance can be explained so as to remove all doubt of its fairness, the legal presumption of fraud will stand. Collins v. Brush, 9 Wend. 198; Fonda v. Gross, 15 lb. 628; Sturtevant v. Ballard, 9 J. R. 337. Some “ special reason ” must be “ shown to and approved by the court; ” and a fortiori when the conveyance is of rapidly decaying articles which must be destroyed by the possession. 8 Yerg. 417.
    The power of attorney is the only “special reason” shown for Hudnall’s possession. But this states nothing further than that he is appointed Douglass’s attorney, “ to attend to all his interest, particularly as it relates to the negroes, plantation, and property purchased of him this day, to employ overseers, use his (Douglass’s) name in law or equity, and in every respect to have full power to attend to my interest, as fully as I could do were I personally present.” This power fails to justify Hud-nall’s possession, for he could have done every thing embraced in it without being in possession. It is suspicious, for the following reasons. 1st. It contains most unusual power, and it is proved that such things are not usually given by persons residing out of this state and having plantations here. The registry clerk proves that only one such power is recorded in his office, and that is made by H. R. W. Hill. 2d. The registration is not required by law, is useless and suspicious. The pre-tence that it was registered for preservation is vain, for another could have been given had it been lost, which no reasonable man would suppose would happen. 3d. The pretence that it was given to enable Hudnall to protect the property from disturbance by other creditors, is suspicious, for if the sale was bona fide, why should Douglass suspect that creditors would disturb it; it is false, because when the property was really about to be levied on in September, 1840, it is treated by Hudnall as his own, a bill is filed, and injunction bond given in his own name. 4th. This extraordinary power is granted to a man alleged to be wild and visionary. 5th. There is no pretence that Hud-nall was to receive any wages for devoting his labors to Douglass’s business.
    
      This elaborate contrivance, instead of excusing the possession, proves the fraud. In the language of Chancellor Kent, in Sands v. Codwise, 4 J. R. 567, “ this over-caution is one of the settled indicia of fraud. It evinces a diffidence in the rectitude of the transaction, and excites a correspondent solicitude to provide' defences for its protection.”
    4. Hudnall’s declarations since the conveyance, and whilst he was in possession, prove the fraud. See testimony of Walker and J. Simmons. Where the grantor remains in possession after an absolute conveyance, it is deemed, as to creditors, evidence of a conspiracy against their rights between the party in possession and the vendee, and this will let in the declarations of such party. He is regarded as a co-conspirator, or as having such an interest derived from the possession that his admissions are part of the res gesta, and in behalf of creditors against the vendee. 1 Rawle, 458 ; lb. 362 ; 7 Conn. R. 319; 8 S. & M. 305; 6 Rand. 285 ; 3 Carr. & Payne, 395 ; 10 Serg. & Rawle, 419; 11 Wend. 536; 4 J. R. 230; 1 Greenl.' Ev. § 109. And the slightest evidence of fraud will let in such admissions. 4 Watts, 359; lb. 85; 7 lb. 305. The ca'ses of Ferriday v. Selser, 4 How. 506; Osgood v. Manhattan Co., 3 Cow. 612; Hurd v. West, 7 lb. 752 ; Bartlett v. Delprat, 4 Mass. 702, holding to the contrary, are not cases where the party whose declarations were offered was in possession, except that of Bartlett v. Delprat, and that was not a case of fraudulent conveyance, and the point of possession does not seem to have been much considered. These cases from New York are modified, and the true rule established in Jackson v. Myers, 11 Wend. 533, and Crary v. Sprague, 12 lb. 41. It cannot be said that such admissions are incompetent, because they go to take away a vested right, for this is a begging of the question, as we deny that any right vested, the deed being void. 1 Rawle, 460; 11 Wend. 557.. Again, Hudnall is a defendant in this suit, has put in his answer denying fraud in the sale, and surely his declarations are admissible to show the falsehood of his answer, and the fraud of his confederates.. 4 Conn. R. 319.
    5. The dower of Mrs. Hudnall not being relinquished when the property is alleged to have been purchased for a consideration exceeding its value, she being a young healthy woman, is a circumstance showing the fraud.
    6. Douglass has failed to account for the crops. It appears that after 1839, they were shipped to Ward, Moffitt & Co. He proves that the crops of 1840 and 1841 were so shipped, but shows no further disposition of them. It is proved by Simmons and Elmore thatt he crops of 1840 and 1841 amounted to nine hundred and fifty bales. Douglass proves by Ward, Moffitt & Co., that from September, 1840, to December, 1842, they received eight hundred and thirty bales, which is one hundred and twenty bales less than the crops of 1840 and 1841, although it includes much of that of 1842, which was large, and equals at least that of 1841, which was a year of short crops, amounting to three hundred and fifty, and this added to the one hundred and twenty bales, makes at least four hundred and seventy bales in the three years wholly unaccounted for. He proves also by Mr. Ward, that part of the cotton was marked G. L. D., and part was marked R. D., which latter mark Douglass said represented his wife’s name. But it is proved by Mr. Mark that his wife’s name is Drucilla R. Douglass, so that these initials could not represent her name.
    
