
    No. 120.
    Peyton L. Wade et al. plaintiffs in error, vs. Sarah A. Powell, defendant in error.
    
       A deed of trust which creates a sepárete estate in the wife, and which imposes no duty noon the trustee except that of merely holding the lega! title, gives to the wife the right to the possession and use of the trust; property.
    
       And if the trust property should get into the possession of the husband or the agent of the trustee, the wife would have the right to sue both the husband and the trustee in Equity for the property. At least, she would provided the case she made was such as would.entitle .her to the possession of all or some of the property specifically.-
    £3.] And in such case she would also have the right to an injunction to prevent .the property from passing out of the hands of the husband into those of his principal, the trustee.
    
       If it is necessary to the attainment of the relief to which a complainant is entitled, (hat A and li should be defendants to the bill, and A resides in. • one county and B in another, the complainant may file his bill in either ■ county.
    In Equity, in Murray Superior Court. Tried before Judge .Trippe, April Term, 1856.
    .This bill was filed by Sarah A. Powell, wife of Jacob S. P„ Powell, by her- next friend, James Edmonson,-against Peyton L. Wade, Jesse L. Wad;e,-of the County of Whitfield, and-the said James S. P. Powell of-Murray County.
    The bill charges—
    1st. That in. March, 1819, James I). Irwin made a deed of trust, conveying certain negroes to Peyton L. Wade, in trust for the sole and separate use of complainant during her life, and then absolutely to .such children as she might leave, surviving her; that the negroes now number some thirty-five and are in the possession of, complainant.
    2d. That on the 4th day of November, 1851, Jacob S. P. Powell, (complainant’s husband) made an agreement with Peyton L. Wade for the purchase of certain other negroes, to become a part of the. trust estate on the terms of the first trust deed.
    3d. That Peyton L. Wade, by himself and agents, has taken possession of all the' negroes mentioned in the trust deed and the contract made in November, 1851, and used a portion of the property, hut how.much he has worked and how long she does not know, and prays that Wade may answer and set forth.
    4th. That the trust property in Wade’s possession is of the value of $25.0.00, and.of, the annual value for hire $2,000; that he has failed to account for the profits ; that he is setting up title in himself to a part of the property, and seeks to recover that part of it whieh is in the possession of her husband.
    5th. That Wade, and Ms. agents, Jesse Wade and Jacob S. P. Powell have had the management of the trust property; that Wade, through her, husband as his agent, has allowed her the use and possession of a part of the property, but has failed to come to any account, touching the management of the trust property, the profits, his receipts and disbursements, the work and labor of the negroes, and what charges he has made or intends to make for taking care of said property.
    6th. That she is informed and believes that Wade seeks to apply the hire and profits1 of the trust property to the pay■mont of a claim he has against the husband of complainant, .and to hold'the possession .of‘the trust estate, and'claims;-the .profits thereof.
    7th. That she'fears, and lias reason'to fear, that Wade,is -wasting the trust property.
    8th. Complainant and her-husband are living together; in harmony, and strife and contention have arisen between Wade and her husband.
    9th. That Wade has commenced an action in the Superior Court of Murray County for a part of the trust property against her husband, James S. P. Powell.
    10th. That Wade has commenced another suit in Murray Superior Court against her husband for the property conveyed by her father to Wade in trust for her; that the negroes are in her possession; yet, Wade has held her husband to bail, and threatens to prosecute said suit to judgment and' take possession of the negroes.
    11th. That Wade -has received large -sums of -money for the hire of the trust property and labor of the negroes; .has ;appliod a small portion thereof to the -use and benefit of .the trust estate, and has converted the remainder to his own use.
    ,12th. That Wade has worked a part of the negroes; made corn and cotton, and applied the same to-.his own use; that ■she has applied to Wade for an account of the proceeds of the trust property, but has met with a proposition -to settle her husband’s debts.
    13th. That Wade threatens and intends to apply the trust .property-to his own use.
    The bill prayed -that all the defendants may -answer; that they show how much Jacob S. P. Powell .owes P. L. Wade, ,and how much Wade is indebted to Powell; thatP. L. Wade may account for the trust estate; that :h.e be removed -and another trustee be appointed; that the suits brought by Peyton L. Wade against Powell be enjoined, and that Wade 'be enjoined from taking possession of the trust property, and ..that the complainant may have such' other or further relief as her case may require.
    
      To this bill a general demurrer was filed by the defendants.. The two Wades also plead to-the jurisdiction of the-Court, alleging that they were not residents of the County of Murray, but resided in the County of Whitfield.
    The Court over-ruled the demurrer and plea to the jurisdiction, and refused to dissolve the injunction, and Counsel! for defendants excepted. .
    Hooper & Akin, for plaintiffs.
    Underwood; Walker, for defendant.
   By the Court.

Benning, J.

delivering the opinion.

The first question is, was there any equity in the bill ?

The bill prays for an account from the trustee, for the removal of the old trustee, and the appointment of a new one, and for an injunction to restrain the prosecution of the trover suits, and to restrain P. L. Wade from taking possession of" the trust property.

There was equity in the bill, if Mrs. Powell was entitled to. the possession and use of the negroes constituting the trust-.property; and the bill was a-measure necessary to enable horto obtain their possession and use.

