
    Hiram Selser vs. William Ferriday et al.
    If a party sued at law had an opportunity of making his defence there, or could have had it by proper pleading, he cannot afterwards be heard to make it in a court of equity.
    A trustee who takes no benefit under the trust is generally a competent witness, but one who does take an interest under the deed is incompetent.
    A debtor conveyed his property to two trustees to secure certain debts and liabilities, among others one to one of the trustees, and also certain other debts on which the same trustee was the surety of the debtor ; the property thus conveyed was afterwards levied on by execution against the debtor, on judgments junior to the deed of trust, and the trustee, not secured, claimed the property as trustee, and gave a bond to try the right; on the trial, the trustee who was secured by the deed, having released his power as trustee and his interest under the deed to his co-trustee, (the claimant,) was offered as a witness for the claimant, and excluded: Held, that he was properly excluded ; he had a direct interest under the deed, which his release to his co-trustee did not discharge ; the creditors for whom he was surety for the debtor, could not be deprived of their right by a release to the trustee.
    
      Held, further, that being incompetent at law by reason of interest, he would be for the same reason equally incompetent in equity ; and could not, therefore, be admitted as a witness in a subsequent suit in equity, commenced by the trustee who had claimed at law, to enjoin the execution of a judgment rendered against him upon such claim, on the ground that he had not had a fair hearing at law, by reason of his co-trustee’s testimony being ruled out.
    On the trial of the right to property levied on under execution, the jury,-in assessing the value of the property, should be governed by its value at the time of trial.
    If the claimant, therefore, can show a depreciation in value, he may do so ; or he may show that it was legally taken out of his possession by one having a paramount title.
    This showing must be made at law on the trial of the issue, by proper evidence under appropriate pleading ; and if not so made, and it was in the power of the party so to have'made it, it will be too late after judgment to make it in a court of equity.
    If the defence have accrued after the ordinary issue to try the right has been made up, by the property claimed being taken out of the possession of the claimant by executions older than, and of liens paramount to, that of the plaintiff in execution, whose levy he is contesting,'the claimant should plead that fact, (which thus puts at end to such plaintiff’s right,) puis darrein continuance; but if he omit to do so, and go to trial on the ordinary issue, he will not be allowed to prove such fact on the trial; and it will be no ground for the interposition of the chancellor after judgment al law against him, that he was not so allowed ; the non-allowance being entirely the result of his own fault in not shaping his pleadings so as to admit his evidence.
    A trustee made claim and gave bond to try the right to a portion of the trust property, levied on under execution at law against the grantor in the deed of trust; the jury found against the claim of the trustee, and that it was made for delay ; after judgment the trustee filed his bill in equity for relief, on the ground that he had not been able to make his defence at law, and that the plaintiff in execution had obtained an unconscientious verdict against him; the court, after deciding that the failure to make the defence at law was the omission of the claimant’s, review some of the facts in proof, which tended to show that the claimant was not without blame, and to cast a shade of suspicion over the fairness of the deed of trust, and to show a want of good faith on the part of the trustee.
    