      7. The evidence as to his embarrassments in Louisville, his protests in bank, his statements that he was ruined and insolvent, that the property he held there - was under lien for the purchase money, that he was unable to give security on his injunction bond, and had to call on the Union Bank of Tennessee to furnish it, &c., goes to show that he was unable, in point of means to make a bona fide purchase of so immense an estate.
    8. The suppression of the letter written by Hudnall to Douglass, proposing to convey to him, is deeply suspicious. It is not shown to be lost, but instead of producing it, he brings his brother-in-law, Mr. Rutherford, to prove that he frequently opened and read “strictly private letters” from Hudnall to Douglass, and that he never saw any thing in them tending to show that Douglass was not the bona fide owner of the property. But the letter is not produced, and the presumption of law is, that if produced, it would' unveil the fraud in its inception. Omnia 'prcesumuntur contra■ spoliatorum. Best on Presumptions, 205.
    . 9. The deed conveys all his property in this world, except his watch and pencil, and'that, too, when he had almost an idolatrous attachment to his property, thus voluntarily and without reservation of benefit, as is pretended, stripping himself in old age of every thing necessary for subsistence by day, and repose by night. From Twyne’s case down, this is held to be one of the clearest badges of fraud.
    10. It is proved that it was specially agreed that Douglass was to pay off the liens and judgments on the property. Why such a stipulation 1 The property was liable for them at all events. Hudnall could have no concern, if the sale was bona fide, about paying off incumbrances, for he was hopelessly insolvent, and subsequent judgments would have affected him as much personally as those then existing. Two motives, however, could render such a stipulation prudent. 1st. These liens might disturb his possession and benefit of the property, which was the grand object of the affair. 2d. He might well have feared that, if these liens were not paid off, the property might be sold under them and purchased in by Douglass, whereby he would be discharged from any obligation to give Hudnall his share of it ultimately, in pursuance of the understanding as stated by John Simmons.
    11. Douglass claims to have purchased only the equity of redemption of Hudnall, and can therefore occupy no better position than Hudnall. If the mortgage to Slade is void in law, Hudnall had no equity of redemption, and nothing passed by the deed. If fraudulent in fact, and Douglass had notice of it, either in fact or law, it is clear that the transaction is void as to creditors; and whether he had notice of the fraud or not, if it is shown to be fraudulent and void as to creditors, his purchase of Hudnall’s equity of redemption cannot affect the rights of creditors to proceed against the entire estate of Hudnall in the property, treating the mortgage as fraudulent and void. Thus Douglass’s claim, as set up, falls with the mortgage.
    - III. — The Union Bank of Tennessee cannot stand in the attitude of a bona, fide purchaser without notice.
    1. She is the mere assignee of a chose in action, not the purchaser of property, and whatever was sufficient to put her upon inquiry, was notice. She is chargeable with notice in law for the reasons above stated, and also in fact; because, 1st. She took from Dick & Co. an assignment of a mortgage, made directly to Slade, who had the legal title to it. 2d. She took an assignment of a copy, the original not being produced. 3d. She did suspect its validity, because she refused to accept the assignment, without Hill’s asseverations of its fairness, and Douglass’s agreement to assume the debt. 4th. When Hill transferred the mortgage, it was understood with the bank that Slade should also transfer it and be released on his notes.
    2. The bank occupies no better position as assignee than Hill, for the assignee of a mortgage takes it, subject to all just claims existing against it, whether he had notice of such claims or not, (Chite v. Robison, 2 J. R. 595,) and his assignor cannot transfer to him a better right than he has himself. 2 Powell on Mort. 589. It is different from a conveyance by a fraudulent grantor to a botm fide grantor, where there has been á previous fraudulent conveyance, for then the grantor takes a new deed conveying the property directly to him; here the assignee takes the same instrumept which is rendered void by the statute. 11 Wend. 533; 6 Gill & John. 18; 4 Peters, 228.
    3. But this mortgage has either been actually paid, or is extinguished in law. 1st. The bill states that on the 19th December, 1839, he assumed the mortgage debts, and proves it by exhibit G. Now this exhibit shows that the assumpsit was made on the express condition that Slade would transfer to him the mortgage. By his own showing, then, either there was no as-sumpsit, or the mortgage was transferred to him; if the former, Douglass gave no consideration for the property, and his deed falls; if the latter, the mortgage is destroyed, and the Union Bank cannot set it up. 2d. The assumpsit, without a transfer, annulled the mortgage; for the debt is the principal, the mortgage but the incident, and whatever discharged the debt extinguished the mortgage. Assumption implies a discharge of the original demand by the substituted obligation of the party assuming, and there can be no assumpsit without such discharge. 3d. The arrangement made between Douglass and the bank, giving time for the payment of the debt, destroyed the mortgage. His object in making the arrangement, was “ to unite in himself the equity of redemption and the title conveyed by the mortgage; ” and the bank states that she acceded to his wishes, and the reasons assigned in her answer are utterly inconsistent with a retention of the mortgage security. 4th. But she binds herself by contract to give time from February, 1845, to 1851, in annual instalments on the debts wholly due in February, 1844, and she cannot be compelled by other creditors to foreclose with expedition, as they have a right to do if the original force of the mortgage remained unimpaired, (2 Desaus. 370,) because by the new contract Douglass has a right to prevent a foreclosure until 1851. During all this time other creditors are “ hindered and delayed,” and the bank might, with equal right, by a secret arrangement, have extended the time twenty or fifty years.
    4. The bank is guilty of collusion with Douglass. 1st. Instead of proceeding to foreclose the mortgage for the note due in February, 1842, she is made a defendant to the bill, becomes surety herself, and furnishes other security on his injunction bond in this cause, and files her answer praying that those judgment creditors be perpetually enjoined; a step in no wise necessary for her protection, if the mortgage was not discharged, for it must have been desirable to her to make her money as speedily as possible by foreclosure, and all she could have desired was an injunction until her debt was paid. 2d. The bank agrees to', lose the following sums for abatement of interest in the new arrangement. The note for $30,412-17, due February, 1842, is extended to February, 1844, without interest, thus abating two years’ interest, amounting to $4864. The interest on the notes given by Douglass is calculated at six per cent., and the notes bear that interest after maturity, it being the Tennessee interest, whereas the original debt bore Mississippi interest at eight per cent.; making a difference of two per cent.,.and amounting to a loss on the several notes of upwards of $7000, thus losing by agreement about $ 12,000! This is truly a'new chapter in banking affairs, granting long indulgence, having ample security previously, and voluntarily sustaining a heavy loss.
    IV. —The ground of equitable jurisdiction to prevent the sale of slaves is, that they are either in fact or by legal presumption, of peculiar value to the claimant or owner. Here this fact or presumption is fully disproved by positive evidence. The authorities in Virginia and Tennessee, (where this doctrine of equitable interference on the ground of peculiar value is carried to its greatest extent,) hold that such peculiar value will be presumed in the first instance. But this presumption may be destroyed by negative proof: and here it is proved that the slaves are only valuable to Douglass for their worth in money. Thus his remedy at law was ample by replevin, detinue, trover, or, the still more ample statutory remedy, by trial of the right of property.
    V. — To entitle Douglass to relief in equity, he must show title to the slaves free from doubt or suspicion, otherwise he will be sent to litigate at law. In 4 Yerg. 84; 5 lb. 142; 6 lb. 24, the injunctions were dissolved on this ground. In 5 Yerg. 153, there was, in the language of the court, “ a strong case” for the complainant, yet the injunction was dissolved, the court saying, “ where the right is not clearly proved for the complainant, the bill must be dismissed.” S. P. in 6 Yerger, and in a recent case in Maryland, 11 Gill & Johns. 153. And surely in this case, there is at least a strong suspicion of Douglass’s title.
    
      George S. Yerger, for appellee.
    There are three questions on the record:
    1. Was the purchase of Douglass fraudulent?
    2. If it was, was Slade’s mortgage fraudulent ?
    3. If it was, is not the Union Bank of Tennessee a purchaser for value, and protected ?
    
      That the purchase of Douglass was bona, fide, is clear and manifest from all the proof. The whole contract is proved by Hill, by Ward, and other facts which will be adverted to.
    The principal ground on which the purchase is attacked, is his supposed want of ability to make such a contract, and the declarations of Hudnall made after his sale, and whilst he remained in possession as agent.
    Two witnesses alone speak of his want of ability, Campbell and Hiram Reaugh. The former is not to be believed; the latter knew nothing of the facts, and both are contradicted by ten or twelve witnesses.
    The high standing, integrity, and ability of Douglass is proved amply by R. J. Ward, Thomas Reaugh, James Guthrie, Heth, J. Elliott, Straders, Monsey, Halbert, Vance, Bell, Samuel Mark, and Hill.
    He had the reputation, the integrity, the indomitable energy with his means, to purchase the property, a lien being on it. It was not pretended to be a cash purchase. He expected with his own means, and the products of the plantation, to pay off the debts. Hill said he could take his own time. He desired to purchase in the south; Ward advised him; Hill advised him; he was negotiating for months. Hill was present when the trade was made; he proves Hudnall desired to sell out; he requested Hudnall to do so.
    Douglass assumed Slade’s responsibility; arranged with the Merchants’ Bank, and with the Union Bank. If it was a mere colorable transaction, he would not have done so. He examined the property; knew all about it. Purchased supplies, bagging,' ropes, &c., and devoted himself and resources to the plantation. Received proceeds of cotton, ¿fee. • He resigned his office in 1841, to give his undivided attention to his Mississippi plantation.
    The contract stands fair; is proved fair. Hudnall never pretended to any right in presence of Douglass. His statements are, however, relied on to impeach it. All his statements were made after the purchase, when Douglass was not present. They are not evidence.
    