We think that Mrs. Powell was entitled to the possession and use of the trust property. According to the terms. of the deed, the property was to be for her sole and separate • use; and the trustee was to have nothing to do except merely to hold the legal title to the property.

In such a case, the cestui que trust is, unless there is some - special reason to the contrary, entitled to the possession and use of the property. (Wilkins and Wife vs. Williamson, 14 Ga.)

Some of the trust negroes are the “family servants” of' Mrs. Powell. To the possession of these she is entitled in ■ specie.

Was the bill a necessary measure to enable Mrs. Powell to obtain the possession of all or any of the trust property ?'

A part of the negroes were, as we have seen, “ family servants.”

An action of trover would not have been such a measure as could have been depended on to secure the delivery of these negroes to Mrs. Powell. Nothing but a decree in Equity for their delivery to her, would be what could be relied on for that purpose.

The negroes were all in the possession of her husband; and him she could not have sued at all, at Law, as the wife cannot, at Law, sue the husband. (1 Black. Com. 444; 2 Story’s Eq. §1368.) In Equity, however, the wife may sue the husband. (Id.)

It is plain, from several things which appear in the bill, that Powell, the husband, is insolvent, although the bill does not, I believe, contain a distinct allegation that he is insolvent. The insertion of such an allegation would strengthen the bill. Being insolvent, it is doubtful whether a judgment-against him, even for damages, would be worth any thing. This will appear more distinctly presently.

As between Mrs. Powell and Mr. Powell, therefore, the bill was a measure necessary to enable her to obtain the possession of the trust property, or perhaps to obtain any thing.

Was it so, as between her and Peyton L. Wade ?

Powell, the husband, was, it is true, in the possession of the trust property, but he was in the possession of it as the agent of Peyton L. Wade, and he had been sued for it in trover, by Wade. Powell, therefore, was bound, in law, to return the property to Wade. This obligation would not have been at all impaired by the existence of the bill of Mrs. Powell against him, if that bill had been against him alone. It would still have been his duty to return the property to Wade, his principal. It may be doubted, perhaps, whether a judgment against him in such a bill, would have been a protection to him from Wade.

In order, then, to make it certain that a decree against Powell would insure the delivery of the property to Mrs., Powell, it was necessary for lier to liave the use of something which would prevent Powell from being deprived of the property by Wade.

There ivas nothing which could be this something except a-bill in which not only Powell, but Wade also, should be a defendant ; and a bill which should be accompanied by an injunction against them both, to prevent the one from depriving the other of the possession of the property.

As between Mrs. Powbl] ^nd Wade then, also, the bill was necessary to enable her to obtain the possession of the trust property. ■ •;

The necessity for the bill becomes the more manifest to us, if we boar in mind'-that Powell ivas insolvent, and that a portion of the trust negroes' were such as Mrs. Powell was ■entitled to the possession of specifically.

There was, therefore, equity in the bill as against both Powell and P. L. Wade.

And this equity was such as was sufficient to authorize the granting of the injunction as a part of the interlocutory relief to which the plaintiff was entitled.

As to these two defendants, then, wo think that there was. equity in the bill, and equity to authorize the granting of the injunction; and, of course, equity to make that injunc- - tion perpetual on the hearing.

But if the ease was such that Mrs. Powell was entitled to have this extent of relief against Wade, it was such that she was entitled to have against him the whole extent of relief which the case called for. When equity gets possession of a case for partial relief, it gives complete relief.

Mrs. Powell was therefore entitled to have from Wade and from Powell, his agent, a general account of the trust; and also, to have Wade removed from the trusteeship, for the bill states a case of breach of trust on his part.

But as to Jesse Wade, we see nothing in the bill which.' makes out a case of any sort against him. The bill contains this allegation: “ That the said Peyton L. Wade has, by himself and his agents, had the care and management of the said trust estate to the present time, by himself and his agents, Jacob S. P. Powell and Jesse Wade.” And this is the only allegation which it contains, with respect to him. •And this fails to say that he is in the possession of any of the trust property or any of the proceeds of it, or that he ever was, or to say any thing else that would make out a case for relief against him. AgJ;oJbfejj»i^3lK£fore, wo think it true that there is no'equity^K^^jpAjj^^jinsequontly, that as to him the demurrerwi^Kohavo beeir slstained.

The only remaining questidk in*tíi(í^^[|^j¡feether Peyton L. Wade could be sued ii// Murr ay^Oounty," in he resided in Scriven County or in

And wo think that he coulol^ The case(yg|^mie in which both P. L. Wade and Powell werelu?$§$^try parties, in order to insure the certainty of a part, if not the whole, of the relief to which thet complainant was entitled. Of them, one resided in Murray,' and the other in Scriven or in Whitfield. The suit, therefore, had to be in one or another of these counties; and there appears no reason why it should be brought in either of the latter two rather than in the first.

This case is not at all like that of Jordan vs. Jordan & Carter, which has been so often before this Court. In that •case, neither defendant resided in the county in which the suit was brought; and the principles recognized in that case are such as sanction the propriety of the bringing of this suit in Murray County.

We therefore affirm the judgment of the Court below, except so much of it as relates to Jesse Wade.  