      On appeal from the superior court of chancery ; Hon. Robert H. Buckner, chancellor.
    William Ferriday, Samuel Gustine, B. C. Smith, and William H. Dunbar, state in their bill, that on the 13th of April, 1838, George R. Carradine and wife made a deed of trust to William Ferriday and Richard M. Corwine as trustees, and thereby conveyed certain lands, slaves, and other personalty of said Carradinc, being his entire estate, in trust to sell and apply the net proceeds to pay certain bonds and forthcoming bonds, which fU.id Corwine and Henry F. Carradine had assumed for said George; then to pay the claims held by said Corwine against caid George; then a note of said George on which Corwine was surety, and two notes of said George and Henry F. Carradine, and Douglas S. King,, held by Hiram Selser, (being the two notes on which the judgment of Selser hereafter referred to w,as rendered,) which deed was duly recorded 30th April,. 1838.
    Said grantees accepted said trust, and Corwine and H. F. Carradine, as creditors, accepted its provisions. Ferriday consented to act with great reluctance, and as a favor, having no interest, at all in the matter. The execution of said deed was soon notoriously known, and Selser knew of it and did not object. At that time said grantor was greatly embarrassed, and there were unsatisfied judgments against him' to about $12,000; a crop of cotton was growing on the land, and therefore the trustees thought best to delay a sale, under the deed, until the crop could be gathered.
    On the 14th of May, 1838, said Selser recovered judgment against said George and H..F. Carradine and King for $8050.49, upon said two notes named in said deed. On the 15th of Aug. 1838, a fi. fa. o.n said judgment issued, and was, on the 8th of Sept. 1838, levied on part of said slaves conveyed by said deed.
    Ferriday, believing it his trust duty, in good faith filed his claim, as trustee, and gave bond, with J. C. Ferriday and Robert Turner, securities, to try the right of property. At November term, 1838, of Yazoo circuit court, issue was made up, and at May term, 1839, the issue was found for Selser, the plaintiff in.execution. On that trial the most important part of Ferriday’s proof was ruled out, because of the peculiar and equitable character of his rights as trustee. Judgment was for said slaves or $11,200, their value, &c. From that judgment Ferriday appealed, and complainants, Gustine, Smith, and Dunbar, were sureties on his writ of error bond. The high court affirmed with damages. After said claim of property was filed, but before the trial of said issue, all of said slaves were seized by the sheriff of Yazoo, out of possession of Ferriday, and sold under executions upon judgments rendered long before that of Selser, and prior to date of said deed of trust; under said executions, all of the trust property was sold, and the judgments are yet in part unsatisfied. Other property sold by said Carradine, long before and for full Value, to Shipp, Ferriday & Co. was also sold under said executions.
    Charges that, under the summary proceedings of trials of right of property, the rights of Ferriday as trustee could not be, and were not, fully tried, nor was he permitted to show the seizure and sale of said property under said older executions, and that so he was prevented, without his default, from complying with his bond. Selser was not at all damnified by the said claim made by Ferriday; suggests that Selser, knowing of said levy and sale, acted in fraud of the rights of Ferriday in not seeking an appropriation of the proceeds of sale to his judgment.
    Prays an injunction, that said judgment be vacated, and for general relief. v
    The deed of trust and record of the trial of right of property, were exhibited with the bill; the latter shows the oath of Ferriday as claimant, and the issue to try the right of property; the bill of exceptions, showing that claimant offered his co-trustee, R. M. Corwine, as a witness, and he was excluded, and a bill of exceptions, showing that claimant offered to prove the slaves had been seized and sold under older judgments, which proof was rejected ; and the verdict which finds the claim was made for delay.
    The answer of Selser admits the execution and registry of the deed of trust; does not know or believe Ferriday consented to act as trustee through friendship, &c., as alleged. Execution of said deed was notorious and known to defendant, but he ordered a levy, and did not accept the provisions of said deed. Denies that Ferriday accepted in good faith, without any interest in said deed. Admits the embarrassments of Carradine and the old judgments against him at date of the deed. Admits his judgment was on notes secured by the deed, the levy, claim, and issue to try right of property; denies that any legal or material evidence was ruled out on account of the peculiar or equitable rights of the trustees. Admits the writ of error and affirmance of judgment; admits the seizure and sale of the slaves, after claim filed, under said older executions; one of said older judgments, if not the others, was assigned to Ferriday; contends that Ferriday should have applied the crop, land, &c. to pay said judgments, which was enough to discharge them.
    Charges that Ferriday caused said slaves to be levied on under said older judgments, and waived advertisement, in order to defeat the judgment of respondent, and so the sale was not generally known, and few bidders present, and the property sacrificed. About eight of the slaves were bought by an agent of Ferriday at reduced prices, to defeat respondent. Ferriday has acted fraudulently throughout; the lien of said older judgments was postponed by the acts of the parties. That three of said older executions had, prior to date of respondent’s levy, been levied on other property sufficient to, satisfy them, which levies Ferriday and others enjoined, and said levies were released by order of plaintiffs in said executions; whose attorneys then ordered a levy on the property so levied on under execution of respondent; insists that Ferriday had a fair trial on the issue, and pleads that recovery; denies that said slaves were wrested from Ferriday by power of the law, and insists they were seized by his connivance and fraud.
    He exhibits memorandums of those older judgments, the executions thereon, and returns, &'c., and a deed, dated the 13th of April, 1838, from George R. Carradine and wife to "William Ferriday, for use of Shipp, Ferriday & Co., conveying lands and slaves, &c.
    , Thomas P, Slade proved that he was Yazoo circuit clerk in 1838. and there were then judgments against George Carradine, in favor of William S. Eskridge; same against same; Granville S. Pearce, use, against same, and makes copies of them and proceedings thereon, exhibits executions issued thereon, on the 7th of Nov. 1838.
    A. M. Boylan testified, that he considered George R. Carradine utterly insolvent in 1838, though, he was possessed of a large property. Shortly before executing the deeds of trust, he told witness he was on the eve of insolvency, and thought his slaves would be levied on, and,spoke about getting aman to take them out of the state. Shortly before that deed, said Carradine told him he owed or had owed Ferriday, and had paid part; that his object was to convey the property to Ferriday, to avoid creditors, and Ferriday was to settle it upon the wife and children of Carradine. Carradine continued for six or seven months after the deed, in possession of said negroes; said slaves were taken from the county by said Carradine and Ringgold, agent of Ferriday or Shipp, Ferriday & Co., with many other negroes, about Nov. 1838, under fear that they would be stopped -by the sheriff under executions.
    Robert Turner deposed, that in 1838 he was requested by Ringgold, who, as he understood, was agent of William Ferriday, to attend a sheriff’s sale, in Yazoo, of George Carradine’s slaves, and to buy in, some of them for Ferriday; and witness did so buy seven or eight of them. Understood another person was present for the same purpose; thinks he was told by Ringgold not to bid against that person; the latter bought several of said slaves. Understood that Ferriday or his agent consented to said sale.
    Henry F. Carradine deposed, that if George R. Carradine’s property had been sold in 1838 for cash, it would not have paid his debts. Shortly before the deed to Ferriday, for the use of Shipp, Ferriday & Co., George Carradine was indebted to Shipp,. Ferriday & Co. in $7000 or $8000; but immediately before the execution of that deed, Ferriday said to George that it would look bad to take conveyance of so much property to cover that amount, and arrangements were spoken of about Ferriday’s assuming debts of Carradine to make the amount some $15,000 or $16,000. It was understood between Ferriday and Carradine, that the latter should retain possession and have time to pay the $>16,000, and so soon as he repaid it out of proceeds of crops, the property so conveyed for use of Shipp, Ferriday & Co., was to be re-conveyed to him. Carradine, with the knowledge of Ferriday, sold a carriage and horses, and the furniture conveyed by that deed, and used proceeds. Said two deeds were executed just before the Yazoo court, in anticipation of the immediate insolvency of Carradine, and just in. time to secure the property against judgments that might be had at said term.