      But if they were, they were so contradictory; stating sometimes it was his property, then his wife’s, then to be divided, &c.; that no reliance could be placed on them.
    But they are easily accounted for. Simmons says, whilst in possession, he would claim it, although bona, fide parted with. But Hudnall contradicted himself frequently. Told Simmons after the sale, that he would have to get an overseer’s place, and applied to one or two; and Simmons never saw any thing, or heard any thing from Douglass, leading to, the conclusion the sale was fraudulent, and says he made different statements about the property; sometimes said it all belonged to Douglass, and then again was to be divided.
    He told Raynor he sold all his property to Douglass, but his watch and pencil.
    Elmore called on Hudnall for pay, as overseer. He said he must get cotton from Douglass to pay him.
    Prewitt says, Hudnall did not exercise any more control over the property than he, Prewitt, did for his employer, nor more than he should for an absent owner.
    Simmons says, Hudnall was in possession after sale, but did not claim it as owner. Hudnall took no more control over the property than an agent should have done.
    Again the sale is impeached, because Douglass resided in Louisville from the time of the purchase until 1841. Douglass had the right to live where he pleased.
    But the reason why he did not at once remove is clear. He , had been a partner of the Reaughs, dissolved, and they were to pay the debts. On his return to Louisville, was informed of, their failure; was responsible on debts for $40,000, and was obliged to remain to wind up the business, and save these debts out of the assets, &c. and as soon as he closed this business he moved to his plantation.
    Again it is impeached, for want of consideration, and because of the non-payment of the $24,000.
    Hill proves the consideration, and proves the payment of the* $24,000; that is, Douglass paid $18,000 by sale of negroes, and $6000 on debts.
    
      Again it is impeached, because of removal of negroes to Vicksburg by Hudnall.
    The negroes were intended by Douglass to work on a riVer place he expected to get of Herring; being disappointed in getting it, they were sent back. This is explained fully.
    As to power of attorney, its necessity, and why made at Hill’s suggestion, see his testimony.
    It is clear and palpable that Douglass purchased fairly, and if the mortgage to Slade was a fraud, yet as he purchased the property, and agreed to assume, and did assume and pay this debt, he, as purchaser, is entitled to hold it.
    But Douglass is in possession; the Union Bank had assigned the mortgage of Slade and the notes. The bank purchased from Hill, and took an assignment of the mortgage, and surrendered and cancelled Hiil’s notes, and released him.
    The mortgage is proved to be bona fide by Hill; he knew of no fraud, whatever Hudnall might have intended. He proves the amount due to him, and his first mortgage a very inadequate security.
    The statements of Hudnall or Slade cannot affect him.
    But if it was fraudulent, the bank was a bona fide purchaser. By her cross-bill she seeks to enjoin the sale. Whether the mortgage was fraudulent or not, she cannot be affected.
    Tarpley, on same side.
    Mr. Tarpley, on behalf of complainant, after stating the pleadings in the case, contended,
    1. The second mortgage was not fraudulent, provided that Dick & Co. acted in good faith, whatever may have been the motives of Hudnall in making it. See Phoenix Bank v. Ingra-ham, 5 Johns. R. 412; and the case oí Harney v. Pack <Sp Clifton, 4 S. & M. 229, does not conflict with this case, unless there be concurrent circumstances to show a fraud. See also 14 Johns. 498 ; 3 Ib. Ch. R. 378.
    It is said that the second mortgage was void as to the creditors of Hudnall, because the debt due to Dick & Co. was amply secured by the first mortgage, and because Hudnall was in failing circumstances when the second mortgage was executed. Mr. Tarpley here examined fully and at great length the testimony of the various witnesses in reference to the value of the property in both mortgages, in order to show that Dick & Co. did no more than was necessary, in order to secure their debt; and if Slade, the security on the notes, for whose benefit the mortgage was made, and Dick &. Co., to whom the debts were due, acted in good faith, then the mortgage must stand. The statements of Hudnall made before the sale, not in the presence of the parties, are not to be received in evidence. See 7 Cow. 759, and the cases cited in note; 11 Johns. 185. Nor could the statements made after the sale be admissible. See the cases before referred to, also 3 Cow. 612; 4 Mass. 702; 12 lb. 439; 20 Johns. 142; 1 Hayw. 396; 4 How. 506. In order to make the declarations of a debtor evidence, the possession must be inconsistent with the sale, so as to afford evidence of a conspiracy to defeat creditors. 9 Conn. R. 134. To make such declarations evidence, there must not be a mere community of interest, but a joint interest in possession. 1 Esp. N. P. Cases, 135; 3 Johns. 536 ; 6 lb. 267; 10 lb. 66.
    If the property in both mortgages was more than sufficient to pay the debts, it could only be reached by a decree in chancery, and not by an execution at law, where the rights of the creditors could not be protected and enforced; so a mortgage made in good faith will not be destroyed, in consequence of the inequality between the value of the property mortgaged and the debt to be secured, for the party seeking to redeem must satisfy all demands against it. See 1 Vern. 29, 245; 2 lb. 207, 286; 2 Coxe, 425; Hardin, 7.
    But whatever may have been the intentions of Hudnall and Dick & Co., in executing this mortgage, it does not appear, that Slade, the security on the notes, (and who is still liable for the debts,) participated in them. He was not interested in securing the debts to Dick & Co.; was not related to the parlies;. had no interest in aiding Hudnall to defeat his creditors, and had a right to an indemnity for becoming liable for a debt so large, and actually refused to sign the notes until the mortgage was made, (see Hill’s testimony;) and that Slade considered himself liable in 1841, and manifested much concern about Hudnall’s removing the property, is proven by Raynor.
    The Union Bank of Tennessee is a purchaser for a valuable consideration without notice, and, as such, must be protected. The deed was prima facie valid, there were no circumstances to put the bank on inquiry, but on the contrary, it is positively proven that assurances were made to the bank by Dick & Co. and Douglass, that the transaction was a fair one; upon such assurances the bank released Dick & Co., and their securities, and took Douglass and the mortgage in lieu of them, and in his answer not only denies all knowledge of the fraud, if there was one, but every circumstance from which fraud could be inferred ; and all this not only stands supported by the testimony of Hill, but uncontradicted by any proof in the cause; and occupying this position, the rights of the bank must be protected as those of an innocent purchaser. See 2 Tern. 384; 1 Johns. 573, 574; 8 lb. 141; 4 Munf. 313; 1 Johns. Ch. R. 213, 219, and cases there cited; 3 lb. 147; 8 Cranch, 462, Littell’s Cases, 69; 4 Bibb, 462.
    Now if a man in failing circumstances has a right to prefer his creditors, (a question too well settled to admit of argument at this day;) if, in doing so, he prefers a debt admitted to be fair and honest, obtains personal security by the assistance of a stranger, and executes a mortgage for his indemnity; and if, in addition to this, the notes and mortgage are transferred for a valuable consideration, to another stranger, who not only denies notice of fraud, but proves conclusively that the transaction to that extent was fair and honest; it would appear that the complainant must succeed.
    2. Was the purchase of Hudnall’s equity of redemption by Douglass a bona fide transaction? It is sought to be impeached on the following grounds :
    1st. The declarations of Hudnall made after the sale, as to the intent with which he made it; such declarations are no more admissible in equity than at law. See 2 Fon. Eq. 448; 5 Yesey, 700; 7 Cranch, 290; 1 Phil. Ev. 186. Again, if such declarations are admissible, they are entitled to no weight in this case, as Hudnall made numerous and contradictory statements about the transaction. See the testimony of Simmons, Prewitt, Elmore, Raynor, and Hill. The sale was public, the consideration sufficient, and the transfer of possession in accordance with the deed.
    2d. That Douglass paid no consideration for the property. Hill proves the assumption of the mortgage debts on the part of Douglass, which was more than the property was worth; and other witnesses prove over $40,000, besides the mortgage debts. It is abundantly proven that Douglass paid much more for the property than it was worth.
    That, previous to the purchase, he examined the property with the necessary care and attention, to enable him to form a fair estimate of its value.
    That, after the purchase and delivery of the property, he constituted Hudnall his agent, by a power of attorney duly record'ed, to manage for him during his absence; and that Hndnall’s possession was merely as the agent of Douglass.
    That, after the sale, Hudnall exercised no acts of owhership over the property, inconsistent with his character as such agent.
    That Douglass was a man of property, possessing ample means and credit to have made a purchase of that magnitude.
    That, during his absence' in Kentucky, he attended to his planting interests in Mississippi by furnishing all the necessary supplies for the plantation; and resigned the office of post-master at Louisville, to enable him to give his whole attention to the management of his estate.
    That he had for some years previously been anxious to purchase a planting interest in Mississippi.
    That he settled with Mrs. Hudnall for her dower in the property.
    That his correspondence with Hudnall, during his absence from the state, was examined by others, and not a syllable in any letter indicated that the purchase had been merely colora-ble ; and that the purchase was made before the recovery of the judgments in this case.
    
