
    Brown, Administrator &c. vs. Wright.
    Previous to the passage of the act of 1831, ch. 24, administration of the goods in this State, of a resident citizen of another State, could be granted by the court of pleas and quarter sessions of the county where the goods were at the death of the owner.
    The act of 1809, ch. 121, does not restrain the jurisdiction acquired by the county courts under the act of 1794, ch. 23, sec. 1, over intes-tates’ estates.
    A bill of sale, absolute on its face, may be converted into a mortgage by parol, or by a subsequently executed bond in the nature of a de feasance.
    
    Whenever the relation of trustee and cestui que trust exists, a couit of equity will entertain jurisdiction.
    The contents of a record cannot be proved by parol; the record itself is the only legal evidence of the facts contained in it.
    The original bill in this cause was filed by Henry Small, administrator'of John Pearsall, deceased, against Thomas H. Wright, the appellant, in the circuit court of Tip-ton county, and alleges, that John Pearsall, in his life time, about the year 1821 or 1822, then a citizen of the State of North Carolina, purchased of the State Bank of North Carolina, at Newbern, a tract of land in said State; that he executed his notes for the purchase money, with said Thomas H. Wright, his security; that said Pearsall, in order to secure and save harmless said Wright, from all damage on account of said securi-tyship, executed to said Wright a bill of sale for six negro slaves, all particularly named in the bill of sale, which bill of sale was absolute and unconditional in its terms; that at the time the bill of sale was executed, the said Wright executed his bond for the sum of $3,200, the condition of which bond recited the conveyance of the six slaves mentioned in the bill of sale, to secure and indemnify said Wright for said securityship; that the said Wright was to have said six negro slaves absolutely, if he paid as much of said debt to the Bank as the ne-r groes were worth, or a part of the negroes at a fair valuation, in proportion to the amount of said debt by him paid, or if Wright was released entirely from the payment of the debt or any part of it, then he was to recon-vey said six negroes and their increase, to said Pearsall; .that if Wright did so convey, when released, then the obligation to be void and null, otherwise to remain in full force and virtue. The bill further alleges, that Pearsall, in his life time, continued in the possession of the negroes; that he brought them with other negroes to Tipton county in the State of Tennessee, where he was about to settle, but whilst on his way back to North Carolina for his family, said Pearsall died; that the complainant was a creditor of said Pearsall, and took out letters of administration upon his estate in Tipton county, Tennessee; that after he had taken upon himself the administration of said Pearsall’s effects, the defendant Wright took into his possession the said six negroes, and refused to deliver them to said complainant, after having promised to do so. The bill further alleges, that the said Pearsall, in his life time, or his personal representatives in the State of North Carolina, fully paid the whole of the purchase money for said tract of land, to said Bank, and thereby released and saved harmless the said Wright, from said securityship; that the said Wright did not pay said debt or any part of it, and that he was not bound for the same or any part of it, but was wholly freed and released from all responsibility for said purchase money; that Wright has sold some of the negroes as his own; that he is- in embarrassed circumstances, and likely to remove the negroes yet remaining in his possession, or sell the same, and that said negroes are worth from 1,800, to $2,000. The bill prays that the said Wright be decreed to give the possession of said slaves to the complainant, upon the hearing of this case, and that he give bond and security to have them 1 ° i i i mi forthcoming to abide the event oi the cause, that the bill of sale may be decreed to be cancelled, that Wright be decreed to pay a reasonable hire for the negroes in his possession, and that he pay full value for the negroes he has sold, and prays for an injunction and general relief to suit the case. The defendant Wright demurred to apart of the complainant’s bill: setting out for cause of demurrer, that the court had no jurisdiction of the cause, because the bill shows that the bill of sale from Pearsall to himself for the six negroes mentioned in the bill of complainant, is absolute and unconditional; because the said bond in the said bill of complaint mentioned, is a penal bond, and if the complainant has sustained injury by a breach of its condition, his remedy is in a court of law, and a court of equity has no jurisdiction of the matter; and because the bill does not state a promise in writing to re-deliver the said negroes to the complainant. The answer to the remaining part of the bill admits the talcing the negroes into possession, and insists they were the property of the defendant. The answer admits that the defendant has disposed of part of the negroes in the bill of sale mentioned, to wit, Sam, Eliza, Clarinda and her child, for about the sum of ‡986. Denies the charge of insolvency in the bill, and says he is the owner of a lease worth $1000, the undisputed owner of 21 negro slaves, and about 250 head of stock; admits that the terms of the bill of sale are correctly set out in the bill, and prays to be dismissed and the injunction dissolved.
    At a subsequent day of the court when the demurrer was argued, it was overruled by the court, and the defendant ordered to answer over; upon which the defendant filed his further answer, in which the defendant admits that the complainant’s decedent, Pearsall, in the year 1822 ór 1S23,- contracted with and purchased of the State Bank of North Carolina, at Newborn, the tract of land mentioned in the bill of complaint; that he executed his notes for the purchase money, which was about ’@13,000, with the defendant as security for the true and faithful payment of the purchase money; that said Pear-sail, in order to secure and save harmless the said defendant, did execute to the defendant an absolute bill of sale for six negroes, being the same mentioned in the bill of complaint; and that he, the defendant, at the same time did execute to said Pearsall, his penal bond, in the sum of thirty-two hundred dollars, conditioned as stated in the bill of complaint. The answer admits that the said six negroes continued in the possession of the said Pearsall, during his life, and that Pearsall brought them with others to Tennessee, where he was about to settle, and that on his way back to North Carolina for his family, he died; that the complainant Henry Small, became administrator of his estate in this country; alleges ignorance whether the complainant was a creditor of Pearsall, and had any right to administer; that all the negroes belonging to said Pearsall, came into the possession of defendant, his brother-in-law, after his death, among them the six negroes conveyed by the bill of sale; that he delivered up all the negroes upon the application of complainant, the administrator, except the six conveyed to him by the bill of sale; that he had kept said negroes in order to indemnify himself for losses he had sustained in consequence of said securityship, and which Pearsall had promised to pay, and also, for divers other srims of money which were justly due the defendant from said Pearsall; that reposing confidence in said Pearsall, and that he would pay said losses and other moneys, he did not trouble himself about the possession of said six negroes, as the defendant at that time had no land to cultivate, and believed he had the