
    Jacob Cohen et al. vs. Joseph W. Carroll.
    G. having judgment unsatisfied, with return of nulla bona, against B. and L. filed a bill in equity, alleging that B. was the holder of a note of W., secured by deed of trust upon some land, the note was due and unpaid; that J. C. set up a claim to the note and property on which it was secured, which was fraudulent, and prayed that the land might be sold under the trust to satisfy his judgment; held that the interest of B. in the note secured by the deed of trust, could be subjected to C.’s judgment, upon satisfactory proof that B. was the owner of the note and judgment.
    A note secured by deed of trust, belonging to a judgment debtor may be subjected in equity by the judgment creditor to the satisfaction of his judgment ; and a sale under the deed of trust ordered, to pay it.
    A decree in equity subjecting certain property to the satisfaction of a judgment at law and ordering a sale of it for that purpose, must state the precise amount for which the premises are to be held liable; which must be ascertained by the court before decreeing the sale; otherwise the decree will be erroneous.
    In error, from the district chancery court held at Golumbus, Hon. Henry Dickinson, Yice Chancellor.
    Joseph W. Carroll filed a hill in the vice chancery court, alleging that in June, 1838, he obtained three judgments in the circuit court of Lowndes county, against Judah Barrett and George H. Livingston, in the aggregate amounting to $2725 53; that these judgments were, unsatisfied; executions on them were returned nulla bona; both defendants insolvent, and no means known by which at law he could make the amount of the judgments. That on the 5th day of April, A. D. 1836, Livingston sold certain lots in Columbus, in this state, to William W. Wing-field and Henry R. Wilson, for the sum of $5333 33, payable in one and two years, and secured by a deed of trust on the property, in which deed of trust Oliver H. Millican was constituted trustee; both notes being payable to Livingston, the deed of trust was duly recorded and exhibited with the bill. That on the 27th of July, 1837, Livingston assigned both the notes and deed of trust to Barrett; that Millican still held the legal title to the lots and Barrett the equitable interest by virtue of the notes; 
      that one Jacob Cohen, combining with Barrett to defraud, claimed some title to the lots, but his claim was without foundation and fraudulent; that Wingfield and Wilson were insolvent, and had fled the state; Barrett and Cohen lived in South Carolina, Mil-lican in Columbus, and Livingston in Alabama. The bill prayed a sale of the lots under the deed of trust and satisfaction of the judgments out of the proceeds.
    Barrett and Cohen filed a joint answer and admitted the judgments; the sale of the lots, the execution of the deed of trust, and the assignment of that and the notes to Barrett; they denied however, the legal title to be in Millican, but averred that in 1837, Millican advertised the premises under the deed of trust and sold them to Barrett and made a deed of conveyance, which they exhibited with their answer; this deed was in these words: “ Know all men, by these presents that I, Oliver H. Millican of the State of Mississippi, trustee for George H. Livingston, in consideration of the sum of two thousand dollars, the receipt of which is hereby acknowledged, have bargained, sold, transferred, demised and conveyed to Judah Barrett, of the said state and county, all the (describing the property) ; the same having been the property of George H. Livingston, the cestui que trust, for whose benefit the said premises were sold at public auction to the highest bidder, who was the said Judah Barrett, for the sum aforesaid, -to have and to hold, &c.
    Given under my hand and seal, this, .the 23d day of July, 1837. O. H. Millican.”
    The answer further stated that after this sale, Jacob Cohen, a bona fide purchaser, without notice of any fraud, irregularity, omission or other misconduct between Barrett and Millican, or on the part of either, and without notice of any claims on the property, bought the ground from Barrett and received a deed of conveyance, which was filed with the answer; was dated January 29, 1838, signed Judah Barrett, acknowledged before the clerk of the Lowndes probate court, and recorded the second of February, of the same year, and purported to be executed for a consideration of five thousand five hundred dollars, in hand paid.
    