    Ferriday expressed reluctance to act as trustee. Witness inferred from a conversation between Ferriday and Carradine that the former refused so to act, except on condition that the latter would execute the deed for use of Shipp, Ferriday & Co. Carradine remained in possession of the'slaves sold in trust¡to Ferriday and Cor wine, for four or five months, and until they were levied on under the Selser execution. Carradine frequently told witness his object in making said deed, was to delay his creditors until he could make enough by mortgage of from the property to pay. Ferriday knew of his intent, and made suggestions about putting the property in bank; by mortgage, thirty-three slaves were conveyed by said deed, twenty-five of them were levied on by Selser; of the remaining eight, some are, or were in 1840, in possession of Ferriday, and the others were taken from the county by Carradine, by consent of Ringgold, agent of Ferriday. There was a crop raised on the trust place in 1838, 600 bushels of corn, and less than seventy bales cotton, possibly more. Thinks the cotton was shipped to Ferriday; thinks cotton was worth ten cents per. lb. The slaves levied on by Selser were afterwards levied on under other executions by consent of Ringgold, and he, Corwine, and Carradine waived advertisement of sale under said executions. Ringgold used every exertion to make the property sell low, and the parties said the intent was to levy most of it for Ferriday, and most of it was so bid off; thinks it sold for much less than it was worth.
    . G. N. Nelson deposed, that he was overseer for Ferriday on the Medley plantation, in 1838, about three miles from the Carradine plantation. It was notorious that Carradine was there acting as overseer, and he so admitted, for Ferriday. .A part of the slaves on the latter place belonged to Shipp, Ferriday & Co.'; most of the trust negroes were children; witness furnished supplies to that place from the Medley place.Was present at sheriff’s sale o.f part of trust negroes; a crowd was present, and the slaves brought full value. The object of Ring-gold in buying was to prevent separations of families, and he paid high prices. In the latter part of Nov., 1838, and after the sale, witness took possession of the Carradine place for Shipp, Ferriday & Co. Carradine, at request of Ringgold, and of Marsh, attorney of Shipp, Ferriday & Co., removed, in open day, the slaves so purchased, and the slaves of Shipp, Ferriday & Co. Carradine then claimed no ownership over them. Carradine applied for said supplies on behalf of Ferriday.
    Alexander H. Ringgold deposed, that in the beginning of 1838, witness was clerk of Shipp, ¡Ferriday & Co. In April, 1838, George R. Carradine was their debtor, for advances, assumptions, and liabilities incurred, $14,870.42, which assumptions they have long since paid. About the 13th of April, 1838, said Carradine, being embarrassed as indorser, and fearing he would be unable to pay said debt, proposed to William Ferriday, the liquidating partner of said firm, to sell to him in satisfaction of said debt, certain lands and slaves in Yazoo; Ferriday assented, and the sale was consummated by acknowledgment and delivery of the deed, though that deed is dated the 13th of April, 1838; the matter was not closed till the latter part of April. Said Carradine was employed as overseer to take charge of said land and slaves, as it would then have been injurious to the growing crop to remove the slaves. Said land was then encumbered with liens to the amount of $12,000, more than its value. Never doubted the fairness of the purchase. About the same time, said Carradine made a deed of trust to Ferriday and Cor-wine. In Augvfst, 1838, witness went to Yazoo as agent for William Ferriday and said firm, in relation to their business in that county. When witness arrived there, he found the sheriff had commenced levying executions on judgments older than said deeds. About the 20th of Nov., 1838, a levy was made, under said executions, on the slaves conveyed by said deed of trust. Ferriday was not present at any time that fall, and witness acted, in all the transactions, as such agent, receiving occasional letters of instruction from Ferriday. When said slaves were so levied on under said old executions, witness, as such agent, and to avoid expenses of keeping, costs, &c., waived advertisement of the sale. At the date of sale of said slaves under said old executions, neither the firm, nor Ferriday, nor witness had any interest in said executions. A portion of the Eskridge judgment being still unsatisfied after said sale, and witness being advised that it might be a lien on the slaves so purchased by Shipp, Ferriday & Co., he purchased said judgment for full value in order to protect their interests. The sheriff's sale of said slaves was numerously attended, and they sold for very high prices. All the trust slaves in Carradine’s possession were seized and sold by the sheriff; most of them were children; some were the children and relatives of slaves owned by Shipp, Ferriday & Co., and witness' as such agent, from motives of humanity, and to prevent a separation of relatives, requested Turner, Crane, and Pierce to bid for eighteen of them ; for them witness paid fair prices in cash. Ferriday was then at Natchez; witness is confident he did not order out or control said old executions or the levy thereof, and that the existence of said old judgments was unknown to said Ferriday when he accepted said deed. When Selser levied on said trust slaves, Ferriday took advice of counsel as to his duty as trustee, and was advised to file his claim and try the right of property. Witness was present at that trial, and can state that most of the important evidence offered by Ferriday was rejected, and the merits of the controversy did not, and, under the decision of the court excluding evidence, could not come before the jury. Some of the slaves named in said trust deed, either did not exist or never came to possession of Ferriday as trustee. None of them but the twenty-five levied on under Selser’s execution, ever came to possession of Ferriday. After said sale of said slaves in Nov., 1838, witness as agent, and to avoid the constant expense on them in Y azoo, had the slaves so purchased by witness, and those of Shipp, Ferriday & Co. removed to Adams county, under charge of said Carradine, overseer. None others were removed by him or by his consent. Has read the answer of H. F. Carradine to 17th interrogatory of defendants, wherein he says some eight of the trust slaves, not levied on or sold, were removed by George R. Carradine, with knowledge of this witness, which statement is wholly untrue. Took no measures to cause said slaves to sell low at sheriff’s sale. Of the eighteen he so purchased, two were very old, and the rest children, and he. paid for them $6289, which was more’ than they were worth. On account of the various seizures of the slaves by the sheriff during the summer and fall of 1838, there was but a small crop of cotton and com made on the trust plantation that year. The principal part of the crop rvas made by slaves of Shipp, Ferriday & Co. About sixty-five bales of cotton Avere made, but the proportion thereof due the trust estate would not more than cover costs and expenses paid by Ferriday. KnoAvs that costs and expenses paid by Ferriday, in management and for protection of trust estate, greatly exceed all his receipts therefrom. Knows of no other overseer, but Carradine, employed on said trust place. Does not knoAv by whose instructions or authority the levy was made on trust slaves. Evidence offered by claimant and rejected on trial of right of property, was proof of seizure and sale of said slaves, under said older executions, and the testimony of R. M. Corwine.
    George R. Carradine deposed, that in the spring of 1838, witness executed the deed of trust to Ferriday and Convine, to secure existing and bond fide debts. At the time of the Selser levy, the slaves were on the trust plantation in possession of witness, as manager of Shipp, Ferriday & Co.; after execution of that deed, he retained possession of'said slaves only as agent for said firm; on same place were a number of slaves he had sold for bond fide consideration to said firm. He then claimed some “personal right” to said last named slaves, under an understanding with that firm, that the property should be reconveyed to him when he should pay his debt to said firm ; that understanding is, in substance, contained in a letter from said Ferriday, marked A., to this deposition; witness owed bond fide debts, for which said slaves were conveyed to said firm, and he then told Ferriday his wish to have the property conveyed to his wife, if he should ever pay the debt, inasmuch as nearly all of it was derived through her; witness has never paid any part of it, and has, long since, abandoned all hope or thought of redeeming it; supposed, when deed was made, that he owed said firm some $16,000, but an error in calculations was afterwards discovered, which reduced it to about $15,000. The lands sold to Shipp, Ferriday & Co. were encumbered for $12,960; witness dictated the terms of said deed to Ferriday, and thinks if he had not accepted it, he would have run great risk of losing the amount, as witness was then sued for large amounts. At the time, witness wished to convey more property to said firm, to secure them from loss, but Ferriday declined, as he did not wish more than would secure the debt. The whole transaction on the part of Ferriday was honest and fair, and for the sole purpose of securing the debt of witness to said firm; so far from attempting to defraud any other creditors, Ferriday endeavored to assist witness in adjusting some of his other debts, by borrowing money for him in case he could have got an extension of time; thinks that, when he conveyed to Shipp, Ferriday & Co., he told Ferriday the various debts he owed, and among them the judgments taken to supreme court, which are first provided for in the deed of trust, but mentioned to him only those in said deed; afterwards, found some had been omitted.
    When said deeds were made, Ferriday, Corwine, H. F. Carradine, and witness, were in consultation for several days, about the arrangements to be made; had no conference with any other member of said firm; when said deeds were made, witness told Ferriday, in presence of Corwine, that he was greatly embarrassed, and that if said deeds were not made, his property would be seized by creditors.
