
    Thomas F. Walker vs. George Brungard et al. 
    
    T. F. W. conveyed to J. F. W. and W. R. L. property real and personal in trust, to secure G. B. against heavy indorsements and liabilities which he was under for T. F. W. ; J. F. W. and W. R. L., the trustees, sold a large part of the trust property under the trust deed, which was purchased by-G. B., the beneficiary therein, but afterwards, at the instance of T. F. W., the grantor therein, refused to convey, upon the ground that at the time of the sale, the state of facts did not exist, which, by the terms of the deed of trust, authorized a sale : Held, that a deed of trust is but a power coupled, perhaps, with an interest; to legalize the execution of the power, those circumstances must exist upon which the right to exercise it is made to depend.
    In this case the deed of trust provided that the trustees might sell upon joint request of B., the cestui que trust, and W., the grantor, or in case B. should suffer any loss or damage on account of his indorsements for W., then they should sell when requested by B. ; a sale was made by the trustees upon request of B., and without objection from W., but with his presumed consent; W., in his answer to a bill filed by B., who bought at the sale, to enforce a conveyance, says he forbade the trustees to make a deed after the sale, “ because he had discovered that complainant was fraudulently pretending that he was purchasing the property for the purposes of the trust, and after purchasing it, was converting it to his own use without making provisions for the trust debts : ” Held, if there were a combination between complainant and W., that complainant should purchase at a reduced price, and afterwards give to W. a share in the proceeds of any advanced or increased value, the creditors would have cause to complain, and might, on such proof, set aside the sale; but a party to such compact could not have the matter investigated in equity.
    
      W., in his cross-bill alleged, that a brick house, part of the property embraced in the trust deed, was sold by trustees, and purchased by B., and to him conveyed, with the understanding that it should be afterwards mortgaged to the Union Bank to raise money, and that the amount so raised should be applied to benefit of trust fund ; B. positively denied this in his answer ; the deed to the property is absolute and unconditional, the testimony mostly relied on to assail it is that of the trustees: Held, that as the agents of all the parties interested under the trust deed, it was the duty of the trustees particularly to the creditors, to make none but an open, fair, and bond fide sale, they should not have lent themselves to a secret understanding between W. and- B. which was a departure from good faith, and created risk and hazard to the creditors in the deed of trust; but at most this amounts only to a parol agreement in regard to land, and not to a resulting trust.
    A resulting trust is where the conveyance is taken in the name of one person, while the consideration is given or paid by another; so, if trust money be invested in land, the money may be followed, and a claim of this sort may he supported by parol evidence.
    B. denied that he made the purchase in trust, or that trust funds were paid for it, and there was no written evidence; his deed from the trustees cannot be set aside or declared subject to a trust upon such testimony.
    In the conveyance from W. to trustees, for benefit of B., was embraced a tract of land of 320 acres, which was afterwards levied on and sold by the sheriff, under an execution issued upon a judgment against W. older than the deed of trust, and purchased by B., the cestui que trust, and deed made to him by the sheriff; this tract of land was afterwards sold under an execution against B., and bought for B.’s wife, with her own separate funds, for a less sum than at the first sale: Held, that although B., after his purchase at sheriff’s sale, promised W. that he should have the benefit of it after sale, yet as this was a promise made by B. after the purchase, without any previous agreement, and without any consideration to support it, it could not have been enforced if the land were still in the hands of B.
    A cestui que trust may certainly purchase the trust estate as freely as any third person ; but even to hold that the purchase of the plantation converted B. into a trustee, and that the sub-purchaser was likewise a trustee, the sale could not be set aside without a decree for the repayment of the purchase-money, there being no offer to make such payment, nor evidence to show that the land is now worth more than it brought when sold, the sale could not be set aside.
    If the agent appointed by the trustees in a deed of trust, with the consent of the grantor in the deed, or the surety of such agent be subjected to a recovery resulting from an effort to recover or secure the trust funds, the trust estate would be justly liable for the damages, if the agent acted with good faith and with reasonable skill and diligence.
    
      Reasonable diligence and good faith are what is required of an agent.
    A party being about to purchase a large amount of real and personal estate, obtained a friend to indorse his paper, and to procure others to indorse it, to enable him to make the purchase ; and for doing this he paid the person thus indorsing and procuring other indorsers for him, a large sum; after-wards the maker of the note being about to fail, conveyed a large amount of property to this indorser for his indemnity : Held, in a subsequent accounting between the maker and indorser, touching this property so conveyed, that the indorser could not he compelled to account for the sum previously paid him as a bonus for indorsing and procuring indorsers on the paper of the maker.
    Where a maker of a note who became insolvent, conveyed, among other property, a remnant of a stock of goods to his accommodation indorser for his indemnity, which goods the latter sold, it was held, in an accounting between the maker and indorser, that the latter could not be held accountable for the invoice price of the goods, but merely for what they brought when, sold.
    An agent or trustee, to whom certain notes belonging to a trust were committed for collection, instituted proceedings at law by attachment against slaves and property of the parties to the notes, and was compelled to give bond W'ith surety, to prosecute the suit to effect; he failed in the attachment, and being threatened with a suit on the bond against himself and surety, compromised the matter by delivering up all the notes on which he had sued ; which nominally amounted to a large sum, but really were worthless: Held, that if the trustee acted in good faith and reasonable diligence in the matter, he would not be liable.
    Appeal from the decision of the superior court of chancery; Hon. Stephen Cocke, chancellor.
    On the 29th of February, A. D. 1840, George Brungard filed his bill against William R. Lewis, John F. Walker, and Thomas F. Walker, in which he avers, that on the 15th day of January, A. D. 1838, Thomas F. Walker and his wife, in the sole consideration of accommodation indorsements by George Brungard for him, had conveyed to William R. Lewis and John F. Walker, in trust, certain real and personal estate, with power to take possession^ of the same, and by virtue of provisions in the deed, to sell or exchange the property conveyed in the deed ; to collect the notes and accounts, and pay the proceeds of sales and collections to the discharge of the notes upon which Brungard was indorser; and that it was also provided, in case Brungard should be damaged by the levy of executions, or otherwise from the non-payment of these notes, the trustees should, at the request of Brungard, sell property and indemnify him for his losses. A copy of this deed is made an exhibit to the bill. It is a deed of three parties, and it recites, that whereas Walker was anxious to secure Brungard against any loss or damage, he might suffer by reason of his indorsements “ for the use of the said Thomas F. Walker,” on notes, the aggregate amount of which was upwards of one hundred thousand dollars, and also to secure the payment of the notes themselves, which are detailed at length, and recited to have been indorsed by Brungard, at the special instance and request of, and for the accomodation of, said Walker; now, therefore, Walker, for this and the consideration of one hundred dollars in hand paid, conveys to Lewis, and to John F. Walker, certain real and personal estate, and choses in action enumerated in the deed, on trust, that they should forthwith take possession and seisin of the premises, and, in the mode pointed out by consent, sell or exchange the property, and collect the notes and accounts, and pay off the enumerated debts; or, in case Brungard was damaged by reason of the indorsements, they might sell to indemnify him ; and in case of a vacancy in the office of trustee, that Brungard and Walker might nominate another. This deed was regularly proved and recorded on the day of its execution.
    The bill further states, that Brungard has paid large sums for Walker, as stated in an exhibit to the bill, which shows a balance in favor of Brungard of $10,986.04.
    . That the trustees, under the powers contained in the deed, had, on the 18th day of February, A. D. 1839, sold certain of the real estate conveyed by it, which had been purchased by Brungard for $600, who had demanded of the trustees a deed thereto, who had refused to make a deed, on the ground that Thomas F. Walker had forbidden it; that'most of the notes and accounts conveyed by the deed of trust were worthless, the land had depreciated in value, and Thomas F. Walker sold and converted part of the personal effects to his own use; that all the property conveyed by the deed would not repay the debt due for what Brungard had paid out, and that Thomas F. Walker was utterly insolvent. The bill prays that the trustees may be compelled to make Brungard a deed, or that others may be appointed to carry out the design of the deed of trust; that an account might be ordered of what was due by Walker- to Brungard, and a decree rendered accordingly.
    A pro confesso was taken on service of process, and a decree made in accordance with the prayer of the bill, with reference to the trustees; afterwards, on the - day of-, Thomas F. Walker, by petition, prayed the decree pro confesso to be set aside, which was done; and on the 17th of June, 1840, he filed his answer, in which he admits the execution of the deed of trust; admits that Brungard was his accommodation indorser, and had paid large sums on account thereof. He denies exhibit B to the bill to be a true statement of the accounts between the parties, and states his inability at that time, in view of their complication, to render a full account, but proposes to do it by a cross-bill for account. He admits the sale by the trustees of the trust property set up in the bill, and the purchase by Brungard, and the demand of deed, and his forbidding its execution, on the ground that nothing was due to Brungard, and because he discovered that Brungard was fraudulently pretending, that he was purchasing the property for the purposes of the trust, find thereby deterring others from bidding, while, after purchasing, he was converting it to his own use. without making provision for the trust debts; that the property bid in by Brungard was worth ten-times as much as he bid it in for; and Brungard was fraudulently attempting to appropriate it to his own debts, leaving those of Walker unpaid; that this sale was one of many which Brungard had brought about, with positive assurances of an intention to resell for the benefit of the trust, which he never did.
    He admits the depreciation in value of the property, but contends it is still a sufficient indemnity for the debts to be secured, and denies that most of the notes, &c. are valueless. He admits the use of a small portion of the trust property, and the sale of a negro girl embraced in the deed, but justifies that sale, on the ground, that the negro was Mrs. Walker’s, his wife’s, and was inserted in' the deed for Mrs. Walker’s benefit, and with the agreement on the part of Brungard, that she should be so appropriated'; that he did not believe Brungard would lose more than he had already lost by his indorsements, as he was utterly insolvent.
    He.admits his own insolvency, which he insists was brought about by his being induced.to make the deed of trust, and Brungard’s conduct in its administration.
    On the 23d of December, A. D. 1840, Thomas F. Walker filed his cross-bill in the case, in which he states that Brungard had received $20,000 from the trust fund, which he had failed and refused to account for; of which exhibit 50 was a statement ; that the deed marked exhibit 51, (which was a deed from Lewis and Walker, the trustees to George Brungard, to lots fifty-five and fifty-six, in Vicksburg, made on the 14th day of January, A. D. 1839, reciting a consideration of $2000, and a public sale under the provisions of the original deed of trust of Thomas F. Walker,) was made on consideration, and for the sole purpose, of Brungard’s executing a mortgage on it to the Upion Bank, to raise money on to pay the trust debts, but instead of doing so, with the intent to defraud Thomas F. Walker, had had it sold by the sheriff to pay his own debts; that exhibit 52 was the deed of the sheriff to Brungard, for the tract of land conveyed in the original deed of trust; (this deed is dated the 14th day of May, A. D. 1838, and recites, that the execution on which the sale of the land of Mr. Walker’s took place, was returnable to May, 1838, and issued on a judgment rendered in May, 1837, — on which Walker was bondsman in a forthcoming bond, — and that George Brungard was the purchaser of the property for the sum of $3140. The rest of the deed is in the ordinary form.) That this land was bought by Brungard under an agreement to apply the proceeds of its sale, after being reimbursed its purchase-money, to the purposes of the original trust, which he had failed to do, and that he both claimed the land and charged for its cost.
    
