
    
      Caroline A. Bush, per pro. ami, v. Samuel B. Bush, Joseph Neilson et al.
    
    Although a trustee, who had recovered a judgment in an action of trover, against the purchaser, for the value of certain slaves of the trust estate, which had been sold by the Sheriff, had, upon their being then levied on as the property of the purchaser, under judgments prior to his own, filed a bill for an injunction, and for the specific delivery of the slaves, and the bill had been dismissed, under the decision in Norrell v. Corby, but without prejudice, and, on appeal, the decree of dismissal had been confirmed; yet the Court, upon a bill being filed by the cestui que dust, perpetually enjoined the sale of the slaves, and decreed their specific delivery, to be held subject to the provisions of the trust deed.
    It is an acknowledged principle of this jurisdiction, that the power of the trustee over the legal estate or property vested in him, exists only for the benefit of thecestnd que trust. As a general rule, he can do no acts as legal owner which prejudice the rights of tire cestui que dust; and no sale or other disposition of the property, even to a purchaser for valuable consideration, can be sustained, if the purchaser had notice of the trust; nor will a judgment against the trustee, though at law a lien upon the estate, affect the right of the cestui que trust in this Court.
    The aid of this Court is afforded to the cestui que trust, not only against the trustee, but against all claiming any benefit from his acts.
    The dismissal of a former bill is no bar to a new bill, where the decree of dismissal was, in terms, directed to be without prejudice.
    After the defendant’s pleas in bar have been overruled, he is still entitled to leave to answer the bill.
    