      All this, and much more, .has been so fully and abundantly proven, that it must be taken as true, beyond all question, that there was no fraud on the part of Douglass.
    What, then, was the extent of the purchase made by Douglass 1
    
    If the mortgages were bona, fide, he took the property subject to the mortgage debts, and the equity of Hudnall to redeem by the payment of the debts, thus combining both the legal and equitable estates, thereby making a perfect title.
    If, however, the transaction, as between Hudnall and Dick & Co., was fraudulent and void, then it was a purchase of the entire estate from Hudnall, who had the right to sell at any time before the recovery of the judgments of the Virginia banks, and appoint the mode in which payment should be made. In any aspect of the case, then, the purchase of Douglass was valid. If the mortgage was good, he took a mere equity; if bad, he took from Hudnall the whole estate. There was then no fraud in fact.
    Was there a fraud in lawl The face of the mortgage deed must determine the question. It states a good consideration, reserves no rights, either of property or possession to the grantor, beyond the usual terms of a mortgage; and the perishable nature of a portion of the property conveyed, such as the corn, meat, potatoes, &c., does not vitiate it, inasmuch as those things were absolutely necessary, in order to sustain the property, prevent it from destruction, and enable it to pay off the mortgage debts. For these reasons, the court should not hesitate to sustain and confirm the decree of the court below.
    There were several other points taken and argued at great length by Mr. Tarpley; but they are so interwoven with the mass of testimony in the case, that they could not be stated and explained without lengthening out the brief beyond the rule prescribed by the court. The brief furnished to the court by Mr. Tarpley, comprised ninety closely written pages.
    
      
      By Chief Justice Sharkey.
    
    
      
       By Chief Justice Sharkey.
    
   Mr. Justice Clayton

delivered the following opinion.

This cause is one of great importance to the parties, on account of the magnitude of the interests involved, and it has been argued with great zeal and ability.

On the loth of November, 1837, a written agreement was entered into between Thomas Hudnall and N. & J. Dick & Co., which recites that Dick & Co. are in advance to Hudnall, and are responsible for him by indorsements and acceptances. to an amount supposed to be about $150,000. Hudnall on that day agreed to pay that debt in instalments, $30,000 out of the crop of cotton of that year, and the balance in four other equal annual instalments, the last falling due in 1841. The notes were to be made payable at Canton in bank, and to bear eight per cent, interest until paid; and to secure the debt, Hudnall agreed to execute a mortgage on his home tract of land, containing two thousand acres, and on one hundred slaves, to include eighty working hands; and Dick & Co. agreed to take up all the papers on which they were indorsers or acceptors for him. This agreement was made at Nashville. On the 6th of March, 1838, this agreement was carried into effect, and Hudnall and wife executed a mortgage to N. & J. Dick & Co. on their plantation and ninety slaves, to secure N. & J. Dick & Co. in the payment of $175,000 in instalments, running from November, 1838, to February, 1844. This increase of indebtedness seems to have arisen from the extension of the time of payment, and the addition of interest to the notes up to the time of their maturity.

Matters remained in this situation until the fall of 1839, when H. R. W. Hill and James Dick, two of the firm of N. & J. Dick & Co. made a visit to the residence of Hudnall in this state, and ascertained that heavy suits were pending against him, which would ripen into judgments during the fall courts, and cover his property. They, therefore, determined to get an additional mortgage on Hudnall’s other property, and made efforts for that purpose. Hudnall declined giving such mortgage, but finally, without the wish or request of Mr. Hill, who was staying at his house and managing the claim of N. & J. Dick & Co., gave two notes, with J. B. Slade as his surety, in lieu of two embraced in the mortgage, for the aggregate sum of $64,000, payable on 1st February, 1842 and 1844, respectively. To indemnify Slade, he executed a mortgage to him on all his property, except his watch and pencil. This was on the 10th of November, 1839. The property consisted of one thousand nine hundred and fifty acres of land, about one hundred and twenty-six slaves, seventy-five mules, two horses, two carriages, one pair gray horses, one hundred and fifty head of cattle, twelve yoke of oxen, six wagons, two water carts, one hundred and seventy ploughs, five hundred hogs, fifteen thousand bushels corn, two hundred stacks fodder, seven thousand bushels of potatoes, and all his household and kitchen furniture and farming utensils. The deed also provided, that until default in the payment of the notes as they respectively became due, Hudnall should remain in possession of the property, and use so much of the provisions and stock as might be necessary.

Shortly after the execution of this mortgage, Hudnall became uneasy, lest the judgments which might be rendered against him, should be levied on his equity of redemption in the mortgaged property. He was' advised that this might be done, and the advice made a strong impression on his mind. He became anxious to sell all his property, and frequently offered it to Mr. Hill, who declined the purchase. He then wrote to Mr. Douglass, his brother-in-law, and who resided at Louisville, Kentucky, to prevail on him to become the purchaser. Douglass came down, and on the 18th of December, 1839, bought the whole property embraced in the two mortgages. The consideration expressed in the deed to Douglass, was the agreement by him to pay all the debts due to N. & J. Dick & Co., secured by the two mortgages, and the further sum of $24,000, acknowledged to have been paid in cash. This latter sum was in fact paid to Dick & Co., and to Haley & McDowell, by the sale of forty of the negroes embraced in the conveyance. This sale had been made before the purchase by Douglass, and was merely ratified by him, though a bill of sale was made by him, after the conveyance to him.