    It was understood that the trust slaves were to be employed on the plantation in making the crop, and Shipp, Ferriday & Co. were to allow a hire for their services, which hire was to be applied to pay debts secured by the deed of trust; witness was to manage the land and slaves for Shipp, Ferriday & Co., at a salary of $1200 per annum. It was understood between Ferriday ánd witness, that the crops raised on the place were to be shipped to said Ferriday, but no understanding that the balance, over expenses, was to go to pay debt of witness to said firm.
    The expectation, aforesaid, of witness, that the slaves sold to the firm would be conveyed to his wife,- when said debt was paid, did not arise from any contract, but only from the friendship before then exhibited by Ferriday for witness; he told me to go on and manage economically; that he would allow me $1200 as overseer, and so soon as I could repay what he had given for the property, he would reconvey to my wife; never made any formal delivery of said slaves to said firm; they were never sold under execution against witness.
    The Selser execution was levied on the trust slaves, and the • older executions on those sold to said firm; witness was then absent, and on his return claimed the right to show property to be levied on, which the sheriff denied. The sale under said older executions was then enjoined, and it was decided that witness had said right; he then pointed out said trust property to be levied on under said old executions; witness, Corwine, and Ringgold, agent, waived advertisement, and the property was immediately sold to pay said older executions; Ringgold was present when witness so surrendered the trust property; does not recollect if he objected.
    On the sale, witness urged Ringgold, from motives of humanity, to buy part of them, as they were connected with those sold to said firm; he consented very reluctantly; Ringgold was apprehensive the firm negroes would be again seized by the sheriff, but was advised by his attorney that it could not be. However, he directed witness to take the firm negroes, and those bought at sheriff’s sale, to Natchez, and gave him the money to pay expenses; they were then removed; as the trust deed authorized a mortgage to raise money to pay the debts, Ferriday urged witness and Corwine to attempt to procure a loan in that way, and he would approve it, if a satisfactory loan could be made; Corwine knew my object, in making the deed of trust, was to prevent a sacrifice of my property, and to secure all my creditors; if sacrificed, it would not pay them; witness sold six of the trust slaves for his own benefit, without the knowledge or consent of Ferriday; he demanded them of me, but I gave him no satisfaction; after I left the state, two of them were found and sold by the trustees.
    The trust deed was drawn by Corwine at request of witness; Ferriday had nothing to do with the drawing or the arrangement of the terms of the deed; he accepted the trust with great reluctance, and was a mere naked trustee; I stated to Ferriday, that my object in making said deed, was to protect my creditors, generally, so that the property should not be sacrificed for the benefit of one at the expense of the rest; he approved my purpose, and said that, father than see me dishonest, he would see me a beggar; the deed !of said property to Shipp, Ferriday & Co., and said letter exhibit to this deposition, contain all the agreements ever made between Ferriday and me, relative to said property.
    John J. Michie deposed, that he knew of several judgments of record, in 1838, in Yazoo: circuit court, against George R. Carradine; was attorney for plaintiffs in four cases, in which were such judgments, to wit, in favor of G. S. Pierce, use, &c., S. Iiugeman & Co., and two in favor of W. S. Eskridge, amounting to $6000 or $80Q0; three of them were superseded by Carradine, but the supersedeas was discharged, in each case, for insufficiency of the security; executions thereon were first levied on the slaves sold by Carradine to Shipp, Ferriday & Co.; said slaves were claimed by William Ferriday, who enjoined the executions; witness then released the levy, and levied on the slaves conveyed by the deed of trust of Ferriday and Corwine; Ringgold, the agent, and Marsh, the attorney at law of William Ferriday, consented to the second levy; both were present; both of them proposed a release of first levy, and seemed particularly anxious for second levy to be made; Ring-gold, Corwine, and George R. Carradine, signed a waiver of advertisement of said slaves under second levy ; thinks the sale was on the day after the levy; witness, as agent, assigned one of said judgments to Ferriday.
    Said levy under execution, which witness controlled as plaintiff’s attorney, upon slaves of Shipp, Ferriday & Co., was dated 8th November, 1838 ; the levy on the trust slaves was on 20th of November; the reason why Ringgold and Marsh desired a release of the first, and the making of second levy, was to exhaust the trust property first; witness at first refused to release the levy, but did so in consequence of said injunction; said judgment was so assigned after the sale under the second levy; a balance remained unpaid, and Ferriday paid full value for it to keep it off the other slaves.
    R. M. Corwine’s testimony was taken, and admitted by the chancellor; he deposed, that in the spring of 1838, George R. Carradine stated to witness, as his legal adviser, that his affairs were embarrassed, and that he desired to make an equitable disposition of his estate, so as to pay his debts, as he feared, if forced sales were made, the property would be sacrified, and there would not be enough to pay all; there were then some judgments against him, which had been taken up on writs of error; he was largely indebted to Shipp, Ferriday & Co., and indebted to witness and others; he so called on me for advice as to the best mode to attain his object; said he desired to pay all his debts, and especially to pay that to Shipp, Ferriday & Co., and to save harmless his sureties, &c.; his brother, H. F. Carradine, was called in to advise-; it was determined the Carradines should go to Natchez to settle or secure the debt to Shipp, Ferriday & Co., and, by request, witness went with them as legal adviser. They arrived at Natchez in April, and called on William Ferriday; the amount due was ascertained, about $16,000, and less than Carradine supposed; Carradine at once proposed to convey, in payment of this debt, his plantation and certain slaves in Yazoo, and it was done; the land was encumbered to its full value, and, taking this into account, a full price was paid by Shipp, Ferriday & Co. The sale was absolute and bona fide; was present during the whole transaction, and has never heard any thing to induce him to believe otherwise as to the sale; heard of no agreement to reconvey to Carradine or wife, except that Ferriday wrote the letter spoken of by Carradine; after that, Carradine was employed by Shipp, Ferriday & Co., as overseer on said plantation, at a salary of $>1200; he was notoriously acting as such; after said adjustment of the debt to Shipp, Ferriday & Co., Carradine wished Ferriday and witness to act as trustees in a deed of trust he then intended to make to secure his other creditors; witness had before refused so to act, unless associated with some responsible person; Ferriday at first refused to act, but being urged by the Carradines, finally consented; both, Ferriday and witness, were particular to inform Carradine, that, by such a deed, he would lose all control over the property, and to declare to him, that such deed should be carried out in. good faith, otherwise, they would have nothing to do with it; witness drew the deed at the request, and under the instructions, of Carradine; on return to Yazoo, witness took informal possession of the trust property, and soon after hired the slaves to Shipp, Ferriday & Co., to be employed on said plantation until it should be convenient to sell them. Soon after, witness published, in Yazoo papers, a notice to creditors of making of an intended sale under said deed. In the fall of 1838, the slaves were levied on, in possession of Shipp, Ferriday & Co., under Selsers execution; Ferriday took legal advice, and, pursuant to it, filed his claim, as trustee, to .try right of property. In the mean time said judgments, on which writs of error' had been prosecuted, were cut loose, and executions thereon were at once levied on the trust property, and it was all sold under them; witness waived advertising tinder said executions, in order to save expenses incident to the delay, in feeding slaves, &c.; sales were for full prices, and with competition; Ringgold paid full prices; witness was present throughout the trial of right of property; Ferriday had not a full and fair trial upon the merits, inasmuch as his most important testimony was ruled out; he was not permitted to show the seizure and sale of the property under said older executions, nor that the trust debts were bona fide. The expenses of managing the slaves were much more than the value of their hire, whilst in possession of Shipp, Ferriday & Co.; Carradine desired to pay Shipp,.Ferriday & Co., particularly, because they had been his early friends, and had advanced him money, on his mere promise, to aid him when in need; he felt bound to protect them from loss; he proposed to give them the plantation and slaves in payment, but Ferriday refused to receive more than enough to pay the debt.
    Exhibit to this deposition, page ninety-eight, is letter from Ferriday to Corwine, dated 12th September, 1838, in relation to trust property, and his desire to discharge his trust duty, by interposing his claim for trial of the right of property.
    The late chancellor decreed a perpetual injunction, in favor of complainants, against the Selser judgment, and Selser appealed.
    
