
    *Patrick H. Gary and others v. John F. May and others.
    A deed of trust executed to indemnify the oestui que trust as a surety for the grantor, the grantor being dead, the cestui que trust having oxecuted a new note with indorsers and taken up the old one, and having assigned his interest in the trust deed to his indorsers to indemnify them, and such indorsers having been compelled to pajr the debt, they may pursue the trust-fund against the heirs of the original grantor, without making his personal representatives, or his widow, or the assignor of the trust-deed, parties.
    On a hill of review, the court will not reverse a decree taken pro confesso, and where there had been a reference to a master to state an account, merely because some irregularity may have occurred in not exhibiting in the record the whole proof upon which the master based his report; hut to authorize a reversal of such decree, positive error must appear.
    Notice of publication, if so specific as to advise the respondents of the nature of their interest, sought to bo affected by the proceeding, is sufficient.
    Taxes paid by a cestui que trust are a lien upon the land, and may be paid out of the trust-fund.
    A decree will not be reversed on bill of review, because a defense may have existed, of which the party neglected to avail himself.
    If tile debt is barred by the statute of limitations at law, the court will not on that account deprive the cestui qui trust of his equitable security, and refuse to compel an execution of the trust.
    
      This is a bill of review, reserved in the county of Delaware.
    The bill is filed to reverse a decree of the court of common pleas of that county. The original bill was filed in that court by John F. May, of Virginia, on April 6, 1840, and was in substance as follows:
    “That on or about August 7,1820, Thomas E. Gary, then of the Commonwealth of Virginia, but since deceased, proposed to borrow from the Bank of Virginia, in Petersburg, about the sum of $4,000, which proposition was accepted by said bank, and the money loaned was secured to be paid by one or more negotiable notes signed by said Gary, as principal, and Edward H. Boisseau, as his surety; that on or about the same August 7, 1820, the *said Gary, in order to indemnify and save harmless the said Boisseau, on account of his said suretyship, together with his wife Rebecca JEL, executed a deed to John W. Jones, then, and ever since a non-resident of the State of Ohio, authorizing and empowering the said Jones, in case the money so loaned should not be paid, or the said Boisseau should be required to pay the same as such surety, to sell the lands in such deed mentioned, and apply the proceeds thereof to the discharge of said debt, which said lands are particularly described, being about 1,000 acres on Whetstone, and the undivided moiety of 2,000 acres on Mill creek, “in the county of Delaware ;” which deed of trust was duly recorded, and made part of the bill. That the money so loaned from said bank remained unpaid, until at length, about sixteen or eighteen years ago, the said Gary died insolvent, and loft the said Boisseau, his surety, to provide the best way he could for the payment of the money; and thereupon a new note was given for said money to said bank, in which the said Edward H. Boisseau was principal, and his brother, Peter F. Boisseau, first indorser, and the complainant second indorser. At length the said Edward H. Boisseau became insolvent, and about the month of January, 1829, the last-mentioned note was protested for non-payment, and notice duly served on complainant May; but by a mistake in the notary, the notice intended for his co-indorsers was sent to a wrong post-office, and so the said Peter F. Boisseau avoided his responsibility; and thereupon complainant paid up said note to said bank, with the interest thereon, no part of which has ever been refunded to him. That in order to indemnify May as indorser of said note, the said Edward H. Boisseau assigned to him his right and claim under said deed of trust. That he had in a friendly manner requested the said Jones as trustee to proceed and sell the said lands; but the said Jones refused to act at all in the premises. That he had expended large sums of money in paying taxes, and other incumbrances on said lands. That said Gary left Patrick H. Gary ‘and others,’ non-residents of the State of Ohio, *his heirs and legal representatives, having died intestate.” The bill prayed notice by publication, “ that an account might be stated and the balance due him ascertained; that the lands might be sold, and out of the proceeds, the said May paid his lawful demands,” and for further relief, etc.
    The following instrument was filed with the original bill, viz:
    “An indenture made this August 7, a. d. 1820, between Thomas Edmund Gary and Rebecca H., his wife, of. the town of Peters-burg, of the first part; John Winston Jones, of Chesterfield, of the second part, and Edward Hill Boisseau, of the county of Chesterfield, of the third part. Whereas, the said Gary is about to obtain a loan or accommodation for the sum of about 11,000, from the office of discount and deposit of the Bank of Yirginia in Peters-burg, upon one or more negotiable notes to be made by him, and to be indorsed by the said E. H. Boisseau, for that purpose, which loan it is contemplated and intended will be continued for some time, according to the usages and regulations of said bank, upon other notes made and indorsed as aforesaid; and, whereas the said Gary is desirous, and has agreed to secure and save harmless his said indorser, by conveying the property hereinafter mentioned in trust for that purpose. How, this indenture witnesseth, that the said Gary and wife, in consideration of the premises, and of the sum of one dollar, the receipt whereof, etc., have granted, bargained, and sold, and do by these presents, grant, bargain, and sell unto the said John W. Jones, the lands and premises following, that is to say” (here follows the description of theN land). “ To have and to hold tho said lands and appurtenances, and every part and parcel thereof, unto him, the said John W. Jones his heirs and assigns, but in trust, and upon condition, nevertheless, that it shall be lawful for the said Gary to hold, possess, and enjoy the said lands and appurtenances as fully and effectually in all respects as if this conveyance had not been made, until the said Edward H. Boisseau shall require *a sale thereof as hereinafter providod, and whenever the said E. H. Boisseau shall require the said Gary to pay tho said debt to the Bank of Virginia, or otherwise to release him of his responsibility as indorser, then if the said Gary shall fail to relieve the said Boisseau from such responsibility, it shall and may bo lawful for the said John W. Jones to sell the said lands or any part or parcels thereof, from time to time, at public or private sale in such manner and upon such terms as he shall deem expedient, and out of the proceeds, after paying all costs, charges, and expenses, attending the probate hereof and the execution of tho trusts above declared, to pay to the said bank whatever may be due from the said Gary for which the said E. H. Boisseau may be responsible as his indorser as aforesaid, and also pay to him whatever amount he may have paid by reason of his said indorsations, together with all customary expenses of discount, interest, and charges of protest and suit, if any there be, so as wholly and fully to indemnify and save harmless the said E. H. Boisseau from any and all loss on account of any indorsation of any note or notes of the said Gary, negotiable at the said office of the Bank of Virginia, and the surplus, if any, to the said Gary; and it is distinctly understood and agreed between the parties, that the said Jones is to have the power of appointing one or more attorneys in fact, for the purpose of executing the trusts herein confided to him, in as full and ample manner as he could in proper person ; but no public sale of the lands aforesaid shall be made unless at the town of Columbus, or in the county of Delaware, in the State of Ohio, and the said Gary for himself and his heirs, the lands and appurtenances aforesaid, unto the said John W. Jones, his heirs and assigns, for the purposes and upon the conditions hereinbefore declared, shall and will warrant,” etc.
    On tho back of this instrument is tho following indorsement, viz :
    “John E. May, having bocoflie my indorser for the debt within ^mentioned, I assign my claim under this deed to him for his [70 indemnity. (Signed,) Edward H. Boisseau.”
    At the April term of tho court of common pleas, 1840, it was “ordered that notice of the pendency of the suit and of the substance of the bill and prayer thereof be published for six consecutive weeks in the Olentangy Gazette,” etc.
    At the June term, 1840, the following entry was made : “Proof of publication made herein as por file and cause continued.”
    
      The following is the notice published under the above order:
    “John W. Jones, Patrick Gary” (and others, the defondants), “are hereby notified that on April 7, A. d. 1840, John E. May, of the commonwealth of Virginia, filed, in the court of common pleas of the county of Delaware and State of Ohio, a bill in chancery, wherein they are 'defendants, tho object and prayer of which bill is to enforce the sale of certain lands described in a deed dated August 7, 1820, made by Thomas E. Gary and wife to said John W. Jones and others, and duly recorded in said Delaware county, and, out of the proceeds of said sale, to refund to said May, certain moneys paid by said May in behalf of said Gary; and the said defendants are further notified that unless they appear and plead, answer, or demur to said bill within sixty days after tho next term of said court, the said complainant, at the term next after the expiration of said sixty days, will apply to said court to take the matters of said bill as confessed, and to decree thereon accordingly.
    “ April 10. P. B. Wilcox, Sol. for Qompt’s.”
    