right to take.them away at any time whenever he chose; that after the death of said Pearsall, complainant requested him to deliver up the negroes mentioned, which he refused to do until it was satisfactorily shown that he was entirely released from any liability, by means of said se- • 1- 1 1 i-ri, 1111J curityship and made sale lor the losses he had already sustained upon that account, and be paid the several sums of money due him from said Pearsall independent of said securityship. The answer denies that Pearsall in his life time or his personal representatives since his death, have faithfully paid the whole of the purchase money of the said tract of land to the State Bank of North Carolina, and saved the defendant harmless, and alleges that the defendant has not been released from responsibility for said purchase money, but as far as he knows, is still bound for the same. The answer states, that in the year 1827, the defendant was owner of a valuable tract of land in North Carolina, consisting of 91S acres, 300 acres of which he had sometime before that bought of said Pearsall and had actually paid him $1000 for the same, which was a fair price, and the balancé of the land was worth about $2500; that Van Allen, the agent of the Bank, obtained a judgment against the defendant and said Pearsall, on said note or notes for the purchase money of said land by Pearsall, in favor of the Bank for the sum of $14,000, and that Pearsall, not being willing to have his property sold, and expecting execution to issue upon said judgment, removed his property to the Western District of Tennessee; that the defendant in consequence of the said judgment incumbering his said land, was forced to sell the 300 acres for $300, and the balance he was forced to sell for $1000, making a loss of $2,100; that the defendant had five slaves employed about naval stores and making turpentine, then a profitable business; that boxes were all prepared for making it; that each hand, on an average, was able to make 180 barrels per year, which was worth $2 per barrel; that in consequence of said judgment being pressed upon him, he was forced to stop said business entirely, which occasioned a loss of about $600, all of which losses ■ arose from, and were the consequences of said securityship. That the defendant and Pearsall were appointed the joint ad-of Pearsall’s father, in North Carolina, in 1826; that the said Pearsall, and the wife of the defendant, were the inheritors of the same; that after the debts were paid, and upon a settlement between them, in 1827, it appeared that the defendant had paid $330 of his own money, on account of said estate, more than Pearsall, which he was entitled to have repaid him, that being the amount said Pearsall was bound to pay over and above what he did, which, together with said losses, said Pear-sall had promised to pay the defendant. That John James, the brother of Pearsall’s wife, took out letters of administration upon his estate in North Carolina: that the ■defendant has been, and is anxious to make a settlement with the administrator in North Carolina, or with the complainant, if he could do so lawfully, after an administrator had been appointed in North Carolina, if they would indemnify him for his losses, and pay him the moneys due him, which, with lawful interest, amounted to much more than the value of the said six negroes and their hire; that the negroes and their hire were not worth more than $1,600; denies all fraud and combination, and prays to be allowed his reasonable losses, and the said sum of $330, and that the injunction be dissolved. To which answer, a replication was filed by the complainant, and the suit continued until June term, 1832, when a bill of revivor was filed, setting forth the facts in the original bill, and that Henry Small had died; that John T. Brown had been appointed the administrator of Plenry Small, by the court of pleas and quarter sessions for Tipton county, and the same court appointed him administrator de bonis non, of the said John Pearsall, deceased, and prays the suit to be revived in his name, and that the same proceedings be had in the cause, as if the said Small had not died. To this bill the defendant Wright answered, relying on his former answer, and denying that the court of pleas and quarter sessions of Tipton county, had any authority or jurisdiction to grant said letters of administration, and prayed to be dismissed. The complainant proved by the cashier of the State Bank of North Carolina, at Newbern, that John Pear-sail was indebted to said Bank in the sum of fourteen thousand eight hundred and forty dollars, for which the joint note of John and Edward Pearsall, endorsed by Thomas H. Wright, was given to the Bank; that said note became due on the fourth day of March, 18ÍJ4; that said note not being paid, the said Bank caused a suit to be instituted against the said John Pearsall, Thomas H. Wright, and the representatives of Edward Pearsall, then deceased; that during the pendency of the suit, said John Pearsall died, and the suit was revived against his personal representative in North Carolina; that during the time it so remained undecided, a negotiation was entered into between the representatives of the said John Pearsall and the said Bank, which resulted in a compromise of the claim, upon the representative of Pearsall paying a sum of money and some notes in satisfaction of the debt; and all the parties to said note were released and discharged from all liability upon said note, and among them the said Wright; that the said Bank had no claim against said Wright on account of being the security or indorser upon said note; that the suit was commenced sometime in tire year 1827. The defendant proved that in 1827, he became the surety of Pearsall, in a note for eight or nine hundred dollars; that Wright had purchased a negro from Pearsall for 425, or $¡450, which amount Wright agreed to pay upon said note, for Pearsall, and the balance of the note Pearsall was to pay; after the note became due, a suit was instituted-upon it against Wright and the other endorsers, upon which a judgment was had for upwards of nine hundred dollars, with the costs; that Wright’s property was levied upon under this judgment, and sold to satisfy this judgment at a great sacrifice; that of the property sold, WaS a tract ^an<^ Wright had purchased of Pearsall for $1000, which was sold for $316, in part satisfaction of said judgment; that in consequence of said judgment, Wright did remove his property to. Tennessee, and thereby sustained a loss of §250 in his turpentine trade, and of §225 in his crop; that Pearsall afterwards said that Wright should lose nothing upon account of the 'judgment, nor sustain injury by reason of his property being sold.
    The court below decreed, that said bill of sale and bond mentioned in the bill and answer, made a pledge or mortgage to secure Wright from liability upon his securityship, and was not an absolute sale of the said six negroes in the bill of sale mentioned, and that the same were subject to redemption; and decreed, that all title to the said negroes, which remained unsold by the defendant, should be divested out of him and vested in the complainant; that the bill of sale, and all pajiers in reference thereto be cancell-ed, and the negroes remaining unsold to be delivered into complainant’s possession; and the court further decreed that Wright should pay to the complainant the sum of §1488, the amount of purchase money and interest, for the negroes mentioned in said bill as sold by the complainant; and that the defendant was not entitled from the proof, to any allowance for losses by him sustained to be charged upon said negroes by virtue of said agreement between himself and Pearsall. From which decree the said defendant prayed an appeal to this court.
    