      John Baitaile, for appellant,
    Reviewed the facts, and cited 4 How. Rep. 506; 5 lb. 80; lb. 495; How. & Hutch. 634; lb. 654'; Gilmer’s Va. Rep. 341 ; 1 Wash. Va. Rep. 308; 4 Bibb. Rep. 270; Skipper v. Hargrove, Martin, La. 74; Scriha v. Deanes, 1 Brock. C. C. Rep. 168; Kershaw v. Merchants' Bank, 7 How. 386; Clowes v. Dickenson,, 5 J. C. R. 244; 9 Peters, 8; 6 How. 533; lb. 538 ; lb. 562; 71b. 397; 6 S. & M. 190; 2 Story, Eq. (3d edit.) § 1326; p. 6S8, 689, 691.
    
      George S. Yerger, on same side.
    1. Corwine’s testimony was ruled out because he was incompetent. He is still so, and his evidence cannot be heard here. If the court erred in excluding him, it cannot be corrected here; this court is not a court of error. But the high court said he was incompetent, and affirmed the judgment of the circuit court. 4 How. Rep. 520.
    2. The rejection of the bonds, and writ of error bonds, cannot be examined here. If there was error in rejecting them, the bill of exceptions ought to have shown in what these materially consisted. It did not, and the high court said there was no error in this. A party who neglects to put down his proof in the record, • for which cause he loses his case upon error, cannot be relieved against his neglect in equity. 4 How. 520.
    3. The third and only plausible ground for equitable interference in this case is, that after Ferriday had claimed the slaves by virtue of the supposed title by the trust deed, and after an issue had been made up to try this right, the slaves were levied on by older judgments, and taken out of his possession by the act of the law; and that this conferred on him an equitable right which could not be available at law, and that this evidence was rejected because of its equitable character.
    4. We deny this. It conferred a legal, not equitable, right. We assert, that supposing the older judgments all fair, and that, pending the issue, the slaves were taken out of his possession, and sold, and bought by himself, he obtained a clear legal right, which he could have relied on at law,'as a defence, upon the trial, but for his own neglect and want of proper pleading.
    This testimony was not rejected at law because of its equitable character, but because, 1st. It was not material or relevant to the issue, which was, whether they were the claimant’s, at the time the issue was made up, or whether on older bonds they were subject to the levy at the time it was made; there was no issue puis darrein continuance, as there might have been. And 2d. Because the complainant did not pretend Or offer to prove that he purchased them at the execution sale or any of them. The proof shows he bought eighteen. 4 How. 521.
    5. I take the law to be well settled, that if a defence could have been made at law, and was not made, or was prevented from being made by improper pleading, it is no ground to come into equity. Green v. Robinson, 5 How. Rep. 89.
    6. A judgment is conclusive, not merely as to what is decided, but what might have been decided if properly pleaded or presented, and so is a judgment on trial of right of property. 6-Por-ter, 447 ; 5 How. Rep. 104.
    Equity will not interfere, merely because injustice is done. Ifa party might have availed himself of his defence at law, and neglected it, or if his counsel omitted to plead so as to let it in, it is no ground for equitable interference, in cases of concurrent jurisdiction, as well as others. Green v. Robinson, 5 How. 105 ; Thomas v. Phillip, 4 S. & M. 358; Benton v. Crowder, 7 lb. 180; 2 Story, 185.
    7. The simple question then is, whether he might have made this defence at law; if he could, then he cannot come into equity.
    Now it must be remembered, that the evidence was not rejected because of its equitable character, but simply because it was not presented properly. To understand it properly, we must see what the issue was. The issue was, whether the property was the claimant’s, or was in his hands subject to that execution. The question was, whether at the time of the trial of the issue, the slaves were plaintiff’s property, and consequently not subject to Selser’s execution.
    On this point Mr. Yerger reviewed the proof, and cited 2 Hayrvood’s Rep. 186; 1 Iredell’s Digest, 191.
    8. But if the evidence was inadmissible upon that issue, not because of its equitable character, but because the seizure and sale arose subsequent to it, he should have filed an affidavit, and applied to the court to make up an issue puis darrein continuance. For if it was clearly irrelevant to prove matter of defence which arose after the issue under it, he could have filed this plea. 7 John. Rep. 194; 1 Chitty, Pleading, 657, 658, edit, of 1840.
    In detinue, any matter Avhich discharges the defendant, and Avhich has arisen after issue joined or suit commenced, must be pleaded puis darrein continuance. 2 Haywood, Rep. 186; 1 Dev. & Bat. 234; 1 Iredell, 523; 1 Tenn. Rep. 237; How. & Hutch. 654; Ross v. Gary, 7 How. 47.
    9. But the evidence shows fraud in both the deeds to Ferriday. See H. F. Carradine’s deposition, Boylin and Slade’s testimony, and Ferriday’s letter. The property first levied was subject to it; the release of that, discharged the lien of the judgment as to other creditors. 2 Tucker, Com. 364; 6 Wend. 562.
    