    There is indorsed on this notice, under date of June 10, 1840, a certificate of publication signed “ A. Thompson,” with the following entry thereunder, viz: “ Sworn and subscribed before mo, June 17, 1840. S. Pinch, master.”
    *At the September term of said court in 1840, it was “ordered that the bill be taken as confessed, and the court being advised in tho premises, do find the equity of the case with the complainant, and thereupon it is ordered and decreed that this cause stand referred to S. Pinch, Esq., master commissioner of this court, to state an account and report the amount due to said complainant,” and to cause the premises in the bill described, to be appraised “ as upon executions at law,” etc.
    At tho April term, 1841, the master reported that there was due the complainant on April 10,1841, $7,711.88, and that on tho same day there was due to complainant on account of money paid for taxes on tho land, $363, together with his appraisement made part of his report; whereupon, it was ordered “ that said report bo in. all things confirmed, and that unless the said sum of $8,074.88 be paid in ten days, the master should proceed to sell the lands as upon executions at law.
    Among the files is a paper purporting to be an affidavit of “ George W. Stainback,” not signed by any one except “ Stephen G. Wells, mayor,” made in the town of Petersburg, Virginia, in reference to notes executed by Gary and others, to the Bank of Virginia, under date of October 17, 1840. Also, another paper signed in like manner by said Wells, purporting to be the affidavit of John F. May, the'complainant, under the same date, “that the statement of Stain back is true to the best of his knowledge and roceliection,” and that he, through his agents, had paid taxes, etc., Avhich he desired to charge to the proper parties in his case then pending. Also, a receipt signed “Demás Adams,” for money received from “ W. Thomas” for certificates of tax purchases of lands in Union county, transferred to “Dyne Starling, Jr.,” with the following certificate, signed “ L. Starling, Jr., viz: “The above tax titles were purchased jointly by Thomas H. Baily and myself, and $330.11£ was paid .by Wray Thomas, as agent of Baily, August 27, 1839.” Also, what purports to be a receipt for taxes on the same lands, from Dyne-Starling,. *Jr., for the years [72 1839 and 1840, signed “ A. Pollock, T. TJ. C.,” and dated “Marysville, November 28, 1840.” These, and the deed above set forth, were all the evidence in the case. None of these papers have any other authentication.
    The following, in substance, are assigned as errors in the original proceedings, viz:
    1. That the personal representative of Gary was not a party.
    2. ThatE. H. Boisseau was not a party.
    3. That the wi dow of Gary was not a party.
    4. That the demand was stale, and barred by the statute of limitation, of both Virginia and Ohio.
    5. That it is not alleged that Gary, in fact, borrowed any money from the Bank of Virginia.
    6. That it appears by said bill, that said deed contained only a naked power to sell, which was revoked by the death of Thomas E. Gary.
    7. That it is not alleged, that the deed was ever delivered to, or the trust accepted by Jones.
    8. That it is not alleged, when the assignment was made, from Boisseau to May, and no proof of its execution.
    9. That there was no proof of the execution of the deed.
    10. That the‘deed and its condition are variant from the allegations of the bill.
    11. That it is not alleged that Boisseau or May ever required Gary, or his personal representative, to pay the debt to the bank, or otherwise release them, or that they refused to do so.
    12. That it is not alleged that Boisseau had not been paid, or otherwise indemnified.
    13. That the claim was never liquidated against Boisseau nor Gary’s estate.
    14. That the sum paid by May to the bank is not stated, nor is the amount of the notes given to the bank.
    15. That no time is alleged when the notes of Gary and Boisseau, or of Boisseau and May, were taken up.
    *16. That it is not alleged that Gary’s administrator had not assets.
    17. That the bill is generally uncertain in all its material allegations, and is devoid of equity.
    18. That there are no sufficient allegations nor proofs on which an account could be stated, or a decree founded.
    19. That there is no prayer in the bill for answer from the defendants.
    20. That there was no publication of' notice, or proof thereof, of the pendency of the suit, and of the substance and prayer of the bill.
    21. That there were no facts in the bill on which the master could state an account, nor was he directed to take proof; yet ho admitted ex parte statements of the plaintiff and others, without authentication, as the basis of his report.
    22. That the master’s report, and the decree, allowed May interest on the notes said to have been substituted for Gary’s.
    23. That the report and decree allowed May $363 for taxes paid without any prayer therefor in the bill, or proof of their payment.
    24. That the defendants were not called, or defaulted in court.
    25. That the prayer of the bill and final decree are not in conformity with the case made in the bill.
    26. That the decree does not direct execution of the trust, according to the terms of the deed.
    27. That the decree was not made against any specific person whose duty it was declared to be to pay the money mentioned in it.
    28. That the deed makes no provision for any disposition of any surplus that might arise from the sale.
    29. The general error.
    
