
    Thomas Hundley vs. Robert H. Buckner, use of Levin R. Marshall.
    Whether the certificate of the record of a deed, by a deputy of the probate clerk in his own name, and not in that of his principal, is a valid certificate of such record. Quiere ?
    Where a deed was read without objection in the court below, the certificate of record of which was made by the deputy of the probate clerk, this court would not lend a willing ear to that objection, raised here for the first time.
    Where a deed was offered in evidence, the certificate of the record of which was made and dated several years after the actual record of the deed, such certificate, unless there be evidence to disprove it, will be sufficient evidence of the proper record of the deed, to. admit it as testimony.
    The rule that if personal property be left in the possession of the vendor or grantor it is evidence of fraud, has no application to deeds of trust or mortgages duly recorded; it is confined to absolute sales ; the recording of the ^mortgage is equivalent to an actual delivery of the property.
    Where a trustee, to whom a slave has been conveyed as security for a debt, institute an action of detinue against a person not a party to the deed, for the recovery of such slave, the recital in the deed of trust, and the production of the note, to secure which the negro was conveyed, will he prima facie evidence of the bonafides of the debt thus secured.
    Whether the sale of a slave, under a deed of trust, by which the slave was conveyed to a trustee to secure a debt due the cestui que trust, will be valid if made by the trustee while the slave is in the adverse possession of another, and not present at the sale. Quiere ?
    
    Where personal property is sold not upon a credit, the purchaser cannot take the property or sue for it, without payment or tender of the purchase-money.
    M. conveyed a slave to B. in trust to secure M. R. & Co. a debt; after the execution of this deed of trust, the slave conveyed by it was purchased un- ■ der execution against M. by H. on a judgment junior to the deed of trust. 1 B. the trustee, sold the slave while in the possession of H., and in the absence of the slave, under the deed of trust to L. R. M.; and thereupon B. instituted an action of detinue for the use of L. R. M. against H. to recover the slave ; held, that the action of detinue could not be maintained in the name of one for the use of another, and that therefore the name of the usee in the record was wholly superfluous; an impertinent allegation, and should be disregarded.
    
      In an action of detinue, the legal title alone is in controversy ; if there he equities, they must be settled in some other mode.
    It seems that where an objection is taken to the insertion of the name of an usee in the record, such objection should be made in the court below, where it might easily be remedied.
    In error from the circuit qourt of Hinds county ; Hon. M. L. Fitch, presiding judge.
    Robert H. Buckner, who, as the declaration stated, sued for the use of Levin R. Marshall, instituted an action of detinue in the court below, on the 28th day of April, 1838, against Thomas Hundley, to recover a negro woman, named Maria. Hundley plead non detinet. A trial was had at the June term, 1842, and a verdict rendered for the plaintiff below, and the usual judgment entered.
    On the trial, the plaintiff below read to the jury a deed from Archibald McManus to him for the negro in contest, with other property in trust, to secure the payment of two notes of about seven thousand dollars each, payable in 1836 to Reynolds, Marshall & Co., authorizing a sale to pay the debt in the event that they were not paid at maturity. The deed was in the usual form of deeds of trust, and was dated the 27th February, 1835. It was acknowledged in due form, and had the following-certificates of record attached to it, to wit:
    “ State of Mississippi, Hinds County.
    
    
      “I certify that the foregoing deed of trust was this day duly recorded- in the probate clerk’s office in said county, in book G., pages 434, 435 and 436.
    “ Given under my hand and seal of office, this 4th day of March, 1835.
    [L. S.] “ J. L. Goddard, D. C.”
    11 State of Mississippi, Hinds County.
    
    I, S. S. Scott, clerk of the probate court for said county, hereby certify, that the foregoing deed was on the 4th day of March, 1835, truly recorded in my office, in book G., pages 434, 435 and 436.
    
      “Given under my hand and seal of office, the 27th day of March, 1840. S. S. Scott, Clerk.
    
