
    Samuel Butler vs. John C. Hicks et al.
    It seems that, from the peculiar character of slave property, a bill in chancery will lie to recover it; therefore that court will have jurisdiction of a bill, in behalf of a trustee and his cestui que trust of slaves, to recover them in specie from the possession of one claiming them as a derivative vendee from an alleged purchaser under the deed of trust.
    The fact that a trustee has borrowed money, and with it purchased other property, and added it to the trust and repaid the borrowed money out of the proceeds and profits of the trust property, will not render the property thus purchased the individual property of the trustee, and subject to his own debts; on the contrary, it will belong to the beneficiaries in the trust.
    Where a trustee, by the terms of the deed of trust, is empowered to sell the trust property, but is required to invest the proceeds for the beneficiaries in the trust, it seems upon a sale by the trustee to one who had full knowledge of this provision of the trust, and who pays for the property by relieving the personal liabilities of the trustee, that it may be questioned whether the property loses its trust character in his hands.
    Where the execution and delivery of the deed, through which hotly parties claim, are admitted, it seems to be immaterial as to its registration.
    Where the alleged purchaser of slaves, under a deed of trust, is held to have acquired no title to such slaves by virtue of such purchase, in consequence of a subsequent cancelment of the sale, as well as by reason of an agreement between the trustee and purchaser, that the latter should pay for the slaves in the individual liabilities of the former; it will also be held, that a sub-purchaser will derive no title ; his immediate vendor having no title, and but a bare possession, could pass no title to him.
    
      On appeal from the vice-chancery court at Columbus; Hon. Henry Dickinson, vice-chancellor.
    The bill and amended bill, filed by John C. Hicks and Sarah C. Hicks, Bernard M. Hicks, David W. Hicks, Margery Hicks, Robert W. Hicks, and Jno. W. Hicks, infants, by David C. Waters, their next friend, state that Sarah Waters, on 10th August, 1836, in Lawrence county, Alabama, executed a deed to the said John C. Hicks, a trustee, of certain land and six slaves, “ for the use and benefit of the children of his wife, Ann M. Hicks,” who was a daughter of the grantor, with power to said trustee to sell and vest the proceeds in other property for the same trusts; and in like manner the proceeds of the crops, after supporting and educating the children, to invest in purchases of the other property for their use, and also to sell for the purpose of a division of the property equally amongst the children. This deed was irregularly proved in Mississippi by one of the subscribing witnesses, on 10th August, 1838, and recorded in Lawrence county, Alabama, on 4th September, 1838, and afterwards in Sumpter county, Alabama, and Carroll county, Mississippi.
    It is further alleged by the bills, that the trustee held and managed the said property, not in his own right, but as trustee, and out of the crops purchased for the trust, several slaves, and amongst them Richard, of Obadiah S. Davidson, who conveyed said slave to the trustee, as such, on 14th November, 1840, and that the trustee sold the land and invested it in slaves.
    Further, that on the 23d April, 1842, the trustee sold eighteen of the trust slaves, by virtue of his authority as trustee, for $9250, to Blake Little and Morris Amason. That on or about the 1st September, 1842, the said sale to Amason <fc Little was can-celled, and Amason & Little delivered the eighteen slaves to said John C. Hicks, who placed them in possession of his son, B. M. Hicks, to gather the crop the said slaves had made; that in January, 1843, said trustee attempted to remove said slaves to Mississippi, where he lived, but was prevented from doing so, and was compelled by said Amason’s son, and son-in-law, (said Amason having died a few days previously,) to leave a part of said slaves to secure Amason’s estate against a liability incurred as surety for said John C. Hicks individually, and was also forcibly compelled by them, to erase Amason’s name from two notes of $2625 each, at twenty-four and thirty-six months. And in consequence thereof, said John C. Plicks left ten of said slaves on a contract of hire with Little for one year, at $800 hire; that said ten slaves included Gusty, a man aged twenty-four, embraced in the deed of 1836, and Richard, purchased as before stated, out of the trust estate; that in 1843 said Little, with the executor of Amason, sold Gusty and Richard to Samuel Butler, of Lowndes county, Mississippi, for $1200.
    The bill prays that Butler be ordered to deliver up Gusty and Richard to the trustee, “ and such other and further or different relief,” &c.
    Butler is made defendant. He demurred, and the vice-chancery court overruling the demurrer, he answered admitting his purchase, and denying the other allegations, and insisting on his purchase as made in good faith without notice, for value.
    The depositions on the part of the complainants, proved the relationship beween the parties; Mrs. Waters’s ownership of the slaves, conveyed by the deed of trust; her residence with her several daughters, and especially Mrs. Hicks, whose house she claimed as her home, and where she had her slaves on loan to said Hicks, previous to the deed; and that she and M. B. McKiernan assisted, by advances of money, in paying for the land embraced in the deed of trust; that John C. Hicks was then, and had been for years, wholly insolvent and without property; that Mrs. Waters was old and infirm, and, besides the negroes conveyed, owned one, and had some money, and a debt due her of $700; that in 1839, John C. Hicks removed to Sumpter county, Alabama, with a part of the trust property, and in 1840 sold the land for five slaves. Richard was purchased of Obadiah S. Davidson, whose deposition states that John C. Ilieks bought as trustee, who in that capacity conveyed to him the land for which Richard was part of the price, and that the title to the land was in Hicks as trustee.
    In the sale by Hicks, the residue of the price, (besides the two notes above specified,) consisted ¿'^personal debts of Hicks, for which Amason & Little were bound, and of which they have paid nearly all, and upon some of them judicial attachments had been sued out against those slaves. Some of the defendant’s witnesses state that part of the land in the trust deed was paid for partly by Mrs. Waters and partly by Hicks out of money borrowed by him of the bank, and was conveyed to Mrs. Waters; that two slaves, conveyed by the deed of 1836, Mrs. Waters never did own, Andrew having been bought by Hicks in his own name, and paid for out of money lent to Hicks by witness, upon security of the title to said slave, $200 of said loan having been due to witness at the time of the sale to Amason & Little, and by them paid, the witness then making a bill of sale to Mrs. Waters; and a boy George having been bought by Hicks with land he sold in Tennessee; and that John C. Hicks brought the other slaves with him from Tennessee to Alabama; and that in Lawrence and Sumpter counties J. G. Hicks never made expenses in planting; that after the purchase by Amason &• Little, they paid most of the debt, under garnishments made and served upon them by creditors of John C. Hicks, and that the balance unpaid was liquidated by a re-sale made by Little as surviving partner of Amason & Little to John C. Hicks.
    This transaction appears in writing by the sale to Amason & Little, and the agreements of 19th September, 1842, and of January 12, 1843. The sale to Amason & Little was accompanied by a bill of sale by John G. Hicks as trustee, and also in his individual right, and the parties knew that he claimed the property as trustee, but doubted if it were not liable for his debts. The agreement of 19th September, 1842, was executed by John G. Hicks, and Amason & Little, and recites the sale to Amason & Little, as made under the trust deed, and agrees to reconvey the same property to Hicks as trustee for the price given, reserving in their hands “ a sufficiency of the negroes with the crop of cotton made on the place by said negroes, to gather what corn may be left, together with any debts, notes, &c., that may be placed in our hands to secure us in our liabilities for said Hicks,” he to have the crop secured.
    