      The answer stated further, that after Milliean signed the deed to Barrett, he was requested to acknowledge it, that it might be put of record, but he refused, on the ground that his commissions for selling had never been paid him, and still for the same reason refused to acknowledge the deed; that this refusal was made to extort from Cohen a sum of money under the name of “commissions.”
    That the complainant knew of the deeds made by Milliean to Barrett, and by Barrett to Cohen, before he filed his bill.
    That the notes of Wingfield and Wilson, long before the filing of the bill, were transferred to Cohen, who still held and owned them. The defendants denied all combination.
    The answer was verified by the oath of Cohen only.
    Richard Evans, on the part of Cohen, proved that he was counsel for Cohen, in an action of ejectment, to recover the premises in controversy, and called upon Milliean, with the deed signed by him, to Barrett, to get him to acknowledge it, that it might be put of record; that Milliean at first denied having ever made such a deed; but afterwards, when it was shown to him, refused to acknowledge it, because his commissions for selling had not been paid him, and offered then to acknowledge it, if the witness would pay him one hundred dollars. That from the striking similarity between the signature to the deed of trust, of Milliean, and his signature to the deed to Barrett, he believed them both to be the signatures of the same person.
    A. Boykin, testified that the signature of Milliean to the deed to Barrett, resembled so much the signature of Milliean to a note of his which he held, that he believed t,he signature to the deed was Millicati’s.
    Maurice McCarthy proved that he was familiar, from having lived three and a half years with Milliean, with his handwriting, and he believed the signature to the deed to Barrett, to be Millican’s.
    James T. Harrison testified, that while in partnership with Evans, they were counsel for Cohen, and had the deed signed by Milliean in their possession, as the property of Cohen, and thinks they received it from Cohen as early as 1839.
    
      The deposition of George H. Livingston was taken, without an order of court; but fifteen cross-interrogatories were propounded to him by the counsel of Cohen. He testified that he had known Barrett and Cohen, the former since 1826, the latter since 1837; that Cohen married Barrett’s daughter; that Barrett, in the year 1837, transferred his property to Cohen, to keep from paying his creditors, as Barrett told him; that Barrett owned lands and town lots in Mississippi, and informed him, he should transfer them all to Cohen, to whom he owed $2900; he never heard Barrett and Cohen speak on the subject; that Barrett owed a great deal in Mississippi, but had property enough in South Carolina to have paid all his debts; that Barrett transferred the notes of Wingfield and Wilson to Cohen, as witness believed, without consideration, and from the same reason that he sold him the real estate; that Barrett repeatedly told him his intention was to transfer his property to Cohen, and thus evade his debts; that Cohen had told him Barrett owed him about $3000; but he never heard Cohen speak of Barrett’s assignments to him, nor was Cohen present at any of his conversations with Barrett; he and Barrett were alone.
    Oliver H. Millican was examined, and testified, that he never signed, sealed or delivered the alleged deed to Barrett; that he never sold the property under the deed of trust, nor authorized it to be sold; that he had, when called on by Mr. Boykin, agreed to sign and acknowledge a deed to Barrett, to the property, if they would pay his commissions, but not to acknowledge his signature to the deed, purporting to be his.
    The depositions of John J. Humphreys and William W. Humphreys were taken for the defendants, but prove nothing material for them. W. W. Humphreys, however, on cross-interrogation as to the statements of the complainant, giving the reasons of his instituting the suit, testified, that he heard complainant say that he had no doubt the sales by Barrett to Cohen in this state, and in South Carolina, were to defraud his creditors, and he was determined to expose it; that the courts in South Carolina had declared the sale in that state fraudulent, and that the sales by Barrett of at least sixty thousand dollars’ worth of property in this state to Cohen, were equally so, and that Cohen was a man of questionable integrity.
    It was admitted, on the trial, that on the 29th of January 1838, Barrett conveyed by deed to Cohen, fifty or sixty thousand dollars’ worth of land, lying in Lowndes, Monroe, and Qc-tilbeha counties, and that Henry Dickinson and A. Boykin were subscribing witnesses to the deeds.
    A. Boykin then proved, that he did witness such deeds; that he saw no money or other consideration pass between the parties ; that he suspected there was something fraudulent, from the circumstances that occurred, and made inquiry, when Cohen said that Barrett owed him some $20,000 for money that Barrett had given his daughter (Cohen’s wife) upon their marriage, and that Barrett had taken the money after the gift, and used it.
    Henry Dickinson testified that he wrote the deed to the premises in controversy from Barrett to Cohen, and no consideration passed in his presence, nor did he know of any.
    The bill was taken for confessed against Barrett, Wingfield, Wilson, Livingston and Millican.
    The Vice Chancellor, Henry Dickinson Esq., having been interested in the subject-matter of the suit, the counsel on both sides agreed that Oscar F. Bledsoe, Esq. should deliver the decree of the court. He decreed that no sale had ever been made of the premises under the deed of trust; that the right to them was still in Barrett, and subject to his creditors, in equity; that the sale to Cohen by Barrett, was fraudulent and void; that the complainant was a creditor of Barrett, to the extent of his judgments; and entitled to subject the property covered by the deed of trust to his debt. The decree proceeded, “ It is therefore ordered, adjudged, and decreed, that the said Millican, trustee, proceed to advertise and sell the said property in dispute, according to the provisions of the said deed of trust, and after deducting reasonable expenses of sale, pay over to the said Joseph W. Carroll, or his attorneys, the proceeds of said sale, or enough thereof to satisfy the said judgment in favor of the said complainants; and in the event that the said Millican fails, or refuses to do so within three months from this date, that Maurice McCarthy be and he is hereby appointed commissioner of this court, to carry into effect the provisions of this decree, and to make sale and conveyance of the premises, and report thereon to the next term of this court.”
    The defendant, Cohen, prosecutes this writ of error.
    
