
    Taylor v. Ficklin and Others.
    Argued Tuesday, March 14, 1815.
    a. Deeds of Trust — To Secure Creditors and Support Grantor — Rights of Assignee of Debt, — A man indebted by bond executed a conveyance of all his property in trust, for payment of his just debts in the first place; for his own support during life in the second: and, afterwards, for the benefit of his wife. &c. He died, without any will or property acquired after the date of such conveyance: and no person administered on his estate. It was held, that an assignee of the bond was not restricted to his remedy at law against the assignor, but without bringing any action at law, might obtain relief in equity by a decree of a sale of the property in the hands of the trustee,
    a. Same — Same—Same.—In such case, if the fund in the possession of the trustee prove insufficient, the plaintiff in equity may recover the balance of his claim from a debtor of the obligor; and, in default of both these funds in whole or in part, he may proceed against the assignor.
    3. Same — Same—Same—Parties.—And, it seems, that all the persons concerned being made parties, the court may do complete justice in one suit, and make a full end. of the whole controversy.
    Benjamin Eicklin, being employed by William Oden, as his agent, to collect a debt from Beverly R. Waggoner, took a bill penal for the same, amounting to $257 30 cents payable to himself. Oden assigned to Benjamin Botts, for valuable consideration, “the debt due to him from Waggoner, or Eicklin, as the case might be, to secure which a bond was given by Waggoner to Ficklin,” authorizing Mr. Botts “to use his name at his pleasure in the recovery “but he (the assignor) was not to be answerable for the insolvency of the debtor.” Botts afterwards assigned the same bill penal to Thomas Taylor for valuable consideration. Waggoner, the debtor, after executing the bill penal, made a deed of trust conveying all his property, real and personal, to John Gibson, sen. for payment of his debts in the first place, for his own support during life in the second, and, afterwards for the benefit of his wife, &c. ; which deed was duly recorded. Before the date of that deed, Eicklin bought a tract of land of Waggoner, whereupon they entered into articles of agreement, binding the purchaser to pay a part of the purchase money when a deed should be made him, and the balance in two annual payments.
    A bill was filed by Taylor, assignee as aforesaid, in the Superior Court of Chancery for the Richmond district, against Gibson the trustee, Margaret Waggoner and her infant daughter his cestuy que trusts, and Ficklin, Oden and Botts defendants ; setting forth the circumstances above mentioned, and also that *Waggoner the debtor had died, without any will or estate acquired after the execution of the said trust deed, and no person had administered on his estate ; that possession of the land purchased by Eicklin was delivered to him at the time of executing the articles of agreement between him and Waggoner ; but, before he tendered a deed to Waggoner, the latter died ; and so the said Eicklin had ever since held the property and enjoyed it, without a deed, and without applying to the trustee for one. The plaintiff therefore prayed that the said Gibson be decreed to execute a deed to Eicklin, and that he be decreed to pay to the plaintiff the amount of his claim with interest; or, if that resource should fail, that then the said trustee be compelled to execute his said trust, by the sale of so much as would pay the same ; and for such other relief as the nature of his case might require.
    The defendants, by their several answers, admitted the allegations in the bill; except that nothing was said in Eicklin’s answer concerning his being in possession of the land ; which fact he neither admitted, nor denied, though charged expressly in the bill. He contended that, as no deed had ever been made him, he was not bound to pay any interest on the purchase money ; while Gibson, in his answer, insisted that Eicklin having been in possession from the date of the contract, enjoying the profits without paying the purchase money, ought to be compelled to pay interest upon it.
    Chancellor Taylor, “not discerning how the plaintiff can be interested in obtaining a deed for the defendant, Benjamin Ficklin, for the land sold to him by Beverly R. Wag-goner, as appears by their agreement of the 17th of July 1807, among the exhibits aforesaid, nor why the plaintiff should come into this court, as the said Benjamin Botts is the only person named in the transaction that is liable to him for the non payment of the assigned bond in the bill mentioned,” therefore adjudged, ordered and decreed, that the bill be dismissed with costs.
    From this decree the plaintiff appealed.
    Wirt for the appellant.
    Williams for the appellee,
    Ficklin.
    
      
       See monographic note on “Deeds of Trust” appended to Cadwallader v. Mason, Wythe 188.
      The principal case was cited in Atterton v. Hull. 12 W. Va. 179.
    
   *February 1st, 1816.

JUDGE ROANE

pronounced the court’s opinion.

The court is of opinion that the decree of the chancellor, dismissing the bill of the appellant, is erroneous, and should be reversed with costs ; and this court proceeding, &c. it is farther decreed and ordered, that the appellee, John Gibson, pay to the appellant, out of the trust subject in his hands, in the proceedings mentioned, the principal sum and interest claimed by the bill, with the costs in the Court of Chancery ; and that the said trustee shall, if necessary, sell as much thereof, on reasonable notice, as may be sufficient to satisfy the same. The court is also of opinion, and hereby decrees, that, in default of the other part of the said trust fund, the appellant. may, by causing the appellees to interplead, or otherwise, proceed against the appellee Ficklin, to recover so much of his debt as may be unpaid from the trust fund aforesaid; and, in default of both these funds, either in the whole or in part, that he shall have like liberty to proceed against the representatives of Benjamin Botts. And the cause is remanded to the Court of Chancery to be proceeded in pursuant to the principles of this decree.  