
    *Findlay & Mitchell v. Hickman.
    July, 1839,
    bewisburg.
    (Absent Stanabij anfi bbookjs, J.)
    Deed oí Trust — Eviction of Purchaser under — Relief against Cestuis Que Trust — Implied Warranty. — A negro man being conveyed by deeds oí trust to secure debts amounting to more than bis value, tbe grantor sells him, and tbe purchaser pays to one of tbe cestuis que trust part of the purchase money, and executes to the other bis obligation for the residue, payable some months afterwards. Tbe grantor maltes to the purchaser a bill of sale of the negro as a slave, and therein warrants and defends the title to him against the claims of all persons whatsoever. Tbe cestuis que trust do not join in the bill of sale or warranty, but, by the arrangement, their liens on the negro are relinquished to tbe purchaser, and the payment made by him to one of tbe cestuis que trust, and tbe obligation executed by him to tbe other, discharge tbe grantor’s debt to them pro tanto. It turns out that tbe negro so purchased is a free man; and judgment being obtained at law against the purchaser upon his obligation, an injunction is awarded him. Held, the purchaser can have no relief against the cestuis que trust,' and the injunction is therefore dissolved, and the bill dismissed.
    By a deed made the 20th of November 1834, William Jones conveyed to Charles C. Gibson a negro man by the name of Allen, in trust for the purpose of securing the payment, on or before the first of - January 1835, of 342 dollars S4 cents to Jacob Clarke, and 172 dollars 34 cents to Wallis & Gibson. Clarke, on the 11th of December 1834, transferred his interest in this deed to Findlay & Mitchell. On the same 11th of December 1834, Jones made another deed, conveying to Adam Hickman the same negro Allen and some articles of personal property', in trust for the purpose of securing the payment, on or before the 11th of June 1835, of 600 dollars, with interest from the date, to Findlay & Mitchell.
    *On the 7th of March 1835, sale was made of the negro man Allen to Peter Hickman'for 900 dollars. Hickman, at the time of the sale, paid to Wallis & Gibson their debt of 172 dollars 34 cents, and executed to Findlay & Mitchell his obligation for 724 dollars 47 cents, payable on the first of September 1835, with interest from the date. Jones at the same time executed a bill of sale, purporting; that for and in consideration of the sum of 900 dollars, he had bargained and sold unto Hickman the negro boy Allen, who was a slave, and that he warranted and defended the title to him against the claims of all persons whatsoever ; which bill of sale was witnessed by Alexander Findlay.
    It afterwards appeared that Allen was entitled to his freedom.
    Findlay & Mitchell having recovered a judgment against Hickman upon his obligation, Hickman obtained an injunction to the judgment.
    In Hickman’s suit (which was in the circuit court of Washington) the bill, after stating the purchase of Allen from Jones at the price of 900 dollars, and mentioning the creditors provided for in the deeds of trust, proceeds to set forth the case more particularly, as follows: “In making the purchase of said negro, it was necessary to consult the said creditors of said Jones, and to remove the liens created by said deeds of trust upon said negro. Or in other words, it is substantially true that your orator made the purchase of said negro from said creditors and said Jones jointly. It is true that the bill of sale of said boy to your orator was executed by said Jones only, and was witnessed by said Findlay, which will appear by said bill- of sale. It will also appear by said bill of sale, that said negro was sold for a slave, and his title warranted. At the time of the purchase, it was agreed amongst said creditors, Jones, and your orator, that if your orator would pay the said debt due to Wallis & Gibson, and execute his note to Findlay & Mitchell for *the balance of the price of the said negro, they the said creditors would release and surrender to your orator the liens created by said deeds of trust upon said negro. Your orator, in order to obtain a good and complete title to the said negro, did pay to Wallis & Gibson their said debt, and execute his note to said Findlay & Mitchell for the balance of the price of said negro.” The complainant avers that the only consideration that induced him to execute said note to Findlay & Mitchell was to obtain a complete and perfect title to the said negro boy as a slave; that he has received no