      To the bill of review the defendants demur, and the ease *is reserved for decision here on the issue raised by the demurrer.
    T. Ewing and Smythe & Sprague, for complainants in review:
    The following authorities are relied on by the complainants in review, in support of the principal points in the case, viz:
    1. The objections for want of parties. Story’s Eq. Pl. (1 ed.) 74; 7 Crunch, 69 ; Story’s Eq. Pl. 66, 137, 155, 161, 162; Powell on Mort. 815, 816, 824, 825 ; 1 Atk. 487 ; 8 Ohio, 379; 4 Porter, 245 ; 5 Ohio, 204, 248; 6 Ohio, 555 ; Story’s Eq. Pl. 148, n.; Story’s Eq. Jur. 306 ; Story’s Eq. Pl. 76, 77; 3 Munf. 29; 2 Atk. 234; Story’s Eq. Pl. 87, 168, n. 2.
    2. Total want of equity in the case (being objections 10 and 11) in the construction of the deed. 1 Story’s Eq. Jur. 114; Sug. on Vend. 66, 97, 393; 4 Kent’s Com. 319; Sug. on Vend. 13, 21; 2 Black. Com. 154; 1 Atk. 376; 1 Ver. 83; Sug. on Vend. 44, 209, 210, 213, 228, 241, 242, 263, 264, 267; 4 Kent’s Com. 333; Ib. 310, 311; 2 Hen. & Munf. 95.
    3. The absence and insufficiency of notice of the pendency of the original proceedings. Swan’s Stat. 701; 1 Cow. 711; 6 Wheat. 119; 1 Hill, (N. Y.) 141.
    4. That the decree was rendered without proof. Bank of the United States v. Ritchey et al , 7 Pet. 128 ; 7 Leigh, 271; 4 Hen. 6 Munf. 476 ; 1 Hopk. 471; 2 Ohio, 381; Ib. 415, 420; Am. Ch. Dig. 205; 2 Bligh, 170; Chit. Ind. 956; 1 A. K. Marsh. 325; 3 Johns. Ch. 595 ; 4 Mad. 379 ; 5 Johns. Ch. 449 ; Halst. Dig. 173 ; 1 Paige, 648; 2 Dess. 629; 3 Johns. Ch. 115; 3 Litt. 339; 10 Wheat. 188 : 3 Stew. 243 ; 1 Root, 273, 466, 521; 10 Yer. 41.
    5. General uncertainty of the bill, and want of material allegations. 2 Bibb, 4; Ib. 26 ; 4 Ohio, 321; 3 Dana, 179 ; Story’s Eq. Pl. 210; 8 Ves. Jr. 398; Ib. 401; Story’s Eq. Pl. 206, sec. 241; Story’s Eq. Pl. 24; Ib. 28, 206, 210, 218; 2 Atk. *632; 16 Wend. 460 ; 1 Vt. 312 ; 10 Mass. 458; 12 Mass. 461; 4 Day, 395 ; 4 Johns. Ch. 521; 1 Rice’s Eq. 13; Story’s Eq. Pl. 213, 214, 219 ; 220; 7 Wheat. 522 ; 1 Bland, 248, 255 ; 4 Call, 361; 12 Pick. 55 ; 3 Ohio, 62; 6 Cow. 37; 8 Gill & Johns. 171 ; 2 A. K. Marsh. 317; 10 Wheat. 181; 3 Ves. 343 ; 6 Munf. 20 ; 4 Dana, 624; 1 Root, 273 ; Ib. 466, 521; 10 Yer. 41 ; 3 Yer. 81.