      Exhibit 53 is an original letter from George Brungard to Mr. Walker, written after the sale of the land, in which he says: “My sole purpose in purchasing it, was for the purpose of the more speedily to relieve my indorsements on your paper, and give you all the benefit of its after sale.”
    That while the legal title to lots fifty-five and fifty-six was in Brungard, he sold to John Salmon part thereof for $6000, on the 31st day of January, 1839, and had fraudulently applied the proceeds to his own use.
    That exhibit 55 was the deed of the sheriff of Warren county to R. C. Stockton, to lots fifty-five and fifty-six, and the tract of land sold to Brungard by the sheriff, on the 14th day of May, 1838. This deed is dated September 16, 1839, and recites judgments against George Brungard in favor of the Commercial and'Railroad Bank, for $1878, rendered in May, 1838; one in favor of Fellows, Read & Co., for the sum of $2738.86, on the 9th of May, 1838; one in favor of Parish & Co., for the sum of $2242, of same date; and another in favor of Parish <fc Co., for- $1884.89, upon which executions against Brungard and his. security, on the forthcoming bonds issued, were levied on the lots mentioned, and the land, for which Stockton bid $1960, and the deed was made accordingly.
    That Stockton bought in trust for George Brungard, but pretendingly for the use and secretly in trust for Mrs. Brungard, in whose name-the property is listed for taxation ;' that Stockton paid no money of his own, but paid that of George Brungard ; if not the money “belonging to the complainant arising from the trust fund.”
    That Salmon was informed when he bought of Brungard of his fraudulent acquisition of title.
    That Stockton was not present at the sheriff's sale, but A. Buvwell, Bruegard’s lawyer was, and bid for the property, and bought it in Stockton’s name, at which time he (Thomas F. Walker) notified all present of the frauds of Brungard, and the claims of his creditors; which notice Mrs. Brungard through Stockton had ’also.
    That exhibit 56 was Brungard’s receipt to Thomas F. Walker for divers claims in the deed of trust named, amounting to $50,000, much of which had been collected by Brungard, and appropriated to his own use, and much lost by wilful neglect; that Brungard, by his “ positive folly and wickedness,” lost $26,000 in the notes of Tate and Poindexter by an injudicious suit in Louisiana to recover them, in which as a compromise he gave up the notes.
    That Brungard has had all the books and accounts mentioned in the trust against his (Walker’s) consent; that he had applied to Brungard to deliver them 'to the trustees, who had refused ; he offered his aid, but Brungard refused it; he asked for a sight of the books, but it was refused; and he refused to render any other account than that filed with the bill.
    That Brungard has received large sums in rents from the property he bought, and also from the sale of part of it to Salmon, since his purchase at the sale under the deed of trust, which he had never accounted for.
    That Lewis and John F. Walker are men of probity and honor, and anxious to discharge the duties of their trust properly; that Salmon, Brungard and wife, and Stockton may be made defendants ; that Brungard, who designs to flee the country, may be made speedily to account, &c.; that judgments have not been rendered against Brungard for a greater sum than $15,000, on his indorsements, and that it is not likely, in consequence of the death of the notary who protested the notes, to be held liable for more, and therefore the bill prays that the property be discharged from the incumbrance of the deed of trust, that he (Thomas "F. Walker) might make an arrangement with his creditors with it; that the deeds, exhibits fifty-one, fifty-two, and fifty-five, might be set aside, and the trustees reinvested with title, Brungard be made to account for all he had collected or lost of the trust fund, and for other relief.
    Brungard filed his answer to this cross-billon the 7th of January, 1842 • in it he admitted that most of the trust property was placed in his hands, together with the trustees. lie denied that he has untruly accounted for the trust fund, or fraudulently concealed any part of it, though he admits the reception of about $300, unaccounted for, omitted by mistake.1 He denies that he is liable for the items claimed, against him by Walker in his cross-bill in exhibit 50 thereto, and answers each item seriatim. The first item was the sum of $6000, received from Salmon from the sale to Salmon of part of the trust property bought by Brungard from the trustees on the 14th of Jan. 1839. . He admits the sale to Salmon, but says the property belonged to him as his own ; and the proceeds of sale were his own, and not part of the trust fund. The second item was $300, alleged to have been received of A. B. Reading, which he denies the reception of altogether, and calls for proof of it; so also item three. Item four of $300, he admits to be correct. So also the items of money received from Phillips & Blanchard, and files as exhibits (A 1) and (L), as proof of it. The item of the stock of goods he averred to be false; he admits the reception of the goods and their valuation at $3000 ; but says they only sold for $967, with which he has charged himself. He admits the reception of $22 L, for rent of plantation; but that he paid Walker the amount. He denies the charge of $20, premium on ice stock. He denies the charge of 89252, for the stock of goods, and ’files Walker’s receipt, dated Feb. 23, 1837, for that sum, acknowledging full payment for the goods; which was made a year before the deed of trust was executed. The last item of $500, paid by Walker himself, he says may or may not be correct; it was Walker’s own debt, and he is not liable for what Walker may pay upon it.
    He denies that the sale under the deed of trust marked (51) was without consideration or void ; he was then largely in advance to the trust fund; the property was sold by the trustees to pay him. The sale was ou due advertisement, open and fair, and he the highest bidder. He denies that the sale was upon condition of getting money on a mortgage on it, through the Union Bank; something was said about the-mortgage after, nothing before the sale. He has credited the debt due to him with the proceeds of sale. He admits that the property bought by him under the deed of trust has been sold under executions against him; these executions were against him at the time he bought the property, and he could not prevent the sale under them. He files with his answer as exhibit K, a letter written by Thomas F. Walker, in April, 1839, expressly acknowledging his title to this property and his right to sell it, and proposing a sale to John Walker, one of the trustees.
    He next answers the charge of having only given $2850 for the land, and charging the trust fund with $3150; and shows by the sheriff’s deed that $3150 was the amount he actually paid. He admitted he bought the plantation, and that exhibit (52) to the cross-bill is a true copy of the sheriff’s deed therefor; he says he bought this plantation under executions older than the deed of trust, and held it in his own right; but having no desire to speculate on the trust fund, he wrote exhibit (53) to Walker, but could not carry out the plan there proposed; in the mean time, judgments were rendered against him, and the property sold. He admits he has charged the trust fund with the amount paid for the land, and submits whether he should be charged with the $3140, what he paid for it, or $960, what it sold for, which was its full value.
    The next charge answered, is that of the sale to John Salmon, and the appropriation of the proceeds to his own use. He admits the sale to Salmon and justifies it; that the property was his own, fairly bought and fairly sold, and was no part of the trust fund. He denies the reception of $6000 from Salmon, but says he only received $2200, in depreciated paper worth not half the sum.
    He admits the purchase of the plantation by Stockton, but denies that Burwell was his attorney in buying it, but was Stockton’s attorney only. That Stockton purchased the property with Mrs. Brungard’s money, derived through the will of Edward Mitchell, which is made exhibit H to the bill, which money and property bequeathed by Mitchell was ^settled upon her by decree of the court in Louisiana, and that the purchase was not made with his own money, nor with that of the trust fund.
    He denies the collection of the debts and account's as set forth in exhibit 56 of the cross-bill, and refers to the affidavits of John J. Guión and W. C. Smedes, to whom the principal part of these claims vra-e given to collect. Their affidavit filed as exhibit M¿ states which of the accounts were collected, and which were worthless, and that Brungard used the utmost diligence and care in the collection of them ; devoted his whole time and energy to it, and ruined himself by the total neglect of his own business; that so far as their knowledge extended they wholly acquitted him of all fraud in the premises. He was rich when he indorsed for Walker, and had been ruined by it.
    Bungard files also the affidavits of several lawyers, in whose hands claims were placed, being exhibits O, P, Q,, R, S, and T.
    With reference to the loss of the $26,000, he says he had sued the parties to those notes in this state on two of them; had obtained judgment and a return of nulla bona, when he was advised that one of the parties, Samuel Anderson, had property that could be made liable to them; he accordingly employed Stockton and Harrison, regular attorneys of Louisiana to bring the suits; they did so; involved him in cost in about $3000, and were likely to mulct him and his surety into damages in about $8000, when he compromised the matter and gave up the notes; this he did by advice of his lawyer; and he denies that the trust fund lost any thing by it, as the parties to the notes were all then, and still are, utterly insolvent. He avers that this compromise and suit took place long posterior to the sale under the deed of trust and the sale to Salmon, and denies that they can be affected by it.
    He denies his refusal to account for the trust fund; says he has accounted fully; denies the,reception of any rent belonging to the trust fund, not accounted for, and says that since Stockton’s purchase he has collected all the rents of the brick store.
    He says, that Lewis and Walker are objectionable to him for the reasons set forth in his original bill, and not for those .alleged in the cross-bill; he says, that besides the sum he has already paid, judgments have been rendered' against him as indorser on large sums as exhibited by exhibits (X 1) &c., being the certificates of the clerk of the same.
    He denies that any portion of the trust fund is now in his hands; but if any were, he denies that Lewis and Walker are proper trustees; Lewis is insolvent and unfit, and had left the United States for the West Indies; and John Walker was an infant, who had pleaded infancy to avoid a debt, of which the record is exhibited, and was entirely under the influence of his father, the complainant, who was a drunken, worthless old man.
    He proceeds to answer the charges made in the answer of Walker, which is made a part of the cross-bill; he denies repeatedly, all the fraud charged, or that he had received any of the trust fund except as stated by him; he denies that the last sale of the trust property was unfair, or that he deterred bidders; he says it was bona, fide, fair and public, and he was, and is, entitled to a deed; he denies that the property originally conveyed in trust was an ample indemnity; he says, that it is not worth more than he has already paid on account of the trust fund; that the amount he had paid of his own funds to save the trust property on account of his indorsements, was so large that it had crippled his own resotirces, forced him to a sacrifice of valuable land on the Mississippi river, and of his silver plate, &c., and had ruined him.
    That the complainant never was worth any thing; all the property he ever owned was covered with debts far beyond its value, and that complainant was insolvent in the sum of $200,000.
    He insists that for his labor, care, anxiety, loss of health, &c., he is entitled to charge the trust fund $12,000 for his services, and he accordingly makes the charge.
    He files accounts and vouchers with his answer, which exhibits an indebtedness tó'him of $26,394.67; these accounts he makes parts of his answer.
    Mrs. Brungard, formerly Elizabeth Sims, filed hey answer on the 17th of June, 1841. She denies all knowledge of any frauds on the part of her husband; says she is an innocent and bona fide purchaser; admits that Stockton bought as her trustee, and that the property bought by him is hers; she admits that when Burwell bid off the property for her, Walker proclaimed that he had been defrauded, and the property was his creditor’s, but that Burwell bought as the agent and friend of Stockton ; that she had no knowledge of any fraud of her husband’s, nor does she believe he was guilty of any; that Walker’s statements were regarded as nothing and did not repress bidders, and were not true.
    She exhibits the mode in which she obtained the money with which she purchased the property, through the will of Edward Mitchell and as a distributee of Edward Sims, a legatee under the will; that her husband had not reduced all to possession that she was entitled to under that will. Mitchell died, and his property was located in Louisiana; she knew her husband’s embarrassed situation; judgments against him, and all his property likely to be stripped from him; she knew he was ruined by his indorsements in Louisiania, and to save what little she had left, she sued him, by the advice of Stockton, in the courts of Louisiana, for a separation of property under which her husband by the advice of Stockton made the declaration of trust marked (A A) which was of record when Stockton bought; with the money derived from this source, and from her brother, Ferdinand Sims, the executor of Mitchell, Stockton bought this property for her, after a full examination of the title; she bought by advice of Stockton and her brother; that her husband was opposed to the purchase, and wanted her to let him have the benefit of it, which, from a sense of duty to herself and child, she refused. That if she loses what is involved in this suit, she loses her all, and will have to resort to the labor of her hands for the su'pport of her family; for her husband is so involved by his pecuniary misfortunes, brought on him by Walker, that he can do nothing to aid her. She adopts the answer of her co-defendant Stockton.
    R. C. Stockton filed his answer, .Tune 17, 1841; he admits he bought the property sold at sheriff’s sale, for Mrs. Brungard, with her money, derived as stated by her; he admits that Bur-well bought the property, but he bought as his agent; that Walker made the statements charged. He says that he became trustee for Mrs. Brungard, at her and her brother, F. Sims’s request, of property which she derived under the will of Edward Mitchell; that a declaration of trust was made and he appointed trustee, and F. Sims placed the money in his hands,'and he bought the property which he purchased, having seen the advertisement of its sale, and supposing it would be an opportunity of investing the fund intrusted to him, on good terms, as real estate sold low and was in no demand. He never consulted George Brungard in the sale, who was opposed to it; he employed Bur-well to buy for him, before Burwell was engaged in the suit for Brungard; he paid Mrs. Brungard’s money, and never received one cent from George Brungard to buy it with. He believed Brungard’s title good, and did not believe him to have been guilty of any fraud. He examined the title, thought it good, and so advised Mrs. Brungard. That the plantation was bought at sheriff’s sale by Brungard, and was therefore not a part of the trust fund, and Brungard had a regular deed to the house and lot; that Walker’s statements were regarded as those of a half mad old man, and had no effect in repressing bidders, and he believed the title to be good. He refers to his affidavit filed with Brungard’s answer for a true statement of his action with reference to the notes of $26,000, placed in his hands as attorney at law, by Brungard.
    John Salmon’s answer was filed, Dec. 2, 1841; he admits that he purchased the property as charged, but denies that he had any notice of Walker’s claim; that he employed counsel, who told him the title was good. That he paid part to Brungard, $2300, and his note for $2400 was assigned by Brungard , to Scheweppe, who sold the lot under a deed of trust given by him for $600, so that he owes the residue to Scheweppe of the $2400; that Brungard lost by depreciation in the bank papers he paid him ; and he himself suffered from Walker’s false statements that no title would pass, when the lot was sold by Scheweppe under his deed of trust.
    J. Dunderdale proves, that for indorsing Mr. Walker’s notes, and in other ways assisting Mr. Thomas F. Walker in the arrangement of his settlement with Messrs. Folkes for the purchase of the brick store and the stock of goods, Mr. Thomas F. Walker agreed to give Brungard $10,000, in notes, which by agreement was commuted to $9250 worth of goods, which Brungard received, and Walker executed his receipt for; the only consideration known to witness being his own indorsement, and procuring indorsements to make the security of the sale perfectly satisfactory to the Messrs. Folkes. He states further, that of a stock of goods returned from Arkansas to Mr. Walker, the invoice was $3000; what became of them he does not know.