      
      Quitman and McMurran, for appellees, made and discussed the following points:
    1. That the subject-matter of the trial at law is peculiarly of equity jurisdiction. .
    2. That this court, has at least concurrent powers over the same.
    3. That in the former case, Ferriday would not be concluded by a full and fair trial at law; and in the latter, he is not concluded unless it was full upon the whole merits.
    4. That the verdict here is in the nature of a penalty, against which this court will relieve.
    5. That from defect of. law, want of foresight and mistaken advice, there was a failure of justice and an unconscientious and inequitable judgment obtained against complainant, and in such case equity will relieve, on general principles.
    
      1 st. Trusts and trustees are peculiarly subjects of chancery. 3 Gill & John. 311.
    Ferriday was a mere naked trustee. The cestuis were not in court, and full justice could not be done without their being parties. 4 Johns. Ch. 629 ; 1 A. K. Marsh, 514.
    On such issue he could not show that the property had been taken from him by a superior title. Ferriday v. Selser, 4 How. Rep. 521.
    The question of title cannot be tried on such issue.
    A trustee cannot show on the trial of such issue, that the deed under which he claims was made to'secure bond fide debts.
    The judgment creditor in this case was also a cestui, and entitled to come in under the trust.
    2d. The questions at law must have been upon the bona fides of the trusts assumed by Ferriday, involving collaterally the question of fraud.-
    It must also have involved the accounts between Carradine and his creditors and priorities; upon all which, this court has concurrent jurisdiction. . ,
    It involved the questions of marshalling assets, multiplicity of interests. The remedy at law was doubtful. 10 Johns. R. 587.
    3d. If the nature of the defence is equitable, the court will relieve even after a full trial at law. Appleton v. Harwell, Cook, 242.
    When a good reason is given why defence was made at law, and more especially if defendant in equity does not insist upon that fact, but goes voluntarily into the merits in his answer, a court of equity should grant relief. Vanlew v. Bohannan, 4 Rand. 537; 3 Paige, 313; Cook, 418; 22 Ch. Rep. 369.
    Matter of defence offered in a trial at law but rejected, does not bar relief in equity. Lift. Sel. Cases, 167; 2 Am. Eq. Dig. 13, $ 104; 2 Bibb, 539.
    4th. Equity will relieve against penalties. 2 Yern. R. 594; 1 Mad. Ch. 31; Brown, C. C. 418.
    A penalty is considered in equity merely accessional. Erring-ton v. Aynesley, 2 Brown, C. C. 341, (a strong case); 2 Munf. 31; 3 Gill & John. 265.
    5th. There is here a clear failure of justice from defect of law and other causes, and equity will relieve. Quck v. Stuyvesant, 2 Paige, 84.
    The summary and new character of the issue, the unsettled mode of pleadings and practice on a new law, partly detinue and partly a trial of a possessory interest, independently of the relation of the parties as trustee and cestui que trust, give the chancery court jurisdiction upon general principles, and the general powers of chancery were intended for such purposes. 2 Paige, 84.
    