'Very soon after the sale, Douglass returned to Louisville, leaving Hudnall in possession, without any apparent change of ownership, and leaving him a power of attorney to act for him. Douglass continued to reside in Louisville till December, 1841, but disposed of the crops raised on the plantations.

After the purchase by Douglass, Hill transferred the notes of Hudnall to the Merchants’ Bank of New Orleans, and those of Hudnall and Slade to the Union Bank of Tennessee, with the benefit of the mortgage. Douglass afterwards proposed to execute his notes to these banks, as collateral to the others, upon obtaining an extension of the time of payment, leaving the mortgages still in/ force. This proposition was accepted, and was complied with by Douglass. His liability thus became transferred from Hudnall to the banks.

The Bank of Virginia, and the other defendants in this case, recovered judgments against Hudnall in 1841, and caused executions to be levied upon a part of the negroes conveyed in the second mortgage. This bill was filed to enjoin the sale, and the creditors insist upon their right to sell, because of alleged fraud in the mortgage to Slade, and in the sale to Douglass. The case, therefore, turns entirely upon the question of fraud.

None of the property contained in the first mortgage was seized under the executions; consequently, we are not called upon to pass upon its validity; nor have we any concern with it, except as it tends to elucidate other parts of the transaction.

The prominent objections to the second mortgage are, that it gave an unreasonable length of time for payment of the debt; that it embraced too much property, and contained articles which were consumable in the use.

Almost every mortgage and deed of trust tend, in some degree, to hinder and delay those creditors who are not provided for; but it does not thence follow, that they are of necessity fraudulent. But no unreasonable delay should be interposed. It is difficult, indeed impossible, to lay down any precise and definite rule, applicable in all cases. In general, no farther indulgence should be granted, than the usual time of collecting debts by due course of law. Mitchell v. Beal, 8 Yerg. 134; 3 Hump. 180. Yet there may, perhaps, be circumstances, in which it would not be fraudulent to stipulate for greater delay; as when the debts are very large, the property likewise large, and when the personal exertions of the debtor are also relied on as one means of payment. Bennett v. The Union Bank of Tennessee, 5 Hump. 612. But this point need not now be decided. In such case, no more property must be conveyed than is reasonably sufficient to secure the payment of the debt. Ibid.

In this case the debts were due, and falling due in 1837, which the first deed provides for, and in the agreement to make the first mortgage, the longest period of indulgence expired in 1841. In the mortgage, as executed under this agreement, the day of payment of large sums is postponed until 1842, 1843, and 1844. If the property in the second mortgage had not been more than enough to pay the debts therein provided for, if sold upon a credit until the mortgage debts fell due, the transaction might be of less questionable propriety. In little more than a month after the execution of this mortgage, forty of the negroes were sold by Hudnall either to Hill, the mortgagee, or with his approbation, and the proceeds applied not to the mortgage debts, but to other liabilities. This sale amounted to $26,671. It is true, that all of the negroes so sold were not embraced in the second mortgage, but a part of them certainly were. Of course the security was diminished to that extent, and it shows that the mortgage was estimated to exceed the debt. Hill could have had no other motive of action, because his whole debt was then secure, if the mortgage were valid; to reduce the fund below the point which secured his debt, and again put it in jeopardy, was not the part of prudence or of wisdom.

Simmons, one of the witnesses, estimates the property included in the second mortgage at $94,000 in cash, on the day of its date, about $30,000 more than the debt. The estimates of other witnesses bring about nearly the same result. The law does not permit a man thus to lock up an excess of property, under the pretext of securing one of his creditors.

The mortgaging of property, the use of which involves its consumption, is an evidence of fraud, not indeed conclusive, but of much weight. Unless it be explained satisfactorily, it must cause the condemnation of the instrument, and it imposes the burthen of proof upon those claiming under such instrument; and when the right to use it is also reserved in the mortgage itself, ibis fraudulent upon its face. Somerville v. Horton, 4 Yerg. 541; Charlton v. Lay, 5 Hump. 496.

In this case, one of the debts secured by the mortgage, did not become due until twenty-eight months after its execution, and the other until more than four years. The corn, the fodder, the potatoes, and perhaps other articles, would be destroyed in much less time. It is thus very manifest that the object was not to apply these things to the payment of the debts, but to secure the debtor in their possession and enjoyment. The reservation in the conveyance of so much of these articles, as was necessary for the support of the property, puts an impress of fraud upon it, from which there is no escape. It was a direct benefit secured to the debtor at the expense of his creditors, which the law does not sanction. We therefore come to the conclusion, that this second mortgage cannot be sustained.

But it is insisted in argument, that even if this mortgage be void, still Douglass, as a bona fide purchaser, is not to be affected thereby. We reserve the consideration of this question, until we examine into the validity of the purchase made by Douglass. It has been earnestly assailed in argument, and the objections demand a careful examination.

According to the testimony, Hudnall was greatly attached to his property, and extremely averse to parting with it. His feeling in this respect was almost morbid. When Hill’s proposition for farther security, by way of another mortgage, was first made to him, he refused to accede to it; but he very soon afterwards conveyed his whole remaining unencumbered estate to a friend and neighbor, to induce him to become his surety for a part of the debt of N. & J. Dick & Co., due in something more than two and four years respectively, stipulating for possession by himself in the mean time. This had scarcely been done, when he resolved to procure a purchaser for the whole property, because of a fear that the equity of redemption, together with the possession of his estate, would be taken from him by the judgments of his creditors. A purchaser was sought for, not in the neighborhood where the property and its value were known, nor by public notice to bring purchasers together, nor by offering it in parcels to suit the ability of men of moderate means; but by a letter to a brother-in-law, residing at a distance of some six hundred miles. Mr. Douglass, the brother-in-law, promptly came in compliance with the summons, and the treaty of purchase was in a short time concluded. If the object had been to sell the property for the best price, for the benefit of all concerned, and not to secure some advantage either to Hudnall or his family, or to some relative, it is difficult, if not impossible to assign a reason for such a course of conduct. Soon after the sale, Douglass returned to Kentucky, leaving Hudnall in possession of the property, with so little appearance of change in the management of the estate, that the overseer upon the premises did not know of the sale for more than a year afterwards.

A man in failing circumstances has the right to sell his property, if unincumbered, and apply the proceeds to the payment of preferred creditors, but such sale must be free from fraud, and for a full and adequate consideration. Whilst the circumstances of this case already adverted to, throw suspicion around it, still if, upon careful examination, the sale come up to these requisites, it may overcome the presumptions against it. The inquiry will still remain, whether Douglass is unaffected by the fraud in the second mortgage.