    E. D. Downs proves, that he has known Brungard for ten or twelve years, during which period he has resided in Warren county; and that the records of the court show no judgments against Brungard as surety for Walker in Jan. 1838; that he has known Walker for five or six years; and that there were no judgments unsatisfied previous to Jan. 15, 1838; that Walkers habits are good, and he had never known him to be a drunken, crazy old man; that he is clerk of the circuit court; that the judgment of Walker, use of Brungard against Cooper, was on the 15th of Sept. 1841, paid to R. L. Moore, the attorney for the plaintiff; that on the 18th of May, 1840, Brungard obtained judgment against Moore and Emanuel for $1942.50, which on the 26th of June, 1840, was paid to French and Bunvell, attorneys for Brungard.
    John M. Chilton states, that Brungard offered to the Commercial & Railroad Bank to pay debts on which the witness was surety for him, the plantation and brick house in controversy; that the bank refused the offer; that Brungard and A. V. Brookie were doing business in Arkansas under the style of A. V. Brookie & Co.; that Brungard assigned to him the nominal sum of $20,000 of claims on persons in Arkansas as indemnity against the debt he was indorser on for Brungard, and afterwards on a settlement assigned them absolutely to him.
    E. G. Cook states, that he was present when Brungard bought the plantation at sheriff’s sale; Brungard said but little to him, but his impression was, from the way in which such things were done in other cases, that Brungard was buying for Walker; that Brungard told him he was indorser for a large amount for Mr. Walker, and wanted to make as much out of the land as possible; that Brungard bid the land off, apparently for his own use; that he attended the sale to bid for it as the land adjoined his; that he cannot say how much he would have bid for it, if not spoken to by Brungard, certainly not much more than Brungard had to pay for it. That a tract of land adjoining this was put into the Union Bank at $35 per acre, and another appraised at $40, but both superior to the Walker tract, which was without wood, and exhausted from cultivation.
    Samuel Anderson states, that Brungard sued him in the month of October, 1839, for about $5000, in Louisiana; that he levied an attachment on a tract of land, some slaves, and cotton, which was discharged as irregular, and the decision affirmed on appeal. Brungard sued Anderson, Shelton & Co., also by attachment, for $16,000, which suit he dismissed; he gave. John Millikin as surety on his attachment bond, for about $32,000; that he (the witness) sued Millikin, as Brungard’s surety, for about $7000, for damages when the suit was compromised, Brungard delivering up the notes on which suit was first brought, and the witness dismissing the suit against Millikin ; it was the first part of the compromise, that the witness was to deliver up the notes and accounts of Samuel Anderson, and Samuel Anderson & Co. to Brungard, who was to pay the costs of suits, &c.; it was afterwards altered, that witness was to pay the costs of all the suits, and retain the notes and accounts, &c. The books and accounts referred to were nominally about $30,000 or- $40,000, but he had realized but little out of them; that his property was all mortgaged to Nelson F. Shelton, and the mortgages recorded in the proper office,, and might have been readily found before Brungard brought his suit; that the Nelson F. Shelton, who held the mortgages on his property, was the partner of Anderson, Shelton & Co.
    John McLawrin - states, that he knew the firm of Folkes, Walker & Co.; that he was employed to put their books "to rights; found them full of errors; but Mr. Walker in his line, that of finance, he found to be a man of probity and capacity; who arranged not out of his own funds from $160,000 to $180,000 of the debts of S. & M. C. Folkes, this sum being paid on the credit and with the funds of S. &. M. C. Folkes, and Folkes, Walker & Co.
    William R. Lewis states, that the slave, Elmira, was bought of him by Mrs. T. F. Walker, in April, 1837, for $500, and paid for with her own money; that all the notes, bills, &c., embraced in the original deed, were put in Brungard’s hands, by the assent of all parties, when the deed was signed; he knew of none that was withheld; that Brungard was to appropriate the notes and proceeds collected to pay the notes of Walker, on which he was indorser; that on the 10th of December, 1838, he was present at a conversation between Walker and Brungard'about the brick store, which he as trustee was to sell in January, 1839; that in this conversation, Brungard said, • that as property in the hands of trustees could not be mortgaged to any bank, he (Brungard) was to become the nominal possessor to place it in the Union Bank, the proceeds of which were to be for the exclusive benefit of the trust fund; and Brungard was^ to give Walker a letter to that effect, to carry out which Brungard desired him to publish the advertisement in only one paper, to avoid publicity and competition; the property was knocked down to Brungard for the nominal sum of two thousand dollars; that the deed of trust of January 15, 1838, was made solely to secure Brungard against his indorsements for Walker, for which Brungard had received a remuneration of $10,000, or thereabouts.
    in answer to a question to state all else he knows, he replies: that after he sold the brick store to Brungard, under the deed of trust in 1839, he saw in the August following, that property advertised for sale by the sheriff, to pay Brungard's individual debts, which he thought a breach of the agreement on Brungard’s part, to devote it to. the trust fund, and for that reason he and his co-trustee, at the special request of T. F. Walker, refused to sign the deed at the second sale of property under the original deed, not feeling justified in confiding more property into the hands of said George Brungard, until he had satisfactorily accounted for that which he had already obtained ; that these questions were forwarded to him to Jamaica, but not getting them there, he swears to them before a magistrate in Vicksburg.
    John F. Walker states, that Mrs. Walker bought, with her own money, the negro girl, Elmira, and so neither he nor his co-trustee had any claim to her; that she was included in the trust to prevent creditors attaching her and forcing Mrs. Walker to replevy her; that all the notes, accounts, &c., with his consent, were placed, by Thomas F. Walker, in Brungard’s hands, to collect and settle up for the benefit of the trust; the property delivered to Brungard, consisted in its nominal amount in notes, $54,000, open accounts, $6536.44, goods, $3000, real estate, $90,293, according to the face of the deeds; also, two slaves and furniture, the proceeds of which were to be appropriated to the payment of Walker’s debts, on which Brungard was indorser; that the sale of the brick house was effected by a concerted agreement between the trustees and Walker; that Brungard should buy at the nominal price of $2000, and put the property in the Union Bank for the benefit of the trust fund, to enable Brungard to meet his indorsements for Walker, and not for Brungard’s own use; that the cost of repairs on this house, as lately stated by Brungard, was $1643.93; that Brungard then, and before he bought the plantation, stated he bought it fo^ Walker’s benefit; so wrote to Walker, and has charged the trust with the cost of its purchase; that the $9250 was a bonus for Brungard’s indorsements for Mr. Walker; that he became trustee at Walker and Brungard’s request; that when he sold the brick store, &c., advertised to be sold under judgments against Brungard, he applied to the sheriff, who told him Brungard had handed the description to him for a levy; that an arrangement was at one time attempted, by which John Walker (the witness) was to become the owner of the plantation al $12,000, which was to go to the payment of the indorsement liabilities of Brungard, and the letter of T. F. Walker, of April, 1839, to Brungard, was in connection with this arrangement, which fell through; that in November, 1839, Brungard offered this property to the Commercial and Railroad Bank, to pay an individual debt of his own, on which J. M. Chilton was indorser, which was refused, because T. F. Walker informed them his creditors claimed it; that Brungard’s wife bought in September, 1839; that Brungard being already in possession of two of the most valuable properties of Walker, the brick house and plantation, the witness and his co-trustee refused to put him in possession of any more, until he accounted satisfactorily for what he had, and therefore they refused to make him a deed to that which he last purchased.
    A. H. Rowlett states, that he has examined E. H. Maxcy’s notarial books, who protested most of the notes of Walker on which Brungard was indorser, and there was no record of the notices of protest, or of any thing but the note; that Brungard had been made liable by the verdict of a jury for $32,000 of his indorsements for Mr. Walker, which was all unpaid; that the judgment in favor of Wilcox, Anderson & Co., had all been paid by Brungard, being $13,333.
    J. G. Bibby states, that certain notes, amounting in the aggregate to about $40,000 of various partieSj had been left by Thomas F. Walker with the Commercial and Railroad Bank, as collateral security for certain notes upon which Brungard was indorser for Walker.
    Henry Green swears, that he was the commissioner of the chancery court who took John F. Walker’s deposition; that on the day John F. Walker swore to the same, he came into the office of the witness, where Mr. Burwell, Brungard’s counsel, was sitting; that John F. Walker asked him to walk in the back room, when he presented his interogatories and answers already written out, and desired the witness to take his affidavit in that room, as he did not want Mr. Burwell, who was the attorney of the opposite party, to see his answers; witness refused, on the ground, that Burwell had a right to hear the answers; John F. Walker still insisted, and witness refused, when they went in the front room where Burwell was, when witness told Burwell what passed, when Burwell insisted on hearing them read, upon which witness swore Walker, and the questions and answers were read by him, and Burwell also examined them; that from the mode in which John F. Walker read the answers, mistaking the word “replevying” for the word “replying;” and upon Mr. Burwell’s suggesting the error, his appearing confused and not understanding it, and his hesitating and his mann'er throughout, induced the witness to-believe that the. answers were prepared for him, and that he was not fully aware of their import, which made the witness hesitate about certifying and sealing up the deposition.
    E. D. Downs states, that he was clerk of the circuit court of Warren county from May, 1839, to December, 1842; that up to that time, all James Glass paid on a judgment in favor of Brun-gard, which was assigned by'him to Wilcox, Anderson & Co.,was $4700; Brungard made the assignment in May, 1839, at which time the whole amount of the judgment could have been made of Glass; the judgment was for $11,322, and was stayed' by Wilcox, Anderson & Co., in May, 1839; that Brungard paid' large amounts of costs and judgments against him on account of Walker, which affected Brungard’s pecuniary condition.
    Dr. James Hogan proves, that in October, 1839, Brungard published in the “Sentinel” his intention to leave the state in March next, (1840,) and called upon persons holding his indorsements to come forward and propose some arrangements.
    W'. H. Benton states, that Brungard submitted a proposal to the Railroad Bank, of which he was president, offering the plantation and brick house to the bank, in payment of certain indorsement liabilities of his for Walker, being about $37,000, provided' they would also release his individual obligations as drawer, and pay him $2700 in cash, which proposition Walker, by letter, remonstrated against; that John F. Walker held a confidential station in the bank; was a man of probity and honor, and would not plead non-age to a just debt; and was a man of discretion to whom a trust fund might well be confided.
    W. S. Bodley states, that he has known Thomas F. Walker since he came to .Vicksburg; so far as he knows, he has been an industrious, good man; lives humbly and is apparently dependent on his son John; that he was a director of the Railroad Bank, and since 1840,'an assignee; and John F.'Walker has been diligent and faithful, and bears an upright character.
    Thomas E. Robins states, that he has known Thomas F. Walker, and his character as a merchant was good; that he-has allowed Thomas F. Walker to travel on the road several times free of charge to attend the chancery court, because he was unable to pay for it.
    W. R. Bay testifies, that John F. Walker is clerk in the bank; that he is one of his sureties; he thinks him incapable of pleading non-age to a just debt; thinks if any body can be, he can be trusted ; that he is honest, temperate, industrious, faithful to his trust, attentive to his duties.
    J. W. Walker states, that in his opinion, while he resided in Vicksburg, W- R- Lewis was an honest man and a respectable one; that he went his surety for $18,000; had seen nothing in him since to make him question his integrity, and thinks him a fit person to have charge of a trust fund.
    M. C. Folkes states, that John F. Walker was the surety for Thomas F. Walker to S. & M. C. Folkes upon the note on which John F. Walker pleaded infancy; he does not know upon what other terms or conditions John F. Walker signed the note; John F. Walker’s character is good, and he does not believe he would plead infancy to avoid a debt of his own.
    Henry Poindexter states, that in the year 1837, he rented of Walker the brick store; paid him $500 for it, which Walker paid to Huntington; Brungard had nothing to do with the rent, payment, or receipt; that Tate and Poindexter bought a lot of goods of Walker, and gave their notes, indorsed by Samuel Anderson and others.
    William Laughlin states, that he has known John F. Walker intimately for years; thinks highly of him; considers him incapable of pleading non-age, and worthy to be trustee.
    A. B. Reading testifies to Thomas F. Walker’s good character, and his being his indorser, and Walker’s giving up all he had to secure Brungard; arid also to John F. Walker’s character.
    W. A. Lake testifies to Thomas F. Walker’s good character.
    Thomas W. Banks testifies to W. R. Lewis’s good. character.
    W. V. Davenport does the same, and also to his competency to manage a trust fund.
    W. R. Lewis’s deposition is again taken ; he testifies, that at his instance Brungard became indorser for Walker, for which he was to receive $10,000 in dry goods; that the sale of the brick house under' the deed of trust was made by the consent of all parties; competition was not desired; the property was to be bought in; that Brungard, to the best of his knowledge, had notes, &c., of Walker’s in his possession, which might have been collected by the time the brick house was sold; that he (witness) was auctioneer when the brick house was sold under the deed of trust; that at the second sale under the deed of trust, all parties were agreed, but the reason that Walker did not wish the trustees to sign the deed was, that Brungard, up, to that time, had not fulfilled his promise to put the brick house and plantation in the Union Bank; that he himself was willing to have signed the deed at the second sale, or any other instrument on which both the parties were agreed; that he believes there was some understanding between Walker and Brungard, .that the two houses in Springfield should be bought in, in the name of some of Walker’s family, which, at the sale, (the second one,) Brungard refused to carry out; that Brungard had not much business of his own to attend to; that the notes and accounts of T. F. Walker were never in his (witness’s) possession; but were handed immediately by T. F. Walker to Brungard; that Brungard often spoke of hoping to be able to save something out of the trust property to settle on Mrs. Walker; that by mistake he had not answered these interrogatories earlier; that about the time Walker bought the real estate from Folkes, he (witness) was a partner of Brungard, who offered to indorse his paper, if he at the resale by Walker should buy any thing; he did buy at the resale, but Brungard did not indorse for him; that Brungard was a partner of Brookie’s in Arkansas, and lost by his connection with him there; that in his opinion Brungard’s ruin was not caused by his indorsements for'Walker, as Brungard never told him so, and from the amount of accounts, &c., which Brungard had, he supposes he could not be much in advance to the estate; that the sale of February, 1S39, was decidedly not a bona, fide sale to Brungard, the property was to be bought in; that he gave Brungard a memorandum of the numbers and amount, which was about $700; as there was no competition, which was as they had it arranged; that Walker’s purchase from Folkes was the cause of Walker’s ruin.
    