    [L. S.] Per H. Seaton, D. C.”
    The plaintiff then proved that the negro woman Maria, in the possession of the defendant Hundley, was the same negro mentioned in the deed of trust, and then read the note in the deed mentioned as evidence of his debt. Jacob F. Foate, a witness for the plaintiff, proved that before the commencement of the suit, he called upon Hundley, the defendant, as agent for the plaintiff, and requested Hundley to surrender the negro in contest, which was refused. Lewis McManus, also a witness for the plaintiff, proved that it was the understanding between the parties to the deed of trust, that the property mentioned in it was to remain in the possession of McManus, until it was necessary to proceed under the deed. It was also proven that Buckner, the plaintiff, a short time before the commencement of this suit, in pursuance of the directions of the deed of trust, offered the property therein mentioned, including the negro in contest, for sale, and the most thereof, including the negro sued for, was bid off for Levin R. Marshall, and delivered to him or his agent, except the negro Maria, then in contest, rvho was not present, having previously been purchased by the defendant Hundley, at execution sale, as the property of McManus. The purchase for Marshall was made under the direction of the plaintiff.
    The bill of exceptions recites further, that “there'was no evidence that Marshall had ratified the purchase of the negro Maria.”
    This was all the evidence in the case. The defendant then moved the court to instruct the jury,
    1st. If the jury find from the testimony that Buckner, the trustee, before the commencement of this suit, under the deed to him, sold the negro in contest to Levin R. Marshall, that the title is in Marshall, and the plaintiff has no right to bring this action, and they should find for the defendant — which was given by the court with this addition, that if the jury believe the purchase and sale to Marshall was made by Buckner, the trustee, or by his direction, and had not been ratified by Marshall, then there would be no purchase or sale, and the title is yet in Buckner. To which addition the defendant objected and excepted, at the time of giving the same, and before the jury retired from the box.
    The defendant then moved the court further to instruct the jury.
    1st. That the deed of trust from McManus to Buckner, passes or passed no title to the plaintiff, because there is no such evidence as is required by law, that the deed was recorded in due time.
    2d. If the jury find from the testimony, that the negro Maria sued for is the same mentioned in the deed of trust, still they cannot find for the plaintiff, unless they also find, from the testimony, that the negro mentioned in the deed was delivered to Buckner, the trustee, at the time of the execution of the deed.
    3d. The jury cannot find for the plaintiff unless there is proof before them of the debt mentioned in the deed of trust, other than the recital in the deed, and the production of the note mentioned in said deed. All which last three instructions the court refused to give to the jury; to which the defendant at the time, and before the jury retired, excepted. The jury then gave the verdict before referred to, and the defendant moved the court to set aside the verdict and grant a new trial, because
    1st. The jury found contrary to the evidence.
    2d. The court improperly charged the law, and refused to charge as requested.
    The motion was overruled, and exception was taken, and the cause brought by Hundley to this court by writ of error.
    Hughes, for plaintiff in error.
    1. But two questions are made in this court. Should the plaintiff below have made proof of his debt, secured by the deed of trust, other than by the recital in the deed, and by production of his note 1 This question we think is clearly for us. See 4 Watts, 359; 13 Viner’s Abr., title Fraud, (F.) sec. 18, p. 522. 2d. It is insisted that possession should have accompanied the deed. Roberts on Fraud. Con. 489.
    
      W. G. Thompson, on the same side.
    By the law of this state the person for whose use any action may be brought, is considered the real plaintiff. If the trustee’s sale to Marshall was valid, Marshall acquired both the legal and the equitable title to the slave; and the action should have been brought in his name alone. If that sale was not valid, he acquired no description of title, and the action should have been brought for the use of Reynolds, Marshall & Co. There is no ground on which it can be sustained in the name of the trustee for the use of Marshall.
    The only evidence of the plaintiff’s title which was offered in evidence, is a deed of trust. The entry made by “ J. S. Goddard, D. C.” cannot be recognized as an official certificate. The other entry made by the clerk on 27th March, 1840, stating that the deed was recorded in 1835, if it be a proper certificate at all of the recording of the deed, surely cannot be allowed to relate back to a period of five years past. Under our statute deeds of trust take effect only from the time they are recorded. Hundley had purchased the slave in controversy previous to the date of the only entry, which can be taken for a certificate by the clerk as the recording of the deed of trust.
    It was incumbent on the plaintiff to show that he had title when the action was commenced. The plaintiff is required to prove the title which he sets up in his declaration. But in this case, the deed of trust, which is relied on by the plaintiff for title, shows a different title from what he claims in his declaration. He institutes the suit as trustee for Marshall; it appears in proof that he is trustee for Reynolds, Marshall & Co.
    
      George S. Yerger, for defendant in error.
    1. The first point is, whether the sale to Marshall by Buckner was void. On that point, I refer the court to my brief in the case of James C. Wilkins v.-, before the court, and authorities there cited.
    
      
      2. That the naming L. R. Marshall as the person for whose use the suit was brought, is surplusage, (the legal title being in Buckner.) Vide 8 Term R. 330 ; 7 Ibid. 47; 1 Chitty Plead. 57; Chitty on Bills, 9, note 1; Smith v. Mabry, 9 Yerg. 314; Scott v. Dunn, 1 Dev. & Bat. Eq. R. 415; 8 Martin’s R. new series, 163; 6 Ibid. 684; 10 J. R. 223.
    3. This case, on its merits, depends upon whether the probate and registration of the deed of trust to Buckner is valid. If it is, the title to the slave is in the plaintiff.
    The act, in regard to deeds of trust, (see How. & Hutch. 344, sec. 5,) says that all such deeds “ shall take effect and be valid,” &c. &c., “ from the time when such deed of trust or mortgage shall have been acknowledged, proved or certified, and delivered to the clerk of the proper court to be recorded, and from that time only.”
    The tenth section of the act (see p. 345,) requires the clerk, or his deputy, to certify the day of the month and the year, when he received it, and when the same is recorded, the number, book, page, &c.
    The eleventh section imposes penalties on the clerk if he fails to do as directed.
    The objection raised is, that it is not certified and put in the deed of trust the day it was delivered to the clerk for registration, as required by the 10th section above.
    We reply, that this section is directory to the clerk; that its object was to ascertain the precise day when it was delivered for record, and to give it effect from that day.
    If there is no statement in the deed the precise day it was filed, then it can only take effect from the day it was recorded. Because the 5th section gives it effect from the day of delivery to the clerk for record. If the certificate states it was recorded on a particular day, this is certainly clear and undisputed evidence that it was delivered on or before that day. It was obliged to be delivered on that day, otherwise the clerk could not have recorded it.
    The object of the law was to give notice of the deed of trust, and to give it effect from the day of delivery to clerk. The object is attained by recording the deed, and surely if it is recorded on the 4th March, 1835, by the clerk, it must have been delivered to him on or before that day, but as his record does not show the precise day, it must be taken to be the day of record.
    But it may be objected, that the certificate of its record is by the deputy clerk.
    This is authorized by the act of 1822, H. & H. 471, sec. 15, which says the deputy clerks shall have full power to do and perform all the duties enjoined on their principals.”
    