The purchase has been assailed on one side, on account of the alleged inability of Douglass to comply with such a contract. On the other, his pecuniary ability has been asserted, and much testimony has been taken in regard to his condition in life. It is in proof that he was in prosperous circumstances, that he had just been appointed post-master in Louisville, with an income of $3,000 or $4,000 per annum, and that he could command credit to a large amount. That he had much cash capital, is not in proof, and it would seem that the products of the property purchased were mainly relied on as the means of payment. The $24,000, acknowledged in the deed to have been paid in cash, was paid by a sale of a part of the negroes. In December, 1840, he proposed to the Merchants’ Bank of New Orleans, to which the notes of Hudnall for upwards of #60,000, secured by the first mortgage, had been assigned by N. <fc J. Dick & Co., to give his own notes as collateral, if the bank would divide the debt into eight annual instalments, extending to February, 1849. This proposition was accepted and carried into effect. In February, 1841, he proposed to the Union Bank of Tennessee, the assignee of the notes of Hudnall and Slade, included in the second mortgage, to give his notes as collateral, if the bank would divide the debt into instalments, extending from February, 1844, till February, 1851, and would moreover advance him $6,000 cash in New Orleans funds, to be secured by mortgage upon a house and lot in Louisville. This arrangement was likewise made. In each instance, the liens of the mortgages were still kept in force. Hill, in his deposition, says that his assurance to Douglass, that the time of payment should be extended, and the probability of working out the property, contributed largely to his determination to purchase. All this goes to show, that whatever other resources Douglass might have had, it was not his purpose to apply them to the payment of these debts. The design was to obtain time enough to enable him to pay for the property by the crops. Eight years were thought by Simmons, one of the witnesses, to be enough for this purpose; but upon part of the debt he procured ten.

The terms of the deed did not make him directly responsible to N. & J. Dick & Co., as the creditors of Hudnall; his promise was to Hudnall. Hence on the day after his purchase he addressed a letter to Mr. Hill, proposing to become bound for the notes of Hudnall and Slade directly to Dick & Co., a proposition which was afterwards modified and consummated with the Union Bank of Tennessee, the assignee of those notes. This points to the conclusion, that he did not intend to become personally bound to the creditors of Hudnall, except upon terms which, in his opinion, would enable him to make the property pay for itself, and this conclusion is strengthened by the fact, that, upon the completion of the contract, he gave no obligation to the creditors for payment. It may hence be deemed doubtful whether, under the contract with Hudnall, Douglass intended to pay out of his own funds, or entirely out of the proceeds of the property which he purchased. And there is nothing disclosed in the testimony on this head, which especially recommended him as a purchaser for so large an estate, or from which any just argument can be drawn in support of the validity of the sale.

Another circumstance of some weight is, that Hudnall, after the execution of the mortgage to Slade, and after he had been advised that his equity of redemption could be sold under execution, told his son-in-law, Walker, that he would make an absolute conveyance of his estate to some one who would hold it for him; that he thought Douglass would do it, and that he would write to him for the purpose. It has been sometimes questioned, especially in New York, whether evidence of the declarations of the vendor, previous to the sale is admissible against the vendee. Paige v. Cagwin, 7 Hill, 381; Hurd v. West, 7 Cow. 752. This is held upon the ground, that the vendor might himself be called as a witness. But far the greater number of cases hold, that the admissions of the owner may be evideuce against one who claims title through him. 2 Stark. Ev. 48; 2 Phil. Ev. (Cow. & Hill’s notes) 648, 656; Hatch v. Dennis, 1 Fair. 248; Weidman v. Kohr, 4 Ser. & Raw. 174; 9 Dane, Ab. 301. These last decisions seem to us to stand on just principles, and we give our assent to them. Only those declarations are to be admitted, however, which were made before the party divested himself of his interest. Nor will they affect the vendee, if he had no notice of them, and his purchase in other respects be free from objection. Astor v. Wells, 4 Wheat. 467; Guidry v. Grivot, 2 Mar. La. Rep. N. S.; Garland v. Rives, 4 Rand. 282. There is no positive evidence, that Douglass had knowledge of these declarations; notice must be inferred, if at all, from circumstances. The use to which a deed is applied tends to show the intent with which it was made. 1 Burr. 484.

To rebut the presumption of fraud, the argument mostly relied on is, that a full price was agreed to be paid for the property. Certainly that is a circumstance, if it be true, which tends to repel the inference, and to show that the transaction was fair. Callen v. Thompson, 3 Yerg. 475; Maney v. Killough, 7 Ib. 440. Yet if a purchaser knows when he takes his deed, that the object of the grantor is to defraud creditors, the deed is void, though he may give a full consideration. Worseley v. De Mattos, 1 Burr. 474; Edgell v. Lowell, 4 Verm. 405. In Twyne’s case, the consideration was more than sufficient and undoubtedly true. Where a conveyance may hinder and delay creditors, it is not for that reason alone void, if it were made with a proper intent. But it becomes void when the main intent is to hinder and delay creditors, and the conveyance a contrivance for that purpose. Wakeman v. Grover, 4 Paige, 23.

That Douglass may have the full benefit of the circumstance, that he paid a fair price, if it be found to exist, it becomes necessary to inquire into the adequacy of the consideration.

The price assumed to be paid for the whole estates, according to the recital in the deed, was the debt due to N. & J. Dick & Co. amounting to $134,647-65

Cash, 24,000-00

$158,647-65

This is the amount stated in the deed, of the consideration ; but the bill states that it was also the understanding of the parties, that Douglass was to pay all liens on the property. These judgment liens may be put down in round numbers at $30,000, making the whole consideration $188,647.

The number of negroes conveyed was about two hundred and sixteen; of whom one hundred and fifty-five were working hands; seventy-four males, eighty-one females, and the balance children. In regard to the value of slaves at the time of the sale, the opinions of the witnesses vary very much. Hill says they were worth $1200, or $1500 a pair; on a long credit nearly, if not quite, fifty per cent. more. Hoover says, men were worth $800, and women $600. Perkins places their value in gold and silver at $600 each, and Old puts men at $700, and women at $550. Simmons values the whole property conveyed at $167,700 cash. Prewitt says, men were worth from $800 to $1000, women from $500 to $700, and children from $150 to $200. The sheriff and deputy sheriff of the county put a lower estimate upon them, but they drew their conclusions from execution sales, which are hardly to be trusted as tests of the market value of property.

There is one fact in the record, which throws light upon this point. There were forty of the negroes sold by Hudnall to Hill and others, a little before the date of the sale to Douglass, and the sale was ratified by Douglass. For these the sum of $26,571 was paid, as appears by the receipts, being an average of $656 each. Of the same forty, Haley & McDowéll took twelve at the price of $7646.80, an average of $637 each. There is nothing to show, that these negroes differed in value from the rest, or that they were not of average quality. The witnesses also differ, as to the addition to be made to the cash price, on account of the long credit which was given; twenty-five per cent, seems to be near the medium.

Two witnesses speak of the value of the personal property, other than the slaves; the one places it at §28,000, the other at §23,000; in the absence of any better criterion, we fix on the middle point between them. There is still less harmony of opinion in regard to the value of the land. The estimates are from eight to fifteen dollars per acre; and the rate put upon it by Simmons must have been higher, though he speaks of it in the aggregate. In the midst of such discrepancies, and with no better data on which to rely, our best course seems to be to adopt a nearly medium price.

