
    Porter v. Duke.
    
      (Jackson.
    
    April 28, 1897.)
    Mortgages and Deeds oe Trust. Bights of judgment creditors seeking forecloswe.
    
    A judgment creditor who seeks to foreclose a chattel mortgage of his debtor, and subject the surplus, without impounding' the property or obtaining receiver or injunction, cannot obtain relief upon the mere showing that the property was sold, pending the litigation, at private sale, as authorized by the mortgage, when no surplus was realized and it is not shown that the sale was fraudulent, or that the property was sacrificed, or that it did not bring its full value.
    FROM TIPTON.
    Appeal from Chancery Court of Tipton County. John S. Cooper, Ch.
    J. C. Bo ales for Porter.
    Smitheal & Baptist for Duke.
   Wilkes, J.

Complainants claim to be judgment creditors of defendant, W. K. Tucker, in the sum of $495.48 and costs, and that they have had execution issued and returned nulla bona.

The bill stating these facts is filed to foreclose a trust deed for the benefit of defendant, Duke (doing business under the name and style of F. D. Martin & Co.), upon a considerable amount ■ of personal property, live stock, farming implements, and growing crops, the latter not ready for market at the time the bill was filed. A discovery, in aid of the bill, was asked, as to the amount due from Tucker to Duke, the amount of property covered by' the deed of trust, especially the crops, and other matters not now material to mention.

While there is an allegation that the trust deed was executed to hinder, delay, and defraud defendant Tucker’s creditors, the relief actively pressed in the cause is to have the deed of trust foreclosed, under the orders of the Court, and the surplus applied to complainants’ debts, and not to set the deed aside. No' exception was taken to the double aspect of the bill. A receiver was prayed for in the bill, but the application was not further pressed and none was appointed. No injunction was asked to restrain the execution of the trust, except under orders of the Court, and none was granted. Defendants, Duke and Tucker, as well as the trustee, Nowell, answered the bill, insisting on the .good faith of' the trust deed, but did not make a full disclosure of the property, especially crops covéred by it. The answers were excepted to for insufficiency, and, by agreement, amended answers were afterwards filed. These amended answers purport to set out in full the different items of property, crops, etc., covered by the deed of trust. In his original answer, Duke signi-fiecl his willingness to have the deed of trust foreclosed,, under the orders of the Court, but in his amended answer he states that after his original answer was filed, and pending the suit, the property ,had been sold to the defendant, Tucker, the original debtor, under the provisions of the trust, and there had been realized therefrom the sum of $665.30, which he had credited upon his debt of $1,049.72. Whether this sale was made privately or publicly does not appear. The prices brought by each item are given, but it is not alleged that they were full and fair prices for the articles sold, and no proof is offered by either party upon this point. The exact date of the sale is not given, but it was made before the filing of the amended answer and after the original had been filed, consenting, on the part of Duke, that the deed of trust might be foreclosed by the Court, and under the decrees in the cause. The cause was heard upon the pleadings and exhibits, no proof having been taken by either side.

The Chancellor granted complainants decree for their debt against Tucker, but refused any relief against Duke, and, as to him, dismissed the bill. Complainants have appealed, and assigned errors. These are, in, substance, that complainants should have been given an order of reference to ascertain the actual amount due to Duke, and that the trust deed should have been foreclosed under the orders of Court, and not privately, or out of Court, and all proper accounts stated, and the surplus proceeds applied to their debt. The trust deed provides that the sale may be made privately, if the parties to it agree, otherwise the sale shall be public. Defendant Tucker admits that complainants have judgment against him as alleged, and have had executions returned nulla bona, and that he is insolvent. Defendant Duke, and Nowell, the trustee, do not admit the judgment, return of execution, or insolvency of Tucker. The record in this aspect presents a question of doubt whether complainants have any status in Court to ask the relief prayed. But, without passing on this question, the case as presented is one where the complainant has not impounded the property, has had no receiver appointed, and has had no injunction granted to restrain a sale out of Court. The sale has been made under the authority of the trust, at least by the tacit assent of the" parties, and it is not shown that the sale was fraudulent, or that the property was sacrificed, or that it did not bring its full value. There being no surplus disclosed by the answers and report of sale as made, and the latter not being attacked by any proof, the complainant can have no relief further than was granted by the Chancellor, and his decree is affirmed with costs. Complainant acquired no lien upon the property that could interfere with the rights of Duke, and his lien would be effectual only as to the surplus, and there does not appear to be any surplus.  