      W. H. Loving, for complainant.
    
      Jl. H. White and A. B. Bradford, for defendant.
   Catron, Ch. J.

delivered the opinion of the court.

1. Could administration, of the goods of a resident citizen of another State, be granted in this, where the goods were at the time of his death, and previous to the passage of the act of 1831, ch.-24?

This court is of opinion, that the act of 1794 gave general jurisdiction to tlie courts of pleas and quarter sessions as courts of probate. The courts of ordinary, within whose jurisdiction the goods were found, had cognizance to administer them by the English ecclesiastical and common law. Nor is this altered by the act of 1794, ch. 23, sec. 1, save in cases of persons residing in this State. In such cases the residence of the deceased at the time of his death, gives jurisdiction. But when a resident of a foreign kingdom or sister sovereignty dies, leaving goods -here, they are of course necessarily subject to be administered by our courts of probate,, not by the courts of France, England, or another State. The letters of administration granted abroad, cannot operate extraterritorium. Were it not so, the property of the nonresident planter or merchant dying, could not be reached by the creditor, or distributee. The real estate especially, can only be reached through the domestic administrator, after the plea of fully administered has been found in his favor. Peck vs. Wheaton’s heirs, Martin and Yerger: Gilman vs. Tisdale, 1 Yerger’s Rep. 285.

It is next insisted the act of 1809, ch. 121, makes an alteration of the law. It is a most remarkable statute, which gives jurisdiction to every court of ordinary and probate in the Union over our citizens. It cannot be extended beyond its letter, which authorizes the foreign administrator to prosecute suits in this State, and certainly does not repeal any of the general powers conferred upon the county courts by the act of 1794.

Administration may or may not be granted abroad; if not granted, the jurisdiction of our courts certainly would not be affected by reason of the unexercised power; and if granted, it is impossible to admit, consistently with our sovereignty, that our courts could be deprived of jurisdiction by the act of a foreign tribunal, of whose proceedings we could in fact know nothing, and of which, in the nature of thing's, we could take no judicial . D ’ J notice.

2. We think this case is one of that character peculiarly within the jurisdiction of a court of equity. Wright held the legal title to the negroes as a naked trustee for Pearsall’s representatives, at the time he took possession of them.

3. The defendant in his answer, says he had to pay a judgment debt for Pearsall, in North Carolina, which was levied upon his jiroperty, and collected hy sale; and he claims to tack this debt to the mortgage. He proves by a witness the contents of the record. The record is the best and only evidence that can be heard, even could the debt be tacked, on which point the court give no opinion. We think there is no error in the decree below, and order it to be affirmed.

Decree affirmed.  