    6. Staleness of the demand and statutes of limitation. Story’s Eq. Pl. 389; Ib. 378, 379, 390, 485, n.; 3 Atk. 225 ; 4 Ves. 479. 19 Ves. 180 ; 1 Bibb, 73 ; 7 Paige, 198; Ib. 373; 5 Johns. Ch. 521 ; 
      Ib. 551, 552; 7 Johns. Ch. 283; 4 Wash. C. C. 631; 3 Brown, 640 ; 9 Pet. 405 ; Ib. 416 ; 13 Pet. 381; 1 McL. 105, 160; 10 Pet. 177 ; 10 Ohio, 24; 10 Wheat. 152; 5 Johns. Ch. 184; 2 Story’s Eq. Jur. 735; 736, and notes; 7 Yer. 222; 8 Yer. 238; 1 Hill’s N. Y. 53; 3 Ohio, 276; 5 Wend. 85; 3 Cow. 272; 6 Cow. 297; 11 Johns. 409 ; 15 Johns. 241; 1 Johns. 580; 3 I. Con. 322; 4 Johns. 41; 11 Ohio, 341 ; 7 Wend. 94; 9 Dana, 139; 10 Yer. 350 ; 8 Porter, 211; 8 Paige, 195; 3 McCord’s Ch. 428; 7 Johns. Ch. 111; 3 Johns. Cas. 170 ; 1 Bald. 394.
    Swan & Andrews, and P. B. Wilcox, for defendants in review, cited the following cases:
    David v. Graham, 2 Har. & Gill, 94; 3 Barb. & Har. Dig. 100; Story’s Eq. Pl., secs. 175, 179; 3 P. Wms. 333, n.; 2 Brown’s Ch. 276, 279; Slaughter v. Foust et al., 4 Blackf. 379; 3 Pow. on Mort., Rand’s ed. 969; Bradshaw v. Outram, 13 Ves. 239; Daniel v. Skipwith, 2 Brown’s C. C. 155; 3 P. Wms. 311, n.; 5 Eq. Ab. 119; Story’s Eq. Pl., secs. 1, 231, 229, 212; Thomas v. Harvey's Heirs, 10 Wheat. 146; Whiting et al. v. Bank United States, 13 Pet. 14; Dias v. Burchard, 10 Paige, 445; Crane v, Deming, 7 Conn. 387; Story’s Eq. Pl., sec. 74, (a) 3 ed.; Ib., sec. 237; Sanford v. McLean, 3 Paige, 117; Niemcewicz v. Gahn, Ib. 614; Capes v. Middleton, Tur. & Russ. 229; King v. Baldwin, 2 Johns. Ch. 554 ; Polk v. Gallant, 2 Dev. & Balt. 395; Thompson v. McDonald, Ib. 463; *Story’s Eq. Pl., sec. 191; Whitney v. McKinney, 7 Johns. Ch. 144; Trecothiek v. Austin, 4 Mason, 16; Miller v. Bear, 3 Paige, 468; Fenton v. Hughes, 7 Ves. 287; Whitworth v. Davis, 1 Ves. & Bea. 545; Lockwood et al. v. Wildman et al., 13 Ohio, 430; Mitchell v. Gazzam et al., 12 Ohio, 315, 335 ; Sheets v. Baldwin, 12 Ohio, 120; Knapp v. Alvord, 10 Paige, 205; Maddox v. Jackson, 3 Atk. 406; Angerstein v. Clark, 3 Swanst. 147; Cockburn v. Thompson, 16 Ves. 326; 11 Conn. 160; 8 Dana, 284; 1 Johns. Ch. 11; 1 Hopk. Ch. 471; Mitford, 130, n. 1.
   Read, J.