      [The magistrate here certifies, that these answers, with the questions, were brought to him already prepared, to which he expressed his disapprobation, when Brungard waived all objection on that account.]
    On cross-examination, he states, that he cannot swear how much or what amount of the debts and-accounts of Walker in Brungard’s hands were good, or might have been collected. In answer to a cross-interrogatory, as to whether the $10,000 worth of goods (the bonus) were delivered to Brungard, or whether he was in Mississippi at the time, he says he cannot say: he has seen Brungard’s receipt for nine thousand and odd dollars’ worth of . the goods. The cross-interrogatories and answers are principally irrelevant; he says, in conclusion, that since his last return to Vicksburg, after repeated and protracted absence, he is and has been the guest of Mr. Walker, where he has been treated kindly; how long he will stay, he does not know.
    Edward R. Warren’s deposition explains the reason why W. R. Lewis’s deposition was not taken at the first before him.
    Edward Yager testifies, that he was present when the property of John Salmon, bought of Brungard, was sold in June, 1840, by A. Burwell, trustee; that Salmon stated he would pay all he owed on it, if a good title could be made him; that the witness bid it off for Salmon, and Salmon failing to comply Burwell, as trustee, resold it, and it was bought by J. H. Martin ; that Brungard and Walker were present at the sale; Walker said the title to the property was bad, and Brungard struck him, and Walker did not retaliate.
    Samuel W. Brown states, that he is tax collector of Vicksburg. That Walker’s real estate for the year 1836 was assessed at $18,500; for the year 1839 at $32,600; the brick store for the year 1841 was assessed at $3000; for the year 1842 at $5000 ; but afterwards reduced by the mayor and council to $3500; that George Brungard and family, March 1S43, occupied the brick store; that part of the lots conveyed in the deed of trust had been surrendered to him for sale for the taxes of Thomas F. Walker, had been bid in by Thomas F. Walker in the name of John F. Walker, the trustee.
    