      “We bind, ourselves to deliver said property, as above mentioned, to said Hicks or his order, on the said Hicks delivering to us our notes; or if the said Hicks will give us such indemnity as will make us safe, we will deliver all of said negroes to him on receiving our notes as aforesaid, and make to said Hicks a sufficient bill of sale to secure the property to his children as it was, before we purchased the same.” To this instrument is appended Blake Little’s statement, dated 20th May, 1844; that before he and Amason became surety for Hicks, the latter informed them that the property belonged to his children under Mrs. Waters’s deed.
    The writing signed by Little, as surviving partner, on 12th January, 1843, acknowledges the receipt of certain property, including the two slaves in dispute, for the purpose of indemnifying Amason & Little for about $>8000 of obligations; and Little agrees to dispose of the property for the best advantage, except the negroes, which he is to keep on hire till the next winter, and then allow him to redeem them, on settling the debts; but he reserves liberty to sell the negroes also, if he should be compelled to do so to meet the payment of an execution.
    The record also sets forth the statutes of Alabama, similar to the 2d section of our act of 1822, as to frauds and perjuries, (PI. & H. p. 370); and as to the authentication of deeds for records similar to our statute of conveyances, 12th section, H. & PI. 345, 346.
    On the 13th May, 1847, the vice-chancellor decreed, that Amason & Little purchased of Hicks, as trustee, and afterwards cancelled the purchase, and that Little held the slaves on hire without a power of sale, and that the attempted sale by him to Butler was void; and the vice-chancellor, therefore, decrees a redelivery by Butler to Hicks, as trustee of the two slaves, Richard and Gusty, and that on his failure within thirty days to deliver the same to the clerk and master, a writ shall issue to place Hicks as trustee in possession. An account for hire is also decreed against Butler.
    From which decree an appeal was taken to this court.
    