Out of abundant caution twenty-nine errors have been assigned in this case. All that are material to be considered will come under one of the following heads:

I. Lack of proper parties.

II. Want of due notice and proof of publication, to bring the respondents into court.

III. Want of proof to sustain the decree.

Before considering these points it may be remarked that if the facts set forth in the bill are true, and the proper parties were before the court, the decree was properly rendered.

1. It is claimed that the personal representative of Gary should have been made a party. Gary died in Yirginia and had no personal representative in Ohio. If necessary, one might have been appointed. But in this case the heirs only, and not the personal representative, had an interest in the land sought to be subjected. It is true that where the realty is charged with incumbrances which should be discharged out of the personal estate, and suit is brought to enforce payment out of the realty, the heir has the right to demand that the personal representative should bo made a party to such proceeding to determine the question of assets, which should be first applied. But when the realty is primarily liable and the creditor is authorized to look directly to that, it is only necessary to make the heir, or real representative, a party.

In this case, a deed of trust was executed to Jones *with authority to sell the land thus conveyed to protect Boisseau, security for Gary in the sum of $4,000 to the Bank of Yirginia. This is a trust coupled with an interest. If Gary did not pay this debt, Boisseau, the cestui que trust, was authorized to direct Jones, the trustee, to sell the land in such manner as he might deem expedient to raise money for its discharge. The land, by the express terms of the deed of trust, was the fund out of which the debt was to be discharged. Boisseau was not bound to look elsewhere, nor could the hei r compel him to seek satisfaction out of the personal assets of Gray. By the terms of the deed, Boisseau had the right to demand a sale of the land on failure of Gary to pay, and direct the proceeds to be applied to discharge the debt of the bank. Without having first discharged such debt himself, under these circumstances, he would have had no claim against the personal assets, and it would not be contended that if he had filed a bill to compel an execution of the trust, before he had paid the debt to the bank, that he could properly have made the personal representative a party. Indeed, under no circumstances was Boisseau compelled to look for indemnity to any other source than the land thus conveyed in trust. Hence, it was not necessary, and would not have been proper, to have made the personal representative a party in a suit, brought to subject the land merely. But it is contended that the personal representative should have been made a party, because perhaps, he had discharged the debt in whole or in part, out of the personal assets. If such had been the fact, the heir might have shown such payment, in whole or in part, to discharge the trust wholly or pro tanto. That is mere payment, and the evidence of it could be produced, as well by the heir as the administrator. But it is said if an administrator had been appointed in Ohio, he must have had notice, and in the rightful discharge of his duty, must have had communication with the administrator in Virginia, which would have brought home to the absent1 parties, actual notice of the pendency of this suit. This reasoning is not valid, ^because if the administrator was not a necessary party, from the nature of the interest involved in litigation, the law neither directs nor permits the appointment of an administrator, and the making him a party to a suit, for the purpose of more certainly bringing homo notice of its pendency to absent parties.

But it is assigned for error that Boisseau was not a party. Gary died insolvent, without having paid the debt, and left Boissoau, his security, to pay it as ho best might. Boisseau gave a new note to the bank, with his brother, Peter F. Boisseau, and May, the complainant, as indorsers. Boisseau became insolvent; his brother was discharged for want of proper notice to charge him as indorser, and the whole debt fell upon May, the complainant in the original bill. May discharged this debt, which was about $5;000.