      The record of the proceedings in the state of Louisiana in the case of Brungard against Anderson et al., and of the appeal to the supreme court, and also of the suit against Millikin, Brungard’s surety in the attachment, are filed in the papers. These records show that the suit of Brungard against Anderson, was dismissed in the court below in June, 1840 ; the decision affirmed in Dec. 1840, and the cross-suit against Millikin for damages dismissed at the same time.
    The deed of trust given by Thomas F. Walker to William Harvey for the benefit of Wilcox and Fearn, dated June 1, 1837, on the brick house to secure $12,500 of Walker’s note, indorsed by Brungard, was assigned by the cestui que use to Brungard.
    There is also a record of a suit of Thomas F. Walker use of Brungard against Tate and others, on one of the notes which Brungard gave up, which exhibits judgment in 1840 and return of nulla bona.
    
    Copies of executions against Thomas F. Walker on forfeited forthcoming bonds as surety for motion, older than the original deed of trust for about $3000, under which the plantation was sold, are also filed.
    E. D. Downs proves, that when the brick house was offered for sale, under the deed of trust, Brungard urged him to bid for it and others also.
    There is also a record of the proceedings, in which John F. Walker pleaded his infancy to obtain his discharge from a judgment against him as indorser for his father.
    W. C. Smedes proves, that most of the property conveyed by Walker to Brungard was previously heavily incumbered; that unincumbered was of but little value; the brick house was worth about $2500, the plantation about $2000; that Samuel Anderson in 1839 was insolvent; and the other parties to the notes surrendered up by Brungard reputed to be so; that T. F. Walker was in possession of the-plantation, and Brungard of the brick house; who was in possession of the other property he did not know ; that he has been the counsel of Walker and Brungard, and of Brungard during all their transactions.
    Exhibit M to Brungard’s answer is made part of his deposition; in it he says, that nearly all the claims transferred by Walker to Brungard, except those then (Dec. 2, 1840,) collected, were worthless; that Brungard used every energy to collect the debts, devoted himself to it; no individual to his business could _ have been more nnwearyingly indefatigable than Brungard to Walker’s ; that he has read T. F. Walker’s cross-bill, and from his knowledge of the transactions of the parties, acquits Brungard of all fraud; .that he believes Brungard solvent when Walker made the deed of trust to him; that he is now insolvent, occasioned by being indorser for Mr. Walker.
    John J. Guión, concurs in the above.
    John B. Bemiss states, that he was the attorney for Anderson in the suits brought by Brungard and in the suit brought against Millikin by Anderson; that he believes Anderson in 1839 was insolvent; that he would not have paid the costs of the suits and damages, for the notes given up by Brungard when he compromised with Anderson.
    Thomas N. Pierce states, that he is a practising lawyer in Louisiana ; he recites the history of the suit of Brungard against Anderson, and of Anderson against Millikin and the compromise, and says that at that time Anderson was insolvent.
    W. H. Paxton proves, that Brungard was obliged, in order to pay an execution against him, to sacrifice a set of silver ware, and a tract of 450 acres of land on the Mississippi river; this was after the sale by the trustees'of the brick house and lot.
    Henry Poindexter, of the firm of Tate <fc Poindexter, on the 3d of Dec. 1840, files a statement of the notes given by him, which were given up in the compromise by Brungard, in which he states that all the parties thereto were insolvent, and none of the notes paid.
    Robert S. French testifies, that he was present at the second sale under the original deed of trust, which took place on the 18th of Feb. 1839; that he bought it for Brungard; that Brungard told him to make it bring enough to pay what he was in advance to the trust.for on account of his indorsements; that Brungard told him he would use it to pay off his indorsement .liabilities for Walker, and let Walker have the benefit of any surplus; that at the request of Brungard he wrote a deed to the property to him, and left it with W. R. Lewis, one of the trustees, who promised repeatedly to execute it, and get his co-trustee to do so; but they did not; that Lewis told him, Walker was opposed to his signing the deed because the property brought so small a sum. • .
    An agreement of counsel is on file that the affidavits taken in the case might be read as though regularly taken.
    Ferdinand Sims proves, that he is a brother of Mrs. Brungard; that the brick house and tract of land, by an arrangement between A. Burwell, himself and Stockton, made. before .the sale, was bought for the benefit of Mrs. Brungard; that he (witness) furnished Stockton the money to buy the property with, and was at the sale.. That about the year previous to the execution of the deed of trust by Brungard and wife to Stockton, in Sept. ■1839, he had urged Brungard to make arrangements to secure to his wife the property left to her by her uncle Edward Mitchell in Louisiana; that he urged this because he thought Brungard was likely to become involved, and he was anxious to save something for his sister; that Brungard at first and often refused, but at length in Sept. 1839 assented to it; and the deed of trust was made. Through Edward Mitchell’s will, of which the witness was executor, Mrs. Brungard was entitled to $13,200, at least; that he had paid $6000to Brungard prior to the settlement' of Sept. 1839; that then $7252 was in his (witnes’s) hands, due to Mrs. Brungard, none of which was ever, paid to Brungard or reduced to his possession; she was.also entitled to about $700, as a distributee of Edward Sims, of whose estate witness was also executor, which Brungard had never reduced to possession; that Stockton was selected as the trustee and legal adviser of Mrs. Brungard by his direction ; that he was present at the sale of the land and house under execution against Brungard; Walker . was present, and told bidders they would get no title. ‘ He also states, that to one who wanted it, the brick store would be worth $4000 or $5000, and the land fifteen or twenty dollars per acre.
    Robert L. Moore proves, that Tate & Poindexter, Fisher, Goodman,Wharton, Anderson and Shelton were insolvent in 1839, and continued so to this day; and Bookout reported to be insolvent since then. In 1836 and 1837, Brungard was reputed to be wealthy, now he is broke; property on Main street has depreciated very much in value, and the brick house is now worth about $1500. That he closed the legal business of Horace P. Blanchard, and found among his papers many notes, &c., left with him by Brungard, of which neither he or Blanchard ever collected and paid to Brungard any; a small amount collected from Cooper went to pay costs; the claims were all of bad character ; some of them he gave up to John F. Walker ; that the notes and accounts due Anderson, &c., were placed in Mr. Blanchard’s hands for collection, and were generally worthless; not enough from them was collected to pay the fees due.
    Alexander M. Paxton testifies, that Tate, Poindexter, Fisher, Goodman, Wharton, Anderson, Bookout, and Moore were all insolvent in 1839, and are so still; that Brungard was in good pecuniary condition in 1839, since then insolvent, owing to his indorsements'; Brungard made great sacrifices of property to pay debts which witness as attorney held against him; that the brick house has depreciated very much in value, and is now not worth$1000; that Walker had nothing to do with the claims which Brungard made sacrifices to pay.
    John M. Chilton states very much the same, with reference to the insolvency of all the parties to the notes given up by Brungard ; that he was surety for Brungard to the Railroad Bank' in large amounts, to relieve him from which Brungard gave up his dwelling house, and a large amount of claims due him in Arkansas, which have proved of but little value; that before 1839, Brungard’s pecuniary condition was very good; since then he has become insolvent, growing out of the matters in connection with this suit, though what effect Brungard’s dealings in Arkansas may have had on his solvency witness does not know; the value of the brick house not over $1000.
    ■ Nelson F. Shelton, Sr. proves, that he is the uncle of Samuel Anderson and Nelson F. Shelton, Jr.; that he has known them from their infancy; in 1838 or early part of 1839, a writ was served on him by mistake for his nephew of the same name; that he knows well and has long known Anderson and Shelton’s pecuniary condition; Anderson left Virginia in 1836 or 1837 not worth a dollar, and commenced merchandizing in Mississippi; he made nothing to witness’s knowledge, and is now utterly insolvent, and took the benefit of the bankrupt law. Nelson F. Shelton came to Mississippi in 1838 under age, worth about $1500; he embarked in speculations with Anderson, and now they are both utterly insolvent; since 1839, no debt could be made out of either by suit, nor would he have given any thing for such claim.
    John J. Guión proves the insolvency of some of the parties on the notes given up by Walker; that he was surety for Brungard on forthcoming bonds for large amounts, who sacrificed property, and among the rest a valuable set of silver ware, to relieve him.
    Previous to 1839, Brungard was in good credit; the brick house has depreciated very much in value, and is now not worth $1000.
    Certificates of the bankruptcy of Samuel Anderson and various ■ sheriff’s returns of nulla bona in 1839, against the parties to the notes given up by Brungard to Anderson, are filed.
    The papers were first referred to Mr. Guernsey for an account, who presented one, exhibiting large balances against Brungard. Exceptions were filed to this, and the papers referred again to J. F. Foute, Esq., master commissioner, who on "the 17th day of February, 1847, made a report, showing a balance due from Walker to Brungard of $10,087.55, which report was confirmed by the chancellor.
    On the 21st day of April, A. D. 1847, this cause having been previously submitted, the chancellor rendered a final decree, confirming the report of commissioner Foute, exhibiting a balance due from Walker to Brungard of $10,087.55, declaring the sale made by John F. Walker and William R. Lewis, the trustees, on the 18th day of February, A. D. 1839, to have been made in accordance with the provisions of the deed of trust made by Thomas F. Walker and wife, on the 15th day of January, 1838; removed the trustees, John F. Walker and W. R. Lewis, and appointed a trustee to convey to Brungard the property purchased by him at the sale made on the 18th. day of February, 1839, as well as to take charge of and sell the balance of the property embraced in the deed of the 15th January, 1838, according to the provisions of said deed, and ordered the costs of the suit in chancery to be paid by Thomas P. Walker.
    From this decree Thomas F. Walker obtained an appeal to the high court of errors and appeals.
    The following is the opinion of the chancellor appealed from, viz.:
    By the Chancellor : The counsel of the defendant, Thomas F. Walker, have -not filed any abstract or brief. The defendants, John F. Walker and William R. Lewis, the trustees, are equally undefended.
    A. Burwell and William C. Smedes, solicitors for the complainant Brungard, have filed' abstracts, briefs, and arguments at length, and investigated the case on behalf of their clients with great care. •
    The defendant, Thomas F. Walker, has filed a brief and argument.
    Thus situated, I have found it necessary to look into the mass of paper connected with, the whole case, and in the discharge of this duty have been compelled to devote much time and labor to its investigation.
    The cross-bill of Thomas F. Walker introduces new and different parties and interests, with distinct and independent matters. Had this been excepted to in the form of a demurrer, plea, or claim to object to the same on final hearing,' I should have been disposed- to keep out of consideration of the original bill,' all matters which relate to the claims of Salmon and Mrs. Brungard, her agents and trustees; but as the whole cross-bill is answered in detail, and the answers relied upon,..on final hearing, it is my duty to decide the whole case.
    The first thing which claims my attention is the trust deed from Thomas F. Walker to John F. Walker and William R. Lewis, in trust to secure George Brungard for his indorsements of Thomas F. Walker’s paper. This provides,
    1. That the trustees may sell or swap the lands and lots, or sell them by the consent of Walker and Brungard; or the trustees may sell the same for such price or prices as Brungard and the trustees shall deem reasonable.
    