advantage, directly or indirectly, by the said Findlay & Mitchell and Wallis & Gibson’s surrendering and releasing their said liens; and that the said Findlay & Mitchell have suffered no inconvenience ov injury, nor have their debts been made less secure, by the said release and surrender. And he insists that both the payment made to Wallis & Gibson, and the note executed to Findlay & Mitchell, are without any consideration whatever. He contends further, that every man who sells or disposes of a right or claim to personal propert3r will be considered as warranting the title which he so sells. Findlay & Mitchell having represented that they had a lien upon the negro as a slave, and a right thereby to sell him as such, and having agreed to surrender, relinquish and transfer to the complainant the said lien,, they are bound, he insists, to make the same good, and to shew that they had such a lien on the negro as a slave, as they represented.
    The only defendants to the bill were Findlay & Mitchell and Jones.
    The answer of Findlay & Mitchell, after mentioning that, Clarke having a prior in-cumbrance on the property, they paid his debt in order to extinguish his title, and making some other statements not veiw material, proceeds as follows: “These respondents give a most express and explicit denial to the statement of the bill, that the sale of the negro was a joint one by Jones and *his creditors to the complainant. On the contrary, the purchase was made by the said Hickman directly from Jones. These respondents were no parties to the sale, were not consulted as to the price at which the negro was sold, and gave no express warranty of the title of the property. And they are advised and contend that there is nothing in the character of the contract, or the circumstances attending it, -which can imply a warranty by them.” The answer states further, that “whilst the complainant was treating with Jones for the purchase of the negro, he came to the respondent Findlay, and stated that he was about to buy the negro, and asked how long he could have to pay Jones’s debt, saying at the same time that he could and would, if required, pay the money down, but asking a credit until his return from a trip to Mississippi, which he proposed making in a short time. This respondent agreed, according to his request, to postpone the payment until the first of September ensuing. In the evening of the same day, the said Jones made his bill of sale to the complainant, who at the same time executed his note to these respondents for the residue of the purchase money after deducting the sum due Wallis & Gibson. Farther.than this, these respondents had no agency whatever in the transaction. The sale was made by Jones alone, these respondents being only consulted to ascertain how long they would wait for their money. They assumed no control over the property, incurred no responsibility for the goodness of the title, ■or its soundness, and expressly assert that no such responsibilitj’ on their part was in the contemplation of any of the parties. Upon receiving Hickman’s note, these respondents at once gave Jones a credit on his notes for the amount of Hickman’s bond. The consideration of that bond, as between Hickman and these respondents, was not a sale by them of the negro to him, but a release of their debt against Jones to that extent. That *release was absolute and unqualified. It was a change of the debtor. If Hickman had become insolvent afterwards, instead of Jones, the debt of these respondents would have been lost. These respondents agreed to run the hazard of Hickman’s solvency — Hickman, by taking Jones’s warranty, to run the hazard of Jones’s solvency; and upon what principle, either of law or equity, a responsibility which they never directly or indirectly assumed, is to be fastened upon them for the benefit of one who, by his own contract, consented to incur that risk, these respondents are at a loss to conceive.”