      Evans, for Cohen.
    The promissory notes given by Wingfield and Wilson, and secured by the deed in trust to Millican, constitute a lien on the lots of ground.
    An assignment of these notes carries with them as an incident, this lien; which exists alone for the payment of them. 2 A. K. Marshall, 109; 1 Bibb, 526; 2 Cow. 195.
    The lien cannot be diverted from this, its only legitimate object, and equity can interfere in no way, except by carrying this lien into effect for the payment of the notes, and then, by taking hold of the proceeds of the property after the trust has been performed, and appropriating them to him who is equitably entitled to receive them. As the transfer of the notes carries with it the lien for the benefit of the holder; it may be further remarked that equity can aid none except a creditor of him who is the holder of the notes at the time of filing his bill. In this case, therefore, if the notes passed out of the hands of Livingston & Barrett, before the commencement of the suit, the complainant must fail.
    Again, the office of a trustee once performed is gone forever. If, then, it be shown that Millican, the trustee, sold the property under the deed in trust, before the commencement of this suit, then also must the complainant’s action fail.
    Let us consider of these two propositions in their order, after-wards we will notice some other points in the cause.
    In the first place then, did Barrett part with the notes before the commencement of this cause?
    To this point we find the following allegation in the bill of complaint. “ On the 27th March 1837, said Livingston transferred and delivered to said Barrett, said notes and deed in trust.” And it is alleged “ that said Millican yet retains the legal title to said lotsand that “ the beneficial interest in said notes yet remains in the said Barrett, as your orator is informed and believes.”
    In response to these allegations, defendant Cohen admits the transfer of the notes and deed in trust to Barrett, and answers, that “ as to the allegation of complainant that the beneficial interest in said notes yet remains in said Barrett, it is untrue; and for further answer saith said notes have been long since transferred by Barrett to defendant Cohen; that said notes were at the commencement of this suit, and long before, and they have been ever since, the bona fide property of said Cohen.” This stands uncontradicted by any testimony, and of course must prevail.
    Livingston, a defendant in the judgment sought to be enforced against the property mentioned and also a defendant in this suit, examined as a witness in behalf of complainant Carroll, without an order of court for that purpose, is the only witness who says anything about the assignment of these notes by Barrett to Cohen. In answer to the fourth direct interrogatory, he says, “ All I know is, that these notes were transferred by Barrett to Cohen, and his intention was the same as in transferring the real estate. I believe that no consideration was given to Barrett for the notes.”
    As to Barrett’s intention, here spoken of, it will be seen, by reference to Livingston’s depositions, that his testimony is based solely on the loose speeches of Barrett, who is also a defendant in the judgment sought to be enforced, and a defendant in this cause. Livingston’s deposition presents the novel case of an interested defendant testifying as to the loose conversations of another interested defendant, to the end that judgment against them both may be decreed to be paid out of property which has passed through the hands of both, into the hands of a third party. Livingston’s testimony is of course inadmissible. There is, then, no testimony to rebut the evidence of the answer, and the fact that said notes were transferred by Barrett to Cohen before the commencement of this suit, and that Cohen was the 
      bona fide holder of them, is established, and complainant’s cause consequently must fall.
    Let us now, secondly, inquire whether Millican, the trustee, sold the premises before the commencement of this suit.
    To this point the bill alleges “ that said Millican yet retains the legal title to said lots, he has never sold the same.”
    In response to this, defendant, Cohen, answers, that it is untrue, that in 1837, Millican sold, under and by virtue of the deed in trust, and in accordance with the provisions thereof; that on the 23d July, 1837, he, in accordance with the deed in trust and the sale, executed and delivered to Barrett, a deed of conveyance for the premises. The deed is referred to as Exhibit No. 1. The answer further alleges, that the deed from Millican to Barrett was after defendant, Cohen, had in good faith purchased the premises from Barrett, presented by Cohen to him, Millican, for his acknowledgment, that it might be recorded, and that Millican refused because his commissions, which he claimed to be due him for selling the property, had not been paid. Cohen further answers, that Millican promised to acknowledge the deed, if the commissions were paid. Defendant, Cohen, further answers, that Millican did execute the deed, and that his refusal to acknowledge the same, was for the fraudulent purpose of extorting money under the name of commission.
    The above, so far as it relates to the fact of the-sale, is responsive to the bill, and is evidence. That part which relates to the refusal of Millican to acknowledge the deed, and the reason of his refusal, is proved most conclusively, as we shall see. As to the effect of the answer as evidence, see 1 Phillips, 60 and 115; and Crepley’s Equity, 156.
    In addition to the evidence of the answer that the sale was made by the trustee, and the deed executed, let us refer to the deed itself, Exhibit No. 1, from Millican to Barrett, and then to the deposition of Maurice McCarthy. McCarthy says he has been in the employment of Millican three and a half years, often saw him write, and from his. knowledge thus gained of Millican’s handwriting, the signature to the deed, Exhibit No. 1, is the signature of said Millican.
    
