
    *Wilson and Trent v. Butler and Others.
    Argued Feb. 1st, 1813.
    i. Injunction —Against Sale under Executlon. — Although a person, whose property is taken in execution to satisfy the debt of another, may proceed to recover that property, or damages for the taking and detaining thereof, in a Court of law; and although the sheriff, having doubts as to the title to-the property, may demand from the creditor an indemnifying bond; yet neither of these remedies, is in exclusion of a bill of injunction to prevent the
    a. Sale of Personalty — Retention of Possession by Vendor — Case at Bar. — A suit on a bond was brought against the debtor in a county in which he did not reside; he confessed judgment on the return of the writ, and furnished the sheriff, having the execution, with a list of slaves, and other property of his, to be advertised to be sold at his own house:,the property (without being seen by the sheriff until the day of sale) was advertised, and sold to the creditor, for a fair price, though no other person bid: the creditor, (whose claim was proved to be j ust an d bona fide,) being a brother of the debtor’s wife, permitted the property to remain in the debtor’s possession, and within five years afterwards, conveyed the same, in trust, for the use of the wife and children of the debtor, by a deed recorded in a different county from that in which the propertywas. None of these circumstances were considered unfair; and tile deed was adjudged to tie good against other creditors.
    Upon an appeal, allowed by a judge of this Court, from an order of the superior Court -of chancery, of the Richmond district, dissolving an injunction, 
    
