
    NATHANIEL J. PALMER vs. JOSEPH YARBOROUGH & al.
    When a man conveys certain property in trust to pay a particular debt, and the surplus after such payment to be returned to him,and at the same time expresses his intention by parol, that three other creditors shall be paid out of this surplus, and he will give orders to that effect, as soon as he has had a settlement with such creditors, this is no defence to a bill filed against this trustee for an account by a second trustee to whom the same property was conveyed a day afterwards in trust for the payment of other creditors.
    An answer cannot be put in for a defendant by one who calls himself his agent and attorney in fact, but who is not made a party by the bill.
    This was a bill filed in Caswell Court of Equity. A subpoena and copy of the bill were served on each of the defendants except Thomas R. Richmond, and as to him service was acknowledged and an answer filed by A. D. Richmond, who was no party to the suit, but styled himself “ agent and attorney in fact for Thomas R. Richmond.” The cause, having been set for hearing at Fall Term, 1840, of Caswell Court of Equity, was transferred by consent to the Supreme Court. The points involved will be found in the opinion delivered by this court.
    
      Norwood for the plaintiff
    
      I T. Morehead, for the defendant:
   Daniel, Jüdge.

Yarborough, on the 2Íst of June, Í837, executed a deed to Richmond, in trust to sell the property and pay a debt due from the grantor to one Williams, and then pay the surplus to the grantor or his assigns. The property mentioned in the deed is particularly described; among which are two slaves, named Parmelia and Dorothy. On the 22d of June, 1837, Yarborough executed to the plaintiff, as trustee, a deed of trust to sell, and pay a specified number of his creditors: This deed covered all the property described in the aforementioned deed to Richmond; but the slaves Parmelia and Dorothy are not in this deed particularly named; but, after describing certain property, it contains these words “and all other property, either real or personal, which the said Joseph Yarborough may now be in possession of.” These words, we think, caí ry the two slaves Parmelia and Dorothy. Both deeds were duly registered, and that to the plaintiff on the day after it bears date. The defence set up is, that Yarborough intended to have secured by the deed to Richmond three debts to other creditors, who are not named theiein; and was prevented from doing so by not having the amount of the debts, and that he then declared his intention to secure them,- when he could come to a settlement with the creditors, by giving orders on the trustee to he paid out of the surplus: in fulfilment of which intention, he gave orders to those creditors at days subsequent to his deed to Palmer. This defence, we are obliged to say, cannot be sustained. What might have keen the effect of an agreement between Yarborough, those creditors, and the trustee, to the purpose intended by Yarborough, we need not now say, because it is not pretended there was such an agreement. As a mere intention on the part of the debtor, it could have no operation, until carried out by some formal and legal act on his part; and from the power to do such an act, he cut himself off by executing the deed to the plaintiff.

We are of the opinion that the plaintiff would, under the facts which appear in the cause, be entitled to a decree for an account, if the trustee Richmond was before the court; but he is not. An answer is put in for him by a man, who says he is his agent, and that he transacted the business for him, as Richmond, the trustee, was out of the State. This agent is not made a party by the bill, and his answer cannot be noticed by us. We have, however, said thus much, on the supposition that a declaration made by the court on the construction of the' deeds, might probably be all that was wanted by the parties, at present.

Per Curiam. Decree accordingly.  