      Evans and Boykin testify, from comparison of Millican’s signature to deed, Exhibit No. 1, with his signature to other documents acknowledged to be genuine, and from that comparison, they say the signature to deed, Exhibit 1, must be his. Comparison of handwriting is admissible. Horne v. Wells, 11 Mass. 312 ; 1 Esp. Rep. 351; 1 Root, 307.
    We have, then, the following proof of the proposition secondly laid down, — First, the positive evidence of the answer, that the sale was made under the deed in trust by Millican, the trustee ; and that he executed the deed Exhibit No. 1, to Barrett, for the premises, according to the deed and the sale made; second, the positive evidence of McCarthy to Millican’s signature; and, third, the evidence of Evans and Boykin from comparison.
    Now let us examine Millican himself, introduced as a witness by Carroll.
    In his direct examination he denies that he signed, sealed, or delivered the deed. He also denies that he sold the property. In his cross examination he says,— “ I was called on by A. Boykin, Esq., some time in 1837, in Columbus, to acknowledge the deed marked Exhibit No. 1, and I consented to acknowledge the deed when called on by Mr. Boykin, provided the parties would pay the commissions due me; and as they were not paid, I declined acknowledging the deed.”
    Again, he testifies, in the same answer, as follows, — “I was also some time in the year 1838, called on by A. G. Weir, to acknowledge said deed, and I refused to acknowledge it at that time, because I believed that I could make it liable for some judgments that I was security on for George H. Livingston.”
    This witness stands condemned out of his own mouth. His denial of the sale of the property and the deed which he made for it, is shown, on the cross-examination, to have been made not in accordance with truth, but with a resolution which he had previously made, not to acknowledge the deed until his commissions were paid, or until he had tried the experiment of subjecting the trust property to judgment against Livingston.
    He was resolved on turning his trusteeship to advantage in one way or the other. He seems not to have reflected, when he testified, that his claim of commissions proved the sale, and that his refusal to acknowledge the deed, for the reasons assigned, proved the execution thereof • and that both the sale and the execution of the deed were proved' by his consent to Boykin to acknowledge the deed (specifically mentioned as the deed, Exhibit 1) if his commissions were paid.
    In addition to the above, this witness was also called on by Evans to acknowledge the deed.
    When called on by Evans, he at first denied having made the deed, but, on being presented with the deed for his examination, he put his refusal to acknowledge it on the ground that Barrett and Cohen had left the state without paying him commissions for selling the property, and said that he would not acknowledge it until his commissions were paid, and offered then to acknowledge it if witness would pay him $100 of the commissions.
    After Millican’s cross-examination was over, Carroll’s counsel then propounded an interrogatory, for the purpose of showing that it was not the specific deed, Exhibit 1, which he offered to acknowledge, and that he merely offered to acknowledge a deed then to be made. The interrogatory is so leading as to put the desired answer into the witness’ mouth. It is as follows : “ State whether you offered to acknowledge that you signed, sealed, or delivered the particular deed in question, or whether you did not offer merely to make a deed, or adopt the one spoken of.”
    To which Millican accordingly answers: “ When I was called on by Mr. Boykin and Mr. Weir, I did not offer to acknowledge that-I signed, sealed, or delivered the deed presented, but told Mr. Boykin that I would make a new deed and acknowledge that, provided they would pay my commissions.”
    This does not aid the complainant’s cause, nor add to the credibility of the witness.
    It proves either that a sale of the premises had been made by Millican, or that he was willing, for the sake of the commissions, to execute a deed, reciting a sale which had never taken place, and thus commit a breach of the trust entrusted to him by Wingfield and Wilson.
    Against the positive proof of the answer, and the testimony of McCarthy to Millican’s signature, and of Evans and Boykin, the deposition of Millican weighs nothing; but Millican’s deposition (if it prove anything) proves the sale under the trust, and renders it more than probable that the deed was signed, sealed, and delivered, as Cohen has asserted in his answer.
    Hence our second proposition is clearly established, to wit: Millican, the trustee, had sold the premises before the commencement of this suit.
    Upon either of the two propositions, we have seen that complainant, Carroll, must fail in his suit.
    