      
      Harris and Harrison, for appellant.
    1. The demurrer to the amended bill should have been sustained.
    
      “ As between the trustee and cestui que trust, a court of equity has jurisdiction to enforce the trust; but for a wrong done to the trust property by a stranger, the remedy of the trustee is wholly at law.” Meridith v. Hickman, 1 A. K.. Marsh. 242; 2 Story, Eq. Jur. p. 230, note (2) ; Sturt v. Mellish, 2 Atk. 612.
    
      “ Equity has cognizance only of executory trusts, not those executed, or where a trust can be enforced at law.” Baker v. Biddle, Bald. R. 423; 7 Johns. Ch. R. 114; 2 Sch. &Lef. 630; 4 Johns. Ch. R. 654.
    
      “A trust is where there is such a confidence between parties that no action at law will lie; but is merely a case for the consideration of this court.” 2 Atk. 612.
    Equity has exclusive jurisdiction in such cases, to reach the purposes of justice in a manner “ unknown to, or unattainable at law.” 2 Story, Eq. Jur. 228, § 960; Ibid. 299, § 961.
    2. “ Where a complainant prays for particular relief, and other and further relief, he can have no relief inconsistent with the specific relief asked, even though there may be just foundation for it in the bill; in such case the prayer for other relief must be in the disjunctive.” Pleasants & Co. v. Glasscock, et al., 1 S. & M. Ch. R. 18 ; Colton v. Ross,- 2 Paige, 396.
    In the bill no claim is set up for hire, nor is there any such prayer; yet it is decreed that the master take an account of the annual hire and profits of the slaves from the time Butler obtained possession, which was in November, 1843, and that, too, although the complainants allege that there was a special contract of hire for the same negroes with Blake Little, for the whole of the year 1843. Besides, the decree is absolute for the payment of the amount to be ascertained by the clerk, before the same is reported as an account, and examined and allowed by the court. Even full costs are given before the master makes his report. Harvey v. Branson, 1 Leigh, 108; Taylor v. Read, 4 Paige, 561.
    
      3. The deed of trust was not properly acknowledged. On this point, counsel cited many authorities and reviewed them at length ; but as the point was not settled by the court, the argument is omitted.
    4. On the merits of the decree, as to the fraud of the parties in whose favor the chancellor decreed, the testimony was discussed in an elaborate argument; and the following authorities cited. 3 Cow. & Hill, Notes to Phil. Ev. 1243, and cases cited; Myers v. Peek's Adm’r, 2 Ala. R. (N. S.) 658, 659; 2 Munf. R. 545; 9 Dana, 332; Lewis & Nichols v. Gilmer, 3 S. & M. 563; Palmer v. Cross, 1 S. & M. 66; 5 Cranch, 558; Pate v. Baker, 8 Leigh, 80; Carter v. Castleberry, 5 Ala. (N. S.) 279, and cases cited.
    5. With reference to the alleged cancelment of the sale to Amason & Little, the conflicting testimony was also reviewed at length, and it was insisted; 1, that it was not established by the proof; aiid 2, that even if a parol cancelment had been proved, it was not valid in Alabama, as to an innocent third party, unless in writing acknowledged and recorded.
    
      Gray and Christian, for appellee,
    In reply, insisted, that the decree of the vice-chancellor was fully sustained by the proof which they examined. They cited Story, Eq. Jur. 977; Fonb. Eq. c. 7, $ 1, p. 427; Champlin v. Haight, 10 Paige, Ch. R. 274; Shepherd v. McEvers, 4 J. C. R. 136; Parkist v. Alexander, 1 J. C. R. 394; Murray v. Ballou, 1 J. C. R. 566; Thompson v. Wheatly, 5 S. & M. 499; Williamson v. Williamson, 3 S. & M. 748, 749; Wheelwright v. De Peyster, 1 J. R. 471; 2 Kent, Com. 323, 324, 325; Saltus v. Everett, 20 Wend. 274; Everett v. Coffin, 6 Wend. 603; Hoffman v. Carow, 22 Wend. 285; Hoare v. Parker, 2 Term Rep. 376; 6 East. 538; Williams & Chapin v. Merle, 11 Wend. 80; Monroe v. James, 4 Munf. 194; Ventress v. Smith, 10 Peters, 161; Hill v. Anderson, 5 S. & M. 216.
    