      2. It is made the duty of the trustees to take possession of the notes conveyed in trust, and proceed to collect them by suit or otherwise, and after deducting the expenses of the trust, the-proceeds arising from the notes, and the money arising from the sale of the lands, should such take place, was required to be appropriated to the payment of the notes upon which Brungard was indorser; and to that end it was directed, that the money .so collected should be deposited by the trustees in the Railroad Bank of Yicksburg, until the notes indorsed by Brungard should arrive at maturity, when the money so collected should be appropriated to their payment.
    3. It was further provided, that in case Brungard should suffer loss or damage by reason of any execution or executions being levied, then the trustees should, (being thereunto requested by Brungard) proceed to sell to the highest bidder, at public auction, for cash, the land and personal property mentioned after thirty days’ notice in a newspaper, published in Warren county, or so much thereof, as should be sufficient to indemnify Brungard from time to time for his losses.
    The first sale of any of the property mentioned in the trust deed appears to have been portions of lots 55 and 56 in square 11, in the town of Yicksburg, being the brick store sold in January, 1839. This was at auction, all parties consenting, and after due publication'had been made. At that sale Brungard became the purchaser at the sum of two thousand dollars,' and on the 14th of January, 1839, obtained a deed from the trustees for the ’ same, they acknowledging to have received from him the payment of the purchase money. But the cross-bill of Walker alleges, that the purchase was made for the purpose of being put in the Union Bank, to raise money for the purposes of the trust.
    The testimony of John F. Walker, one of the trustees, is to the effect, that the sale of the brick store was effected by a concerted agreement between the trustees and Thomas F. Walker, that Brungard should buy at the nominal price of $2000, and put the property in the Union Bank for the benefit of the trust fund, to enable Brungard to meet his engagements for Walker, and not for Brungard’s own use.
    William R. Lewis, the other trustee, states, that he was pres,ent at a conversation between Walker and Brungard, about the brick store which he, as trustee, was to sell in January, 1839; that in this conversation Brungard said, that as property in the hands of trustees could not be mortgaged to any bank, he, Brungard, was to become the nominal possessor, in order to place it in the Union Bank, the proceeds of which was to be for the exclusive benefit of the trust fund, and Brungard was to give Walker a letter to that effect.
    Brungard, in his answer to the cross-bill, positively denies that the sale under the deed of trust to him in January, 1839, was without consideration, or void; alleges that he was then largely in advance to the trust fund, that the property was sold by the trustees'to pay him, that the sale was on due advertisement, open and fair, and he the highest bidder. He denies, that the sale was on condition Of getting money on a mortgage through the Union Bank; admits that something was said about the mortgage after, nothing before, the sale.
    E. D. Downs in his testimony states, that Brungard was present at the sale of the brick store, and urged him and others to bid for it.
    I consider myself relieved from the necessity of attempting a reconciliation of this conflict of statement, or of passing on the competency of the trustees to gainsay the validity of their deed to Brungard, the rule of law being that a mere verbal agreement in relation to real estate is not sufficient to create a trust. It must be in writing to be valid.
    There are, however, exceptions to this rule, such as resulting trusts, part performance and the like, but the exceptions have no application here.
    I am not aware of any principle in equity jurisprudence that would justify my setting aside the deed of the 14th of January, 1839, of the trustees to Brungard, nor of declaring it a trust to support the verbal agreement contended for by Walker.
    
      The second point for consideration is the validity of the sale of what is called the plantation, in September, 1839, under execution against Brungard, and the previous purchase of the same by Brungard, at execution sale against Walker and others.
    It seems that, at the time of the execution of the trust deed, there was a prior outstanding judgment lien on the land against Walker.
    It was obviously the duty of Walker to pay and satisfy this outstanding incumbrance, so that the trust deed might properly operate in favor of the beneficiary of the trust. This not being done, Brungard was left to the alternative either of allowing the land to be purchased by another, to purchase for his individual use, or for the benefit of the trust.
    It appears by his letter of the 14th of May, 1838, that his object was, the more speedily to relieve his indorsements on Walker’s, paper, and to give Walker the benefits of its after-sale. Before any benefit, then, could inure to the trust, the land had to reimburse the purchase-money to Brungard; the surplus, on its subsequent disposition, would properly belong to the trust. In its after-sale, however, as the property of Brungard no benefit accrued, it having failed to bring the money that Brungard had given for it at the execution sale against Walker.
    The result of this whole procedure, then, is precisely the same as if this land had never been included in the trust deed.
    In the next place, it will be proper to consider these matters connected with Salmon and Mrs. Brungard’s purchases.
    Having determined that Brungard’s purchase in January, 1839, of lots 55 and 56 was valid, it follows as a consequence that Walker has no right to complain of any disposition which Brungard may have seen proper to make of these lots, or of that which the law may have made for him. Salmon’s purchase was therefore in nothing affected by the alleged verbal agreement.
    But the purchase of the plantation, as shown by Brungard’s letter to Walker, was subject to the benefit of Walker, of that which it would realize in its after-sale, beyond the sum which Brungard had paid for it at the execution sale as the property of W alker.
    
      Brungard being the owner of the plantation, it was of course subject to seizure and sale, as his property. It was levied on and sold as his. At that sale it was competent for Walker to attend, and make it bring more than it had brought at the execution sale as the property of Walker. Had he done so, he would have been entitled to a credit on Brungard’s indorsements for the overplus; but instead of this, it appears he attended the sale, and interposed pretensions well calculated to make it bring less, and it actually brought less. Under such circumstances, it is difficult to perceive the grounds upon which Walker can attack the validity of the sale of the land as the property of Brungard.
    It makes no difference, then, whether Mrs. Brungard or her agents or trustees had or had not notice of Walker’s pretensions; the purchase for her with her own money, derived through the will of her uncle, was valid.
    The next subject of consideration, is the matters of the notes and accounts mentioned in the trust deed.
    By the deed, it appears they were conveyed to the trustees to be by them collected for the benefit of the trust; but by the consent of all the parties, they went into the hands of Brungard for collection, the proceeds of which, when collected, were to pay the notes of Walker, on which Brungard was indorser. This arrangement constituted Brungard agent for the trustees. The amount collected should of course be charged to Brungard, and being agent and beneficiary, what has been lost by his neglect or mismanagement should be placed to his debit; but if he gave them due and proper attention, and they were lost in consequence of the insolvency of the debtors, or other cause beyond his reasonable control, the loss should be Walker’s. To fix the accountability of Brungard, Walker should have shown that the parties were solvent, and that, by the exercise of reasonable diligence and attention, collections could and ought to have been made. But there is no such showing; on the contrary, Lewis, one of the trustees, says, he cannot swear how much, or what amount of debts and accounts of Walker, in Brungard’s hands, were good, or might have been collected. William C. Smedes states, that Samuel Anderson, in 1839, was insolvent, and the other parties to the notes surrendered up by Brungard were reputed to be insolvent.
    Robert L. Moore states, that Tate & Poindexter, Fisher, Goodman, Wharton, Anderson, and Shelton, were insolvent in 1S39, and continued so to the giving of.his testimony; that the claims were all of bad character, and not enough was collected from them to pay the fees due. ‘
    Nelson F. Shelton, Sen., states, that he is the uncle of Samuel Anderson and Nelson F. Shelton, Jr.; that he has known them from their infancy; that he knows and has long well known their pecuniary condition; that they were both.utterly insolvent; and that, since 1839, nothing could be made out of them.
    John B. Berners, the attorney who compromised the suit for Anderson against Milligan, states that he would not have paid the cost of the suit and the damages, for the notes given up by Brungard when he compromised with Anderson.
    Henry Poindexter, of the firm of Tate & Poindexter, files a statement of the notes given up by him in the compromise by Brungard, and states that all the parties thereto were insolvent, and none of the notes paid.
    Under this showing, I see nothing on which I could charge Brungard on account of the notes and accounts, beyond those which Brungard has reported he has collected.
    It is claimed by Walker, that Brungard received a bonus of ten thousand dollars’ worth of goods for his indorsements on Walker’s notes. This he might well do for the risk of indorsing. A man may rightfully sell his credit, and receive payment of the contract price for it. Walker would not the less be bound to free Brungard from loss on account of his indorsements, nor would his engagements in the trust deed be less obligatory on him.
    In the next place, Walker in his cross-bill claims that Brungard has not been made liable for more that thirteen thousand dollars, and that he will not be made liable for any more, because the notary public who protested said indorsed paper, had died and left no record of protest and notice. . ,
    