    In conclusion, we will notice briefly an error in the decree and the proceedings in this cause, so palpable that it is strange it' should have escaped the notice of the court below. It is, that the amount due on the judgment is nowhere ascertained. His Honor’s decree, instead of being final, should have been interlocutory, with a reference to a commission to ascertain the amount due. As the decree now stands, it is to pay the full amount of the judgment, although the complainant’s exhibits show that $203 23 was made at one time, and $295 67 at another time, under executions on the judgment mentioned.
    This point, however, is a matter of small moment to defendant, Cohen, and is adverted to only to show that the decree below is not entitled to the weight of authority.
    
      W. Yerger, for Carroll.
    It is clear the decree was rightfully made. The proof leaves it very clear, that Williams never sold the property under the deed of trust, and still has the legal title in him. But even if he had sold to Barrett, his sale to Cohen is clearlyjfiraudulent, and the property is equally liable to be sold in payment of the debt due complainant.
    It is too late now to object to the testimony in the case; that could only be done in the court below, which was not done.
    The evidence of Williams, as to the deed purporting to have been made by him, is conclusive of the fact that no such deed was made. 1 Phillips Ev. 223, 224.
    The proof sustains one aspect in which the bill is framed, to wit, the fraudulent sale by Barrett of his interest in the property to Cohen. Now whether that interest was a title to the property itself, by purchase under the deed of trust, or a claim to the notes and the equitable interest in the property by assignment from Livingston, is immaterial; to the creditors of Barrett, equity would subject the property to pay the debts of Barrett; and even if the proof did not entitle the party to the specific relief prayed for, equity under the general prayer, and the admissions in the answer and proof in the cause, would decree a sale of the property to pay the debts. 7 Yerg. 37.
    