    The argument was continued in the answer as follows: “If the complainant’s view be the true one, then these respondents are the insurers of the solvency both of Jones and Hickman, and lose their debt in the event of the failure of either — a sort of liability which they never for a moment conceived to rest upon them, and which certainly was not contemplated by the parties at the time. That Jones was intended to be entirely discharged, to the extent of Hickman’s responsibility, is evident from the manner in which Hickman’s note was taken. If Jones had been intended to be held further liable, the note would have been made payable to Jones, and assigned by him to these respondents — a mode of transacting business familiar to these respondents, and always adopted by them where a perfect release of one party is not intended. This view is confirmed by the fact, that the complainant has admitted to the respondent Findlay that if he (Hickman) had failed, the debt would have been lost to these respondents, as Jones had been entirely released from that amount according to the contract. Jones taking the same view, considering himself released as to these respondents, and that his warranty of the title to the negro made him responsible to Hickman, at once went to Hickman to secure him from loss, transferring to him his recourse on Joseph *Vance, of whom he purchased the negro aforesaid for 450 dollars.”
    Jones, by his answer, referred to that of Findlay & Mitchell, and adopted it as a part of his own. This respondent says, “that the contract for the sale of said negro was exclusively between himself and complainant, and that he considered his codefendants Findlay & Mitchell as having nothing to do with it, farther than to receive the money which complainant and your respondent agreed should be paid to them. And farther, when respondent went to the house of complainant in order to secure him as far as possible against loss, complainant told this respondent that he supposed he would have the money to pay, and said he wished Findlay & Mitchell to hold on the property on which they had a lien, in order to secure him. And your respondent on that occasion transferred to complainant his claim on Joseph Vance, of whom respondent had purchased the negro aforesaid. Respondent believes that all parties understood the contract to be a sale from this respondent alone to complainant, and complainant required this respondent to give him a bill of sale, which he did.”
    The depositions taken in the cause proved most clearly that Allen was a free man. John Apperson emancipated his mother on the 19th of February 1806, and Allen was born afterwards. Polly, the daughter of John Apperson, married Joseph Vance in 1813, and Allen seems to have been in the family until after that marriage. He was then bound to Joseph Vance by the overseers of the poor for Washington county.
    Vance proved, that two or three years before the sale of Allen to Hickman, he Vance sold Allen to Jones asa slave, at the price of 450 dollars. “After it was ascertained that the boy Allen was free, deponent executed his note, at the instance of John H. Fulton, to the complainant Peter Hickman for the sum of 450 dollars. *At the time deponent executed his note, the complainant Peter Hickman was not present, and had not any concern with it, known to deponent. Deponent was sued upon his note, and has paid 500 dollars of it, leaving a balance of 40 or 45 dollars which he has not yet paid.”
    This payment was also proved by Charles C. Gibson, the deputy sheriff who had the execution against Vance. It issued on a judgment on a forthcoming bond, taken under a fi. fa. for 450 dollars with interest from the 9th of October 1835. Gibson deposed that he received 500 dollars, and paid over 490 dollars 95 cents to the plaintiff’s attorney, leaving a balance due on the execution of about 50 dollars. The sum of 490 dollars 95 cents, he said, was, at the time of payment, supposed to be the principal and interest up to the 21st of April 1837.
    The other depositions were taken to prove the insolvency of Jones at the time of the contract and subsequently thereto — a fact alleged in the bill, and relied upon by the complainant.
    The cause came on to be heard the 25th of October 1837, and the circuit court decreed that the injunction be made perpetual; that the contrafct for the sale of the negro be rescinded; that the complainant, out of the money recovered by him of Vance, retain the amount paid to Wallis & Gibson for the extinguishment of the trust on the said negro, and interest thereon to the 21st of April 1837, and also retain his costs expended in this suit, and pay the residue of the said money to Findlay & Mitchell; and that Findlay & Mitchell apply the same, or so much thereof as might be necessary, to the extinguishment of the trust transferred to them by Jacob Clarke, and apply the remainder to themselves.
    On the petition of Findlay & Mitchell, an appeal was allowed them from this decree.
    B. R. Johnston for the appellants.
    M’Comas and Patton for the appellee.
    