    The bill was exhibited by James Wilson and Stephen W. Trent, trustees, named in two deeds of trust, for Anne Copland, wife of David Copland; and the said Anne Copland, by the said James Wilson, her next friend, stating that David Copland, being justly indebted to Benjamin Harrison, by bond, in the sum of 3371. 10s., with lawful interest thereon, from the ISth of May, 1809, and to Carter B. Harrison, by bond, in the sum of SS41. 8d., with interest from the same day, Benjamin Harrison, executor of the said Benjamin Harrison, deceased, and William A. Harrison, administrator of the said Carter B. Harrison, deceased, severally instituted actions of debt against the said David Copland, on his said bonds, in the county Court of Cumberland, on which judgments were obtained at July Court, 1809 ; that executions were severally issued thereupon, and .levied, each, on sundry slaves, whose names were mentioned ; that the slaves, 45 head of sheep, 19 head of cattle, and a mare, taken to satisfy the execution in favor of Benjamin Harrison, were bought by him of the sheriff, for the sum of 3531. 4s. 3d. ; and the slaves, taken to satisfy William A. Harrison, were, -in like manner, bought by him for the amount of his debt and costs ; that, afterwards, the said deeds of *trust were executed by the said Benjamin Harrison, administrator, de bonis non, of Benjamin Harrison, deceased, and William A. Harrison, administrator of Carter B. Harrison, respectively, on the 20th day of ^November, 1809, reciting that it was the intention of the said Benjamin Harrison and Carter B. Harrison, in their lifetime, (they being brothers of the said Anne Copland,) that she should have the benefit of the said debts during her life, for her separate use and support, &c., and therefore conveying the said slaves, and other personal estate, to the -complainants, Wilson and Trent, in trust, for her benefit, &c. ; that the said trustees, being so entitled to the said slaves and other personal estate, suffered a part of them, by her wishes and consent, to be worked upon the lands of the said David Copland, but entirely under their own control, for the purpose of raising bread, &c., for the support of the said Anne and her children; others were necessarily employed as house servants for her convenience, and the stocks kept on the land for the support of the establishment; that since the recording of the said deeds of trust, a judgment was obtained by John Butler & Co., in the county Court of Buckingham, against the said David Copland, for upwards of 2801., and a fieri facias thereon was levied on several of the slaves conveyed in trust as aforesaid. The object of the bill was, therefore, to prevent a sale of those slaves ; the plaintiffs suggesting, that ■although they might, as trustees, perhaps, ^recover their value at law, yet that would •defeat the very objects of the trust, as the hire of slaves greatly exceeds the interest of the purchase money, which was one of the strongest motives of the donors for investing the money in the said slaves ; that the subject of trusts, and the faithful execution thereof by the trustees, is the peculiar province of a Court of equity; and that the plaintiff, Anne Copland, could apply to that Court alone, for the purpose of having the fund preserved for her.
    The answer of William M’Kenzie, acting partner of the firm of John Butler & Co., (who considered himself *the only defendant beneficially interested in the defence of the suit,) alleged a number of circumstances, inducing him to believe that the deeds of trust were a fraudulent contrivance to cover the personal property of David Copland, for the benefit of his family, against the just demands of his creditors. “The bonds are said to be executed on the same day, May 15th, 1809; the obligees die ; an executor is appointed for one, an administrator for the other; suits are brought, and judgments on the same day of July, 1809 — incredible despatch, if all were fair ! The suits are brought in Cumberland, where the defendant, Copland, did not reside; judgments must have been confessed at the return day, if the bonds were executed in May. Executions were taken out by Copland himself : he furnishes the sheriff of Buckingham with a list of the property, to be advertised to be sold at his own house. The sheriff never levied the executions, but attends and cries the property out to the bids of the plaintiffs, being not opposed by any other bona fide bidder : the property was never in the possession of the sheriff, and never out of the possession of Copland, until the sheriff, by virtue of the execution of John Butler & Co., for the benefit of this defendant, seized and removed some of it from his plantation. The grantors, in the deeds referred to, never had possession : the deeds are made and recorded in Charles City and Prince George Counties, while the property still remained in the county of Buckingham, in the possession of David Copland; and the trustees never had possession nor control of any part of it.”
    The answer of David Copland denied that any fraud or collusion existed in the transactions in question ; averring, that the bonds were given, and judgments obtained, for the amount of cash and tobacco advanced by the brothers of his wife, for his use, and, for the most part, to relieve his estate from executions ; “that, shortly after the death of the last of those friendly brothers, this respondent was called on by their sons and legal representatives, to secure the balances due, and left it with them *to take any-course which seemed to them best: they preferred the one stated in the bill, by suit, judgment, and sale under execution, which took place with no other intent but the payment of a just debt, as well of gratitude, as actual cash and tobacco advanced.”
    Sundry exhibits and affidavits (which, by consent of parties, were read as evidence) strongly supported the statement made in this answer. It also appeared, from the affidavit of Boaz Eord, the deputy sheriff, who sold the slaves and other property under the writs of fieri facias, in favour of the Harrisons, that, shortly after receiving those executions, lie met with David Copland, at Buckingham Court, who immediately expressed an uncommon degree of satisfaction at seeing him, and inquired if he had not the above. executions : he answered in the affirmative: whereupon Mr. Copland drew out a list of slaves, &c., which he said he wished to be advertised to satisfy them; observing that the affiant might have no farther trouble about the business, than to name a day, at his house, for the sale, and that he would notify the plaintiffs, that the property might be undoubtedly sold. The sale, accordingly, took place (after advertising) at Mr. Copland’s own house, where the property was produced, according to the list before furnished, and sold ; at which sale William A. Harrison became the purchaser, not only for himself, but for Benjamin Harrison, for whom he acted; that no person but the said Harrison made a bid, except this affiant, who did so in order to start the sale of a piece of property ; but that, considering the time and terms of sale, the sales were as good as could be expected ; that it was very common for the sheriff to advertise and sell property by list, without any actual seizure ; that if the debts were bona fide and just, there was, in his opinion, nothing in the manner of levy and sale to vitiate the transaction ; that the property, so soon as it was bid out, was immediately ordered by Mr. Copland back into his service; that, at the sale, Mr. Copland expressed to the affiant some uneasiness, stating that there was room for the Harrisons to *use considerable deception on his children, provided they did not convey the property purchased at said sale to his children, according to promise ; and further stating, that the meaning and intent of the business was to secure the property to his wife’s children.
    The Court of chancery granted the injunction, June 13th, 1811, and, on the 17th day of the same month, dissolved it; upon a motion made to that effect, by consent of parties ; “being of opinion, that if either the cestuy que trust, or cestuy que use, had supposed there was any combination between the trustees and the creditors of David Copland, and had asked for an injunction to stop a like sale of the property in question, until the matter could be examined into, it might have been granted upon the principles of the Court, because neither cestuy que trust nor cestuy que use have any legal right in the trust subject, and, therefore, they cannot maintain an action at law, .upon an equitable interest ; and hence it is that they are entitled, (and at all times,) if clear of fraud, to the aid of a Court of equity, since they are clearly without a remedy at law ; and, on this account, when they come with clean hands, they are the peculiar favourites of equity ; and so is the trustee applying under like circumstances, in relation to either cestuy que trust, or cestuy que use, as it respects the subject of the trust; but not as it respects those who violate his legal rights as trustee ; since, for any such violation, he has an adequate remedy at law ; as for example, in the principal case, he might maintain detinue, trover, or trespass, before a sale, beside the additional remedy upon the bond to indemnify the sheriff to sell. The property is Copland’s, or it is not: if it is, M’Kenzie should be allowed to indemnify the sheriff, and to sell: if it is not, the plaintiffs’ right would not be changed by a sale their legal remedy is open to them j and a Court of equity *should not interpose, but under such circumstances. as would justify it in any other case. If, in this case, this Court can interpose in the first instance, is it not opening an avenue to this. Court, by which every case whatsoever may be let in 7 Nay, does it not render ineffectual the act of the legislature, which makes-it the duty of the sheriff to sell when he is indemnified ? Or is the Court to try the fraud stated in the answer, in relation to the judgments and deeds referred to by the bill ? If the Court is, may it not be called upon, in every case, to stop the proceedings at law, and to try the cause ? Or is the Court to become a mere handmaid to a Court of law, and to direct an issue in all such cases 7 If the Court is to do this, why not let the issue be made up in the Court of law in the first instance, since every citizen, who is a defendant, has a right (as it now seems to the Court) to demur to a bill like the present, and to demand a trial by jury. Upon this view of the subject, this Court erred in granting the injunction ; and, therefore, it is admitted, the counsel was correct in asking al dissolution of it, upon the ground that it should not have been granted; for which reason it is now discharged; but the plaintiffs may, according to the course of the Court, carry on this suit as an original bill for relief, or suffer it to be dismissed at the. next term, under the act.”
    