      Before Dunkin, Ch. at Barnwell, February, 1847.
    Dunkin, Ch. The state of the pleadings admits the correctness of the allegations made by the complainant. On the 12th August, 1835, her father, Benjamin Foreman, conveyed by deed to her brother, David Foreman, two female slaves, Sophey and Sukey, in trust for the sole and separate use of the complainant during her natural life, not subject to the control or contracts of any husband she might take; and on her death, for the use of any child or children she might leave living.
    The complainant subsequently intermarried with Samuel B. Bush, one of the defendants: and on 6th November, 1843, the Sheriff, under certain executions against Bush, levied on Sophy and a child named Bill, after the execution of the deed, and sold them to the'defendant, Neilson, who, as well as the creditors of Bush and the Sheriff., were fully apprised of the existence of the deed of August, 1835. Neilson having taken possession of the slaves was sued- in trover, by David Foreman, the trustee, and judgment was subsequently, to wit:— Spring Term, 1846, entered for the plaintiff, for about eight hundred dollars damages. After the rendition of the judgment in trover the Sheriff levied on the slaves (together with an after born child, Edward,) as the property of Neilson, under executions prior in date to the judgment of the trustee, who had not required a bond from the defendant under the Trover Act of 1827. On the 17th April, 1846, Foreman, the trustee, filed a bill to enjoin the proceedings under these executions against Neilson, and for a specific delivery of • the slaves. The cause was heard by Chancellor Johnston, who made the following decree — “Were I at liberty to exercise my own judgment, I should give the complainant relief, but I must be governed by the case of Norrell v. Corby, decided by the Court of Appeals at Columbia, December, 1828, which seems to conclude me until reversed. It is ordered and decreed that the bill be dismissed.” On appeal the following judgment was pronounced, viz: “The case of Norrell v. Cor-by- is decisive of this case; and although, if the question were now presented for the first time, that decision might not be made, the Court is not prepared to overrule it. The decree dismissing the bill must, therefore, be affirmed; but, as the plaintiff may desire to seek a remedy in some other form of proceedings, it is dismissed without prejudice.”
    It is hardly necessary to say that the terms of this decree are conclusive on the defendant's second plea in bar. The dismissal of a former bill is no bar to a new bill, where the decree of dismissal was in terms directed to be without prejudice. Coop. Pe. 270. But this is the bill of the cestuique trust, whose rights are recognized only in this tribunal, and the only inquiry is as to the effect on those rights of the judgment in trover. The plaintiff avers that “she and the slave Sophy are about the same age, were reared together from infancy, that consequently their sympathies and attachments towards each other are more than ordinarily exist between master and slave, and that her value in money would be no compensation for her loss.” Both in Rice vs. Burnett and loor vs. Hodges, 1 Spears Eq. R. the Court of Errors, while they affirm the legal title of the trustee, declare that a Court of Equity is the only proper forum to define as well as to enforce the rights of the trust in personal property.
    After the execution of the deed from the plaintiff’s father, in August, 1835, the legal title to the slaves was in the trustee — the equitable interest in the plaintiff. It is an acknowledged principle of this jurisdiction that the power of the trustee over the legal estate or property vested in him, exists only for the benefit of the cestuique trust. As a general rule, he can do no acts as legal owner which prejudice the rights of the cestuique trust; and no sale or other disposition . of the property, even to a purchaser for valuable consideration, can be sustained, if the purchaser had notice of the trust. See 2 Story Eq. 1477. Nor will a judgment against the trustee, though at law a lien upon the estate, affect the right of the cestuique trust in this Court. Finch vs. Winchelsea, 1 P. Wm’s. 278. Neither the fraud nor the folly, neither the ignorance nor the laches, of the trustee, will be permitted to prejudice the cestuique trust, unless the presumption of those rights interfere with innocent third persons. The aid of this Court is afforded, not only against the trustee but against all claiming any benefit from his acts. ' Prom August, 1835, until November, 1843, the complainant was in undisputed possession of the slaves. It has been judicially ascertained that until March, 1846, the legal title was in her trustee.— Norrell vs. Corby and Foreman vs. Neilson, 2 Rich. Eq. 288, determined that, by the recovery of the judgment in trover, without satisfaction, the legal title of the plaintiff is transferred to the defendant. Chancellor Kent, following Shepard’s Touchstone, had held that there must be satisfaction in order to transfer the property — the law doth give him (the defendant) the property of the goods, because he hath paid for them — but in Norrell vs. Corby (as has been stated) the Court held as the better opinion the determination of the Court of King’s Bench in Adams vs. Broughton, viz: “that the property was entirely changed by the judgment obtained in trover, and the damages recovered were the price thereof.” The principle, or foundation, of both decisions is that the plaintiff, by his form of action, has elected to take damages as a satisfaction for the trespass, or conversion.. The latter decision holds that the judgment of the Court completes the election and fixes the rights; the former that the plaintiff must reap the fruits of his judgment, before the transfer is perfected.— If the trustee had sold the slaves to Neilson for eight hundred dollars, and received the money for them, the principle is .quite familiar that Neilson, being aware of the deed, took subject to the trust. If he had bargained for the negroes, and received the defendant’s bond in payment, the defendant having no notice whatever of the deed, can there by any doubt of the authority of the Court to arrest the transaction, enjoin the recovery of the bond, and cancel the bill of sale, or declare the purchaser a trustee? But it is admitted that Neil-son was cognizant to the plaintiff’s rights. He has obtained the legal title of the trustee, but he has paid nothing for it. Neither he nor his creditors have any equitable claim whatever to oppose the just rights of the plaintiff. Giving to the judgment in trover all the effect demanded for it, it seems to the Court to amount to no more than a sale by the trustee of trust property, and is subject to the incidents of all such transactions.
    It is ordered and decreed, that the defendants be perpetually enjoined from selling the slaves described in the pleadings, and that the same be delivered up to the complainant, to be held subject to the provisions of the deed of the 12th August, 1835, and that Neilson account for the hire since they came to his possession..
    It is further ordered, that the trustee David Foreman, be perpetually enjoined from enforcing the judgement in trover, obtained against the defendant Neilson.
    The defendants, Joseph Neilson and N. G. W. Walker, ■gave notice, that at the next sitting of the Appeal Court in Columbia, a motion would be made to reverse the decree of his Honor the Chancellor, in the above stated cause, on the following grounds, viz:
    1. Because the Chancellor overruled the pleas filed by the defendants: Whereas, it is respectfully submitted, that the matters and things set forth in the said pleas, were sufficient to bar the complainant’s claim; that the said pleas ought to have been sustained and the bill dismissed.
    2. Because the principle of the decree is, that the verdict in trover, though a bar to a bill filed by the trustee (as was decided heretofore) is not a bar to a bill filed by the cestui que trust; whereas, it is respectfully submitted that the principle is erroneous and not sustainable; and the defendants insist that it is not competent for the Chancellor to arrest or neutralize the said verdict, which had irrevocably vested the title of the negroes in the defendant Neilson, and extinguished the equitable rights of the cestui que trust, not by private sale or agreement to buy, but by the force and effect of the principle, transit in rem judicatam.
    