      
      Me had been employed or consulted as counsel in the case, before his appointment as iudge.
    
    
      
       See monographic note on “ Deeds of Trust.” See foot-note to Goddin v. Vaughn, 14 Gratt. 102.
    
   *TUCKFR, P.

I < am of opinion that the injunction in this case should have been dissolved and the bill dismissed.

The transaction is simply this. Jones, a debtor, possessing a slave incumbered to more than his value, and no doubt desirous, by private sale, to get as much as possible for him in order to extinguish so much of his debt, sells him to Hickman for 900 dollars, and gives him a bill of sale with warranty of title. Hickman, however, pays him not a cent, because the purchase money was to go of course to pay off the incum-brances: and inasmuch as Hickman could not take off the slave without discharging them, it was necessary to make an arrangement with the creditors, which was done cotemporaneously. Indeed, from the fact that Hickman required an extension of the credit from June till September, it seems probable that this credit was agreed upon beforehand, as one of the terms on which he was to make the purchase and become paymaster to the creditors. He accordingly pays off Wallis & Gibson, and gives his bond to Findlay & Mitchell payable in September. It turned out, however, that the negro was free; and Hickman now contends that he should not pay off his bond, because the lien of Findlay & Mitchell was worth nothing. His counsel argues that the transaction was a purchase from them of their incumbrance, and that upon that purchase there was an implied warranty of its goodness.

The allegations of the plaintiff’s bill, the responsive statements in the answer, and the facts appearing in the cause, all contradict this position of the counsel. The plaintiff himself says, “At the time of the purchase, it was agreed amongst the said creditors, Jones, and your orator, that if your orator would pay the debt to Wallis & Gibson, and execute his note to Findlay & Mitchell for the balance of the price ot the negro, they the said creditors would release and surrender their liens *upon the negro.” Here then it appears that there was no sale of their lien, from which a warranty is supposed to have been implied, but a mere release, from which no warranty ever can be implied. If, on the one hand, a sale implies a right to sell, a release, on the other, implies nothing more than a surrender or quitclaim of that right which the party has or may have. And though a consideration be given for the release, and it eventually turn out that the right is good for -nothing, yet if there be no fraud, there can be no reclamation.

The account of the transaction given in the answer corresponds with that extracted from the bill. The respondents, after stating that they paid Clarke’s debt in order to extinguish his prior incumbrance, deny most explicitly a statement made in the bill, that the sale was a joint one by Jones and his creditors. They aver that the consideration of the bond was not a sale by them, but the release of their debt against Jones to that extent; that that release was absolute and unqualified; that it was a change of the debtor, for, upon receiving Hickman’s bond, they gave Jones a credit on his note for the amount of that bond. All this is responsive to the matter of the bill, and, it seems to me, is conclusive of the question. Hickman, purchasing from Jones, becomes paymaster to the appellants and Wallis & Gibson, paying the latter in cash, giving his bond to the former for their debt, and thereby discharging the negro from the lien, and Jones from his responsibility ; who, having parted absolutely with his property, had a right to a discharge, and was in fact discharged, pro tanto.

All the circumstances in the case concur in sustaining this view of it. Jones, and Jones alone, makes the bill of sale, and he gives an express warranty. If the transaction was joint, then this express warranty b3r one of the three vendors is a negative of an implied warranty by the others. Again, Hickman, instead of ^giving his bond to Jones, gives it to Findlay & Mitchell. Why? Because Jones having paid the debt by selling his. property, it was unreasonable he should be longer bound, which he would have been, ha”d the bond been given to and assigned by him. On the other hand, Findlay & Mitchell, in releasing their lien on the slave, preferred, I presume, the direct responsibility of Hickman, which bound him absolutely, to the indirect course of taking his bond by assignment from Jones, and thus leaving them exposed to possible equities between Hickman and Jones. This bond constituted a new contract, like the draft in Corbin’s adm’r v. Southgate, 3 Hen. & Munf. 319. It was a new contract between Findlay & Mitchell and Hickman, by which Hickman paid his own debt to. Jones, and Jones’s debt to them. It was a contract, too, on valuable consideration, since, in consideration of it, they released a lien on property which was at that time regarded as liable, and also actually credited, or were at least bound to credit, Jones for the amount. And this was all fair. It was perfectly reasonable that they should be irresponsible for the title. For if a sale had been made under the deed of trust, and Hickman had purchased at that sale, they would not have been liable, though the mortgaged subject proved not to be chargeable, or turned out to be the property of a stranger. Petermans v. Laws, 6 Leigh 523.

Upon the whole, I am of opinion that there is error in the decree, and that it should be reversed with costs, the injunc tion dissolved, and the bill dismissed with costs.

PARKEJR and CABELL, J., concurring, decree reversed with costs, injunction dissolved, and bill dismissed with costs.  