      
      Indjunctlons — Against Executions. — This subject is discussed at some length in foot-note to Kelly v. Scott, 5 Gratt. 479; foot-note to Randolph v. Randolph, 3 Munf. 99; monographic note on “Injunctions” appended to Claytorv. Anthony, 15 Gratt. >18. The principal case was cited on the subject in Baker v. Rinehard, 11 W. Va. 241; Summers v. Bean,. 13 Gratt. 415; Bowyer v. Creigh, 3 Rand. 81; Allen v. Freeland, 3 Rand. 173,175. In these last two cases, the principal case was distinguished on the ground, that the plaintiff in equity claimed the property, not as a security for money, but as belonging of right to himself and further that the property in question was slaves.
    
    
      
      Sale of Personalty — Retention of Possession by Vendor — Fraud.—See foot-note to Wright v. Hencock, 3 Munf. 521, and notes there cited.
    
    
      
      Note. See Bullitt’s executors v. Winstons, IMunf. 269.
    
    
      
      Note. See Clayborn V. Hill, 1 Wash. 177-185; 3 H. &M. 235, and 458.
    
    
      
       See acts of 1809, ch. 11; sect. 2, Sup. to Rev. -Code, p. 45, 46.
    
    
      
      Note. See act “concerning sheriffs,” passed Eeb-ruary 8th, 1808; Rev. Code, vol. 2, p. 160. — Note in Original Edition.
    
   Thursday, the 4th of February, 1813, the following was delivered by

JUDGE ROANE

as the opinion of the Court of appeals.

The Court is of opinion, that although a. party, whose property is taken in execution to satisfy the debt of another, may proceed to recover that property, or damages, for the taking and detaining thereof, in a Court of law ; and although it is competent to a sheriff, having doubts as to the title of property taken in execution, to demand from the creditor an indemnifying bond, pursuant to the act in such case made and provided, yet, that neither of these remedies are in exclusion of a proceeding in equity, *having for its object the retention of the property, in specie. Every argument on which the jurisdiction of the Courts of equity, to-compel a performance of a contract, in specie, is founded, is supposed to hold with equal force, at least, in favour of retaining a. subject of property, which another, having no title thereto, claims to arrest and dispose of by means of an execution, rather than turn the rightful owner round to seek an uncertain and inadequate reparation in damages. On this ground, the Court is of opinion, that the declared principle of the decree before us is erroneous.

With respect to the merits of this particular case, while the Court, as the case now appears, has no reason to doubt that the judgments under which the property conveyed! was purchased, were founded on a valuable and even meritorious consideration ; neither does it perceive any circumstances, as to the manner of obtaining, or proceeding under the same, which, independently of that objection, would be considered as unfair, or contrary to the usages of the country in relation to such transactions. With respect to the possession of the slaves, which is alleged to have been retained by Mr. .Copland, the Court is of opinion, that a title in them was duly acquired by the grantors in the deeds in the proceedings mentioned, and that the said slaves were, by them, loaned to Mrs. Copland, or to her husband ; they could not, therefore, be considered as the slaves of Mr. Copland, in favour of his creditors ; but such loan was liable to be terminated, and the property resumed, by the lenders, at any time within five years ; which, in fact, was done, by the execution of the deeds in the proceedings mentioned.

On these grounds, the decree of dissolution is reversed, and the injunction reinstated, with liberty to the appellees to impeach the title of the appellants, by showing the judgments in the proceedings mentioned to have been voluntary, or fraudulent, on the final hearing of the cause.  