    
      3. Because his Honor, the Chancellor, has predicated his decree in behalf of the cestui que trust, on the verdict in favor of her trustee, as having judicially ascertained that until March, 1846, the legal title was in her trustee — whereas, it is respectfully submitted, that if the recovery in the said suit at law is unavailing to protect the defendants, it is-equally unavailing to aid the complainant, who must either affirm or disaffirm the act of her trustee; since whatever title was judicially ascertained by the recovery in March, 1846, was by the same recovery vested in- the defendant, Neilson. That is to say, if the cestui que trust is to be regarded as a party to the proceedings at law. or represented in it, she is bound by it, and her right in the negroes vested by the verdict in the defendant, Neilson; if no privity existed between the cestui que trust and tfye plaintiff at law, it is res enter alia acta, and she can derive from it neither prejudice nor benefit. And even if the slightest analogy existed between a private sale and a judicial proceeding, (contra invitum) the defendants object that the verdict in trover should be used in such a way as to estop them from denying complainant’s title, and yet they be deprived of the benefit of that verdict, which, if good for any purpose, is good for all.
    
    4. Because the Chancellor has decreed against the defendants on the merits, without permitting them to answer— whereas, it is respectfully submitted, that even if the pleas are not sustainable, the defendants, according, to the rules and practice of Chancery, have a right to answer, since pleas are put in, ante litem contestatam — pleas only why the defendants should not answer — nor in the pleas, nor in the facts of filing the pleas, nor in any part of the case, save in the neutralized verdict, is there the slightest admission of the correctness of the allegations made by the complainants; or that Neilson, or the selling sheriff, or the creditors of Bush, were fully (or at all) apprised of the existence of the deed of Aug. 1835. It is therefore most strenuously insisted, that the defendants were entitled to answer, even if their pleas had been correctly overruled ; more especially, when the solicitors aver, as they do aver bona fide, that they have other substantial grounds of defence.
    5. Because the decree (it is respectfully submitted) is against law (on a legal question) and contrary to the principles, practice and rules of this court.
    Bellinger & Hutson, Def’ts. Sol’rs.
    The complainant gave notice, that on the hearing of the appeal in this case, a motion would be made to amend the circuit decree, so as to make the defendant, Walker, accountable and liable to the complainant for the hire of the slaves in question, since the time he took possession of them.
    Patterson, Compl’ts. Sol’r.
    The legal title is not in question. The complainant never had, nor does she now claim, a leegal right to the slaves in dispute. Her claim is purely equitable, and can only be recognized and protected in this court. It is immaterial to the complainant whether the legal title be in Neilson or in Foreman, the trustee. If in the former, it is subject to the same trusts which attached to it while in the latter.— The rule is, that every one wh o takes the legal title without the payment of a valuable consideration, or even for a valuable consideration, if with notice, is bound by the trusts. A trustee cannot dispose of the trust estate in any way to the prejudice of the cestui que trust, unless it be to a bona fide purchaser without notice. If the legal estate be in Neilson, it is not pretended that he paid any consideration for it, and notice of the trust is admitted. He is surely in no better condition than a purchaser for valuable consideration with notice. In the case of the Attorney. General v. Lady Downing, Wilmot’s Notes, 21 & 22, the legal title, by the death of the trustee before the testator, descended to the heir at law, yet the estate was held to be subject to the trusts of the will. “ I take it,” said the Chief Justice, “ to be a first and fundamental principle in equity that the trust follows the legal estate wheresoever it goes, except it come to the hands of a purchaser for a valuable consideration without notice. I never heard of any distinction made, nor has any case been cited to prove, that a trust fit and proper to be executed against a trustee, should be suffered to fall to the ground, and remain unexecuted against the heir at law, where there was no trustee. The lapse of the legal estate never has the least influence upon the trusts to which it is subject. Trust estates do not depend on the legal estate for an existence. A Court of. Equity considers trusts as distinct and substantive interests, standing on their own basis independent of the legal estate”— “ the legal estate is nothing but the shadow which always follows the trust estate, in the eye of a Court of Equity.”— Mansell vs. Mansell, 2 Peere Wm’s. 681; 2 Story’s Equity, sections 976,977; Willis on Trusts, 64, 121; 2 Mad. Ch. Practice, 125; Lewin on Trusts and Trustees, 205, 206, 207. 573, 604, 607, 610.
    Suppose Foreman, the trustee, to have committed a breach of trust by prosecuting the action at law, the rights of the complainant, who was not a party to that suit, and who is moreover a. femme covert, and - incapable of concurring in a breach of trust, are not thereby affected. Lewin on Trusts and Trustees, 64.
    It is a maxim in this Court, that equity follows the law, but by this we are not to understand that the law is to be followed implicitly and invariably. The object or business of a Court of Chancery is to allay and mitigate the rigor of the law; to supply its deficiencies, and even to supersede its rules, when necessary to the ends of substantial justice ; 7 Dun. and Eastj 663. Without some such jurisdiction, by whatever name it may be designated, the general application of the abstract technical and arbitrary rules of the common law to the transactions of society would often result in the most revolting injustice; and however settled and fixed the principles of equity may be, in their application regard must lie had to substantial justice in each particular case. It is a mistake to suppose that the difference between these Courts is merely as to the mode of pleading, trial and relief. “ The doctrines of this Court ought to be as well settled, and made as uniform •almost, as those of the common law, laying down fixed principles, but taking care that they are to be applied according to the circumstances of each case.” 2 Swanston, 414.
    The slaves in dispute were conveyed on the most sacred trust a parent can create, viz : the maintenance of a daughter and her issue; and it would be repugnant to every principle of justice to permit this trust to be defeated by a very questionable rule of law, without any meritorious consideration whatever; and that in a case within the acknowledged jurisdiction of this Court.
    