      McNutt and Paxton, on same side,
    1. As to the jurisdicion of the court, cited Murphy v. Clark, 1 S. & M. 221; Sevier v. Ross, Freem. Ch. R. 519.
    
      2. On the other questions, Güdart v. Starke, 1 How. 450; Lessee of Sicard v. Davis, 6 Peters, R. 124; 6 How. R. 382 ; 4 Wash. C. C. R. 691.
   Mr. Justice Thacher

delivered the opinion of the court.

This is a bill filed by a trustee and cestui que trust, to recover trust property, slaves in specie.

A demurrer, filed to the jurisdiction of chancery, on the ground that ample remedy existed at law, was disallowed by the vice-chancellor. The point thus raised was considered at length in Murphy v. Clark, 1 S. & M. 221, and decided in favor of the jurisdiction in chancery. So far as it may be necessary, I am inclined to adopt that opinion, and to say that the demurrer in this case was properly disallowed.

The vice-chancellor decreed also in favor of the trustee and other complainants upon the merits of the controversy. The case is not without difficulty arising from conflicting testimony, but upon the whole, the decree can be sustained by close analysis of all the facts.

Upon the point, whether Hicks, who claims as trustee, ever had any individual interest in the alleged trust property, we have the evidence of his insolvency from persons who had known him for upwards of thirty years; and although he borrowed money to purchase property, which he alleges he added to the fund, it is also seen that he repaid the borrowed sum from the proceeds and profits of the trust property. Any property thus purchased, would belong to the beneficiaries in the deed of trust. Turner v. Petigrew et al., 6 Hump. 438. The great mass of the evidence seems to exclude the supposition, that Hicks ever had any personal interest in the property.

Hicks, being authorized by the deed of trust, sold the property to Amason & Little. He insists, that this sale was subsequently rescinded and cancelled. Here also the evidence is not unanimous. The articles of agreement between Hicks and Amason & Little, together with Little’s subsequent contract to re-deliver the negro property, go very far to establish a re-sale to Hicks, or a cancellation of the original sale. Some of the evidence sustains this supposition, while other portions would give a different coloring to it. But these articles of agreement show that Amason & Little were apprized, that all the power of Hicks to sell the property was limited to a sale, the proceeds whereof were to be invested for the beneficiaries in the original deed of trust. If therefore they paid for the property by re-delivering the personal liabilities of Hicks with this full knowledge, it may be questioned whether the property lost its trust character in their hands. And again, Butler, the defendant in the bill, claims by purchase from Little for cash, while Little’s obligation to Hicks was not to sell any of the negroes, unless compelled so to do to pay an execution or acceptance growing out of the contracts with Hicks.

In a cause like this, contained in a record of upwards of one hundred pages, a large portion of which is embraced by the testimony, we can give only our conclusions after a careful examination. It would be impossible to explain the reasons for the conclusions, without setting forth all the testimony, and arranging it as to each point of inquiry.

An objection was stated to the proof and registration of the deed of trust; but its execution and delivery are admitted. Both complainant and defendant claim through this deed. But this question cannot fairly arise, because Butler’s grantor being held to have had no title to the slaves, and only a bare possession, Butler could take no title from him.

Decree affirmed.

Mr. Justice Clayton concurred in the foregoing opinion.

Mr. Chief Justice Sharkey

delivered the following dissenting opinion.

This bill, it seems, was filed to recover certain slaves in specie, and the case of Murphy v. Clark is relied on as sustaining the pretensions of the complainant. If the question had been decided in Murphy v. Clark by a majority of the court, I should now acquiesce of course; but it was not. Only two judges presided, and each gave a different reason for sustaining the bill. I regard the question now presented as an open one, and I only desire to say, that I cannot concur in holding, that the owner of slaves may, under any and all circumstances, resort to the court of chancery for the recovery of his property. Slaves are regarded as property; the title to property is triable at law, unless there be some peculiar circumstances to give a court of chancery jurisdiction. I do not think this mere character of the property carries with it, necessarily, the pretium affeciionis, which has usually been held necessary to give the court of chancery jurisdiction to decree the specific property to the master. ' A slave, from peculiar abilities or habits, might be worth greatly more to his master than he would be to any other person, and in such cases, perhaps, the jurisdiction might well be exercised.  