      George L. Potter, also for appellees,
    Made an elaborate argument in support of the decree of the chancellor. He cited Freem. Ch. Rep. 258; Levin bn Trusts, (22 Law Lib. 306;) 4 Johns. Ch. R. 628; 7 Brown, Pari. Ca. 266; 8 S. & M. 206; H. & H. 634, § 20 ; lb. 653, $ 74, et seq. ; 1 Story, Eq. § 109; Foushee v. Lea, 4 Call, 285; 2 Story, Eq. § 887; Marine Insurance Company v. Hodgson, 7 Crancb, 336; 2 Rob. Pr. 218, and cases cited; Milleds Executors v. Rice, 1 Rand. 438; Royall’s Administrator v. Johnson, lb. 421; Hatchett v. Pattle, 6 Madd. 4, (11); Pickett v. Stewart, 1 Rand. 478; 1 Story, Eq. 90, 91; Long v. United States Bank, Freem. Ch. Rep. 375; 1 How. 50.
    
      To show that-where a party holds property to be forthcoming at the call of the sheriff, he is discharged if the property is seized from his possession under even a junior execution, for such seizure is “by paramount title, by act of the law,” he cited and commented on Edson v. Weston, 7 Cow. 278; Beach v. Abbott, 4 Yerm. 605; Rood v. Scott, 5 lb. 263; Lynch v. Thomas, 3 Leigh, 682; Beamed v. Bryant, 13 Mass. 224; Denny v. Willard, 11 Pick. 519; Fisher v. Bartlett, 8 Greenl. 122; Fuller v. Holden, 4 Mass. 498; Bursley v. Hamilton, 15 Pick. 40; Belt v. Worthington, 3 Gill & J. 247; Huggeford v. Ford, 11 Pick. 223; Carpenter v. Stevens, 12 Wend. 589; Weld v. Bartlett, 10 Mass. 471; 11 lb. 88; 6 Pick. 468; Clark v. Smith, 9 Conn. 380; Rich v. Bell, 16 Mass. 294; 1 Doug. .45; 4 East, 190; 9 Peters, 329; 13 East, 457; 6 T. R. 247; 1 John. Cas. 28; 18 Johns. 335; Kershaw, Executor, v. Boykin, 1 Brevard, 303; Yiner, Abr. Detinue, (D. S.) PI. 46,47,48; Garrett v. Early, 4 Bibb, 270; Burnley v. Lambert, 1 Wash. 308; 4 S. & M. 153; Rucker v. Hamilton, 3 Dana, 36; Lngall v. Lord, 1 Cow. 240; Freeman v. L,uckett, 2 J. J. Marsh. 390; Bigger, Administrator, v. Alderson, 1 Hen. & Mun. 54; 1 Ire-dell, 523.
    On the point that the judgment was no bar to the relief, he cited 1 Selw. N. P. 545 ; Garrett v. Early, 4 Bibb, 270; Gentry v. Barrett, 6 Monroe, 113; 2 Mallory’s Entries, 425; 2 Steph. N. P. 1309; White v. Ross, 5 Stew. & Port. 123; Bell v. Pharr, 7 Ala. (N. S.) 813; 8 Port. 564; Caldwell v. Fenwick, 2 Dana, 332; Austin v. Jones, 1 Gilmer, (Ya.) 341; Yin. Abr. Tit. Det. (D. S.) PI. 54, 55; Darcy v. Jackson, Palm. 249; 1 Cov. & Hughes, Ind. 491; Bac. Abr. Det. B. n. c.; Todd v. Croo/cshank, 3 Johns. Rep. 432; 3 Black. Comm. 152 ; 1 Toml. Die. 551.
   Mr. Chief Justice Sharkey

delivered the opinion of the court.

This bill was filed by the appellees to enjoin a judgment at law, rendered against them on a trial of the right of property. In May, 1838, Selser obtained a judgment against G. R. Carradine, and had his execution levied on the property, which is the subject of controversy. In April, 1838, Carradine, being indebted to Shipp, Ferriday & Co., sold them, in payment, a plantation in Yazoo county. At the same time he executed a deed of trust, in which he conveyed the property, on another plantation, to William Ferriday and R. M. Corwine, to secure certain debts therein mentioned. The execution of Seiser was levied on this trust property, and Ferriday claimed it as trustee. An issue was made up, which resulted in a finding that the property was liable to the execution, and that Ferriday’s claim was made for delay.