      Copy of Pleas.
    
    The State op South Carolina, Barnwell District. In Chancery.
    The several plea of Joseph Neilson to the bill of complaint -of Caroline A. Bush, suing by David M. Dunbar, her next friend.
    This defendant, by protestation, not confessing or acknowledging all or any of the matters and things in the said complainant’s said bill alleged to be true, in such manner and form as the same are therein set forth, doth plead in bar thereunto, and for plea saith, that on or about the-day of---, m the year of our Lord one thousand eight hundred and --, the said David Foreman, the trustee to the said deed mentioned in the said complainant’s said bill, (a copy of which said deed is filed by the said complainant, as exhibit A,) did commence his action of trover against this defendant for the recovery of damages for the conversion of the said slave Sophy and her child, and that on the thirtieth day of March, in the year of our Lord one thousand eight hundred and forty-six, did recover in the said action a verdict for the sum of seven hundred and seventy-five dollars, which said verdict still remains unreversed and in full force and effect ; and this defendant avers that at no time during the pendency of his said action, nor at the time of the commencement thereof, did the said David Foreman cause this defendant to enter into bond for the forthcoming of the said negro. And this defendant doth further aver that the said bill now exhibited against this defendant, is for the same matters and concerning the same slaves as the said action of trover by the said David Foreman, wherein the said David Foreman did recover against this defendant the sum of seven hundred and seventy-five dollars ; and therefore this defendant doth plead the said former action and verdict in bar to the said complainant’s new bill, and humbly prays the judgment of this Court whether he shall be compelled to make any other or further answer thereto, and humbly prays to be dismissed with his reasonable costs in this behalf most wrongfully sustained.
    And this defendant doth further plead in bar to the said bill, and for other and further plea thereto saith, that on or about the tenth day of April, in the year of our Lord one thousand eight hundred and forty-six, the said David Foreman, trustee as aforesaid, did file his bill in this Honorable Court against the said N. G. W. Walker and this defendant, wherein and whereby the said David Foreman did, among other things, pray that a writ of injunction should issue against and to the said N. G. W. Walker, to restrain him from selling the said slaves, Sophy and her child, by virtue of writs of fireri facias in his office against this defendant, and that the said slaves should be ordered to be delivered up by the said N. G. W. Walker and this defendant, to the said David Foreman; to which said bill the said N. G. W. Walker and this defendant put in their several answers; that the said cause came to a hearing, and the said bill of the said David Foreman was dismissed ; which decree was affirmed upon an appeal. And this defendant doth aver that the said bill now exhibited by the said complainant against this defendant is for the same matters as the bill before exhibited by the said David Foreman against this defendant and the said N. G. W. Walker, which said bill hath been dismissed and is finally concluded and ended, and therefore this defendant doth plead the said former bill, answers and decree in bar to the said complainant’s new bill, and humbly prays the judgment of this Honorable Court whether he shall be compelled to make any other or further answer to the said complainant’s said bill; and this defendant prays to be hence dismissed with his reasonable costs and charges in this behalf most wrongfully-sustained, and so forth.
    Bellinger & Hutson, Def’ts Sol’rs.
   Dunkin, Ch.

delivered the opinion of the Court,

On the matters discussed in the decree the Court is satisfied with the judgment of the Chancellor. But on overruling the defendant’s pleas in bar, they were entitled to leave to answer the bill. It will then be time enough to consider the subject of the complainant’s appeal.

It is ordered and decreed, that the defendant’s pleas in bar be overruled, and that they have leave to file their answer within thirty days hereafter, and that the decree of the Circuit Court be modified ascordingly.

Johnston, Ch. and Caldwell, Ch, concurred.

Decree modified,  