      
       The residue of Mr. Evans’s argument is excluded, being beyond the limit; it was devoted to the examination of the question, whether there was any evidence in the record that the sale to Cohen by Barrett was fraudulent.
    
   Mr. Justice Clayton

delivered the opinion of the court.

In June, 1838, Carroll recovered three several judgments in the circuit court of Lowndes county, against Judah Barrett and George. H. Livingston. Livingston had previously sold and conveyed his interest in several lots in the town of Columbus, to Wilson & Williams, and had taken a deed of trust from them to one Millican, as trustee, to secure the payment of the purchase money. In the year 1837, Livingston transferred the notes given for the lots, together with the deed of trust, to Barrett. The bill alleges that these notes are yet unpaid, and that the lots have never been sold under the deed of trust. It also charges that one Jacob Cohen sets up some claim to the notes and lots in question, and that his claim is fraudulent and void. It prays that Cohen’s title may be declared invalid, and that the lots may be decreed to be sold, to pay the judgments of complainant.

Cohen, in his answer, states that the lots were sold under the deed of trust in 1837, that Barrett became the purchaser, and that the lots were conveyed to him by the trustee. It also states that Cohen became a bona fide purchaser of the lots from Barrett, and received a deed of conveyance from him, without notice of any other claim or lien. The hill was taken for confessed as to all the other defendants.

A deed was exhibited purporting to have been executed by the trustee to the lots in question to Barrett, but it was without subscribing witnesses and without acknowledgment. There was evidence to show that the signature to the deed was in the handwriting of Millican, the trustee, and that the deed had been in the possession of Barrett or Cohen.

The deposition of Millican was taken. He swears positively, that he never sold or authorized the sale of the lots, and that he never executed or delivered the deed in question. It was in proof that he offered to acknowledge the deed, if his commissions were paid him, but refused to do so on any other terms.

It was also in proof that Cohen was the son-in-law of Barrett; that Barrett had stated on several occasions he would convey his property to Cohen, to avoid the payment of his debts; that he was largely indebted; that he did convey a large amount of property to Cohen, besides the lots in question and that no consideration was known to have passed from Cohen to Barrett.

The court below decided that the lots were subject to the payment of Carroll’s judgments, and entered a decree of sale accordingly. *

If the lots were never, in fact, sold by the trustee, then there is no doubt that Barrett still has an equitable interest in the lots, which may be subjected to the payment of the judgments. The deed of the trustee would not be conclusive evidence of a valid sale of the lots, even if the deed were established beyond doubt. But there is not the slightest evidence of a sale, except the recital in the deed. The proof of the execution and delivery of the deed is by no means satisfactory, since the evidence as to the handwriting of the trustee is opposed by his positive denial of its execution. But if the evidence as to the signature is to outweigh the denial of the trustee, still there is no evidence of the delivery of the deed, other than the fact of its possession by one of the parties. This is prima facie sufficient, but scarcely sufficient, to counterpoise the direct denial, of delivery. Besides, to make the conveyance valid against a judgment creditor of Barrett, it must either have been recorded, or the creditor must have had notice of it, according to the decision of a majority of this court. Dixon & Starkey v. La Coste, 1 S. & M. 70. It was certainly never recorded, nor is there any evidence that Carroll ever had notice of its existence. Indeed such an instrument, can scarcely be regarded as a deed under any circumstances as to third persons, whatever it may be between the parties.

But even if this point were not for the complainant, we think the decree should not be disturbed in its principles. The circumstances in the cause create in our minds a strong conviction, that there was no consideration for the conveyance from Barrett to Cohen, and that the whole was a-fraudulent device.

An objection is taken to the form of the decree, that it is final, when it should be interlocutory, and that the amount due to the complainant is not ascertained. This objection must be sustained. It was necessary that the amount due, and for which the premises should be held liable, should be fixed before the sale; otherwise a greater quantity of property might be sold than was requisite to pay the debt. There may be no danger of such an event in this instance, yet the court must act upon general and definite rules. Without intending to' disturb the principles of the decree in the court below, all of which we think to be correct, it must be reversed for this error. We would also suggest that in the new decree which will be entered, it will be better to direct the sale to be made by an officer of the court than by the trustee.

Decree reversed and cause remanded.  