      The main object of the trust deed was to secure Brungard from loss or damage by.reason of any execution being levied. If the alleged want of protest and notice clearly discharged Brungard from his indorsements, then the trust property, so far as Brungard was concerned, would stand released from the trust; but if Brungard’s liability remained, notwithstanding the want of protest and notice, the trust ought to stand as security to him according to the terms of the deed.
    It may be well questioned whether Brungard is discharged. He being secured for his indorsements, it seems that he cannot successfully avail himself of a defence on account of defect of protest, or want of notice.
    Accepting an assignment before maturity of a note of all the maker’s property, as collateral security for, indorsements, will be a waiver of notice, although it was of less value than the amount of the indorsements. Bond v. Farnham, 5 Mass. 170; Mechanics’ Bank v. Griswold, 7 Wend. 165; Barton v. Baker, 1 S. & R. 334. '
    The next subject of consideration is the negro woman named Elmira, mentioned in the trust deed.
    This negro appears to have been the separate property of Mrs. Walker. Mr. Lewis states that she was bought of him by Mrs. Walker, and paid for with her own money. John F. Walker states, that the slave Elmira was included in the trust to prevent creditors from attaching her, and forcing Mrs. Walker to replevy her. This does not appear to have been the object of the trust deed; it recites that the object was to secure Brungard against liability for his indorsements.
    Being the separate property of Mrs. Walker, the question is, whether a feme covert owning separate property may not convey the same to secure the contracts of her husband, by uniting with him in the conveyance and acknowledging the deed on privy examination. This Mrs. Walker has done, and in my opinion thereby subjected the negro girl to the purposes of the trust deed alike with the other property.
    A question has been raised, as to how far Brungard is chargeable with the stock of goods he received from the trustees as part of the trust fund. Whether three thousand dollars, the invoice price, or the amount he realized on them.
    We have already seen that Brungard’s relation to the trustees, in connection with the management of the trust fund, was that of agent. Unless it were shown that some gross mismanagement existed in the sale of the goods, or the collection of the money, the amount actually realized is the rule of his accountability.
    The last and remaining point to be considered, is'the question of the removal of the trustees.
    On this subject the trust deed provides, that in case the said William R. Lewis and John F. Walker shall not be deemed suitable and sufficient to act as trustees by the said George Brungard, so that the said George Brungard shall wish to remove them at any time before the said trust shall be fully executed and performed, or otherwise determined, it shall and may be lawful to and for the said George Brungard and Thomas F.' Walker tó nominate and appoint some other fit and proper person or persons to be a new trustee or trustees.
    . The correct construction of the trust deed, in my opinion, accords to Brungard the power of removal whenever he shall deem them unsuitable to execute the trust. On his application, therefore, for that purpose, I have no difficulty in declaring it to be my duty to remove the trustees.
    The new trustee or trustees are to be nominated and appointed by the agreement of Brungard and Walker. In case they agree, I will appoint the person or persons they may unite in recommending; but if they do not agree, I will endeavor to appoint some fit and proper person or persons -to execute the residue of the trust.
    The exceptions to the report of Mr. Commissioner Foute are sustained, the account taken overruled and recommitted to the sanie commissioner, with instructions to retake and state an account in accordance with the views contained in the foregoing opinion, being careful to state the actual amount of loss which Brungard has sustained by actual payments upon his indorsements for Walker; how far he has been reimbursed by the sale of property and receipts of money from the trust fund, and what are now his outstanding liabilities on his said indorsements — those that are in judgment, those that are in suit, and those upon which no suit has been instituted against him.-
    
      George S. ~Yerger, for appellant,
    After briefly referring to the pleadings, contended, that in no case where there is a doubt or suspicion of unfairness, or in which a most clear and palpable case is not made out by the proof, will equity enforce a specific performance. Cited 2 Story, Eq. § 769, 770.
    He further contended, that where there are several co-defendants in equity, and pro confessos are taken against some, and the others answer and show that complainant is not entitled to relief, the court will dismiss the bill as to all. Clason v. Morris, 10 Johns. Rep. 524.
    Mr. Yerger made a lengthy argument upon the facts of the case, and cited 3 Yerg. Rep.; 4 Paige, R. 9-14; 1 lb. 128, and authorities therein cited.
    
      George L. Potter, on same side,
    Filed a written brief, in which he reviewed the case at great length, arguing the several points presented by the record, and earnestly contending that the decree of the chancellor was erroneous and should be reversed. It would be impossible, by any abridgment of Mr. Potter’s argument, to do any thing like justice to it; hence it is not attempted by the reporter. The following authorities were cited by him : 1 Lomax, Exrs. 301; Byington v. Wood, 1 Paige, 145; Methodist Episcopal Church v. Jaques, 3 Johns. Ch. 81; 2 Smith’s Chan. Prac. 164.
    
      Smedes <Sp Marshall, for appellee, Brungard,
    Filed a printed brief and argument of thirty pages, in which the facts of the case are shown with great minuteness and particularity, and the several points arising argued most elaborately. The testimony, which is voluminous, was also fully reviewed. They contended that the testimony of the trustees, W. R. Lewis and John F. Walker, was,
    1. Not to be believed because, 1st, contradicted by Brungard; 2d, by other facts; 3d, appeared under suspicious circumstances; 4th, was positively disproved; and
    2. Was incompetent,
    1st. Because they are parties to the record, and as such would be inadmissible at common law. 1 Phil. Ev. 45; 1 Green, Ch. Ev. 475; 1 Gil. Ch. Ev. by Lofft, p. 223.
    2d. Because they are estopped by the deed which they have given Brungard from controverting its provisions. 1 Greenl. Ev. 211; lb. 204-222. Cited also 1 Phil. Ev., Cow. & Hill’s Notes, n. 194; lb. n. 964, and authorities cited; Tribble v. Oldham, 5 J. J. Marshall, 144.
    3d. As between the parties, fraud in the execution of the deed which tends to prove it no deed, alone can be shown. 1 Phil. Ev. n. 972; lb. note 969. Creditors might assail the deed for fraud between the parties, as to the nature and extent of the consideration. 3 lb. note 969, p. 1448; 1 lb. text, 551; Roberts v. Roberts, 2 B. & A. 369; 1 Bl. Rep. 364; 1 Bro. Ch. C. 546; 1 Verm. R. 475 ; 6 Yes. 747; 2 Jac. & Walk. 391; 3 Bing. N. C. 684; 8 Johns. Rep. 147; Doug. 696; 2 Cowp. 790; 8 Term Rep. 575 ; 1 East, 98 ; 4 Greenl. 415; 11 Mass. R. 375. Parties and privies, however, shall not be heard to allege their own fraud, whether intended to affect creditors or others, as a ground for avoiding or varying a deed. 7 Gill & John. 132; 7 John. Rep. 161; Cro. Jac. 270; Yelv. 196; Brownlow, 348; Comb. 348 ; 1 Strange, 509; 2 lb. 993; 4 Rand. 368; 8 Conn. 52; 15 Wend. R. 516; 9 Barn. & Cressw. 532; 3 Mason, 379,388; 1 Bland’s Ch. 32; lb. 587; 1 Bay’s Rep. 461; 1 Story’s Eq. 295. ■
    They contended that Mrs. Brungard was an innocent purchaser, without notice, for valuable consideration, of the property she claimed, if there be fraud on the part of the defendant in the execution, he having the legal title, and as such will be protected. Demarest v. Wynkoop, 3 John. Ch. Rep. 147; 2 Vern. 384; 1 Johns. Rep. 575; 4 Munford, 313. A mere suspicion of fraud, not notice to a purchaser. 2 Sugden, Vendors, 342. Avague report from strangers, not notice. Ib. 276; 3 Hen. & Mun. 114.
    
      The property in controversy being purchased with the separate property of a. feme covert, and sought in chancery to be subjected to her husband’s liabilities, will be protected by the chancellor. If a husband seek the aid of a court of equity to subject the wife’s property to himself, the court will force him to make provision for the wife. McKinstry v. Davis et ux., 3 Cow. 339. Much more so when the creditors of the husband seek the subjection. Udall v. Kenney, 3 Cow. 590; 5 Monroe, 340; 2 Vern. 494; 1 Peere Williams, 383, 459; 3 lb. 202 ; 2 Johns. Ch. Rep. 206.
    Brungard being the duly constituted agent of the parties with unlimited discretion, unless guilty of gross neglect or wilful fraud, will not be held liable even for an actual loss. Hammon v. Cottle, 6 S. & R. Rep. 290; Dunlap’s Paley’s Agency, chap. 1, § 2, n. a, and cases cited; Story on Con. 161.
    
      A. Bvnvell, for Brungard,
    In a printed brief and argument of twenty pages, insisted that the cross-bill of Walker ought to have been dismissed because it introduced new parties and new. matter, and cited Story on Eq. PI. 1, § 4, 10. He then reviewed at much length the questions presented upon the original bill, pro et con. and proofs ; contended that the allegations of the bill were not contradicted by the trustees; that the forfeiture of the conditions of the deed of trust justifies the sale made by the trustees on the 18th of Feb. 1839 ; that the refusal of the trustees to execute the provisions of the trust deed, demanded their removal, and the appointment of other masters in their stead. Cited 1 Cox, 159.
    Mr. Burwell then reviewed the matters of account between Brungard and Walker, and insisted that Brungard could not be justly held liable for the amount of the notes of Anderson and others, surrendered up by him in Louisiana, as these notes were never of any value, the parties thereto being utterly insolvent. Cited Fitch v. Scott, 3 How. Rep. 314; 2 Stark, on Ev. 83.
    That if Brungard promised Walker to give him the benefit of a resale of the 320 acres of land, sold by sheriff, but contended that the letter from Brungard to Walker did not amount to a promise, the same was without consideration, and was defeated by Brungard’s creditors over whom he had no control.
    Mr. Burwell argued at much length the allegations in Walker’s cross-bill respecting the sale of the brick house, contending that the same was subject to no trust in hands of Brungard, that the proof wholly failed to sustain the allegations respecting it; on the contrary, showed that the arrangement, if any was to be made, to raise money upon the house from the Union Bank, was to have been made by the Walkers, and not by Brungard; and if there was a failure, it was on the part of the Walkers, through no default of Brungard.
    Mr. Burwell further contended, that admitting every charge in the cross-bill to be true, (not one of which he insisted was sustained by the pleadings or proof,) still a graver question must be met, and one to which no answer can be given which would entitle Walker to a reversal of the decree. Can Walker set aside the sale of the trustees, made at his own instance and by his consent, or defeat such sale after it is made % Whatever may be the rights of the creditors, Brungard replies to the complaints of Walker, by urging that he is estopped by his own participation in the alleged fraud. See Bolt v. Rogers, 3 Paige, 158; McClure v. Purcell, 3 A. K. Marshall, 65; 2 lb. 57; 4 Bibb. 70; 1 A. K. M. 209; 2 Cow. 139; 4 Peters, 189;' 11 Wheat. 258; 16 John. Rep. 189; 4 Mass. R. 354; 7 J. R. 161 ; 3 Yesey, 612; 4 Cow. 207; 1 Burr. 474; 5 Binney, 109; 8 Cow. 406; 6 Ld. Ray. 432; 18 Yesey, 379; 2 Yern. 602 ; 11 Vesey, 168 ; 1 Story, Eq. §371; 3 S. & M. 439; 6 Ld. Ray. 723; 2 Daniel, Ch. Practice, 158; Story, Eq. PI. 446, 781; 5 Louis. R. 65; 12 Price, 502.
    