      J. F. Foute, on the same side.
    1. Hundley claims under McManus, and therefore as the recitals in the deed and note would be, until disproved, conclusive against McManus, they are also so as against Hundley.
    2. Admitting the first certificate to be wrong, the second is certainly sufficient; the certificate is but evidence of the record ; the fact of the record is unchanged, whether the certificate exists or not. The statute does not provide when the clerk shall certify the fact of record; but only that his certificate shall be evidence of the due registration and record; which the second certificate states in full.
    3. In cases of deeds of trust and mortgages, it is not requisite that possession should accompany the transfer; the deed is the legal delivery.
    4. The motion for a new trial was properly overruled. The court will never grant a new trial where the verdict and judgment can be upheld on legal principles. 2 Bibb, 178; Ibid. 429; 1 Bibb, 248; Hickman v. Sutherland, 4 Bibb, 194.
   Mr. Justice Clayton

delivered the opinion of the court.

This was an action of detinue brought for a negro slave, by the defendant in error, against the plaintiff in error. A verdict and judgment were rendered for the plaintiff in the court below.

Several questions have been made in argument. The title of Buckner as trustee, is derived from a deed of trust executed by A. McManus, to him to secure a debt due to Marshall, Byrne & Co.

The first objection to the recovery grows out of the certificate as to the recording of the deed of trust. This certificate is made and signed by a deputy of .the probate clerk in his own name, and not in the name of his principal. The deed was read upon the trial in the circuit court without any objection of any kind, no motion was made to exclude it, nor any bill of exceptions taken to its admission. We would not lend a willing ear to the objection now for the first time raised. But there is another certificate of the recording of the deed signed by the name of the principal clerk, to which the only objection is, that it bears date some years after the first. It would not be proper to exclude the deed if the first certificate be bad, (as to which we give no opinion) when there is a certificate good in point of form, and to which no objection is made, except that it bears date several years after the deed was placed upon the record. Unless there were evidence to disprove this certificate, we could not pronounce it false, and exclude the deed.

Again it is insisted, that the deed of trust is void, because the slave was left in the possession of McManus, the grantor in the deed. The rule that if personal property be left in the possession of the vendor or grantor, it is evidence of fraud, has no application to deeds of trust or mortgages duly recorded. It is confined to absolute sales. The recording of the mortgage is equivalent to an actual delivery of the property. Forbes v. Parker, 16 Pick. 462; Claiborne v. Hill, 1 Wash. 177; Glasscock v. Batton, 6 Ran. 78; 2 Kent’s Com. 530, n.

Another objection is, that there is no evidence of the bona Jides of the debt secured by the deed of trust, nor any evidence of its existence, except the recital in the deed of trust, and the production of the note for which it was given. This was sufficient ■prima facie proof, and none other was requisite, unless this had been impeached.

The slave for which the suit was brought had been advertised and sold by Buckner as trustee, when the slave was not present, and was in the adverse possession of Hundley. The slave was bid off for Marshall, but was not delivered, nor was any payment made or credit allowed to McManus for the price, so far as the record discloses. We will not undertake to decide, whether the sale is void or not, because made when the slave was in the adverse possession of another. The rights of the debtor would certainly seem to require that a sale should not take place under circumstances so well calculated to sacrifice his interest. But when the sale is not upon credit, payment or tender of the price is a condition precedent implied in the contract of sale, and the buyer cannot take the goods or sue for them without payment.” 2 Kent, 492. We do not think that Marshall could recover the slave by suit, in his own name, and the right of action must remain in Buckner.

In the action of detinue the legal title alone is in controversy, if there be equities they must be settled in some other mode. This action is not of that class, in which a suit can be maintained in the name of one for the use of another. Smith v. Mabry, 9 Yerg. 314. The name of Marshall in the record is wholly superfluous, no proof as to any equitable title in him ought to have been introduced. None indeed was introduced, except as to the trustee’s sale. An allegation which is impertinent, or which need not be proved, may be looked upon as surplusage, and wholly disregarded. 2 S. & M. 150.

We cannot perceive that any possible prejudice has accrued to Hundley by the introduction of Marshall’s name, as his title was not involved, being at most inchoate and incomplete. No objection was made upon this ground either, in the court below -t if there had been, it might have been easily remedied.

The judgment is affirmed.  