By this standard, the one hundred and fifty-five hands were worth §670 each, $103,850

Sixty-one children, at $175, 10,675

Addition for length of credit, 25 per cent. 28,631

Personalty, other than slaves, 25,000

Three thousand four hundred acres of land, at $10, 34,000

$202,156

This price exceeds the sum agreed to be paid by $13,500. In so large a purchase, especially where the evidence is so contradictory, this difference would not, of itself, induce us to set aside a sale.

Here, then, are arrayed the prominent facts and circumstances for and against this transaction. On the one side are the features already adverted to, which show fraud in law in the Slade mortgage; the expressed determination of Hudnall to make conveyance to save his property, the conveyance of his whole estate, the subsequent retention of possession for two years, the relation between the parties, the knowledge of Douglass of the embarrassed condition of Hudnall, the strong probability that he knew Hudnall’s intent, and the fact that his undertaking was to pay only the liens already subsisting on the property. To which may be added the fact, that Douglass was specially written for on the occasion. We extract a part of Mr. Hill’s testimony, bearing on this point, which tends to illustrate the position of the parties : “ Captain Hudnall was advised,” says Mr. Hill, “ that the equity of redemption could be sold for any trivial execution, and he was of opinion he could and would be dispossessed, and all hope of saving ultimately his property be lost. Fearing such difficulty, I was eadeavoring to protect him against such debts, and proposed to purchase, and did so, about $18,000 worth of his negroes, and was to pay that amount of his debts. During this period, he informed me, he thought he could prevail on George L. Douglass of Louisville, to buy the estate. I encouraged the sale; he wrote, as I understood, to Mr. Douglass, who came down while I was there; when the whole of Mr. Hudnall’s affairs were looked into by Mr. Douglass, who is a shrewd business man, and the conclusion he came to, as well as myself, was, that Hudnall’s liabilities were greater than the value of his estate. This information appeared to shock Captain Hudnall very much.”

Thus stood the parties; Hudnall, shocked at his condition, yet clinging to the hope of ultimately saving his estate; Hill, anxious to save his own debts, and endeavoring to protect Hud-nall against trivial executions; and Douglass, called in to aid in this emergency.

On the other hand is the fact, that the price agreed to be paid is very nearly the value of the estate, if not fully, and the testimony of Mr. Hill, that the transaction, to which he was privy throughout, was in his opinion fair and honest.

If this were the sole point, the court might well pause before it came to a decision. We pass to the remaining question: Is Douglass a bona, fide purchaser for valuable consideration without notice ? In other words, if' the second mortgage be void, is the property protected from judgment creditors, in the hands of Douglass, by reason of his purchase ?

The statute of frauds in this state, is not more favorable to purchasers under conveyances alleged to be fraudulent, than the English statute of Charles II. or those in force in our sister states. It seems to be a settled construction of these, that if the vendee be a bona, fide purchaser for a valuable consideration, without notice of any fraud in ,the vendor, he will be protected against creditors; but not if he have such notice. Edgell v. Lowell et al., 4 Vir. 412; Bridge v. Eggleston, 14 Mass. 250; Worseley v. De Mattos, 1 Burr. 474; 4 Kent, Com. 464.

What constitutes notice is very clearly laid down in Jones v. Powles, 3 Mylne & Keene, 581. The purchaser is protected only when he has paid a valuable consideration, and could not have discovered the defect by reasonable diligence.

Let us see the precise condition of Douglass in reference to this matter. “ In his bill he alleges, that on the 18th of December, 1839, he became the purchaser of the said lands, slaves, and other property in said two mortgages mentioned, together with other property, subject to said two mortgages, and the amount then due on the same, and assumed upon himself the payment of whatever might be due on said mortgages, together with the sum of $24,000, mentioned in the deed from Hudnall to him.” He thus purchased an estate conveyed by a mortgage, fraudulent as to creditors upon its face. He assumed the payment of the debts mentioned in that mortgage. He did not pay a dollar of his own funds. He gave no obligation for payment to the mortgage creditors, but virtually stepped into the shoes of Hudnall, and occupied his place. He is, therefore chargeable with full notice, and his purchase affords him no protection. If fraudulent on the part of Hudnall, it is equally so as to Douglass. We look to the situation of the parties at the time the conveyance was made; not to subsequent changes. If no alteration had been made in his assumpsit by Douglass, if the mortgage had been declared void for the fraud of Hudnall, Douglass would have been released from responsibility to Hud-nall. If he has since placed himself in a position, in which he^ cannot render such defence available, the rights of the judgment creditors are not to be affected thereby. He stands as the representative both of the rights and the liabilities of Hudnall; and the property is subject to these judgment creditors, as if no sale had been made.

It is not our purpose to say that Hill intended to commit a fraud. His object was to secure his debt, and he pursued it with untiring energy. But Hudnall was an intractable subject. He made his own mortgage in his own way; and Hill had to take it, as he found it, or to take nothing. It is his misfortune, that the mortgage to Slade contained provisions which rendered it fraudulent upon its face. But the uprightness of his intentions cannot alter the law. This court has, therefore, decided' in regarded to deeds of trust, that the innocence of the crédito of any evil design, will not aid a deed rendered fraudulent by by the acts of the debtor. Harney v. Pack et al. 4 S. & M. 229.

The counsel for the Union Bank of Tennessee insist, that the bank, as the assignee of the notes of Hudnall and Slade, by N. & J. Dick & Co., is not to be affected by any fraud in the transaction between the other parties. It took the notes and the mortgage made to secure them, just as they were in the hands of Dick & Co. The fraud upon the face of the mortgage was notice to them. Even if the bank never saw the mortgage, it stands affected with notice of every fact, apparent on its face; because the exercise of the' requisite diligence would have discovered the defect.

Some time after the purchase of Douglass, on the 16th of February, 1841, the . bank, without any advance of a new consideration, received the notes of Douglass, as collateral to those of Hudnall and Slade, and extended the time of payment, retaining, however, the lien of the mortgage. This arrangement did not strengthen their hold, on the mortgage. If previously void, this did not make it valid. Whether the notes of Douglass to the bank are not obligatory upon him, is a matter not. before us, and which cannot enter into our consideration.

The decree of the chancellor, making the injunction perpetual is reversed, the injunction dissolved, and the bill dismissed.

Mr. Justice ThacheR.

Upon full examination, I concur in the foregoing opinion, and concluding decree.

Mr. Chief Justice Sharkey

delivered the following opinion.

The prominent facts in this case have been accurately stated in the leading opinion, and need not be particularly noticed by me, further than may be necessary to illustrate my own view of the case. In that opinion, the question is treated very much as it was argued, as a sale of property, real and personal, in regard to which a controversy has arisen between the purchaser and creditors of the vendor. Viewed in that light, I yield my hearty concurrence in the conclusion of that opinion, and in the main, to the views and reasoning which led to that conclusion.

But an aspect of the case, somewhat different, presses itself with great force on my mind, and for that reason alone it is perhaps proper that I should express it, although it leads irresistibly to the same conclusion.