After the issue was made up, but before it was tried, the property was levied on under executions older .than that of Seiser, and older also than the deed of trust, and the property was'sold under them, Ferriday becoming a purchaser of part of it. These older executions had been previously levied on the property which Carradine had sold to Shipp, Ferriday & Co., and Ferriday sued out an injunction, after which the former levies, at the request and procurement of Ferriday through his agent, were withdrawn, and new levies made on the trust property.

An effort was made to show. this state of facts on the trial of the right of property, but they were not presented in such a shape, as to induce the court to admit the proof as it was. tendered. Ferriday appealed, and the judgment against him was affirmed in this court, the case being reported in 4 How. 506.

He now comes into chancery, and alleges, that because his proof was of a character that only entitled him to introduce it in a court of equity, it was excluded at law. If the transaction was a fair one, it is obviously a hard case on Ferriday; but this will not, of itself, justify a court of chancery in giving relief.

The case underwent an investigation before the chancellor, in which he came to the conclusion, that as there was no adequate remedy at law, and the judgment was unconscientious, it ought not to be enforced. The question must turn upon this, Was there a remedy at law, either in the shape the defence was presented, or in any other shape? If the party had such remedy, or could have had it by proper pleading, he cannot come into equity.

The chief ground relied on for relief in equity, is, that the testimony of Corwine was ruled out at law, by which complainant expected to establish the fairness of the transaction. Is his testimony admissible in equity? Corwine was one of the trustees. The deed secured a debt due to him; it also provided for his protection as surety for Carradine on bonds and notes, and sums of money which he had assumed. Before he was .called to testify, it seems he released all his power as trustee, and his interest to Ferriday. Such a telease could avail nothing. It did not deprive him of the benefits secured. Certainly Ferriday was not authorized to receive a release. The creditors to whom Corwine had become liable were entitled to the benefit of the security afforded by the deed of trust, and without deciding whether he could have released to Carradine alone, without the consent of the creditors, it is very clear that the release to Ferriday did not remove his interest. He was, therefore, incompetent at law, and for the same reason is incompetent in equity. So far, therefore, from his testimony being of an “ equitable character,” it is not even admissible in equity, and must be excluded. A trustee who takes no benefit, is generally a competent witness, but one who does take an interest under the deed, is incompetent.

Is there any other circumstance that entitles the complainant to relief? On an examination of the statute, which regulates the trial of the right of property, we are satisfied that the jury, in assessing the value of the property, should be governed by its value af the time of trial. If the defendant can show a depreciation in value, he may do so. He may show that it was legally taken out of his possession by one having a paramount title. The authorities cited by complainant’s counsel show this. 7 Cow. 278 ; 11 Pick. 223; 10 Mass. 470; 12 Wend. 589.

The question then is, How may this showing be. made ? In the trial at law, of course, by proper evidence under appropriate pleading. It is a question cognizable at law. On the trial at law, the complainant offered to read .the older judgments, the executions and the levies. They were ruled out, and this court held the judgment to be right, because the evidence was not proper under the issue; the question being, whether Ferriday had acquired title to the property under the deed of trust. It was not decided that this evidence was inadmissible under any state of pleading. The issue does not appear in the report of the case, but it is probable that it followed the usual form. If so, what was the jury to try ? Only, whether the deed to Ferriday and Convine was bona, fide. As between the older executions and Selser’s, it is probable no question was presented to them. As to the older executions, Selser had a right to levy and sell, subject to the prior incumbrance. The fault lay then in not so shaping the pleadings as to meet the^ contingency. . After the property was taken out of his possession by the older executions, Ferriday should have pleaded that fact puis darrein continuance, because that fact put an end to Selser’s right to levy on the property; it was no longer liable to his execution. Thornhill v. Gilmer, 4 S. & M. 164. A court of equity will not give relief after a judgment at law, when the remedy at law was fully adequate, and might have been made available by proper skill and vigilance. Green v. Robinson, 5 How. 105; Thomas v. Phillips, 4 S. &. M. 358; Renton v. Crowder, 7 Ib. 185. We differ with the chancellor then, when he says the remedy could not be had at law. On this point his decision turned, and in this we think there was error.

Aside from the rule which excludes the interposition of a court of equity, when the party might have had a remedy at law, there is nothing in this case which seems to entitle it to the favorable consideration of the court. The jury found that Ferriday’s claim was made for delay. The debt of Selser was one which was provided for in the deed of trust, and- yet the first effort of the trustee was to defeat that debt. The testimony of H. F. Carradine, of Slade, Boylan, Turner, and Michie, goes very far to show that the deed of trust-was made in fraud of the creditors of G. R. Carradine, and that Ferriday was a party to the scheme. The older executions were levied on property which had been sold to Shipp, Ferriday & Co., and Ferriday enjoined the sale. He shortly afterwards, through his agent and attorney, prevailed upon the holders of the older executions to withdraw the levy, and make new levies on the trust property, and then waived the advertisement, and the property was sold the day after the levy. It was said by the chancellor that he had a right to do this. True, he had a right in equity to require the plaintiffs in execution to exhaust the property which had not been sold by Carradine, before they resorted to that which had been sold to Shipp, Ferriday & Co. But such precipitancy was not required. Their judgments were then enjoined as to his individual property, and he might have left the plaintiffs to pursue their remedy against the trust property of their own accord. This course is calculated to throw a suspicion over the fairness of the deed of trust. Besides, there are many other circumstances^ which tend to show a want of good faith. The apparrent hardship of the case is, therefore, the less a subject of regret than if the complainant had presented himself without blame. Corwine, it is true, states that the transaction was a fair one. He may have thought so, but he is not a competent witness, and his testimony is, therefore, to be excluded.

Decree reversed, and bill dismissed.

A re-argument was moved for, but not granted.  