      
       This case having involved much feeling in its progress, the Reporters, who were counsel for one of the parties, thought it best to have it reported by a disinterested person. The profession are indebted to the labors of R. Barnett, Esq., for the able and accurate report here presented.
    
   Mr. Justice Clayton

delivered the opinion oí the court.

This case is involved in much complexity, from the number and variety of transactions to which it refers.

We shall first consider the original bill. That was filed to compel the trustees in the deed of trust, to make title to the complainant to certain lots, which the trustees had sold him under the deed of trust, but which they afterwards refused to convey at the instance of Thomas F. Walker, the grantor in the deed of trust.

This refusal, upon the part of the trustees, is now sought to be justified upon the ground, that, at the time of the sale, the state of facts did not exist, which, by the terms of the deed of trust, authorized a sale. A deed of trust is but a power, coupled perhaps with an interest. To legalize the execution of the power, those circumstances must exist upon which the right to exercise it is made to depend. In this case the trust deed provided, that the trustees might sell upon the joint request of Brungard and Thomas F. Walker, “ or in case Brungard should suffer any loss or damage, by reason of any execution or executions against him being levied in consequence of the non-payment of any of said notes, upon which he was indorser, then the said trustees should sell, when requested by Brungard.” It is now insisted that there was no joint request of Brungard and Walker to the trustees to sell, and no occurrence of the contingency on which Brungard alone might make the' request.

The bill was taken for confessed against the trustees. The sale was made without objection from Thomas F. Walker, and it may be presumed with his consent, because he says in his answer, that “he forbid the trustees to make a deed after the sale, because he had discovered that complainant was fraudulently pretending that he was purchasing the property for the purposes of the trust, and after purchasing it, was converting it to his own use, without making provisions for the trust debts.” From this answer it may safely be inferred, that the sale was made in pursuance of the provisions contained in the deed of trust. This is made still more manifest by the letter of Thomas F. Walker, written 5th of April, 1839, in which he refers to the sale in question made by the trustees, and shows at that time every disposition to acquiesce in it. There is no evidence to show that the sale was not fairly conducted.

If there were a combination of the character referred to in the answer between complainant and Thomas F. Walker, that complainant should purchase at a reduced price, and afterwards give to Walker a share in the proceeds of any advance or increased value, the creditors would have cause to complain, and might set aside the sale. But a party to such compact could not have the matter investigated in equity. We therefore come to the conclusion, that the decree of the court below, in reference to the subject of the original bill, removing the trustees, and directing a conveyance of the property embraced in the sale of 18th of Feb. 1839, was correct.

The next point of controversy grows out of the cross-bill, and relates to the sale of a brick house, made by the trustees in Jan. 1839, and conveyed by them to Brungard. It is sought to- set aside this sale and conveyance, or if this be not done, then to make Brungard accountable for the proceeds of a subsequent sale, and the rents of the property. It is alleged in the cross-bill, that the sale of this house and lot was with an understanding, that it should be afterwards mortgaged to the. Union Bank to raise money, and that the amount so raised should be applied to the benefit of the trust fund. This allegation is positively denied by the answer, and the sale is asserted to have been unconditional.- There is proof, especially the depositions of the trustees, that there was an understanding between the parties, on the subject of this sale. The letter of Thomas F. Walker, before referred.to, points to the same conclusion. But the deed to the property is .absolute and unconditional; the testimony mostly relied on to assail it, is that of the trustees. To say the least, they stand in a suspicious attitude. As the agents of all the parties interested under the trust deed, it was their duty particularly to the creditors, to make none but an open, fair, and boná fide sale; and it speaks but little for their credibility, when they afterwards give testimony, that they had lent themselves to a secret understanding between Walker and Brungard, which was a departure from good faith, and of necessity created risk and hazard to the creditors in the deed of trust. But at most this amounts only to a parol agreement in regard to land. The trust which it attempts to establish or create, is not a resulting trust. That species of trust is, where the conveyance is taken in the name of one person, while the consideration is given or paid by another. So if trust money be vested in land, the money may be followed, and a claim of this sort may be supported by parol evidence. Hill on Trustees, 91, 95. But neither of these facts is made to appear in this case. Any latitude of construction is not indulged, in regard to resulting trusts of this nature. When, therefore, a man employs another as his agent to buy an estate, and the latter buys it in his own name, and no part of the purchase-money is paid by the principal, there if the agent deny the trust, and there is no written evidence of its existence, it cannot be enforced against him, for that would be in the teeth of the statute of frauds. Ib. 96. This case is covered by the latter principle. Brungard denies that he made the purchase in trust, or that trust funds were paid for it, and there is no written evidence. His deed from the trustees cannot be set aside, or declared subject to a trust, upon the testimony in this case.

This decision disposes also of the other question. If Brungard obtained the absolute title, unaffected by any trust, he is not liable for the proceeds of the resale, or for the rents of the estate. Neither can his vendees be disturbed.

The next point is as to the three hundred and twenty acres of land. This tract was conveyed by the deed of trust, but it was afterwards levied upon by the sheriff of Warren, under an execution issued upon a judgment against Thomas F. Walker, older than the deed of trust, and purchased by Brungard at' the sheriff’s sale. A deed was executed to him by the sheriff. The money which he paid to the sheriff was borrowed by him from the Commercial and Railroad Bank of Vicksburg. Nothing is urged against the validity of this sale, but it is said that it must inure to the benefit of Walker, or of the trust fund. A letter of Brungard is made an exhibit, in which he says, in reference to this sale and purchase, that “his sole object in purchasing was for the purpose of more speedily relieving his indorsements on your (Walker’s) paper, and give you all the benefits’of its after-sale.” This letter plainly depiares his intention, but it was a promise made after the purchase, without any previous agreement, so far as appears from the record, and without any consideration to support it. On this showing, it could not have been enforced, if the land were still in the hands of Brungard. But in truth the land was afterwards sold under an execution against him, and was purchased at that sale for his wife. It is in proof that her own separate funds, derived from the estate of a deceased relative in Louisiana, were paid for the purchase, as well as for her purchase of one of the lots. No part of the trust funds, growing out of Walker’s deed of trust, was applied towards her payment. There is no ground then to set aside these sales, and either restore the property to Walker, or to declare it subject to any trust in his favor. It was not urged, in'argument, that his relation to the trust property converted the purchaser into a trustee. The cestui que trust may certainly purchase the trust estate, as freely as any third person. But if we were to hold, that the purchase of the plantation converted Brungard into a trustee, and that the sub-purchaser was likewise a trustee, the sale could not be set aside, without a decree for the repayment of the purchase-money. There is no offer in the bill to make such payment, and no evidence to show that the land is now worth more than it brought when sold.

This disposes of the principles on which the decree is founded. We pass to the report of the commissioner, and its confirmation by the court below. Walker filed five special exceptions to the report, which were all overruled.

The two first may be regarded as already decided, because when it is established that Brungard’s title to the property was absolute, and unconnected with any trust, there is no reason to hold him or the sub-purchasers liable for rents or profits.

The remaining exceptions are, 1. That the account does not charge Brungard with the amount of the notes of Tate & Poindexter, indorsed by Anderson. 2. It does not charge him with the $9000 paid by Walker to Brungard in a stock of goods, as a premium for his indorsement of Walker’s notes. 3. It does not charge him with the invoice price of a small stock of goods, which seems to have been placed in his hands. Of each of these in their order.

Among the notes placed in the hands of Brungard for collection and appropriation to the payment of the trust debts, by the trustees with the consent of Walker, were several notes of Tate & Poindexter, with several indorsers for upwards of $20,000. By some arrangement, Brungard afterwards procured Samuel Anderson, of Louisiana, as an indorser. The other parties to the notes lived in this state, and all proved to be utterly and hopelessly insolvent. Brungard sued out an attachment in Louisiana against Anderson. This attachment was dismissed by the court, and the order of dismissal affirmed on appeal, because a proper foundation for it could not be laid. Anderson brought suit against Brungard’s surety in the attachment bond, and this suit was compromised by Brungard’s surrender of the notes indorsed by Anderson, and by the dismission of the suit upon the attachment bond, at the costs of Anderson. It is now sought to make Brungard liable for the amount of the notes so surrendered. It strikes the mind at first with some degree of surprise, that so large an amount should have been given up, to obtain the compromise. That surprise is dissipated, when, upon examination of the proof, it is found that every man upon the paper wa.s insolvent. Anderson was the only one of whom any hopes could be entertained. He became a certificated bankrupt, and the only property of his which could by possibility have been reached, was an interest in some lands and negroes which he had mortgaged, and on which the mortgage debt did not fall due for some two years. Before a judgment could have been obtained, and this property seized under execution, it is. probable that time would have elapsed. It was in the diligent prosecution of the agency he had undertaken, that Brungard’s liability to a suit on the attachment bond accrued. If he or his surety had been subjected to recovery, the trust estate was justly liable for the damages, if he acted with good faith, and with reasonable skill and diligence. By the compromise, he exempted it from this hazard, and he gave up a very uncertain and contingent advantage. Brungard procured the indorsement of Anderson, after the notes were put in his hands. He gave up, therefore, only what he himself procured. Without that indorsement, the notes were utterly worthless. There is no proof, on which an estimate approaching accuracy could be made, of the value of this debt, if indeed, under the circumstances, it were of any value. The attachment, which was the only process that promised any benefit, turned out to be unavailing, because Anderson was not subject to it. Reasonable diligence and good faith are what is required of an agent. Story, Bailm. 296; Story, Agency, 272. ■No lack of either of these qualities is established. We do not, therefore, see how Brungard is to be made liable for this debt, as the proof is such as to show an extreme improbability that any thing could have been realized upon it, by any course which could have been taken.

As to the next exception. The amount therein referred to as having been received by Brungard, was paid to him as a premium for his own indorsement,- and his agency in procuring other indorsers for Walker, upon his large contract with Folkes. We know of no principle, on which he could be made to account for it to the trust fund or to Walker. Indeed the transaction took place some time before the deed of trust was executed.

In regard to the last exception, Brungard ought not to be charged with the invoice price of the goods, unless he received it, or lost a part of their value by want of diligence, or of good faith. He is charged with the price which he got, and there is no proof that they* were worth more. It was the remnant of an old stock, on which of necessity there must have been great loss.

We have now gone over all the points made in the argument, and have been struck with the accuracy of the conclusions, to which a laborious investigation conducted the mind of the chancellor. His written opinion exhibits a thorough acquaintance with the facts in all their relations. We think his decree was correct, and that it should be in all things, affirmed.

Decree affirmed.

A petition for a re-argument was filed, but not granted.  