Boisseau had assigned to him, as indemnity, his entire interest in the deed of trust to Jones. Boisseau thus parted with his entire interest in said trust, and May paid the whole debt, for which Boisseau was liable to the Bank of Virginia. Why then should Boisseau be made a party to a proceeding instituted by May to 'indemnify himself out of the proceeds of the sale of the land, by enforcing the trust? Boisseau had no interest in the matter, further than that May should be paid out of the land. This would discharge Boisseau from any liability to May, his accommodation indorser. Now, it appears from the record, that Boisseau was •insolvent; that May paid the debt; and that Boisseau had assigned to him his entire interest in the deed of trust. What, then, is there in all this that would require Boisseau to be made a party in a proceeding to sell these lands? It is said that there were ■certain contingencies, upon which the right to sell depended ; such as that Gary must have failed to pay, etc. It is sufficient to say, upon this point, that all the contingencies have happened in the fact that all failed to pay the debt who were originally bound, and that it has been discharged in full by May, and he is the only party directly interested in enforcing indemnity to himself out of the land. But it is urged that ^perhaps' Boisseau has paid May, and therefore has an interest in the trust fund, and hence should be made a party. The record shows that Boisseau was insolvent, and that May paid the whole debt, and that no part of it had been refunded to him. Hence, Boisseau had no interest whatever under this trust deed, and it was not necessary to make him a party. He had assigned his whole interest to May. The case of Johnson v. Hart, referred to in 3 Johnson’s Cases, is not like the present. There Hart took an assignment of a note and mortgage for a larger sum, to secure the payment of a less sum; hence, Johnson was entitled to the surplus, and was a necessary party.

It is said that the widow of Gary should have been made a party, as she has a dower interest in the land. It is sufficient answer to that, that if she has such dower, it is not affected by this decree, and she is at full liberty to file her bill to have dower assigned, or to pursue any other interest she may have. It is not necessary to open up this decree to permit her to pursue her equity.

We find, then, no want of proper parties.

2. As to notice arid proof of publication. There is proof of publication ; but it is contended that the notice itself is not sufficiently full and accurate. * We regard it sufficient under the statute. It certainly contains a “summary statement of the object and prayer” of the bill, sufficient to put the respondents upon inquiry, and advises them as to what interest of theirs is sought to be affected by'the proceeding.

3. As to the proofs upon which the decree was rendered. The bill was taken as confessed, the trust deed exhibited, and the cause referred to a master to take an account. The report was made and confirmed by the court. We are not advised upon what evidence the master made up his report. But the amount was found by the master, and decreed by the court. It was the duty of the court,—and the presumption is that the court performed its duty —not to render a decree except on satisfactory testimony. At all events, we are not disposed to inquire, upon bill of review, into all the *small details of practice. Unless it appear from the record that error has been committed, wo will not presume it.

It is urged as error that taxes paid by May upon the land have been allowed when not claimed in the bill. A claim for taxes paid is made in the bill. But, at all events, taxes are a lien upon the land, which are entitled to be discharged out of the proceeds of sale, whether specified in the bill or not.

It is argued that the original debt is barred by the statute of limitations, and therefore that equity, in analogy to the law, will not enforce the trust deed executed as indemnity. The deed itself is valid, and in full force. The right to enforce it is perfect. The cestui que trust lias paid the money for which it was executed as 'an indemnity. But it is said that, because at law he could not sue for and recover-the money which he has paid for the use of another, a court of chancery will not enforce his equitable rights. This is a most unreasonable defense, and without foundation in a court of equity. The statute bars the debt at law, from the nature of the evidence to support it. But, as cestui que trust, he has an equitable interest in lands conveyed in trust as an indemnity, and it is contended that the trust will not be enforced because an action is barred at law by the statute of limitations. It has been held in Connecticut, that where there are two securities for the same debt, the one of which is barred at law, and the other not, the latter may be pursued in a court of equity. Equity will not deprive a cestui que trust oi rights which have attached under a trust deed, because such interest could not bo pursued in a court of law in consequence of the statute of limitations. To do so, would be to compel a cestui que trust to yield up an interest held as indemnity, without satisfaction, and would dejirive him of an equity which controls the legal estate, to confer it upon another without consideration.

But if the respondents had a defense to the bill upon this or any other gi’ound, they should have appeared and applied to have had the decree opened up under the statute. All %e look to, upon bill of review, is to ascertain whether there is error in the record. It is no ground to support a bill of review, that a good defense might have been made, but was neglected.

So far as appears from the record in this ease, we have not been able to detect any error which would authorize a reversal of the decree. Demurrer sustained and bill dismissed.  