Hudnall, it seems, was largely indebted to Dick & Hill, and to secure them, 'mortgaged directly to them a large amount of property, consisting of one of his plantations, the negroes and stock thereon. This was in March, 1838. In the fall of 1839, Dick & Co. had ascertained that Hudnall was much embarrassed, and that suits were pending against him to a large amount. Thinking their security a slender one, they importuned Hudnall to give them further security by an additional mortgage on other property. This he positively refused to do, but marked out and followed a plan of his own, regardless of their desire in the matter. For part of the debt due them he executed two notes, amounting to $64,000, on which he gave the defendant, Slade, as personal security. To secure and indemnify Slade, he executed a mortgage to him of another plantation with the negroes, &c. thereon, worth, as it is said, $94,000. This last mortgage covered all his property in Mississippi that had not been conveyed by the first mortgage. As matters now stood, Hudnall had nothing more than an equity of redemption in any of the property. Being advised that such right was subject to be sold for his debts, and that he would thereby be dispossessed, he became uneasy, and" determined to sell out. He accordingly wrote to the complainant, then a citizen of Louisville, Ky., who very soon afterwards came down. The affairs of Hudnall were looked into, the incumbrances disclosed and investigated, and the complainant became the purchaser, taking from Hudnall a deed of conveyance of all the property covered by both mortgages, in which the consideration expressed is, that Douglass had assumed and taken upon himself the two mortgaged debts, and for the further consideration of $24,000. But no other obligation was given for the payment of these debts than that contained in the deed. Nor was the sum of $24,000 expressed in the deed, either paid or agreed to be paid by Douglass. That matter is thus explained by the testimony. Previous to the contract with Douglass, Hudnall had agreed to sell to Hill and to Haley &. McDowell part of the mortgaged property, sufficient to amount to that sum. Douglass agreed to carry out Hudnall’s contract, and did so by conveying the negroes in accordance therewith. This additional sum of $24,000, expressed in the deed, is a matter of but little consequence, but it is as well briefly to dispose of it. Hudnall had but an equity of redemption in the negroes so agreed to be sold. If he had made a valid contract to sell that interest, Douglass acquired no right whatever; and it seems that it was part of the agreement that Hudnall’s contract .should be fulfilled. The substance of the agreement was then, that for Hudnall’s interest in the balance of the property, Douglass agreed to pay the mortgage debts.

The first mortgage may be passed by; its validity is not contested ; and the property levied on by the judgment creditors is embraced in the second mortgage, the validity of which is contested.

Assuming, for the present, that both mortgages are valid, what did Douglass buy? He purchased nothing more than Hudnall’s equity of redemption, for, at most, that was all he had to sell, and it is immaterial whether the contract was fraudulent or bona fide. By no possible form of conveyance could he convey more. It perhaps may be a question whether he could convey any thing more than his mere tenancy, as it has been very much doubted whether there is an equity of redemption before condition broken. But allow that he did purchase the equity of redemption, the legal title is in the mortgagees. The equity of redemption is all that he claims in his bill, as that is urged as a reason for his right to resort to a court of chancery.

As to the equity of redemption, then, and as to that alone, Douglass stands precisely in Hudnall’s place. He cannot be in a better condition than Hudnall; and if he should fail to get as much as he thought he was buying, that is a question between Hudnall and himself. As against the mortgagees he has a right to redeem; but it would be strange, indeed, if his right should cut out incumbrances to which the property was liable, both as against Hudnall and Slade, when he purchased Avith notice of such incumbrances. Yet this position must be maintained before Douglass can succeed.

Let us see, then, to what incumbrances or liabilities the property was subject. The mortgage to Slade was valid as to Hudnall, for though it may have been made to defraud creditors, it was still valid as between mortgagor and mortgagee. It was consequently valid as to Douglass. But it was clearly void as to the creditors of Hudnall, first, for fraud in fact; for two of the witnesses state that both Hudnall and Slade had declared that it was made to protect Hudnall’s property against a debt due to the United States, and against security debts; and, secondly, it was void 'for fraud in law apparent on its face. Then neither Hudnall nor Slade could set up this mortgage against creditors; that is certainly too clear to admit of dispute. How is Douglass to do so? He took but Hudnall’s right, subject to all incumbrances or liabilities of which he had notice. He had full notice of the invalidity of the Slade mortgage; It is referred to in the deed to him, and notice of a deed is notice of its contents. 2 Powell on Mort. 563. The purchaser of an equity of redemption holds subject to all incumbrances of which he had notice. Ib. 551. It would not, perhaps, be straining-too much to say that Douglass must have had notice of the fraud in fact in this case before the payment of the purchase money, and that is sufficient. 4 Kent, 180. The circumstances were such as to put him on inquiry, and whatever puts a party on inquiry, amounts in judgment of law to notice. Ib. 179. But it is not necessary that he should have had notice of fraud in fact; the deed was equally void for .fraud in law, and from notice of that he cannot escape. Hudnall then had an equity of redemption under the Slade mortgage, but he could only protect this by removing the claim of creditors, to which the property was liable. The creditors’ claim was paramount. Douglass admits the validity of the mortgage as to Slade, and purchased only Hudnall’s interest or right which grew out of the relation of mortgagor and mortgagee. But he did so knowing that the property itself was liable to creditors. Surely his purchase does not exonerate it from that liability. In what does the case differ from the sale of an equity of redemption, when the property is subject to a prior judgment? In nothing, as I conceive. Suppose that there had been a judgment against Hudnall prior to Slade’s mortgage, Douglass could not claim to hold the property exonerated, from it; and why not? because it would constitute a paramount claim. The property would have been liable for its satisfaction, both as against Hudnall and as against Slade. Suppose another parallel case. Hudnall conveys by mortgage certain property to Slade; in the deed he inserts this condition, “ saving and reserving to every creditor of mine, the right to have his debt satisfied out of this property, 'by the levy of an execution or otherwise.” Slade would then take a property subject to the right of creditors. Hudnall would still hold an interest subservient to the rights of Slade and the creditors. Would any purchaser from Hudnall of his residuary interest with this deed before him, acquire the property free from the rights of creditors? Yet the law has placed precisely that condition in the deed from Hudnall to Slade, and Douglass is a purchaser of nothing more than Hud-nall’s interest, with this condition before him. His title is secondary to, or dependent on, the mortgage, and yet he wishes to cut out claims which the mortgage secures. And it will not do for him to say that he had no notice of these debts. Notice of the mortgage was notice of all its conditions and exceptions, and the party is bound to make all necessary inquiries as to other deeds to which it refers. 2 Powell on Mort. 561-563. He is, of course, bound to know its legal effect.

The record furnishes no evidence that Slade has ever assigned this mortgage to the Union Bank of Tennessee. If he had done so, it would be difficult to maintain that the bank would be in a better condition than Slade, as the defects in the mortgage are apparent on its face. The assignee of a mortgage takes it subject to all equities between mortgagor and mortgagee, (2 Cowen, 247,) and of course subject to all conditions imposed by law.

As to the consideration paid' by Douglass, I need say but little. He was bound only by the deed according to its legal effect, to indemnify Hudnall in case the mortgage creditors should resort to him; nothing’more, as the contract originally stood between them. Whether he becomes personally liable to the creditors, is not now a question.

In any view of the case, then, it seems to me to be so perfectly clear, that the judgment creditors may subject the property covered by the mortgage to. Slade, that the only wonder is, that it has been so much doubted and litigated. I think the decree should be reversed, and the bill dismissed.  